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43e3f8d07bab6b7b70a2fc248ae8d15588f63101abd450b5353abe27831ce91f	[2009] EWCA Crim 819	EWCA_Crim_819	2009-04-06	crown_court	Neutral Citation Number: [2009] EWCA Crim 819 No: 200803633/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 6 April 2009 B e f o r e : LORD JUSTICE SCOTT BAKER MRS JUSTICE RAFFERTY DBE MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - R E G I N A v TONY MCCANN - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC	Neutral Citation Number: [2009] EWCA Crim 819 No: 200803633/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 6 April 2009 B e f o r e : LORD JUSTICE SCOTT BAKER MRS JUSTICE RAFFERTY DBE MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - R E G I N A v TONY MCCANN - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr P Rouch QC appeared on behalf of the Appellant Mr O Glasgow appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: The appellant appeals with the leave of the single judge against his conviction for murder on 21 April of last year before Judge Peter Thornton QC and a jury at the Central Criminal Court. The conviction was by a majority of ten to two. He was sentenced to life imprisonment with a minimum term to serve of 21 years less the 629 days that he had spent on remand. 2. The basic facts of the case are these. Shortly before 7 o'clock on the morning of Thursday 27 July 2006 the appellant forced his way into a ground floor flat in Albert Road, Twickenham, where Luke Lodge, the deceased, was staying. The deceased had spent the night there with his girlfriend, Anna Gray, and two friends, Lucy Buchan and James Chadwick. When the appellant arrived at the address he was wearing a ski mask, sunglasses and surgical gloves in an attempt to disguise himself. He had a burning dislike of the deceased, whom he regarded as a bully, and there had been an earlier dispute between the pair over a missing mobile telephone. The appellant was intent on revenge. 3. He pushed past Anna Gray, "Get her out of the way," and made straight for the bedroom where the deceased was asleep. The deceased, who had been woken by his arrival, tried to grapple with the appellant, but to no avail. The appellant refused to let go of a knife that he was carrying and was heard to shout, "I am going to kill you." During the course of the struggle the deceased sustained several stab wounds, the fatal wound being to the back, and various cuts to his hands which were consistent with being defence wounds. 4. Anna Gray tried to intervene, pulling the ski mask from the appellant's head. As soon as she did so, she recognised him and shouted out his name. As the appellant ran from the flat he passed Lucy Buchan, who also recognised him, and James Chadwick heard both women use his name when they shouted at him. 5. The appellant fled from the scene and went to the home of his girlfriend, where he arrived blood stained and injured. Although he did not tell his girlfriend what had happened, he told her mother that he had been in a fight and that "it may be bad." 6. From there he travelled to the flat of some friends where he had spent the previous night. Once there he received treatment for an injury to his face that he had sustained during his attack on the deceased. He said to one of his friends, "I've been round to Luke's and had a fight with Luke and I've stabbed him." He was also heard to say, "That will teach him to fuck about with me." 7. When he was subsequently stopped by the police a few hours later he gave a false name and address. When he was arrested he claimed he did not know what they were talking about and later denied even knowing who the deceased was. 8. At his trial he ran two alternative defences. The first was that he was not the attacker at all, that he was the victim of mistaken identity and possibly malicious identification, and that he had suffered from a black-out. The second line of defence was that of diminished responsibility. 9. The ground on which the single judge gave leave to appeal relates to the so-called Watson direction given by the judge to the jury. There was another ground of appeal which was raised in the grounds on which the judge did not give leave to appeal, but which Mr Rouch on the appellant's behalf has renewed before us today. That ground, which we shall deal with first, relates to self-defence. The complaint is that following two notes from the jury questioning self-defence, that the judge should have left self-defence to the jury and given them a direction about it. 10. As it was put by junior counsel at the time: "The difficulty it seems is that the jury now twice have illustrated, it would appear by way of a note, that they have in their minds the concept of a fight." 11. When the judge gave written directions to the jury he had, first of all, raised with counsel in the appropriate way what his proposed directions should be and the terms in which they would be given. It was agreed on all sides that self-defence did not arise, and, indeed, the judge so directed the jury. 12. One can well understand why the judge reached this conclusion and one can well understand that it was very much in the interests of the defence that only those matters which arose on the evidence were put before the jury for their consideration. It is well settled that, despite the views of the defence, if self-defence arises on one view of the evidence the issue ought to be left to the jury and the jury should be appropriately directed about it. 13. Mr Rouch now submits before us that self-defence did indeed arise on the evidence in this case. He so submits on the following basis. First, he says that the appellant was not seen with the knife before going to the bedroom. Secondly, he says that there is evidence that the deceased had used a sharpened weapon during a previous confrontation when he had armed himself with a screwdriver. Thirdly, he said that a witness called Brooking said that the deceased had previously threatened him with a knife. Fourthly, there was evidence from the appellant that he had seen the girlfriend threaten the deceased with a knife on a previous occasion. Finally, there was a screwdriver in the bedroom and there was no reason why such a potential weapon should have been in the deceased's room. 14. Mr Glasgow for the Crown points out that the intruder, who the Crown of course say was the appellant, came into the premises disguised by a mask. He kicked open the front door and made a threat to kill the deceased which threat he indeed carried out. The plain inference was that he came into the premises armed with the knife that was used. There was no indication that the victim, the deceased, was lying awake, that this was anything other than a direct attack by the appellant and indeed the fatal wound is to be found in the deceased's back with defence wounds to the hands. 15. Mr Glasgow submits that an important function of the judge is to make sure that the jury is not side tracked into going into issues that do not in truth arise. In the event that it appears to him that the jury may be doing so, it is up to the judge to try and lead them back to the path from which they have strayed. 16. In our judgment the judge was absolutely correct in declining to give any direction to the jury on self-defence following the two notes. What he did was to explain quite simply to them that it was not an issue in the case and indeed never had been. Accordingly, we refuse the renewed application to grant leave on that ground. 17. As to the Watson direction, the jury retired to consider their verdict at about quarter past 2 on Tuesday 15 April. At quarter past 4 they were sent home for the night with the usual overnight direction. They returned and continued their deliberations the following day and shortly after 2 o'clock on Thursday 17 April they were given a majority direction. 18. On Friday 18 April they returned to court at about ten minutes past 2 with a further note to the judge. We would add that over the period of the trial the jury had been quite prolific in the notes that they had sent to the judge. The judge, entirely appropriately in our judgment, did not disclose the contents of the note to counsel or put it into the public domain. As is customary in these situations he pointed out to the jury that it was a matter that had to remain between him and them. 19. The judge did, of course, have counsel back into court and he said this: "I have received a note from the jury. I cannot show it. I am considering giving a Watson direction which is not something that I do lightly and not something that I encourage. But plainly something needs to be said. Since I am only allowed to say the precise words of a Watson direction, then I turn to a Watson direction." 20. He had the jury back into the court and gave them a direction following very precisely the words approved by this court in Watson . What he said to the jury was this: "Each of you has taken a oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your tasks is to pull that which is come domestic and experience. You do that by giving views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If unhappily ten of you cannot reach agreement you must say to so." 21. That direction was given at 20 minutes to 3 on the Friday afternoon. We would add that it was given despite the reservations expressed by counsel. 22. The jury was allowed a little longer than they had been on previous days and at 4.36 they were asked if there was a possibility of a verdict if they were given more time. The foreman said that there was. They went home for the weekend at 4.37 and returned on the morning of Monday 21 April where they retired again for a further one hour and 22 minutes and then produced their verdict of guilty by the majority of ten to two. 23. Mr Rouch submits that in consequence of the Watson direction being given there is a very real risk that the jury were subjected to undue pressure and that this was not the free and voluntary verdict that would ordinarily be expected. 24. We observe, however, two points. First of all, that the jury had been in retirement for a very considerable period of time before they were given the Watson direction and, secondly, and more significantly in out judgment, this is not a case where they returned a verdict shortly after the direction was given to them. They deliberated for the remainder of the Friday afternoon and for a further one hour and 22 minutes on the Monday. We are not persuaded that there is any substance in that point advanced by Mr Rouch. 25. It is perfectly clear that it was the note that triggered the judge to give the direction. He said, having received the note, that "plainly something needs to be said". Judges are discouraged from routinely giving a Watson direction. The position is that they are only relatively rarely given, but when they are given they are given in the discretion of the judge and it is not suggested that in appropriate circumstances there is anything wrong in law about the giving of such a direction. 26. This was a case that had lasted for a number of days. There was more than one issue that the jury had to decide. First of all, whether the appellant was indeed the intruder and the assailant, whether he had blacked out, as he claimed, and the issue of diminished responsibility. We do not think that the judge can be faulted for exercising his discretion in this case to give a Watson direction. We do not think that the safety of the verdict is in any way threatened. Accordingly we dismiss the appeal against conviction.	[ "LORD JUSTICE SCOTT BAKER", "MRS JUSTICE RAFFERTY DBE", "MR JUSTICE GRIFFITH WILLIAMS" ]	2009_04_06-1896.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/819/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/819	1,013
ce472d8da5864972ad1df197da335f52853647d5ee448d9e07a521a5ed36008f	[2022] EWCA Crim 1630	EWCA_Crim_1630	2022-12-09	crown_court	Neutral Citation Number: [2022] EWCA Crim 1630 Case No: 202201238 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER MR JUSTICE PEPPERALL T20217020 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/12/2022 Before : LADY JUSTICE MACUR MR JUSTICE HOLGATE and SIR NICHOLAS BLAKE - - - - - - - - - - - - - - - - - - - - - Between : REX Respondent - v - CHARLES BYRNE Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Neutral Citation Number: [2022] EWCA Crim 1630 Case No: 202201238 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER MR JUSTICE PEPPERALL T20217020 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/12/2022 Before : LADY JUSTICE MACUR MR JUSTICE HOLGATE and SIR NICHOLAS BLAKE - - - - - - - - - - - - - - - - - - - - - Between : REX Respondent - v - CHARLES BYRNE Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Gurdeep Singh Garcha KC (instructed by Allen Hoole Solicitors ) for the Appellant Michael Burrows KC (instructed by the Crown Prosecution Service ) for the Respondent Hearing date : Thursday 01 December 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down in court at 10.00am on Friday 9 th December 2022 and by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lady Justice Macur : Please see Order under the provisions of section 45A Youth Justice and Criminal Evidence Act 1999 with respect to reporting restrictions which has already been made and which this court continues. 1. On 01 June 2021 the appellant pleaded not guilty to the murder of Christina Rowe (count 1) but guilty to manslaughter by reason of diminished responsibility. 2. On 06 December 2021 the appellant pleaded guilty to one count of attempted murder of T (count 2) on the basis of plea that : i. He was seriously mentally unwell at the time of the incident, as reflected in the medical evidence. ii. The intent to kill T was fleeting and formed when she walked into the room. 3. On 25 March 2022 the appellant was sentenced to imprisonment for life under section 285 of the Sentencing Act 2020 with a hospital and limitation direction under section 45A of the Mental Health Act 1983, to be detained at Ashworth Hospital subject to an order under section 41 of the Mental Health Act 1983 without limit of time. The period of 16 years was specified as the minimum term under section 321 of the Sentencing Act 2020, less 406 days spent on remand in custody. A concurrent term of 13 years and 6 months’ imprisonment was imposed in respect of the offence of attempted murder. 4. In brief, the appellant met Christina Rowe in December 2019 on a dating ‘app’ and subsequently they lived together for approximately six months in Christina’s house in Worcester, together with her daughter T who was then between 8 and 9 years old. The relationship came to an end and in February 2021 the appellant was living at his family home. 5. In the early hours of Wednesday 10 February 2021, the appellant visited Christina. He strangled and stabbed her. 6. In interview, the appellant explained that he thought Christina was a transgender male paedophile harbouring a child inside the house. He did not think T was her daughter. He had gone to the house to rescue T and had taken a suitcase with him to put her things in and then transport her to her grandparent’s house. However, he ended up scuffling with the deceased, he lost his temper and strangled her. He said, “Her lips turned blue and then I just kept holding on. I thought I’d try and make it quick, so I put a knife in her chest.” He put the deceased into the suitcase that he had taken with him. 7. T heard her mother and the appellant screaming at each other. She went downstairs and saw her mother’s corpse in the suitcase. The appellant then grabbed T around the neck and strangled her while muttering that he was sorry. In interview he said he held his hands to her neck for 20 to 30 seconds, then after she passed out, he knocked her head on the floor multiple times. He said he was trying to put T to sleep so that she would not stare at her mum who was dead on the floor. The appellant thought she was dead and carried her body and placed her into the bath. T regained consciousness but pretended to be dead until he departed. The appellant went downstairs, and T described sounds of him clearing up. 8. A neighbour saw the appellant leave the house carrying what she thought was a guitar case. It appeared there was something heavy in it. The appellant dragged the suitcase containing Christina’s body to his mother’s car. He drove to his mother’s address to find bricks with which to weigh down the case, and then on to the local river where he threw the case containing Christina’s body. 9. Later that morning, a dog walker alerted the police that there was a trail of blood and ‘drag marks’ at the bridge from which the appellant had thrown the case into the river. Christina’s body was discovered later that evening. The subsequent post-mortem examination revealed extensive bruising to the neck of the deceased consistent with strangulation and evidence of a stamp injury to her upper chest with a shod foot. She suffered a single stab wound that passed through her heart and into her lung. 10. In the meantime, the appellant returned to her house with a shovel in order to bury T. By that point T had climbed into her bed and feigned sleep. When the appellant found T was still breathing and was in her bed, he assumed that she had somehow got medical assistance. In interview he said, “I stood there for a second and I just said out loud, ‘I’d rather go to jail.” He then left the property. 11. In the morning T used her mother’s phone to raise the alarm. She was, understandably terrified. Police attended. T had injuries consistent with attempted strangulation. 12. The applicant was arrested at his home address that morning, he informed officers that he was on anti-psychotic medication , (although this was subsequently doubted by forensic psychiatrists) but had not taken it the previous day. At the police station he was found fit to be interviewed. 13. There were blood stains on the rear seat and door handles of the car used by the appellant. The appellant said in interview that when his mother asked him about the blood in the car, he just “made some bullshit up”. 14. He said he did not know why he attacked T. He said that Christina was on the floor and he was trying to put her in the suitcase when T came into the room. He described himself as having panicked and strangled her and knocked her head against the floor. “I thought she was some fucking dwarf or something”. 15. He said that he tried to suffocate her so she would go to sleep or “something” but when she started choking, he realised she was actually a child and when she urinated “I sort of realised, stopped, but she had already passed out”. He denies he was trying to kill her. He had collected the spade found in his guitar case after disposing of Christina’s body. He was going to bury T’s body. 16. Unsurprisingly, T has been diagnosed as having post-traumatic stress disorder and was very likely to suffer from mental illness and depression in later life. Victim personal statements prepared by her foster parents reveal something of the impact of the events upon her day-to-day life. 17. The appellant was examined by consultant forensic psychiatrists on behalf of the prosecution and defence for the purpose of assessing fitness to plead and possible defences to the charges laid of murder and attempted murder. It was common ground that the appellant was suffering from paranoid schizophrenia at the time of committing the offences, which resulted in him experiencing delusions, hallucinations and disordered thoughts. His condition had not been previously diagnosed nor medicated, although there were indications from family history and behavioural symptoms in his adolescence that this had been longstanding. All psychiatrists agreed that his mental health had improved since his arrest and remand into custody. 18. To Dr Maganty, the appellant described his mental health as deteriorating by October. He thought Christina was a man and that she had a sex change operation to look like a woman. Later in October 2020 they got back together but he continued to be very paranoid. He said he used cannabis and drank increasing amounts of alcohol. The relationship ended but, by January 2021, he became increasingly worried about Christina being a man and a paedophile and holding T. “I wanted to take T from her”. 19. He described T walking in after he had stabbed and strangled Christina and “I panicked and I strangled her, I should have just picked her up and left but I strangled her” and that “it does not make any sense I know”. On 30 April 2021, he said that “part of me thought she was a tiny adult abusing people, I can’t explain it really, … I was in a weird way, it all felt so real at the time and now sounds crazy, none of it makes sense anymore, but at the time it did”. He went on to state “I felt that I had to do it as I felt compelled to do it”. When he later found T was alive, “I thought someone had a key to the house, the house was bugged and we were all being watched and I thought that if I left, they would get her help, it does not make sense now, but it did then.” 20. In Dr Maganty’s view the appellant would have known that he was attacking a human being, even though he was unable to identify the gender of the human being accurately and failed to recognise that she was his partner rather than a member of the illuminati…. Therefore, he would have understood the nature and quality of his actions to the limited extent of recognising that he was killing a human being.” 21. In his report on 20 February 2022, Dr Maganty gave his opinion that “A combination of his delusional beliefs together with impaired thought process through which he was processing these delusions led him to kill. … The killing is directly attributable to his mental illness and was causative in the killing. The issue of culpability is for the court but attributing significant culpability to such a disordered and severely ill mind and brain is difficult.” The treatment required would be multi factorial and prolonged. He considered that “a prison custodial environment” was not conducive to the treatment for those with ‘treatment resistant schizophrenia’; the risk to the public would be better managed by a hospital order with restriction, rather than a hybrid order. The hybrid order had an inferior follow up. 22. To Dr Kennedy, the appellant gave him a similar explanation for the reason he had killed Christina. He said that when he strangled T, “… part of me thought she was a midget paedophile…”. He said he “just couldn’t kill T”. 23. In Dr Kennedy’s opinion: “From his description of the homicide there is no evidence to suggest that he either did not know what he was doing or did not know it was legally wrong. I do not therefore, believe that a defence of insanity is available to him for either charge. He carried out the homicide and removed the body from the scene in an attempt to conceal what he had done. There is also a suggestion from T that she heard him scrubbing. He denies this … 24. There is a suggestion that he partially believed that T was an adult of restricted growth disguised as a child. I note however that he clearly, by his own account, believed she was a child victim of the conspiracy … There is nothing in his history or from my examination of records to suggest he was unable to form intent to kill at the time he strangled the deceased’s daughter. Whether he did so is a question of fact ...” 25. Dr Kennedy described the index offences as particularly brutal. He still did not understand why the appellant committed the second offence against T on the basis that he had gone to the house intending to ‘save’ her. “There remains the strong possibility that he did so to prevent her from telling the police. I note he disposed of Christina’s body in a suitcase in the river...” 26. In Dr Kennedy’s opinion, the complex delusional system from which the appellant suffered “substantially impaired his ability to exercise self-control and form a rational judgement. This is because his paranoid and persecutory delusions were clearly of prime importance to him and were impervious to reasoning. I do note however, that he was able to set these ideas aside at times both in speaking to people and in his communications with the deceased. …it would be my opinion that [the appellant’s] psychosis provides a credible explanation for the offence.” There was strong evidence that the offences were clearly and directly linked to his severe and enduring mental illness. The mental illness was “independent of substance misuse”. 27. In his second report dated 12 March 2022 he expressed the opinion that the appellant’s paranoid schizophrenia is severe and treatment resistant although his positive symptoms (hallucinations, delusions) are controlled by Clozapine. The prognosis “is guarded… any recovery is likely to remain fragile. Were he to cease medication, it is likely that his positive symptoms would return within a short space of time. The medication he is given is only available on a long-term basis in tablet form … and is a medication which prompts a rapid deterioration in mental state if the patient discontinues it.” 28. Dr Kennedy did not see how at this time the appellant would be able “to cope” in a custodial setting. He suggested that a Hospital order with Restrictions was more appropriate than a hybrid section 45A order as “the best means of keeping [the appellant] well and thereby addressing issues of future risk is for him to have a smooth transition from hospital to the community if a point is reached where he is fit to leave hospital. … a Section 45 A would put him at considerable risk of self-harm or suicide were he to be returned to a custodial setting and would put other prisoners and prison staff at risk were his mental state to deteriorate. …the framework provided by an order under S41 is more appropriate in this case in terms of protecting the public and managing [the appellant’s] illness. Before leaving hospital [he] would need to demonstrate the ability to survive in a less secure environment within Ashworth Hospital and then successfully manage transfer to a medium secure hospital.” 29. Dr Higgins is the appellant’s treating clinician. In her clinical opinion, his offending was “highly and directly attributable to his illness…” The appellant’s mental disorder provided the “only possible explanation” for the offences. The risk posed in the future is solely dependent on the mental disorder and there are no additional risks that would need to be assessed by the Parole Board in order to direct an eventual release into the community. In her view, the ultimate decision on any discharge would be best placed with the First Tier Tribunal (Mental Health) and mental health professionals with experience of managing the appellant in secure hospital settings. 30. When giving evidence on 25 March 2022, she said that at the time of the police interviews the appellant was “floridly psychotic. He remained completely and utterly disconnected from reality.” She thought his actions surrounding the events, including cleaning up, disposing of the body and “his conduct towards T” were “entirely coloured by his illness”. His offending was highly and directly attributable to his illness, namely paranoid schizophrenia. The safest way “for all concerned” was to manage the appellant by a hospital with restriction order in order to enforce compliance with medication. 31. When questioned concerning the appellant’s explanation for the attempted murder of T, and Dr Kennedy’s view that there is a strong possibility that strangling T was to prevent her talking to the police, she said: “That is Dr Kennedy's view. I respect that. Certainly, in the subsequent multiple, multiple times I've spoken to Mr Byrne, he hasn't particularly used that. It doesn't make sense to me as well just as a stand-alone reason …” 32. Sentencing the appellant, Pepperall J analysed the appellant’s guilty pleas to necessarily establish three matters of significance to the sentencing exercise: Firstly, although the appellant was undoubtedly suffering from a mental illness, the defence of insanity was not open to him. Secondly, the appellant accepted by his plea of guilty to attempted murder that, notwithstanding his illness, he was both capable of forming, and did in fact form, an intention to kill T. The Judge had no doubt that the appellant attacked Christina with the same murderous intent. Thirdly, the acceptance of the appellant’s plea of diminished responsibility was plainly relevant to the entirety of his offending. 33. Pepperall J made the following findings of fact: 1. The appellant had a long history of mental health and suffered from paranoid schizophrenia. 2. The appellant’s mental health deteriorated markedly from October 2020. The appellant was seriously unwell at the time of the offences. He was psychotic and suffered delusions, including his belief that the deceased was a transgender paedophile and that her daughter was at risk. However, and significantly, when T disturbed the appellant, his instinct was not that he had saved her but that he should kill her. 3. The offending was highly and directly attributable to such mental illness. 4. The appellant’s actions of disposing of the body of Christina; attempting to murder T, who was the eye-witness to the first crime; returning with a shovel to bury T’s body; on finding her alive deciding that he would rather go to prison than continue with his murderous attack, and lying to his mother as to the blood stain in her car, amply demonstrated that the appellant understood the nature and quality of his actions and what he was doing was wrong. The Judge was satisfied that the appellant attempted to kill T, not for the reasons the appellant gave as to her persona as a dwarf paedophile but because she was a witness to the killing of her mother. 5. The appellant was capable of and did form the specific intent to kill both of his victims. 6. The appellant knew that his own particular condition was adversely affected by the abuse of alcohol and illicit drugs, notwithstanding such knowledge, the appellant smoked strong skunk cannabis and drank spirits in the 48 hours before the offences. That said, the Judge accepted Dr Higgins’ evidence that the appellant abused alcohol and drugs in order to self-medicate. 7. This was not a case where the appellant failed to engage with mental health services. 8. The appellant only had partial insight into his mental health condition and had no insight into his symptoms. 34. Consequently, Pepperall J determined that the appellant’s level of retained responsibility fell towards the “higher end of the medium range”. The starting point was 17 years’ imprisonment for the offence of manslaughter before considering the aggravating and mitigating features. It was accepted that the offending was a spontaneous explosion of violence. It was aggravated by the extreme violence, use of a knife, commission of the offence in Christina’s home at night, by the presence of T and by the disposal of the body in the river. 35. The appellant’s mental illness had already been taken into account in determining his culpability and would not be taken into account again as a mitigating feature. However, in mitigation there was a lack of premeditation, no previous convictions, positive evidence of the appellant’s previous good character, his age and his genuine remorse for his actions. After full credit for the appellant’s guilty plea, the appropriate sentence for the offence of manslaughter taken in isolation would have been 14 years’ imprisonment. 36. The attempted murder of T had caused her serious and long-term psychological damage, not merely from the assault upon her but by witnessing her own mother’s murder. The harm was placed in Category 2. Attempted murder in order to prevent detection of another homicide would ordinarily indicate very high culpability with a starting point of 25 years’ imprisonment. However, the offender’s responsibility was reduced by his mental disorder; the starting point was one of 15 years’ imprisonment. 37. The offence was aggravated by the fact that it was committed in T’s home at night. Similar mitigation applied to that in the case of the offence of manslaughter. Discount for the appellant’s guilty plea on the day of trial resulted in a sentence of 13.5 years’ imprisonment. 38. Bearing in mind totality, the proper approach was to sentence the appellant to 24 years for the offence of manslaughter and a shorter concurrent sentence of 13.5 years for the attempted murder. 39. There was no doubt the appellant was a very dangerous man and posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. The seriousness of the offences demanded the passing of a sentence of life imprisonment. 40. The Judge was satisfied upon the medical evidence that the appellant was suffering from a mental disorder, that such illness is of a nature and degree to warrant his detention in hospital under the Mental Health Act 1983, that he required treatment in conditions of high security and that such treatment was available to him. 41. Pepperall J noted the psychiatrists’ unanimous opinion regarding disposal by way of a Hospital Order under section 37 of the Mental Health Act 1983 with restrictions pursuant to section 41, nevertheless, he considered that there were no sound reasons why a penal element should not be imposed. In all the circumstances the appropriate sentence was one of life imprisonment with a section 45A direction. 42. Since he imposed a life sentence, the notional determinate sentence was reduced by one-third and the minimum term was set at 16 years, less 406 days spent on remand in custody. The appellant was to be subject to the special restrictions set out under section 41 of the Mental Health Act 1983 without limit of time. 43. Mr Garcha KC appears on behalf of the appellant, as he did in the court below. He argues that Pepperall J’s finding that the appellant retained a high-end medium range of responsibility is inconsistent with his finding that the offending was “highly and directly attributable to [the appellant’s] mental illness”. Further, the finding that the applicant knew his condition was exacerbated by the use of alcohol and illicit drugs, did not accord with the psychiatric evidence that it would not have had any impact upon his paranoid schizophrenia, nor his actions on the night in question. 44. The prosecution had placed heavy emphasis upon comments the applicant made in interview and his post offence behaviour and Pepperall J adopted the view that they were a reliable indicator of the appellant’s mind-set, but this ignored his mental state at the time. As was clear from the psychiatric evidence, the appellant’s mental illness was profound, and this provided a sound reason to conclude that his retained responsibility was reduced to the point that a penal element was not required. 45. In R v Edwards [2018] EWCA Crim 595 at [12] it was recognised that “sound reasons” not to impose a penal element to the sentence may include “the nature of the offence and the limited nature of any penal element (if imposed) and the fact that the offending was very substantially (albeit not wholly) attributable to the offender’s illness.” There was adequate safeguarding in a restricted hospital order to satisfy the other sentencing aims, and to ensure the protection of the public. Pepperall J placed undue weight and over reliance on a necessity for punishment and insufficient weight on the achievement of other sentencing aims. (See R v Westwood [2020] EWCA Crim 598.) 46. In the alternative, a discretionary life sentence was wrong in principle, and /or the 16-year minimum term is manifestly excessive and disproportionate to the criminality in this case. 47. Mr Burrows KC appears before us on behalf of the prosecution, as he did in the court below. He submits that, Pepperall J properly: (i) assessed the degree of responsibility retained at the time of the offences with reference not only to the medical evidence but to all the relevant information available to the court and (ii) assessed the dangerousness of the appellant before properly determining that a penal element was appropriate, and that the appellant’s mental disorder should be dealt with under section 45A of the Mental Health Act 1983. 48. The Judge’s findings were based on the evidence as a whole and which included: (a) the Appellant told Dr Kennedy that he had smoked strong skunk cannabis and drunk spirits over the two days before the offences and himself linked drink and illicit drugs with adverse effects on his mental state; (b) the Appellant had not given any explanation (delusional or otherwise) as to why he hid Christina’s body in a suitcase, disposed of her body in a river, cleaned the scene, attacked the girl, returned to the house with a shovel in order to bury T, and lied to his own mother about there being blood in her car; and (c) Dr Kennedy’s opinion that “there remains a strong possibility” that the Appellant strangled the girl to prevent her talking to the police. The Judge’s finding that the offending was “highly and directly attributable to [the appellant’s] mental illness” was not inconsistent with these findings and should not be read in isolation. 49. The psychiatric evidence did not explain why the appellant attempted to murder the ‘victim’ he had determined to rescue, and which led to the unlawful killing of Christina. The appellant had said that he would “rather go to jail” than resume his attack upon T when he found her asleep. Dr Kennedy could not discount the possibility that the reason was to eliminate a witness to the first offence. Dr Higgins’ oral evidence on the point was of limited assistance. 50. The assessment of dangerousness was based on psychiatric evidence which included that of Dr Higgins’ opinion that the risk the appellant may pose to others is by reason of his mental disorder and that when unmedicated he poses a serious risk towards others. This together with the seriousness of the offences, and the degree of responsibility which Pepperall J found the appellant to retain was such as to justify the imposition of a sentence of imprisonment for life. 51. Similarly, the 16-year term is not manifestly excessive in view of the Judge’s findings. Discussion : 52. We commence by expressing our gratitude for the great assistance afforded by Mr Garcha KC and Mr Burrows KC for both their written and oral advocacy. Certainly, this was a complex sentencing exercise. 53. The nature of the conviction for manslaughter by reason of diminished responsibility necessarily means that the offender’s ability to understand the nature of the conduct, form a rational judgment and/or exercise self-control was substantially impaired but, it is not the equivalent of a finding of insanity where his culpability is extinguished. As Mr Garcha KC recognises, the key issue which grounds the appropriate sentence in a case of manslaughter by reason of diminished responsibility, and therefore the success or otherwise of this appeal, is the sentencing judge’s assessment of the degree of the defendant’s “retained responsibility” for the unlawful killing. In determining the extent to which the offender’s responsibility was diminished by the mental disorder at the time of the offence the judge must have regard to the medical evidence and all the relevant information available to the court. 54. We find Pepperall J’s findings, as indicated in [33] above to be consistent with, and available to him upon, the evidence. Whilst, at first sight, there appears to be some merit in Mr Garcha KC’s argument that Pepperall J’s reference to the appellant’s alcohol and illicit substance abuse suggested a causal link in the context of the offending, we note that the judge observed that it was as a means of self-medication which is in line with the psychiatric evidence. Further, Pepperall J found that this was not a case where the appellant failed to engage with mental health services and that he had only partial insight into his mental health condition and no insight into his symptoms. 55. We agree with Mr Burrows KC that the finding that the offending was “highly and directly attributable to such mental illness” should not be seen in isolation from the Judge’s other findings. We do not accept that the judge is demonstrated to have erred in the consequent balancing exercise. 56. Most significantly in this case, and as Mr Garcha KC realistically concedes, it is impossible to divorce the implications arising from the attempted murder of T, committed so shortly in time after the manslaughter, when making the assessment of retained responsibility for the unlawful killing. There is no issue that the appellant was unable to form the intention to kill T and stated that he attempted to do so because she had seen her mother’s corpse. Pepperall J was entitled to view the appellant’s retained responsibility for the first offence in time through this perspective. We are not persuaded that Pepperall J wrongly concluded that the appellant’s retained responsibility fell within the high end of medium range. 57. Considering this finding, the nature and degree of the appellant’s illness does not arguably provide a ‘sound reason’ for the Judge not to impose a penal element. 58. The Sentencing Council’s Guideline on the sentencing of offenders convicted of manslaughter by reason of diminished responsibility, reflects the principles promulgated in R v Vowles [2015] EWCA Crim 45 and R v Edwards [2018] EWCA Crim 595. The starting point for a medium level of responsibility is 15 years’ custody with a range of 10 – 25 years’ custody. 59. We see no error in the Judge’s identification of aggravating factors or undue regard to mitigation in arriving at the figure of 17 years, after trial for the offence of manslaughter if it stood in isolation from the second offence. 60. The Sentencing Council’s Guideline on sentencing offenders convicted of attempt murder requires an assessment of the offender’s level of culpability. In this case the Judge’s assessment rightly took into account that the victim of the offence was a child, and the killing was intended to obstruct or interfere with the course of justice in relation to the first offence in time. There was, however, a lack of premeditation and it was a spontaneous attempt to kill. The appellant’s responsibility was reduced by his mental disorder. 61. If we find any error in Pepperall J’s assessment of harm to T, it was that it arguably underplayed it. It appears to us that it is at least arguable that Dr Fordham’s psychiatric report regarding T, read in the context of the victim personal statements dealing with the daily impact of the offending upon T indicates psychological harm of lifelong duration and a substantial and long-term effect on her ability to carry out what should be normal day to day activities. Further, we note that the Judge substantially discounted the starting point of 25 years for what was at least an aggravated category 2B case of attempted murder by reason of the impact of the appellant’s mental disorder. We consider the nominal sentence of 15 years after trial for the offence of attempt murder to be lenient in the circumstances, albeit not unduly so. 62. It was necessary for the Judge to consider the issue of dangerousness and inevitable, in our view, that he would form the opinion that it was appropriate to impose a life sentence having regard to the criteria contained in section 285 of the Sentencing Code. There was ample evidence that the appellant would continue to pose a significant risk to others of serious harm. 63. Thereafter it was equally inevitable that Pepperall J would consider a mental health disposal. There was clear evidence that the appellant is currently suffering from a mental disorder and treatment is available. However, it was first necessary to consider the importance of a penal element in the sentence taking into account the appellant’s retained level of responsibility and whether the mental disorder can appropriately be dealt with by custody with a hospital and limitation direction under section 45A. If so, then the Judge is required to make such a direction. 64. In this case the psychiatric opinion unanimously favoured a hospital and restriction order as opposed to a hybrid order. However, it appears to us that these opinions were predicated upon the Judge finding a low level of retained responsibility for the manslaughter and low culpability for the attempted murder, and furthermore centred upon the ability of the appellant to cope with a custodial setting now, prior to his treating clinicians notifying the Secretary of State that he was fit to be transferred to the prison estate. However, this would require his treating clinician to be assured of an effective and consistent medication programme. In these circumstances, we were not satisfied that the differences in the release regime between a section 37/41 order and a section 45A order made under the Mental Health Act highlighted in the psychiatric reports should have compelled the judge to impose the former rather than the latter order. 65. Although this Court in R v Westwood [2020] Crim EWCA 598 considered circumstances that had some similarities to the present case, there are significant differences and accordingly we do not find the reasoning to be of assistance. 66. In conclusion, we are satisfied that the sentence meets the objectives of punishment, rehabilitation and protection of the public in a fair and proportionate way. The sentence is neither wrong in principle nor manifestly excessive. The appeal is dismissed.	[ "LADY JUSTICE MACUR", "SIR NICHOLAS BLAKE" ]	2022_12_09-5527.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1630/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1630	1,014
7d2e9ea14abf7857d12272607622d48536ef6365fd84b9656c59cb1e1bb57c74	[2003] EWCA Crim 3555	EWCA_Crim_3555	2003-12-11	supreme_court	Case No: 200106214B2 Neutral Citation No: [2003] EWCA Crim 3555 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT SOUTHAMPTON MR RECORDER HUGHES QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 11 th DECEMBER 2003 Before: LORD JUSTICE MANTELL MR JUSTICE JACKSON and THE RECORDER OF MANCHESTER - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - MARK JOHN KEMPSTER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 200106214B2 Neutral Citation No: [2003] EWCA Crim 3555 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT SOUTHAMPTON MR RECORDER HUGHES QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 11 th DECEMBER 2003 Before: LORD JUSTICE MANTELL MR JUSTICE JACKSON and THE RECORDER OF MANCHESTER - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - MARK JOHN KEMPSTER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr P O’Connor QC (instructed by the Registrar ) for the Appellant Mr G Bebb QC (instructed by the CPS ) for the Crown Hearing dates: 12 th November 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Mantell: 1. In March, 2001 Mark John Kempster stood trial at Southampton Crown Court on an indictment containing five counts. During the trial he was acquitted of Count 3 on the direction of the learned Recorder. Then for convenience Counts 4 and 5 were re-numbered 3 and 4. 2. Count 1 alleged a burglary at 119, Satchell Lane, Netley, Hampshire during the night of 3 rd to 4th June, 2000. Counts 2 to 4 alleged an attempted burglary and two burglaries in Bursledon, Hampshire respectively at 5, Beverley Gardens, "Landfall" in Portsmouth Road and 69, Pound Road, all during the night of 16 th to 17 th June, 2000. On 30 th March, 2001 the appellant was convicted unanimously of Count 1, and by a majority of ten to two on Counts 2 to 4. He was subsequently sentenced to ten years imprisonment on Counts 1, 3 and 4 and to five years on Count 2. The sentences were ordered to run concurrently. 3. He applied for leave to appeal against his convictions and sentences. The single judge refused him leave to appeal against the convictions, but granted leave to appeal against the sentences. He renewed his application for leave to appeal against conviction to the full court which, on 21 st July, 2003 was granted but confined to specific grounds. The first ground relates only to Count 1. The second applies equally to all four counts. It involves two related submissions. We will refer to these as grounds 2A and 2B. We will return to all of the grounds in due course. 4. The offences can be described very shortly. The burglary charged in Count 1 was committed close to midnight on 3 rd to 4 th June, 2000. A man broke into 119, Satchell Lane, the home of Mrs. Ivy Hooker, aged 89. She was deaf and had poor eyesight. The burglar gained access by forcing a rear kitchen window. Having made an untidy search of the premises, he went into Mrs. Hooker’s bedroom and woke her up in doing so. The man’s head was hooded. Mrs Hooker pressed her lifeline alarm, but the man snatched it from her. He said that he would not hurt her if she told him where the money was. He took £45 from her handbag. It was the Crown’s case that the burglar was the appellant, and that he left an identifiable ear-print at the scene. 5. The other three offences were committed within about four hours of each other in the early hours of 17 th June, 2000. Three bungalows, all occupied by elderly people, and all in the same area of Bursledon, were burgled. The first, charged in Count 2, was at the house of a Mr. and Mrs. Haywood. Mr. Haywood disturbed the burglar as he was climbing through the rear kitchen window which he had forced. The second, charged in Count 3, was at the house of Mrs. Stella Douglas, an 89-year-old widow with failing faculties who awoke to find the burglar in her room. By the time he left the premises the burglar had carried out a search and stolen jewellery to the value of £850. The third, charged in Count 4, was at the house of a Mr. and Mrs. Martin. The burglar did not wake them from their sleep. Bankcards and cash were stolen. At 4 a.m. a person pretending to be a police officer telephoned Mr. and Mrs. Martin and sought, unsuccessfully, to persuade them to give him their PIN numbers. The Crown adduced evidence to prove that that person was the appellant, and contended that the proximity of the three burglaries in time and place and similarities in the way they were committed pointed to the conclusion that the same person had committed all of them. 6. Before considering the first ground of appeal it is necessary to look in some detail the evidence connecting the appellant with the burglary charged in Count 1. The police were alerted at 00.16 on 4 th June. They attended 119 Satchell Lane and found an ear-print on a fixed windowpane to the side of the one that had been forced. A professed expert witness, Miss Cheryl McGowan, whose evidence we will consider in due course, later compared that ear-print with an ear impression provided by the appellant, and concluded that both had come from the same person. 7. It was not disputed that earlier in 2000, the appellant had been at 119, Satchell Lane carrying out building work. At the trial the Prosecution exhibited a receipt signed by the appellant and given to Mrs. Hooker. It was dated 12 th February, 2000 and referred to "filling, tiling, new fascia board". There was also evidence from a neighbour, Mr. Brown, who had witnessed a disagreement between the appellant and Mrs. Hooker over the work done and the money to be paid, which culminated in Mrs. Hooker’s asking the appellant to leave. 8. Miss McGowan gave evidence that although an ear-print could remain on a window for many months in the absence of rain or cleaning, it was highly unlikely that such a print would remain on a window that had been cleaned properly. Accordingly, evidence was called from a window-cleaner, Mr. Crouch, who said that his team would clean the windows at 119, Satchell Lane on a monthly basis, on or about the 21 st of each month. He could not say for certain that the window on which the ear-print was found had been cleaned in the period between 12 th February and the discovery of the ear-print, but to the best of his knowledge he had not missed a month at the property. He certainly could not have missed two or three months. He hoped that the window concerned would have been cleaned during the relevant period, and he had received no complaints in relation to the property. 9. The appellant was interviewed on 19 th June, 2000. He denied that he had committed the offence. Indeed, he denied that he had ever been to the back of 119, Satchell Lane. He said that he could not remember where he had been on the evening of 3 rd June, but would probably have been at home. He provided an impression of his ears. 10. He was interviewed again on 5 th July, 2000. By now, the police had a report in witness statement form dated 26 th June, 2000 from Cheryl McGowan, to whom we have already referred. She was later to give evidence at the appellant’s trial. The effect of her report and her evidence can conveniently be dealt with together. She had been a specialist fingerprint officer for some 15 years, and had been involved in examining ear impressions since January, 1996, having thereafter handled about 25 such cases a year. In 1999, she had been on a two-week course in Holland run by the European Association of Police Colleges. The course had been directed by Mr. C. Van Der Lugt. In her report and her evidence she expressed the opinion that no two ears are the same. She had compared various features of the ear-print left at the scene and the impression taken from the appellant’s right ear, and had found similarities leading her to the conclusion that the print at the scene had been made by the same person who had provided the impression (that is, the appellant). When she gave evidence, counsel then acting for the appellant concluded his cross-examination of her by saying: "I am not suggesting to you that this is not the defendant’s ear. All I am suggesting to you is the possibility that it is someone else’s; someone close to him such as a cousin’s." Miss McGowan replied: "No, in my opinion, I don’t believe it could have been made by anybody else." 11. Miss McGowan’s was the only expert evidence which the jury heard. We have been informed that the appellant’s solicitors had instructed Mr. Michael Armer, to prepare a report relating to the ear-print. Mr. Armer, like Miss McGowan, was a fingerprint expert who also had experience in relation to ear-prints. We have seen his report dated 9 th March, 2001. He agreed with the conclusions of Miss McGowan. He said that "… the combination of exact size and shape of the ear-print and … four distinctive features present, all of which are replicated in one or more of the control samples of Mr. Kempster’s ear-print, lead me to the conclusion that they offer extremely strong support for the view that Mark John Kempster was responsible for the ear-print found on the kitchen window at 119, Satchell Lane, Hamble." Not surprisingly, Mr. Armer was not called as a defence witness at the trial. 12. To return to the chronology, Miss McGowan’s report was disclosed to the appellant’s solicitor before the interview of 5 th July, 2000 took place. During that interview, the appellant maintained his denial of the offence. He added: "I’m not saying that it is my ear-print 100 per cent." However, he went on to claim that if it was his ear-print, there was a legitimate reason for its presence, because he had done some pointing, tiling and fascia boarding at the property some four of five weeks previously (which would have been in or about early June). He said that he had given "her" (a reference to Mrs. Hooker) a receipt. The work which the appellant mentioned closely corresponded with that recorded in the receipt dated 12 th February, 2000 to which we have referred. A little later in the interview he said that although he was not saying that it was his ear-print it, "could quite easily be my ear-print," and that it could have been left when he was holding the bottom of a ladder. 13. In giving evidence, the appellant repeated his denial that he had committed the offence. He said that he had, in fact, been to the premises twice before the date of the offence, the first time on 12 th February, when he had given Mrs. Hooker the receipt, and again to do some more work in or about early June. He claimed to have made this clear to the police when interviewed on 5 th July, 2000 but, as we have already observed, he did not in fact do so. He accepted that he had denied ever going to 119, Satchell Lane when interviewed on 19 th June, 2000 and said that at the time he had forgotten having done so. He maintained the stance he had adopted during his interviews, namely that if it was his ear-print on the window, it was there for a legitimate reason. In cross-examination, he accepted that it was his ear-print. He said that it could have got there when he was leaning on the window while holding a ladder, or filling a tap. It could also have got there from listening to see if Mrs. Hooker was in the property. He accepted that he had not previously advanced this last explanation. 14. In evidence, the appellant also gave a detailed account of his whereabouts from about 7 p.m. on the evening of 3 rd June, 2000 until about midnight. Briefly, he said that he and his wife Debbie went out drinking with his sister Sarah and brother-in-law Kevin while his mother baby-sat for his daughter. At about 11.30 p.m., the company returned to his house, to discover that his sister, Kelly was now there, and that his mare had given birth to a foal. Having checked that all was well with the mare and the foal his mother, sister and brother-in-law left at about midnight, and he and his wife remained at home for the rest of the night. He called his wife, mother and brother-in-law as witnesses, and the statement of his sister Kelly was read to the jury. They all gave evidence to the same effect as the appellant himself. 15. We now turn to the first ground of appeal. This relates to the ear-print evidence, and relies on the decision of this Court on 25 th July, 2002 (sometime after the convictions in the present case) to allow the appeal against conviction of Mark Anthony Dallagher . R v. Dallagher [2003] 1 Crim.App.R 195 does have some features similar to those in the present case. 16. In Dallagher , the allegation was that the appellant had forced open a transom window in the home of an old woman, climbed in and murdered her. Ear-prints had been found on a window immediately below that which had been forced. Two experts, Mr. Van Der Lugt, to whom we have already referred, and Professor Vanezis gave evidence that the prints matched control impressions provided by the appellant. Mr. Van Der Lugt said that he was, "sure these ear-prints were made by this defendant." Professor Vanezis considered that conclusion to be "highly likely." The jury in Dallagher also heard evidence that the defendant lived near to the premises at which the murder was committed, that he had committed other burglaries where he had entered by a transom window, and that he had subsequently disclosed to a police informant information about the killing which was not in the public domain. He was convicted. 17. It then emerged that some scientists doubted the extent in the current state of knowledge, to which ear-print evidence alone could, safely be used to identify a suspect. The Defence obtained reports from three experts, Professor Moenssens, Dr. Christophe Champod, and Professor Van Koppen who shared that view. Having considered the provisions of section 23 of the Criminal Appeal Act 1968 the Court received fresh evidence from all three, though the Defence placed the most reliance on the evidence of Dr. Champod. 18. In giving the judgment of the Court Kennedy LJ. summarised Dr. Champod’s conclusions as being that "… at the present time ear-print comparison can help to narrow the field, and may eliminate, but cannot alone be regarded as a safe basis on which to identify a particular individual as being the person who left one or more prints at the scene of a crime." The evidence of Professors Van Koppen and Moenssens was to similar effect, save that the former was critical of the assumption that, in relation to ears, nature does not repeat itself. The Crown then called the two witnesses on whom they had relied at the trial. Though accepting many of the points made by the witnesses called on behalf of the appellant, and accepting that more research work was desirable in this field, Mr. Van Der Lugt and Professor Vanezis maintained the conclusions they had expressed at the trial. 19. The Court of Appeal concluded that the expert evidence of Mr. Van Der Lugt and Professor Vanezis had properly been admitted at the trial, and that those witnesses had been entitled to express their opinions in the way that they did; but, "even so it seems to us that the fresh evidence, if given at the trial, might reasonably have affected the approach of the trial jury to the crucial identification evidence of the experts and thus have affected the decision of the jury to convict … It follows that the fresh evidence does afford a ground for allowing the appeal … and having received it we must find the conviction to be unsafe." 20. Before us, it was submitted that the evidence of Miss McGowan compared unfavourably in a number of respects with the evidence of ear-print comparison adduced in the case of Dallagher . We do not consider that this is an arguable ground of appeal. We have to consider whether the conviction of the appellant whose case we are considering is safe, having regard to the evidence that was given and to certain procedural decisions made in his trial. In any event, for reasons which we will explain later, we consider that there are a number of features which distinguish the appellant’s case from that of Dallagher . 21. Next, in reliance on Dallagher , the appellant sought to adduce fresh evidence from Dr. Champod (now Professor Champod) with a view to submitting either that Miss McGowan’s evidence was inadmissible in principle because the scientific basis for her opinions did not exist; or that had Professor Champod’s evidence been adduced at the appellant’s trial, it might reasonably have undermined Miss McGowan’s evidence to such an extent that the jury may have acquitted the appellant. 22. In relation to Professor Champod the proceedings before us took a course similar in some respects to those before the Court in Dallagher . We, too, considered the provisions of section 23 of the Criminal Appeal Act 1968 . We, too, decided to receive Professor Champod’s evidence. We, too, allowed the Crown to call further evidence in reply, in the present case from Miss McGowan. 23. Professor Champod provided us with a curriculum vitae which showed impressive qualifications and experience in forensic science, particularly in relation to identification methods. It is not necessary to cite them all, but it is right to record that since June, 2003 he has been a full Professor of Forensic Science at the University of Lausanne, having previously been employed as a senior forensic scientist by the Forensic Science Service, and has from time to time lectured for the Judicial Studies Board. He has edited and contributed towards many learned publications. One of them, "Ear marks as Evidence: A Critical Review," published in the Journal of Forensic Sciences in 2001, was placed before us. We also had the benefit of a report which he had written on 4 th April, 2003 relating to the appellant’s case, and of his oral evidence. We were impressed by the helpful and moderate way in which he gave that evidence. 24. It emerged that Professor Champod had not himself compared the original ear-print found at the scene with the ear impression provided by the appellant. He had worked on the basis that certain features of the print and the impression did indeed correspond; and he accepted in cross-examination that there existed sufficient expertise to enable a witness properly to say that a print and an impression matched. His evidence, as in the case of Dallagher , was directed towards the value and evidential status of the comparative exercise. Indeed, his evidence overall was very similar to that which he gave in the case of Dallagher . He accepted that every ear has a unique shape, and that it was possible to discern differences between ears. However, he observed that ears could be subject to pressure and distortion when applied to a surface such as a window. Moreover, ear-prints, though providing an impression of external anatomical features, and possibly of such features as a scar or an earring mark, did not provide such detailed impressions as the skin ridges of a fingerprint. 25. He also referred to and relied upon the narrow database and paucity of research currently available to those engaging in a comparative exercise, in this infant and developing area of science. Further research, he said, was being undertaken to improve this situation, such as the "FEARID" project, the aims of which were explained in detail in a document which he also provided. He considered that ear-print comparison was a valuable investigative tool in the hands of the police, and could properly be used to exclude a person as a suspect. However, his view was that, in the current state of knowledge, expert evidence of positive comparison should not be given at all. He had, of course, expressed the same opinion in Dallagher . This Court rejected that opinion in Dallagher as do we, for the reasons explained in that case. Dr. Champod advanced the alternative proposition that if evidence of a positive comparison were to be adduced, it should be confined to an expression of opinion that a questioned ear-print was consistent with a known impression. Thus Miss McGowan should not have expressed herself in the manner to which we have referred. Again, this Court rejected that proposition in Dallagher , as do we for the same reasons. 26. When Miss McGowan gave evidence to us she accepted that the only test that she had ever taken in relation to ear-print comparison was at the end of the course in 1999 to which we have also referred and that she had not had any material published. She also accepted that ear-print comparison was still in its infancy compared with other areas of science. However, she stood by the conclusions she had expressed in her written report and in her evidence at the trial. She added that, after writing her report, she had checked her findings against a national database of ear-prints held in Durham. 27. Having received the fresh evidence, we must apply the familiar test established by the House of Lords in Pendleton [2002] 1 W.L.R. 72 and consider whether, if Professor Champod’s evidence had been given at the appellant’s trial, it might reasonably have affected the decision of the jury to convict. We have come to the conclusion that there are significant differences between the appellant’s case and the case of Dallagher , and that in the instant case Professor Champod’s evidence would not have affected the outcome of the trial. We reach that conclusion for the following reasons. 28. (1) Had Professor Champod given evidence at the appellant’s trial, Miss McGowan would still have given her evidence and expressed her opinions in exactly the same robust terms as she in fact did. Nothing in the decision of this Court in Dallagher would have prevented her from doing so. (2) Dr. Champod would not have been able to tell the jury of the results of any comparison that he had made. He would have had to accept that there were corresponding features between the ear-print found on the window and the ear impression provided by the appellant. He would not have been able to point to any differences. He would have accepted that Miss McGowan was entitled to say at least that there was a match. There would still have been no direct challenge to the findings of Miss McGowan, though we accept that Dr. Champod would have been able to give evidence in general terms about the significance of such findings. (3) In Dallagher , the defendant denied that the ear-print on the window was his, and, as we understand the report of the judgment of the Court, denied that he had ever previously been to the premises concerned. In the instant case, the appellant accepted that he had previously been to the relevant premises, and never denied that the ear-print was his. That much is clear from the cross-examination of Miss McGowan on his behalf, his interviews with the police and his evidence at the trial to which we have referred. Indeed, at one point of his evidence he positively accepted that the ear-print was his. In any event, the thrust of his case was that if his ear-print had been found on the window, there were innocent explanations for its presence. (4) Whereas we accept that both in Dallagher and in the appellant’s case the jury could not have convicted unless they were sure that the ear-print on the window was that of the defendant concerned, in our judgment there was significantly more supporting evidence against the appellant than against Dallagher . To begin with, the appellant knew the premises concerned and of the age and infirmity of the occupier. There was evidence from which the jury could conclude that the windows of 119, Satchell Lane had been cleaned only some two weeks or so before the burglary; and that, given the argument the appellant had had with Mrs. Hooker over money matters in February, 2000 he would not have returned to the premises to do more work at a later stage. There was also evidence from which the jury were entitled to conclude that the appellant had lied when interviewed on 19 th June, 2000 in saying that he had never been to the premises; had lied again, to provide an explanation for the ear-print of which he was then aware, when saying in his interview of 5 th July, 2000 that he had been to the premises, but at or about the beginning of June, 2000; had lied yet again in evidence when being aware that the police had the receipt of 12 th February, 2000 to which we have referred, by saying that he had been to the premises both in February and in June, 2000; and had lied once more when presenting in evidence a detailed alibi, having said when interviewed on 19 th June, 2000, some two weeks after the offence, that he did not know where he had been at the relevant time, though he had probably been at home. 29. We therefore reject the first ground of appeal. On behalf of the appellant, Mr. O’Connor Q.C. submitted that should the conviction on Count 1 be quashed on the ground which we have considered there would be a "knock-on" effect on the other convictions. This would be for two reasons. The first would result from directions given by the learned Recorder to the jury which, it was submitted, may have given the jury the incorrect impression that the evidence on Count 1 could be taken into account when considering Counts 2, 3 and 4. The second would arise because, having accepted Miss McGowan’s evidence on Count 1, the jury must have rejected that of the appellant and his alibi witnesses, with damaging consequences in relation to Counts 2, 3 and 4. In the light of our rejection of the first ground of appeal, it is unnecessary for us to consider these supplementary submissions. 30. We therefore turn to the second ground of appeal, which applies to all four counts. We have already set out in some detail the evidence against the appellant on Count 1. In relation to Counts 2 to 4, it is not necessary to add to the brief summary given in paragraph 5 above, since the second ground of appeal relates not to the evidence but to events that occurred during the trial. For reasons that will become apparent, however, we do refer briefly to a witness called by the Prosecution, one Robert Smith. This witness unexpectedly, dramatically and unconvincingly gave evidence that it was he who had committed all of the offences with which the appellant was charged. The jury clearly did not believe him. 31. During the morning of 28 th March, 2001 – the sixth day of the trial – the learned Recorder heard and rejected a submission made at the end of the Prosecution’s case that there was insufficient evidence against the appellant to go to the jury. The Recorder then heard and rejected an application made on the appellant’s behalf that the jury be discharged because of what was said to be the prejudicial effect of the evidence of Robert Smith. The Court adjourned for lunch. When the Court re-convened, Mr. Jenkins, counsel for the appellant, announced that the appellant had dispensed with his services and those of his instructing solicitors. Mr. Jenkins added that he was not professionally embarrassed, that the appellant had not criticised him in any way and that there had been no acrimony. The appellant had simply decided that he needed fresh counsel and solicitors to consider "certain factors." When the learned Recorder expressed the view that, "the inevitable consequence of asking for fresh counsel and solicitors would be to abort this trial and order a new one," Mr. Jenkins agreed, "unless it were to be adjourned for a period of time for that counsel to have a transcript or to look at our notes and then to request whether any evidence is re-called for further cross-examination." Mr. Jenkins later asked the Recorder to consider the possibility of allowing the appellant new solicitors and counsel, and to give them a day to settle into the case. The Recorder asked the appellant if he was prepared to say why he had dispensed with his lawyers’ services. The appellant said that it was because of a "conflict of interests." Asked if he was prepared to elaborate, the appellant declined to do so. 32. The Recorder expressed the view that this was a device on the appellant’s part to secure a re-trial. He told the appellant that he would have to re-instate Mr. Jenkins and his instructing solicitors or represent himself. The Recorder commented that this was different from a situation in which counsel sought to withdraw because of professional embarrassment arising out of a change of instructions. He adjourned to allow the appellant time to consider his position. When the Court re-convened, Mr. Jenkins said that the appellant "has asked me whether I would represent him and I have told him that I will, but he is also considering other options as well." The Recorder then adjourned until the next morning, to allow the appellant more time. 33. The next morning Mr. Jenkins announced that he and his solicitors were now professionally embarrassed, and withdrew. The Recorder asked the appellant whether he was making another request for the trial to be abandoned and to have new solicitors and counsel. The appellant said that he was, because he could not read or write and did not know the law. The Recorder then said: "I am quite satisfied that this is an attempt by you to put off the evil day and I am not prepared to accede to it. I will give you what proper assistance I can but the trial will continue." The appellant replied: "Fair enough." When the jury returned to court the Recorder simply said: "Members of the jury, you will notice that Mr. Jenkins and his instructing solicitors are no longer present in court. Mr. Kempster is representing himself." For the sake of completeness, we add that similar applications for fresh representation were made by the appellant at later stages of the proceedings and were dealt with by the Recorder in a similar way. 34. Ground of appeal 2A is, in effect, that what happened was not ‘fair enough’ at all. The appellant should have been allowed fresh counsel and solicitors. The course followed by the Recorder contravened the provisions of Article 6 of the European Convention on Human Rights. 35. The law governing such a situation is helpfully summarised at paragraph 4-41 of the 2003 Edition of Archbold. The judge has a discretion whether or not to grant an adjournment so as to permit fresh counsel to be instructed. The discretion has to be exercised with regard to the interests of justice in the particular case. The interests of the defendant, but also those of the prosecution, the witnesses and the public have to be taken into account. We have had regard to these principles, and to the provisions of Article 6. 36. In our judgment, the approach of the learned Recorder cannot be faulted. He was perfectly entitled to conclude that the appellant, thinking that the trial was not going well for him, was seeking to obtain a re-trial on a pre-text. In coming to that conclusion the Recorder was justified in taking into account that counsel and solicitors were dismissed immediately after a submission of "no case" and then an application to discharge the jury had been refused; that at first counsel and solicitors were not professionally embarrassed; and that it was after the Recorder himself drew attention to that fact that counsel and solicitors then had to announce that they had become professionally embarrassed. Moreover, whilst fully recognising the principles of legal professional privilege we note that the only explanations offered to the Recorder for what had happened was the need for fresh counsel and solicitors to consider "certain factors" and the appellant’s reference to a "conflict of interest" which he declined to explain further. 37. Having concluded that the appellant was trying to manipulate the proceedings, the Recorder was also right in our judgment not to accede to the application for fresh solicitors and counsel. He bore in mind, as he was entitled to do, that the appellant was not lacking in experience of the criminal courts, and had shown an impressive grasp of the evidence during the trial. He formed the view that the introduction of fresh counsel and solicitors would inevitably lead to the discharge of the jury and a re-trial. In our judgment this too was a proper conclusion. We are aware that fresh counsel and solicitors have occasionally been brought into part-heard trials, but this is rarely a satisfactory procedure. Moreover, the Recorder was dealing with applications made on the sixth day of a trial, after all the prosecution evidence had been heard and tested, and in a case of some gravity and complexity. 38. Finally, we consider that the Recorder, having decided not to allow fresh legal representation, dealt fairly and properly with the difficult situation that faced him. He gave the appellant an opportunity to consider his position and re-instate Mr. Jenkins and his instructing solicitors if the appellant wished to do so. He informed the jury of the departure of Mr. Jenkins and his instructing solicitors in succinct and neutral terms. He then helped the appellant with his evidence in chief. He went so far as to supply the appellant with a copy of his notes of evidence to assist the appellant in his closing speech. We reject ground of appeal 2A. 39. The Recorder faced another difficult situation towards the end of the trial. This gives rise to ground of appeal 2B. Before all the defence evidence had been called, the appellant asked if his wife could help him with the preparation of his closing speech. The Recorder agreed that she could do so, after she had given her evidence. After the evidence was completed, the appellant went a stage further. He asked if his wife could read out parts of the evidence during his closing speech, in light of his difficulty in reading and writing. Again, the Recorder agreed. The Recorder then acceded to repeated requests from the appellant for further time to prepare his speech, and said that he would allow Mrs. Kempster to sit with the appellant in the dock. Then, the appellant went yet a stage further. In the presence of the jury, he asked whether his wife could read out the entire speech, subject to his adding a couple of further points after she had done so. He said: "It’s coming from me. I’ve told her what to write." Again, the Recorder agreed and that is what happened. 40. Mr. O’Connor now submits that the course adopted was unusual, unsatisfactory and unfair. Much of the closing speech was delivered by an alibi witness, Mrs. Kempster, whose evidence the jury ultimately rejected. This all stemmed from the original decision of the Recorder not to allow the appellant fresh counsel and solicitors. 41. We agree that the course followed was highly unusual, but in our judgment it had no bearing on the fairness of the trial or the safety of any of the convictions. It was done specifically at the request of the appellant. The final request, that Mrs. Kempster be allowed to read most of the closing speech, was made without warning in the presence of the jury. The Recorder could hardly then have refused it, even if he would otherwise have been inclined to do so. Before Mrs. Kempster began, it was made clear to the jury that she was merely reading the appellant’s words. Thus Mrs. Kempster’s credibility or otherwise as a witness was not in issue at this stage of the trial. Having studied the relevant transcripts of the proceedings, we have formed the impression that the learned Recorder was doing his utmost to be fair to the appellant in these unusual, unexpected and difficult circumstances. We therefore reject ground of appeal 2B. 42. We turn finally to the appeal against sentence. The appellant is now 38 years of age. He is married with two children. He had made seven previous court appearances, principally for offences of dishonesty, though he had not previously been convicted of an offence of burglary. In 1984, for eleven offences of tendering counterfeit currency, obtaining property by deception and attempting to obtain property by deception, with 37 offences taken into consideration, concurrent community service orders of 100 hours were made. The offences of deception involved obtaining money from elderly people for unnecessary building work. On 14 th April, 1994 he received concurrent sentences of seven years’ imprisonment for 22 offences of theft, obtaining property by deception and attempting to obtain property by deception. These arose from his targeting elderly and vulnerable victims, and demanding exorbitant sums of money for building and tarmacking work that was grossly sub-standard or, in some cases, had not been done at all. In addition, he stole property from some of the homes of his victims. The learned Recorder had a pre-sentence report which referred to the appellant’s addiction to heroin and crack-cocaine, and assessed him as presenting a high risk of further offending. 43. In our judgment, the offences for which the appellant was to be sentenced were particularly serious examples of burglary. Once again the appellant was targeting elderly and vulnerable victims. All of the offences were committed at night. In each case the householders were at home. In three cases he disturbed them by what he was doing. Two 89-year-old women awoke to find him in their bedrooms. 44. As might be expected, the victims were gravely affected by these offences. Mrs. Hooker was really shaken by her experience and became more nervous about being on her own, and fearful if she heard any noise during the night. Mr. Haywood had been recovering from a major heart operation when the appellant attempted to burgle his home. He too suffered stress and anxiety, fearing a further similar offence. Mrs. Douglas was also left in a state of shock and fear. Amongst the jewellery the appellant stole from her was her engagement ring which she had had since the early 1930s, and a pearl necklace which was a gift from her late husband on their 50 th wedding anniversary. She was so affected by the burglary that she had to leave her home and go and live with her daughter. Mrs. Martin was suffering from terminal cancer when the appellant burgled her home. She and her husband also became anxious that the same thing might happen again. Amongst the items the appellant stole was a diary in which Mrs. Martin had kept details of all her personal and social functions and arrangements. She was a meticulous woman, but had problems with her memory, and relied heavily on the diary, which was a source of comfort to her. She never got over its loss up to the time of her death. 45. We have had regard to the case of McInerny and Keating [2003] 1 Crim.App.R 36 to which we have been referred, but in our judgment that authority is not principally directed to offences of this number and nature, committed by a man with a criminal record such as the appellant’s. We agree with the Recorder’s description of the appellant as "a menace to elderly people in their own homes." We also agree that the sentences in this case had not only to reflect the gravity of the offending, but also to deter others inclined to commit similar offences. The appellant had shown no remorse. In our judgment, the sentences passed were towards the top of but within the bracket appropriate to such a case. The appeal against sentence is therefore dismissed.	[ "LORD JUSTICE MANTELL", "MR JUSTICE JACKSON" ]	2003_12_11-159.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3555/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3555	1,015
fd3cc77107638fe672077d52b6563f483782750d6a12232db34111eb861e5bdc	[2004] EWCA Crim 2062	EWCA_Crim_2062	2004-07-20	crown_court	No:200402733 - 02735 - 02736 A9 Neutral Citation Number: [2004] EWCA Crim 2062 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 20 July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NOs 054, 055, 056 OF 2004 - - - - - - - Computer Aided Transcript of the S	No:200402733 - 02735 - 02736 A9 Neutral Citation Number: [2004] EWCA Crim 2062 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 20 July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NOs 054, 055, 056 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MISS J HAYNE appeared on behalf of SAM STECHMAN MISS C HADFIELD appeared on behalf of LEE WALTON MISS K BEX appeared on behalf of SIMON GRIFFIN - - - - - - - J U D G M E N T 1. LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer sentences on these three offenders to this court on the ground that they were unduly lenient. We grant leave. 2. The offender, Stechman, is 16, having been born in January 1988. The offender, Griffin, is 17, having been born in October 1986, and the offender, Walton, is 16, having been born in March 1988. 3. On 7 November 2003, Griffin pleaded guilty to causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 . On 23 February 2004, the two other offenders, Walton and Stechman, pleaded guilty to the same offence. On 16 April 2004, they were sentenced at Inner London Crown Court by Mr Recorder Conlin. Stechman and Griffin were sentenced to a Community Punishment and Rehabilitation Order consisting of 100 hours' Community Punishment and 24 months' Rehabilitation, and both were also subjected to an electronically monitored curfew for six months from 8pm to 8am. In relation to Walton, a Community Rehabilitation Order for two years was made, together with a similar curfew order. 4. In summary, the three offenders approached the 14 year-old male victim at about 11 o'clock on the evening of 22 August 2003. They took his bicycle, pushed it into his leg, kicked and punched him about the face and body, threatened to kill him, broke his arm and threw him into a nearby canal. 5. In a little more detail, the victim was sitting on a curb in Dame Street, London N1 on this summer evening. His bicycle was propped behind him. The three offenders approached. The victim recognised the offender, Stechman. Walton took the bicycle and rode it away. Stechman and Griffin walked alongside Walton, laughing and joking. The victim followed, trying to retrieve his bicycle. Walton rammed the bicycle into the boy's right leg, causing him to fall back against a wall. All three offenders then began punching and kicking him about the head and body. The boy pleaded with them to stop. They continued, saying he had better not tell the police or he would get more. 6. Stechman suggested they kill the victim by "popping" his head on the spikes of some railings nearby. The kicking and punching continued. The boy tried to protect his face with his arm, but Walton pulled his right arm away and said he was going to break it. Thereupon the boy's face became unprotected and Stechman and Griffin punched him repeatedly in the face. All three said they were going to kill him. 7. They dragged him to the spiked railings and the earlier threat was repeated. Walton suggested that, instead, they should throw him into the canal. That was agreed. They dragged him, still beating him, to the canal. They took off his jacket. They swung him backwards and forwards twice, before throwing him into the canal. He surfaced about halfway across and was able to swim to the other side. As he did so, he heard the offenders say, "Let's throw some rocks at him". They did not in fact throw rocks. 8. Later, at hospital, it was found that his left elbow was broken in three places. He had bruising around his left eye and right cheek, and abrasions to his forehead, the back of his head, his left arm and knees. 9. On behalf of the Attorney General, Miss Whitehouse draws attention to the following aggravating features: first, the attack was unprovoked; secondly, it was carried out by three against one; thirdly, the victim was only 14; fourthly, he was kicked with shod feet as he lay on the floor; finally, he was thrown into a canal, with his arm by that stage broken whether the offenders knew it or not, so that he had to swim to survive. 10. Miss Whitehouse draws attention to the mitigation to be found in the fact that Stechman and Walton were only 15 and Griffin only 16 at the time. Griffin pleaded guilty at the earliest opportunity and had no previous convictions of relevance. It is right to say that none of these offenders has any previous conviction for violence. Walton has a poor record for dishonesty. 11. Miss Whitehouse drew attention to a number of authorities, including Attorney General's Reference No 59 of 1996 [1997] 2 Cr App R (S) 250, Attorney General's Reference Nos 30 and 31 of 1998 [1999] 1 Cr App R (S) 200 and Attorney General's Reference No 121 of 2002 [2003] EWCA Crim 684 . In Attorney General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Crim App R (S) 128 at 131, Lord Bingham CJ, giving the judgment of the court, said this: "When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra-judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury." 12. The submission which is made by Miss Whitehouse in the light of those authorities and the circumstances of this case is that a community punishment wholly failed to reflect the gravity of the offence and a custodial penalty was required. In consequence, she submits, the sentences passed by the learned Recorder were unduly lenient. 13. On behalf of Stechman, Miss Hayne concedes that the sentence was lenient and that the authorities show that custody is ordinarily appropriate. But, she submits, there are, in the present case, personal circumstances of mitigation so far as Stechman is concerned which justify a non-custodial penalty. She points out, as we have already said, that he is only 15 and he has no previous convictions. This offence was entirely out of character. He had been drinking heavily, not looking for violence. He accepts that what he did was appalling and despicable. But, she submits, he has shown genuine remorse and has made progress in the months which have passed since he was sentenced in April. He has not breached his order. He has, it is true, difficulty in talking about the offence, but he is only 16, even now. 14. There are indications in one of the pre-sentence reports upon him that he is experiencing difficulty in expressing sympathy with the victim. Miss Hayne points out that the nature of the area where he lives is such that he is being taunted by some for his part in this attack and taunted by others for having pleaded guilty to the offence. Sadly, as Miss Hayne points out, his grandfather died soon after the offence was committed, but before Stechman was sentenced. She submits that he has taken such opportunity as was presented by the Recorder's sentence to show signs of improvement for the future, and she asserts he will not be before the courts again. He spent a week in custody before he was sentenced by the Recorder. 15. Miss Hadfield, on behalf of Walton, accepts that the sentence was an unusually lenient one, but he spent some seven months in custody before he was sentenced, and during that period, had to endure the death of a baby born prematurely to his girlfriend of which he was the father. 16. Miss Hadfield's second submission is that, even if the sentence was unduly lenient, the court should not exercise its discretion to interfere with it. She stresses the plea of guilty, the absence of premeditation and the lack of any sign of violence in the offender, Walton's, previous record. She said that it was not obvious why in Walton's case the Recorder had imposed a different sentence to that imposed on the other two offenders. But it may be that he had in mind the fact that Walton had already spent seven months in custody. 17. Miss Hadfield drew attention to the contents of the reports upon Walton, indicating that he has taken responsibility for doing that which he did, and has written a letter of apology and expressed his remorse. He has an unhappy youthful background, having been in and out of care, in particular during the currency of previous supervision orders. 18. He has apparently been in breach of the curfew order which the Recorder imposed, and that is due to be dealt with later this week. That came about because he left his mother's address and he is now apparently living in sheltered accommodation. It is apparent that the evidence which his mother gave before the Recorder, indicating an apparent increase in maturity following the death of his baby, had a significant influence upon the Recorder. 19. Miss Hadfield submits that, in view of Walton's age, the balance in his case tips in favour of rehabilitation rather than punishment. He has responded to the order which was made and has engaged fully, apart from the breach of curfew to which we have referred. 20. Miss Hadfield refers to double jeopardy, that is the second sentencing process, which is involved in all Attorney General's References, and she submits that the offender, Walton, is being rehabilitated by the sentence which the Recorder passed. 21. On behalf of Griffin, Miss Bex stresses that he displayed courage in that he was the first to plead guilty: by reason of that, he is entitled to maximum credit. He has been on bail throughout and for a short period worked. Indeed his then employer gave evidence before the Recorder as to how well he was doing after some two weeks, and the Recorder was clearly impressed by that. The present position is that the offender is not living with his mother. He has been sleeping at her garden gate and breach proceedings in relation to the curfew are to be considered by the youth court next week. She accepts that he has, as is apparent from the reports, failed to comply with the punishment part of the order, and he has, according to the report, been verbally abusive to staff. She submits that his present position, as we have briefly described it, is cruel so far as he is concerned. 22. There are clearly particular circumstances of mitigation affecting each of these three offenders in different ways: in relation to Stechman, the sad death of his grandfather; in relation to Walton, the sad death of his baby; in relation to Griffin, his early plea of guilty. Looking at the picture in the round, we are satisfied that no distinction should be drawn in the way in which the three offenders are dealt with. 23. This was a terrible offence - in its persistence, in the variety of violence, in the numbers involved, and in its culmination in the victim being cast into the canal. The physical injuries were serious and included the multiple fractures of the elbow, to which we have referred. There were mental injuries as well. The victim has required psychological treatment. That being so, notwithstanding the pleas of guilty and the youth of all these three offenders, we would have expected a sentence in the court below in relation to each of them of three years' detention under the Powers of Criminal Courts (Sentencing) Act 2000, S.91 . That is not a sentence which this court should now impose, having regard both to double jeopardy and the fact that, if they are incarcerated now, having previously been at liberty since they were sentenced, a further discount is called for from the sentence which would be appropriate. Taking those matters into account, subject to one matter in relation to Walton, which we will deal with, the sentence which would here be appropriate in relation to all three offenders is a Detention and Training Order of two years. 24. So far as Walton is concerned, because, as we have said, he has spent seven months in custody prior to sentence which period would not count towards his sentence, the sentence which we impose on him is a Detention and Training Order of 12 months. In relation to Stechman and Griffin, the sentence is a 24-month Detention and Training Order. Those sentences will start to run when the offenders respectively surrender to custody. 25. Miss Hayne, Miss Hadfield, Miss Bex, so far as surrender is concerned, we know not whether or not they are here at court? 26. They are present in court. Is there any reason why they should not surrender now? 27. MISS BEX: My Lord, no. 28. LORD JUSTICE ROSE: We shall direct that they surrender at 1 o'clock.	[ "LORD JUSTICE ROSE", "MR JUSTICE NELSON", "MR JUSTICE MCCOMBE" ]	2004_07_20-292.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2062/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2062	1,016
8d27543c67c7e8bb6169162f6282c22a94eefe73465be793058fca95b324f90c	[2012] EWCA Crim 1292	EWCA_Crim_1292	2012-06-20	crown_court	Case No: 201201016 A7 Neutral Citation Number: [2012] EWCA Crim 1292 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOLWICH His Honour Judge Moore Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2012 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE HEDLEY and THE RECORDER OF PRESTON (sitting as a Judge of the Criminal Division of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : VINCENT OLALEKAN FADAIRO Appellant - and - THE QUEE	Case No: 201201016 A7 Neutral Citation Number: [2012] EWCA Crim 1292 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOLWICH His Honour Judge Moore Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2012 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE HEDLEY and THE RECORDER OF PRESTON (sitting as a Judge of the Criminal Division of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : VINCENT OLALEKAN FADAIRO Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Chester Beyts (instructed by the Registrar of the Court of Appeal Criminal Division ) for the Appellant Hearing date : 1 June 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Stanley Burnton : Introduction 1. On 19 December 2011 in the Crown Court at Woolwich before His Honour Judge Moore the appellant was convicted after trial of wounding with intent, contrary to section 18 of the Offences against the Person Act 1861 . On 25 January 2012 before the same judge he was sentenced to 11 years’ detention in a Young Offenders’ Institution. 2. The appellant appealed against his sentence with leave of the single judge. On 1 June 2012 we heard his appeal and dismissed it, saying that we would give our reasons in writing. We now do so. The facts 3. The offence occurred in the early afternoon on 12 May 2011. The complainant, Jordan Springer (17 years old at the time), was in a fast food restaurant with some college friends. Afterwards there was some kind of verbal confrontation between the appellant and the complainant outside the restaurant. The appellant walked off. About five minutes later the appellant returned. He approached the complainant as he and his friends waited for a bus. The appellant forced the complainant up against a fence. There was a struggle and the complainant then felt a blow to his face very close to one of his eyes. He immediately felt blood pour down his face. He raised his hand and received a cut to his palm. The appellant then ran off. 4. The appellant was identified by witnesses from a Facebook profile picture and was arrested on 23 June 2011. 5. The complainant was treated in hospital for a stab wound just under his left eye. It was three centimetres in length and seven centimetres deep. There was no functional or neurovascular damage and it was washed out and closed with stitches. He also had a bruise to his head and a superficial laceration to his right palm. The appellant 6. The appellant was born on 22 May 1991 and was therefore aged almost 20 at the date of the offence. He had three previous court appearances for four offences between October 2008 and April 2010, which included three robberies. When he committed the index offence, the appellant was on licence following a sentence for one of the robberies, in which the appellant used a gesture indicating he had a knife. The first robbery was committed by the appellant and another, and a knife produced by the other robber. The judge’s sentencing remarks 7. The judge considered the application of the Definitive Guideline on Assault issued by the Sentencing Council. He said: “The real substance of those guidelines is to try and balance out what could be described as harm and culpability. Category 1, which refers to greater harm and higher culpability, has a starting point of 12 years in custody, with a range of 9 to 16 years. Category 2 has lower culpability for serious injury, or lesser harm and higher culpability. In my judgment, and I express it in the best way I can, the fact that [the victim’s] eye was not removed or permanently damaged, as opposed to the actual loss of an eye, cannot logically diminish a sentence or increase a sentence’s starting point by six years. What is important here is that I balance these two criteria in a way that reflects the gravamen of the allegation. In my judgment, there was no doubt at all that you endeavoured to stab him in the eye, in the way that you conducted yourself at that time. In any event, even if you had not, you drove a knife into his face. Therefore, looking at both categories 1 and 2 and trying to assess the appropriate starting point, in my judgment the proper starting point is that of ten years.” 8. The judge then considered the mitigating and aggravating factors affecting sentence: “In mitigation, I take the following matters into account: the fact that you were 19 at the time of offence, not a very young man but sufficiently young for it to be a mitigating element. However, there are outweighing aggravating elements. Firstly, you used a knife and/or a sharp implement. I come to the conclusion it is a knife because evidence was given by a witness to see you putting something into your waistband. Secondly, it undoubtedly was a premeditated attack. The fight had started; you went away and returned. In my judgment, that demonstrates quite clearly you were determined to attack this young man in the way that you did. Thirdly, that this offence was committed whilst on licence, that licence for offences of robbery and where there had been a suggestion, perhaps, of a weapon. Fourthly, that you have previous convictions for, when I say the use of a knife, to the extent that a knife was produced for the offence of 2 October 2008, and in addition the threat of a weapon on the conviction of 19 January 2010. That is the rationale for my sentence.” 9. The judge then imposed the sentence of 11 years’ detention in a YOI to which we have referred. The grounds of appeal 10. The essential ground of appeal is that the judge failed to follow the Definitive Guideline, and in consequence the sentence imposed was manifestly excessive. The injury caused to the victim was not “greater harm” within the context of the section 18 offence of causing grievous bodily harm with intent or of wounding with intent. It followed that this was at most a category 2 case, one of lesser harm and higher culpability, with a starting point of 6 years’ custody and a range of 5 to 9 years’ custody. The judge should have used a staring point of 6 years raised by aggravating features to 7 or 8 years. 11. We had before us written submissions of Catherine Farrelly on behalf of the prosecution. She drew attention to the qualification in the definitions of Category 1 and Category 2 arising from the word “normally”. The leave given by the single judge 12. Granting leave to appeal, the single judge remarked that “the meaning of the requirement ‘serious harm must normally be present’ is not pellucid”, and stated: “I am persuaded that this case does raise a question of principle which may affect sentence: namely, the precise meaning/import of the phrase/criterion “Greater harm (serious harm must normally be present)” in Category 1 and Category 2 of the Assault Definitive Guidelines (p. 4) in circumstances where the infliction of really grave injury was the intention (reckless or otherwise) but not the result.” 13. It was because the single judge regarded this appeal as raising a question of principle that we decided to hand down our judgment in writing. Discussion 14. The Guideline dictates that the first step in the making of the sentencing decision is to determine the offence category. Category 1 is defined as “Greater harm (serious injury must normally be present) and higher culpability”; Category 2 is defined as “Greater harm (serious injury must normally be present) and lower culpability; or lesser harm and higher culpability. 15. The greater harm that is referred to here is to be viewed in the context of the offence. It follows that really serious injury, which is what every offence of causing grievous bodily harm involves by definition, may nonetheless be “lesser harm” for the purposes of this Guideline. We therefore accept that in the present case, greater harm in this sense was not caused. However, both in the definition of the Categories, and in the list of “Factors indicating greater harm”, the requirement of greater harm is qualified by the word “normally”. The effect of this qualification is not expressly stated in the Guideline itself. 16. However, the Guideline must be read as a whole. Although under Step One it is stated that the listed factors indicating greater harm and those indicating higher culpability “should determine the category”, the Guideline at Step Two states: “The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range .” 17. The italics are ours. We consider that it is because of this possibility that the qualification “normally” is used at Step One. In deciding whether it is appropriate to move outside the identified category range, the judge will take into account both the factors listed in Step One and those listed in Step Two, and any other relevant factors, bearing in mind that the latter list is not exhaustive. 18. It follows that the question on this appeal is whether the judge was right, or was entitled, to move outside the category range that would otherwise by identified by Category Two, i.e., a case of admittedly higher culpability and lesser harm. We consider that the judge was both entitled and right to do so. 19. In the first place, this was a knife crime. Parliament dictated in enacting section 18 that assaults with a knife or other bladed weapons (the usual cause of a wound) should be regarded and punished more seriously than assaults without a weapon or with other kinds of weapon. We say this because whereas in a case not involving wounding section 18 requires both the intent to cause grievous bodily harm and that such harm be caused, in a wounding case it is sufficient that the defendant intended to cause such harm, even if in fact he only inflicted a wound which did not amount to grievous bodily harm. In this connection it is perhaps curious that the Guideline includes as an aggravating factor at Step One “Use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal)”. In a wounding case the use of a weapon will normally be intrinsic to the offence, i.e., it will necessarily have involved the use of a knife or the like to inflict the wound. Moreover, the weapons given as examples are appropriate to a non-wounding case: knives and the like, the most obvious weapons involved in a wounding offence, are not mentioned. 20. Secondly, the judge was entitled to take into account the incidence of knife crime and the need for deterrent sentences. He said, “Knife crime, certainly in the Woolwich area, is a real and increasing problem,” and “Knife crime is a plague and curse and only severe sentences are appropriate”. 21. Thirdly, the culpability of the appellant was very great, even in the context of the offence. He had previous convictions for robbery, at least one of which involved a knife. The index offence was committed on licence from a sentence for one of the robberies. It was premeditated. The judge, having presided in the trial, found that the appellant had intended to stab the victim in the eye. In other words, it was an attempt to blind the victim in one eye by stabbing. It was good fortune indeed that he missed the eye, but not by much. The only mitigation available to the appellant was his age. 22. It was for the above reasons that we concluded that the judge was entitled to determine a starting point that was outside Category Two. The sentence he imposed was permitted by the Guideline. It was neither wrong in principle nor excessive. Accordingly, we dismissed the appeal.	[ "LORD JUSTICE STANLEY BURNTON", "MR JUSTICE HEDLEY" ]	2012_06_20-2998.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1292/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1292	1,017
d04491926d0df101aade94762b896a20e99c6ad8cc3965d414cfa2405202a4d6	[2006] EWCA Crim 2341	EWCA_Crim_2341	2006-07-31	crown_court	No. 2006/02676/A8 Neutral Citation Number: [2006] EWCA Crim 2341 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 31 July 2006 B e f o r e: MR JUSTICE MACKAY and MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - PETER JOHN HEGARTY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Cou	No. 2006/02676/A8 Neutral Citation Number: [2006] EWCA Crim 2341 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 31 July 2006 B e f o r e: MR JUSTICE MACKAY and MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - PETER JOHN HEGARTY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MR B MILLS appeared on behalf of THE APPELLANT - - - - - - - - - - - - - - - - - - - - - J U D G M E N T Monday 31 July 2006 MR JUSTICE MACKAY: Mrs Justice Cox will give the judgment of the court. MRS JUSTICE COX: 1. On 20 February 2006, having pleaded guilty before magistrates at the first opportunity, the appellant, now 20 years of age, was committed for sentence for an offence of taking revenge on a witness, contrary to section 51(2) of the Criminal Justice and Public Order Act 1994 . On 11 May 2006, at Birmingham Crown Court, he was sentenced to a term of twelve months' detention in a young offender institution. He now appeals against that sentence by leave of the single judge. 2. The brief facts are these. On 30 January 2006, the appellant's brother was convicted of the attempted rape of a woman to whom we shall refer as "D", and was sentenced to four years' imprisonment. Ten days later, on 9 February, shortly before 8pm, D was accosted in a newsagent's by a woman who told her that she had got her brother "sent down for no reason". The woman asked her outside. D stayed in the shop and contacted the police. About ten minutes later, however, whilst she was on the telephone the appellant came into the shop. He shouted at her, "Why did you get my brother arrested?", and spat in her face. He walked off but returned a few minutes later. He called her a "slag", spat in her face twice, walked towards her, causing her to walk backwards into some shelving, and then slapped the side of her head with his palm and pushed her into the shelving so that she fell to the floor. 3. The appellant was arrested the following day. He admitted the offence, saying that he was drunk at the time. In interview he accepted essentially the complainant's account of events. He was a man of previous good character. 4. Passing sentence the judge observed that the appellant was entitled to maximum credit for his early plea of guilty and for his remorse, which was accepted by the judge as genuine. He described the incident as an outrageous, violent and thoroughly unpleasant attack upon a young woman who had performed her public duty by giving evidence at his brother's trial. That evidence had been accepted by a jury and his brother had been properly sentenced. The courts, the judge said, had to react swiftly and firmly to protect from such attacks those who did their public duty by giving evidence. The offence was so serious that only a custodial sentence could be justified, and that sentence should be one of twelve months' detention. 5. Mr Mills for the appellant submits that, having regard to his early plea of guilty and his extensive personal mitigation, the sentence of twelve months' detention was manifestly excessive. 6. In the particular circumstances of this case there is, in our judgment, considerable force in these submissions. The author of the pre-sentence report noted that the appellant appeared genuinely ashamed of his behaviour and assessed the likelihood of his re-offending as low. The appellant was 20 years of age, of previous good character and with a stable family life. He was working hard to qualify as an electrician. It was accepted that he had acted impulsively and emotionally when under the influence of alcohol and that he had regretted the offence immediately. Whilst the pre-sentence report recommendation was for a community penalty, we agree with the judge that this offence crossed the custody threshold. Witnesses giving evidence at criminal trials should be protected from attacks of this nature and the courts should and do make it clear that such offences are so serious that only a custodial sentence is justified. However, given the circumstances of this offence and of this offender, and in particular since this was the appellant's first appearance before the courts and therefore his first ever period in custody, we agree that twelve months' detention was manifestly excessive. In the circumstances we propose that the term of twelve months' detention shall be quashed and substituted by a term of four months' detention. To that extent and for these reasons this appeal is allowed.	[ "MR JUSTICE MACKAY", "MRS JUSTICE COX DBE" ]	2006_07_31-898.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2341/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2341	1,018
6331f7d9ac640b1757ef43015eeb7b969ce5add53bf503f00805e81b978a7bf9	[2016] EWCA Crim 1405	EWCA_Crim_1405	2016-08-11	crown_court	Neutral Citation Number: [2016] EWCA Crim 1405 Case No. 201601982 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 11 th August 2016 B e f o r e: LORD JUSTICE BEAN MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v JESSE ADGYEI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY	Neutral Citation Number: [2016] EWCA Crim 1405 Case No. 201601982 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 11 th August 2016 B e f o r e: LORD JUSTICE BEAN MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v JESSE ADGYEI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss H Valley appeared on behalf of the Appellant Mr D Baird appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) LORD JUSTICE BEAN: 1. This is an appeal against conviction by the unusual route of a certificate of the trial judge under section 1(2) of the Criminal Appeal Act 1968 . 2. In February 2016, in the Crown Court at Harrow, the appellant stood trial before His Honour Judge John Anderson and a jury on an indictment containing two counts. Count 1 was a charge of having a bladed article. Count 2, which was added by way of amendment at the start of the trial, was a charge of resisting a police constable in the execution of his duty, contrary to section 89(2) of the Police Act 1996 . Both allegations arose out of the same incident. 3. The offence of resisting a police constable in the execution of his duty is a summary only offence. It had been sent to the Crown Court by the Magistrates' Court, pursuant to section 51(3) of the Crime and Disorder Act 1998 . 4. When the prosecution applied to add it to the indictment to go before the jury, the defence did not object. Unsurprisingly, the judge granted the application. The case then proceeded. The jury acquitted the appellant of the bladed article charge, but convicted him of the offence of resisting the police constable. He was sentenced by the judge to a community penalty. 5. However, at the conclusion of the trial the judge realised that there had not been jurisdiction for the jury to consider the offence of resisting a police constable. This is a surprising conclusion, but it arises from the terms of section 40(3) of the Criminal Justice Act 1988 . This permits a count charging a person with a summary offence to be included in an indictment if the charges founded on the same facts or evidence as a count charging an indictable offence or is part of a series of offences of the same or similar character as an indictable offence which is also charged: so far so good. But there is a further condition, which is that section 40 of the 1988 Act only applies to offences listed in subsection (3). Those offences include common assault, assault on a prison custody officer and various other types of custody officer, but not assault on a police constable, or resisting a police constable in the execution of his duty. It is pointless to speculate on why Parliament drew that distinction. The fact is that Parliament did, and therefore it is not a matter of discretion but of jurisdiction. The offence of resisting a police constable could not be placed before the jury. 6. The offence was properly sent to the Crown Court; but, by virtue of the provisions of paragraph 6 of Schedule 3 to the Crime and Disorder Act 1998 , as soon as the appellant had pleaded not guilty, the Crown Court ceased to have power to deal with the case. Had the appellant pleaded guilty to the summary only offence, the judge would have been perfectly entitled to proceed to sentence, as he did. However, once the appellant pleaded not guilty, that should have been the end of the matter in the Crown Court. 7. Mr Baird for the prosecution accepts, inevitably, that the point raised in the judge's certificate is a good one and he does not resist, therefore, the quashing of the conviction. 8. Accordingly, we allow the appeal and quash the conviction. 9. The defendant is not present in court today. It is, therefore, not possible for us to suggest a short-cut by inviting him to plead before one of my Lords as a judge of the Crown Court. We will therefore remit the charge of resisting a police constable to the Crown Court at Harrow, where it should, if this is practicable without undue delay, be listed before His Honour Judge Anderson who has previously had conduct of the case. 10. The defendant will then be required to plead guilty or not guilty before Judge Anderson. If he wishes to contest the charge, there will be no alternative to it being sent back to the Magistrates' Court for trial. If he pleads guilty, then Judge Anderson can no doubt deal with the matter there and then. 11. This appeal accordingly succeeds. 12. We grant the defendant unconditional bail.	[ "LORD JUSTICE BEAN", "MR JUSTICE FOSKETT", "MR JUSTICE HICKINBOTTOM" ]	2016_08_11-3816.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1405/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1405	1,019
ab0c6713792a671d5d38a9ff6b0b82e18ed602a6f176443d9e1135c2e27b2f44	[2005] EWCA Crim 1681	EWCA_Crim_1681	2005-06-29	supreme_court	Neutral Citation Number: [2005] EWCA Crim 1681 Case No: 2004/00732/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT (HIS HONOUR JUDGE BARKER) Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 29 June 2005 Before : LORD JUSTICE MAURICE KAY MR JUSTICE SILBER and THE RECORDER OF BIRMINGHAM SITTING AS A JUDGE OF THE COURT OF APPEAL - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - NIGEL HENRY Respondent	Neutral Citation Number: [2005] EWCA Crim 1681 Case No: 2004/00732/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT (HIS HONOUR JUDGE BARKER) Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 29 June 2005 Before : LORD JUSTICE MAURICE KAY MR JUSTICE SILBER and THE RECORDER OF BIRMINGHAM SITTING AS A JUDGE OF THE COURT OF APPEAL - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - NIGEL HENRY Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Edward Brown on behalf of the Crown Mr Godfrey Carey QC on behalf of the Appellant Hearing date : 12 May 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. On 4 November 2003 in the Central Criminal Court the appellant was convicted of soliciting to murder and conspiracy to murder and was later sentenced to concurrent terms of four years’ imprisonment. His co-defendant, Donna Bailey, was convicted of the same offences and sentenced to concurrent terms of six years’ imprisonment. He appeals against conviction by leave of the single judge. 2. The factual background is unusual. Donna Bailey met and befriended a fellow student, Anna, but that friendship diminished and they eventually fell out following a row in February 2003. The case for the prosecution was that Donna Bailey became obsessed with Anna to the point that she and the appellant planned to have her killed by a hitman or (later) to do the job themselves. The offence of incitement was evidenced by contact they had with a man called Headley who introduced them to Robinson. They told Robinson that they wanted a woman killed and they gave him a post-it sticker with Anna’s address on it. Robinson mentioned a price of £5000 and told them to come back to him when they had raised the money. On the following day, when he was stopped by the police for breach of bail conditions in respect of an unconnected matter, Robinson told the police about his meeting with Donna Bailey and the appellant. He made a witness statement and was introduced to an undercover police officer called George. 3. A week later Robinson and George visited Donna Bailey and the appellant. George was introduced as a hitman from Birmingham. The appellant told Robinson and George that the job was cancelled because of the expense and that he and Bailey would be doing it themselves. Most of the conversation on this occasion was tape recorded on a concealed device. After it had ended, Bailey and the appellant were arrested and the house was searched. Several incriminating items were found, including handwritten notes, maps, plans and details of observations carried out at Anna’s address. A bag containing a syringe filled with liquid, a mask, gloves and binoculars was also found. The liquid was domestic cleaning fluid. Much of the handwriting was that of the appellant, as it was also on the post-it which had been handed to Robinson a week earlier and which he had handed to the police. On the basis of all this (and we are abbreviating the evidence for present purposes), the prosecution asserted that Bailey and the appellant had first sought to incite Robinson but had changed their minds because of the cost and had thereafter conspired together to murder Anna. It was common ground between the prosecution and the appellant that he was a weaker person than Bailey. 4. The appellant’s defence was that he had never intended that Anna should come to any harm. Bailey was a lying and manipulative obsessive and he had simply played along with her in order to pacify her. Anything written by him was at her dictation. He had not thought that she was serious. When he had told Robinson and George that they were now going to do the job themselves, he was just trying to get rid of them. He had already threatened to call the police if Bailey did not cancel the plan which had previously been imparted to Robinson. 5. Donna Bailey’s defence was that she had had no thought of having Anna killed but that at the first meeting with Robinson the appellant had suddenly come out with the idea. She sought to distance herself from the handwriting, denying that it had been done at her dictation. It was the appellant who had lined up the hitman and, when Robinson and George had paid a visit a week later, she had just said things to get rid of them. 6. On behalf of the appellant, Mr Carey QC made no criticism of any ruling or the summing up by the trial judge. He seeks to advance the appeal in this way. Prior to and during the trial, neither Mr Carey, nor his junior nor his instructing solicitor had had cause to question the cognitive skills or intelligence of the appellant as a factor relevant to criminal liability. He presented in a plausible manner except that at one stage prior to the commencement of the trial he had started to behave in a peculiar manner and a psychiatric assessment was called for on the issue of fitness to plead. The assessment resolved that issue and did not raise any medical issue relevant to criminal liability. Accordingly, the trial proceeded without concern in that regard. The appellant continued to present in a plausible way. 7. After conviction and in anticipation of sentence a report was commissioned from Dr L F Lowenstein, a psychologist. It was prepared for use in mitigation but, following sentence, it became the foundation of this appeal against conviction. When leave to appeal was granted, the prosecution instructed Professor Gisli Gudjonsson, a forensic psychologist, and his report is now relied upon by Mr Carey. The reports are mutually consistent. They lead to the appeal being put in this way. They amount to fresh evidence, not anticipated or realised at the time of the trial but which, if then available, would have been adduced on behalf of the appellant on the issue of his intention. As the jury did not have the benefit of this evidence, and as it is credible but was not reasonably discoverable at the time of the trial, the conviction is unsafe. On behalf of the prosecution, the central submission of Mr Brown is that, on the issue of intention, the evidence of the psychologists would not have been admissible at trial and does not affect the safety of the conviction. By section 23(2)(c) of the Criminal Appeal Act 1968 , the admissibility of the evidence at trial is a relevant matter in relation to its receipt in evidence on appeal. Before we address the question of admissibility, it is necessary to summarise the findings of the psychologists. 8. Dr Lowenstein found the appellant to be an extroverted personality with a number of neurotic traits or psychological problems. He is also an impulsive individual who tries to please others and help them. Testing of his intellectual abilities produced “roughly a 75 IQ score” and would place him with the mental age of approximately 12 years. Dr Lowenstein concluded as follows: “1. Mr Henry is a fairly disturbed individual who gives an impression of his intellectual capabilities which is totally wrong. He has a tendency to fail to see the significance of acting by himself leading him into difficulties. 2. He is easily imposed upon as may be noted by the influence his girlfriend had upon him to commit certain acts which led to his conviction. This is again partly attributable to his low intellectual ability to reason matters out as well as psychological problems which would make him susceptible to fall under the influence of others. 3. Mr Henry falls into the category of just being above the mentally defective area or what is commonly termed ‘borderline’ defective area of intellectual ability … Mr Henry is a strange man with a Walter Mitty-type of attitude to viewing himself as a clever individual capable of carrying out a crime of a very serious nature and yet not having the mental capacity to see matters through logically and reasonably … It is unfortunate for him that he has a bearing of an intellectual but the capacity of someone of virtually mentally defective ability. While this does not excuse his offences, it does or could provide mitigation.” 9. As we have related, Dr Lowenstein was instructed to prepare a report for possible use in mitigation rather than exculpation. Professor Gudjonsson, on the other hand, was instructed by the Crown Prosecution Service to prepare a report specifically in relation to this appeal against conviction. He carried out a more extensive assessment of the appellant’s intellect and concluded: “1. The current intellectual assessment … indicates that Mr Henry is functioning in the borderline range of learning disability. His full scale score of 71 falls at the bottom 3% of the general population. This suggests a significant intellectual impairment … 2. I found no evidence that Mr Henry is currently mentally ill nor is there evidence that he has ever been mentally ill … he seems to have serious emotional problems, including a high level of anxiety, proneness towards agitation, self-defeating personality structure, dependence needs and extremely poor self-esteem … 3. In summary, Mr Henry is a psychologically vulnerable individual, whose intellectual abilities are very limited, in social interactions he undoubtedly tried to cover up his limited abilities and he superficially presents as intellectually brighter than he actually is … It is likely that these problems interfere with his effectively coping with stress and demands placed upon him by others (eg Miss Bailey involving him in arranging a hitman to deal with [Anna].” 10. We now turn to the authorities. In Turner (1974) 60 Cr App R 80, Lawton LJ said (at p.83): “An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” This approach has been followed in subsequent cases. A good example of a case in which the issue of expert evidence in relation to intent was considered is Masih [1986] Crim LR 395 (Court of Appeal, Criminal Division, 27 January 1986) in which Lord Lane LCJ said: “Generally speaking, if a defendant is mentally defective, or otherwise comes in the last class, ‘69 and below mental defective’, then in so far as that defectiveness is relevant – relevant that is to the particular case – it may be that expert evidence should be admitted about it. That is in order to enlighten the jury upon a matter which is abnormal, and therefore ex hypothesi , presumably, outside their own experience. If it is admitted it should be confined to the assessment of the defendant’s Intelligence Quotient, and to an explanation of any relevant abnormal characteristics which such an assessment involves … Where the defendant however is within the scale of normality, albeit, as this man was, at the lower end of that scale, expert evidence, in our judgment, is not as a rule, necessary and should be excluded.” The IQ of the appellant in that case was assessed at 72, virtually the same as that of the appellant in the present case. The cut-off point of 69 has sometimes been criticised as arbitrary but it has psychological significance and, as the late Professor J C Smith said in his commentary in the Criminal Law Review, it does have the advantage of being “a clean rule”, even if “a rather stringent one”. 11. The current edition of Archbold (2005 edition, para 17-99) states that “… it is possible to discern a relaxation of the attitude of the Court of Appeal in the last 25 years.” 12. The case cited as authority for this statement is Toner (1991) 93 Cr App R 382 . However, there the issue was the possible effect of hypoglycaemia on the formation of an intention. Russell LJ said (at p.387): “… we do not know what, if any, effect mild hypoglycaemia can have upon a man’s ability to form an intent, and without that expert evidence the jury were deprived of assistance in a field where their ordinary experience did not enable them to judge for themselves.” In other words, unlike borderline intellectual impairment, in relation to which Masih decided that the jury can judge for itself, hypoglycaemia is a medical matter outside the ordinary experience of the jury. We see Masih and Toner as cases on different sides of an identified line and wholly consistent with each other. 13. The one area in which a different approach is clearly discernible is that of the reliability of confession evidence. There one can see an increased willingness to admit expert evidence. See, for example, Silcot and others ( The Times , 9 December 1991) in relation to the appellant Raghip . However, in Coles [1995] 1 Cr App R 157, Hobhouse LJ observed (at p.168F) that the Court in Silcot had expressly drawn a distinction between expert evidence going to the reliability of a confession and expert evidence going to mens rea. In Coles the disputed expert evidence was that of a psychologist on the capacity of the appellant to foresee the risks involved in his actions. The Court held that it had been rightly excluded and that ( ibid ) “unless some factor of the mental health or psychiatric state of the defendant is raised, such evidence is not admissible.” 14. Where does all this lead? In our judgment, the evidence of Dr Lowenstein and Professor Gudjonsson is no more admissible on the issue of intention in the present case than the disputed evidence was in Masih and Coles . This is not a case of mental illness nor is it a case in which the IQ of the appellant is below that considered by the Lord Chief Justice to be the threshold for admissibility in Masih . Whilst it is true that persons with an IQ as low as that of the appellant form a small part of the population at large, sadly they form a somewhat larger part of those charged with criminal offences. An intention that someone should be killed is a visceral matter of no great complexity. In our judgment, it is not a matter which, on the authorities, lends itself to expert evidence in relation to a person such as this appellant. Moreover, it is not without significance that, in any event, the reports of Dr Lowenstein and Professor Gudjonsson do not opine that the intellectual impairment of the appellant acted or may have acted as a contra-indication of the specific intention. Indeed, to the extent that they portray the appellant as easily led and ineffective in coping with stress and demands placed upon him by someone such as Donna Bailey, their views are entirely consistent with the prosecution case. 15. For all these reasons, we are satisfied that the convictions of the appellant are not unsafe by reason of the reports of Dr Lowenstein and Professor Gudjonsson which do not contain admissible evidence on the issue of intention. Nor, in our judgment, are they admissible as supporting the credibility of the appellant’s account of a lack of the requisite intention. Outside the special area of confessions to which we have referred, it is not generally permissible for a defendant to adduce expert evidence on the credibility of his defence. It is stated in the current edition of Archbold (at para 4-326) “Nor, save in exceptional circumstances (e.g. Lowery v R [1974] AC 85 , PC), can psychiatric evidence be admitted to prove the probability of the accused’s veracity.” We agree. Lowery is heavily relied upon by Mr Carey in the present case. However, it was considered in Turner and subsequent cases on these issues (but not in other respects: see Randall [2004] 1 Cr App R 26 , [2003] UKHL 69 ) to be exceptional and fact-specific. Alternatively, it has been viewed as distinguishable in law: see Phipson on Evidence , 15 th edn, para 37-14 and Cross & Tapper on Evidence , 9 th edn, p.517. 16. We record that the written submissions on behalf of the appellant included an alternative argument to the effect that the reports of the psychologists would have made it possible to seek to exclude the evidence of the meeting with Robinson and George by reference to section 78 of the Police and Criminal Evidence Act 1984 , on the basis that the tape recording was analogous to an unreliable confession. We are wholly unpersuaded by this submission. Indeed, no real reliance was placed on it in oral argument. 17. It follows from what we have said that, notwithstanding the succinct and elegant submissions of Mr Carey, the convictions of the appellant are not unsafe and his appeal is therefore dismissed.	[ "LORD JUSTICE MAURICE KAY", "MR JUSTICE SILBER" ]	2005_06_29-538.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1681/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1681	1,020
9e57578b76f1928f0e7fad71a67ce931ad6c4d78c86170a0dee9dc1ebb43875e	[2015] EWCA Crim 690	EWCA_Crim_690	2015-03-26	crown_court	Neutral Citation Number: [2015] EWCA Crim 690 Case No. 2014/02291/A1 & 2014/02610/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 26 th March 2015 B e f o r e: LORD JUSTICE JACKSON MRS JUSTICE COX DBE and THE RECORDER OF REDBRIDGE ( His Honour Judge Radford ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - IMTIAZ PIRANI HARVEY WILLIAM O'NEILL ____________________ Compu	Neutral Citation Number: [2015] EWCA Crim 690 Case No. 2014/02291/A1 & 2014/02610/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 26 th March 2015 B e f o r e: LORD JUSTICE JACKSON MRS JUSTICE COX DBE and THE RECORDER OF REDBRIDGE ( His Honour Judge Radford ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - IMTIAZ PIRANI HARVEY WILLIAM O'NEILL ____________________ 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 H A Godfrey QC appeared on behalf of the Appellant Imtiaz Pirani Mr J C Townsend appeared on behalf of the Applicant Harvey William O'Neill Mr D Aaronberg QC appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE JACKSON: I will ask Mrs Justice Cox to give the judgment of the court. MRS JUSTICE COX: 1. On 26 th February 2014, in the Isleworth Crown Court, the applicant Harvey O'Neill (now aged 30) pleaded guilty to conspiracy to supply a Class A drug, namely cocaine. On 29 th April 2014 the appellant Imtiaz Pirani (aged 33) was convicted by the jury of that same conspiracy. On 2 nd May 2014 Pirani was sentenced to a term of twelve years' imprisonment. He appeals against that sentence by leave of the single judge. O'Neill was sentenced to ten and a half years' imprisonment. He renews his application for leave to appeal against sentence following refusal by the single judge. 2. The relevant facts are these. The conspiracy was a plan to import cocaine from mainland Europe, storing, wholesaling and ultimately retailing cocaine to end users. It ran for an eleven month period between 31 st January and 11 th December 2012. There was a large number of co-accused, each of whom played his or her part, and all of whom, save Pirani, pleaded guilty to being a party to the conspiracy. There was a second conspiracy to launder the proceeds of the cocaine dealing and return it to the European suppliers, no doubt to fund further purchases of the drugs. Two other people pleaded guilty to that conspiracy. 3. The prosecution case against Pirani was that he was involved at “quite a high level” within the hierarchy of conspirators. In addition to some limited surveillance evidence, the evidence against him consisted mainly of telephone evidence of his contacts with the other conspirators. He used seven different telephone numbers for this purpose. In August 2012 he was seen driving a VW Golf and interacting with the co-accused Rakesh Sharma. 4. Pirani was arrested at his home address on 21 st August 2013, when the police seized three mobile phones, numerous SIM cards and a wrap containing 114 milligrams of cocaine. He answered "No comment" to all questions asked in his police interview. 5. The applicant O'Neill was a serving prisoner during the period of the conspiracy. He was already serving a term of eight years' imprisonment imposed for his involvement in a previous conspiracy to supply cocaine. While he was in prison he used unauthorised mobile phones and SIM cards, which enabled him to stay in contact with several of the co-conspirators, in particular Sharma, Pirani and a man called John Souza. It was difficult to know precisely when O'Neill became involved in this conspiracy, but it was certainly from 1 st April 2012 onwards. From his prison cell he was in touch with a telephone number in Kosovo and drugs were coming in from Kosovo. Further, a notebook was found showing calculations in connection with arrangements he made with Sharma relating to the importation of 3 kilograms of cocaine. 6. O'Neill was arrested on 5 th September 2013 at the prison. He too declined to comment when interviewed. He pleaded guilty at a much later stage, on 26 th February 2014. 7. Pirani had no previous convictions, reprimands or warnings. He had a single caution for possession of cocaine. 8. O'Neill had two previous convictions for driving offences, and the significant drugs conspiracy conviction, for which he was sentenced to eight years' imprisonment on 19 th August 2011. 9. In passing sentence, the judge initially described Pirani as a "lynchpin" in the conspiracy and said the evidence showed that he hid behind the veil of a legitimate business. However, after hearing submissions from his counsel, the judge said that he had changed his mind and that he no longer regarded Pirani as having a directional and organisational role. Rather, he considered him to have played a “supervisory, monitoring and constant role”, and on that basis he fell to be sentenced in between categories 1 and 2 of the Drug Offences Definitive Guidelines. A little later on in his lengthy sentencing remarks the judge referred to Pirani as the lynchpin to O'Neill, and as his lifelong friend. He was able to give O’Neill information, on a day-to-day basis, as to what was going on on the outside. The judge considered that these extensive telephone communications put Pirani at the epicentre, as the telephone schedule confirmed, reporting to O'Neill and feeding some other aspects of the chain. The judge then said that Pirani was to be placed in the same sentencing bracket as Rakesh Sharma. He referred to Pirani's personal mitigation, to his loving and loyal family and his previous good character, but by his actions he had enabled the cocaine to get on to the streets and to spread death and destruction. The high purity of the drug (between 70 and 86 per cent) was an aggravating factor. The appropriate sentence was one of twelve years imprisonment. 10. Sentencing O'Neill, the judge said that the only mercy that would be extended to him in the circumstances was the award of 25 per cent credit for his late plea of guilty. He had played an organisational and leading role in this conspiracy and was right at the top of the hierarchy, even though some aspects of his role could not be precisely identified. He, too, fell to be sentenced in between category 1 and category 2 of the sentencing guidelines and as having a leading role. The telephone evidence showed that he was steeped in the operation of the conspiracy and that he was absolutely central to it. The fact that he was in prison, already serving a sentence at the time, was a grave aggravating feature. His offending was also aggravated by the high purity of the cocaine. The mitigating features were his remorse, which the judge accepted was genuine, and his guilty plea. The appropriate sentence in all the circumstances was ten and a half years' imprisonment, which was ordered to run consecutively to the current term being served. 11. On behalf of the appellant Pirani, Mr Godfrey QC submits that twelve years' imprisonment was manifestly excessive in all the circumstances. Addressing the facts, he points out that there were two routes for the importation of cocaine in this operation. One was via a man called Waqas Mohammed, and the other was via Mark Lehane and Rakesh Sharma, who (Sharma) was sentenced to eight years' imprisonment, having received full discount for his plea of guilty. It was accepted that Pirani was a friend of O'Neill, who bought from Lehane and Sharma and used a man called Souza to deal for him at street level. However, Pirani had, effectively, a communication role, ensuring that O'Neill was kept informed as to what was going on outside. Pirani was never seen to handle drugs, or to visit the safe house where the drugs were allegedly stored. The evidence against him, as the judge accepted, was principally the telephone contact and occasional observations. It was agreed by both prosecution and defence counsel that Pirani fell to be sentenced between categories 1 and 2 of the Drug Offences Guidelines, and the judge accepted that. 12. In relation to Pirani's personal circumstances, Mr Godfrey submits that Pirani was himself a cocaine addict who had met O'Neill as a supplier. He was effectively a man of good character. At the age of 33, he was living together with his partner and their 3 year old child and he was the effective father of her two other children. He was working and he had a chemical engineering qualification. There was no evidence whatsoever that Pirani had any financial interest in the drugs, or that he had ever benefited financially from the sale of the drugs. He received only cocaine for his services. It was conceded that there was no evidence of high living and no confiscation order was sought against him. Pirani's role, as the judge appears to have accepted, was essentially a communication role. The judge was therefore wrong to describe his role as similar to that played by Sharma in this conspiracy. 13. Sharma had been sentenced by a different judge on 7 th June 2013. He was described as having a leading and directional role. The fact that he was an organiser was evidenced by the number of times that he was seen to visit the safe house where the drugs were stored, on a total of 57 occasions. 14. The judge accepted that Pirani did not have a directional and organisational role, but despite those findings, Pirani was sentenced to the same term, namely twelve years' imprisonment, as was imposed on Sharma, who received one third discount for his plea of guilty. For these reasons, it is submitted, Pirani’s sentence was manifestly excessive. 15. We see some force in those submissions, although we do not accept Mr Godfrey's further submission, that Pirani's role should be regarded as a lesser role, meriting a sentence in the region of five to six years' imprisonment. The facts indicate, as Pirani’s counsel accepted below, that his was a significant role, and the judge appears to have revised his opinion as to Pirani's role, to some extent. In any event the judge accepted the submission of both counsel that Pirani fell to be sentenced on the border between categories 1 and 2 of the guidelines, but he went on to impose a sentence at the top of the range for an offence within category 1. 16. There were, in our judgment, no aggravating features which would merit such an increase in the otherwise appropriate sentence and we accept the submission that his sentence was excessive. Pirani was a family man of previous good character, who was himself a cocaine addict, and there was no evidence of high living or of financial benefit. For all these reasons we shall quash the term of twelve years' imprisonment imposed and substitute, in his case, a sentence of nine years' imprisonment. 17. On behalf of the applicant O'Neill, Mr Townsend no longer pursues the argument as to disparity included in his grounds, namely that the judge should have distinguished O'Neill's role from that of Lehane. We need therefore say no more about it, save to observe that quite different circumstances arose in Lehane’s case and disparity was, in our view, unarguable. Mr Townsend now advances two grounds of appeal: first, that the judge should have had regard to the delay in the Crown's commencement of proceedings against O'Neill; and secondly, that the sentence imposed did not adequately reflect the principle of totality. 18. In relation to delay, Mr Townsend refers to the full chronology. Five of the conspirators, including Rakesh Sharma, were arrested during the day on 13 th November 2012. During that same evening the applicant O'Neill was detained, searched and placed in segregation by prison staff. His cell was secured in preparation for its search the following morning. On 14 th November prison officers searched the cell and discovered the mobile phones and SIM cards that ultimately linked him to the conspiracy. An application to dismiss was made on behalf of Sharma on 22 nd February 2013, which was unsuccessful. On 24 th April 2013 Sharma's mobile phones were the subject of forensic analysis. DC Wells found photographs of O’Neill (the applicant) on a black iPhone seized from Sharma at the time of his arrest. 19. A plea and case management hearing took place on 9 th May 2013 in respect of Sharma and six other conspirators. The applicant was not interviewed until 5 th September 2013. By that date, 19 persons had been arrested for their involvement in the conspiracy, and 17 of them had pleaded guilty. The applicant appeared before the Uxbridge Magistrates' Court on 7 th November 2013. By the time of the preliminary hearing at Isleworth Crown Court on 20 th November, more than a year had elapsed since the applicant was removed from his cell. He entered his plea of guilty approximately two months later, on 26 th February 2014, and a basis of plea was submitted. That was not accepted. A Newton hearing was therefore listed for 1 st May 2014, but on that date the applicant abandoned aspects of his previous basis of plea and agreed to be sentenced on the basis that he had played a leading role in the conspiracy, falling somewhere between categories 1 and 2 of the guidelines. 20. Mr Townsend has drawn our attention to some observations of this court, in R v Shaw and Others [2011] EWCA Crim 89 , as to the need, when determining sentence, to have regard to any failure to proceed with a case with due expedition; and more recently in R v Kerrigan and Walker [2014] EWCA Crim 2348 , [2015] 1 Cr App R(S) 29 . 21. He rightly accepts that the facts which led to the observations in those cases were very different from those in the present case. There was, however, a general observation as to the need to do justice in a case where there has been excessive delay. While Mr Townsend accepts that the sentence imposed in the present case, allowing for the 25 per cent discount, was within the sentencing guidelines, he submits that the judge failed adequately to reflect the delay of one year, for a serving prisoner who was not entitled to time spent on remand to count towards his sentence. He submits, further, that this delay had an impact upon totality, in that the sentence passed by the judge was longer than it would otherwise have been. The impact of the delay should have informed the overall totality of the sentence. 22. We cannot accept these submissions. This was an extensive conspiracy, involving a lengthy investigation and a large number of defendants. The issue of delay has to be seen in that context. We also accept the submission of Mr Aaronberg QC, on behalf of the respondent, that part of the reason for the delay was O'Neill's own decisions, first to decline to comment when interviewed, and then to enter a basis of plea which was contested and required a Newton hearing to be arranged. 23. We do not consider that the delay in bringing proceedings against O'Neill was excessive in all the circumstances, or that the judge was in error in failing to make specific allowance for delay in the sentence that he imposed. In any event, to the extent that the factor of delay was not expressly taken into account, this factor was in our view amply reflected in the judge's decision to give a 25 per cent discount for O'Neill's plea of guilty, notwithstanding the background and the disputed basis upon which his plea was originally entered. 24. The seriousness of O'Neill's case clearly lay in the fact that he was already serving a sentence of eight years' imprisonment for conspiracy to supply cocaine; and that, from inside prison during the currency of that sentence, he then joined a further, wide-ranging conspiracy to supply cocaine. He played a leading role and fell to be sentenced between categories 1 and 2. A starting point of fourteen years would not have been manifestly excessive, and a consecutive sentence was, in our judgment, correct in principle. Joining this conspiracy, whilst already serving a prison sentence for an earlier conspiracy, was an extremely serious aggravating feature. The judge had proper regard to totality and allowed a 25 per cent discount for his plea. 25. For all these reasons the term of ten and a half years' imprisonment imposed in O’Neil’s case cannot be said to be manifestly excessive or wrong in principle. We therefore refuse the renewed application for leave to appeal in his case. ____________________________________	[ "LORD JUSTICE JACKSON", "MRS JUSTICE COX DBE" ]	2015_03_26-3584.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/690/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/690	1,021
a567a4705d43d64078c72adf24abddc397b7898b9c58cbe097670abf12b6c5aa	[2004] EWCA Crim 2768	EWCA_Crim_2768	2004-10-28	crown_court	No: 200402696/A7 Neutral Citation Number: [2004] EWCA Crim 2768 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 28th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE HENRIQUES MRS JUSTICE DOBBS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY- GENERAL's REFERENCE NO 52 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Lim	No: 200402696/A7 Neutral Citation Number: [2004] EWCA Crim 2768 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 28th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE HENRIQUES MRS JUSTICE DOBBS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY- GENERAL's REFERENCE NO 52 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S DENISON appeared on behalf of the ATTORNEY GENERAL MISS M LORAM appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney- General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer sentences said to be unduly lenient. We grant leave. 2. The offender was born on 1st November 1982 and is therefore almost 22. On 5th March 2004 he pleaded guilty to six offences which were contained in three indictments. First, robbery at a Spar store on 8th June 2003; secondly, robbery at the Crown public house, Brownhills, on 5th July 2003; thirdly, handling the proceeds of a robbery at the Chase Inn, Brownhills, on 25th August 2003; fourthly, robbery at Guests Off- licence, Chasetown, on 30th August 2003; fifthly, possessing an offensive weapon, a knife, on 30th August 2003; sixthly, robbery at Trent Valley Hotel on 7th September 2003; and seventhly, on the same date, possessing an offensive weapon, namely a hammer. He was sentenced by His Honour Leonard Krikler sitting as a Deputy Circuit Judge at Stafford Crown Court on 14th April 2004 to a total term of 5 years' imprisonment. That consisted of 5 years for each of the first two robberies to which we have referred, 4 years for the robbery at Guests off- licence and 3 years for the robbery at the Trent Valley Hotel. In relation to the other three offences, one of handling stolen goods and the other two of possessing an offensive weapon, he was sentenced to 12 months' imprisonment. All those sentences were ordered to run concurrently. 3. In summary, the offender committed a series of robberies on vulnerable premises, at night, either acting alone or with others. The premises were occupied. He concealed his face with either a mask or a hood and he used weapons to threaten those who were in the premises in order to enable him to gain access to that which he wished to take. The victims were terrified. Substantial amounts of property, particularly cash, were taken. 4. The first robbery, at the Spar Store, took place on 8th June 2003 when the offender and two others went first to the offender's mother's home. From there he borrowed a white van owned by his mother's lodger. Shortly before 11 o' clock that evening four female members of the staff were on duty at the Spar store. Three were at the tills and the fourth, Miss Rooney, a supervisor, was about to lock the door to close for the evening. The offender and another man came in. One of them had a woollen hat pulled over his face in which two eye holes had been cut. The other had a hooded top with the hood over his face. One carried a crowbar and the other an axe. They approached the women and shouted: "Get down". Two of the women fled to the toilets, a third backed away and crouched in a corner. Miss Rooney was taken by the men to the office door and they demanded the keys. She said she did not have them. One of the men smashed the glass with the crowbar. The other raised the axe. She admitted that she had the keys and she unlocked the door. She was told to unlock the two safes. She did so. They used the crowbar to open one of the trays from the larger safe. They emptied its contents into a canvas bag which was in the office. They ran from the store, one of them grabbing cigarettes as he went. They ran to the white van which had a third person waiting to drive them away. He did so. 5. The offender and the same two returned to the offender's mother's house at between 11.30 and midnight. The proceeds from that enterprise were a sum in excess of £27,000 in cash, £800 worth of mobile telephone Top Up cards, a number of packets of cigarettes and the canvas bag. Damage had, of course, been caused to the office door window. 6. When the offender was interviewed, in November 2003, he declined to answer questions. A co- defendant, who pleaded guilty to handling stolen goods, was sentenced to 9 months' detention. 7. The second robbery, at the Crown, took place on 5th July 2003. The living quarters were occupied by a female licensee, Miss Hook and the relief manager Mr Booker, together with his partner, Miss Baldock. At about 3.30 in the morning of 5th July they were awakened by the sound of banging on the bedroom door of Mr Booker and Miss Baldock. Mr Booker got up to investigate. As he did so, the door was kicked off its hinges and he was confronted by the offender and another man wearing Balaclavas and wielding crowbars above their heads. They ordered Mr Booker and Miss Baldock to get down on the floor. Miss Hook, who had also got up to see what was going on, was pushed into the room and made to sit on the bed. The men searched the rooms and demanded the keys to the safe and the alarm codes. It was claimed by the occupiers that there was no safe, whereupon they were threatened with the crowbars and told that they would be 'done'. One of the invaders was more aggressive than the other but it was the quieter one who seemed to be in charge. It was the offender's case that he was not the more aggressive one; it follows that he was in charge. 8. Miss Hook eventually told them that the safe was downstairs, whereupon the aggressive one punched her in the face, causing a lump on her left ear. One of the men picked up a steak knife and threatened the occupiers with that. He then took Mr Booker downstairs at knife- point while the other man remained upstairs with the women. Eventually the men made off with £7,500 in cash and £1800 worth of jewellery. The incident had lasted about 40 minutes. Understandably, the women, in particular, were petrified throughout, particularly so in the case of Miss Baldock, because she knew of a recent incident at another public house where a man had been killed. 9. When the offender was interviewed he denied that he had been involved. 10. As to the offence of handling, in the early hours of 25th August 2003 three masked men broke into The Chase public house and kicked down the bedroom door of the female licensee and her partner. They were armed with a crowbar, a carving knife and claw hammer. They demanded to know where the money was. They brought the licencee's 16 year old daughter into the bedroom and threatened her with a hammer. They made off with £4,000 in cash and jewellery, including a watch which was found at the home of the offender's girlfriend during the following month, September. 11. When he was interviewed that month the offender claimed to have bought the watch a few weeks previously from a drug taker in Brownhills. As we have indicated, his plea of guilty to handling in relation to those matters was accepted. 12. The next two offences were the robbery at Guests off- licence and the possession of an offensive weapon, namely a knife while that was done. On 30th August, shortly after 10 o'clock in the evening, the offender went into the off- licence. There were two female members of staff on duty. He was wearing both a white baseball cap and a stocking mask. He was brandishing a large knife with which he threatened the staff. He said: "Where's your fucking money?" several times. The staff said they did not have any. He went to the till. When he failed to open it, he attacked it with the knife, eventually forcing it open. He made off with £2,000 in cash and £180 worth of mobile telephone Top Up cards, together with a few cigarette lighters. Unfortunately for him, the whole incident was captured on closed circuit television. It was possible to identify the offender both by that means and by subsequent identification procedures. In interview he denied being involved. 13. Finally, the robbery and possession of a hammer on 7th September 2003, at Trent Valley Hotel. At 3.15 in the morning on that day the manager of that hotel, Mr Lowe, was awakened from sleep by two men who had broken into his bedroom. Both were wearing hooded tops with the hoods pulled tightly round their faces. One carried a knife, the offender carried a hammer. They shouted: "Where's the money?" He said it was in the safe. They shouted: "Where's the keys?" He said they were in his trouser pocket. One of the men shouted: "Don't be a fucking hero or I'll blade you." They demanded the alarm codes. One of them stayed with him while the other went to the safe. When that other returned he was aggressive and demanded to know if that was "all the fucking money". He threatened to stab Mr Lowe. They searched his room for more money and locked him in the bathroom, again threatening to stab him if he sounded the alarm. He was left extremely shaken. They made off with £2,500 in cash, some Greek money, the keys to a Mercedes car and a mobile telephone. 14. The offender was arrested later that evening after the police had traced him. Later, a shoeprint from the scene was matched to one of his shoes. Again, in interview, he denied any involvement in the offences. 15. The offender has been convicted of 121 offences since July 1997, including burglary, theft, handling, assault, criminal damage, possessing an offensive weapon and other driving and drugs offences, some of these offences having been committed while on bail. His first custodial sentence was in May 1998, and since that time every year he has been sentenced to a term of custody, the longest previously being for 18 months. He claims to have committed the present offences in order to enable him to feed his drug addiction. 16. On behalf of the Attorney- General, Mr Denison draws attention to what he rightly submits are a number of aggravating features. First, vulnerable occupied premises were targeted at night. Secondly, weapons were used to threaten and terrify staff. Thirdly, the offender committed offences with others as well as on his own. Fourthly, the ordeal of the victims was increased by the face masks warn by the intruders. Fifthly, the offences were ruthlessly carried out after planning. 17. Mr Denison draws attention to three mitigating features. First, the pleas of guilty. Secondly, the fact that none of the weapons albeit brandished was actually used, and thirdly, that the offender is only 21 years of age. But, he submits, a sentence of 5 years' imprisonment for these offences was inadequate properly to reflect their gravity. 18. A number of authorities are referred to in the Reference: Attorney- General's Reference No 9 of 1989 (R v Lacey) (1990) 12 Cr App R(S) 7, Attorney- General's Reference No 16 of 2000 (R v Skittlethorpe) [2001] 1 Cr App R(S) 144, Attorney- General's Reference No 149 of 2002 (R v Lockwood) [2003] 2 Cr App R(S) 559 and R v Delaney [1998] 1 Cr App R(S) 325. 19. On behalf of the offender Miss Loram, in an admirable submission, drew attention to four mitigating features in particular. First, the plea of guilty; secondly, the offender's age at the time of these offences, namely 20; thirdly, such remorse as is depicted in the letter which was before the sentencing judge and is before this Court, and fourthly, that the violence, as we have already indicated, was limited. Miss Loram submits that, although the sentence was admittedly a lenient one, nonetheless, the offender is still a long- term prisoner at the age of 21. Such a person, she submits, needs to be able to see some light at the end of the tunnel. She submits that the sentences passed by the learned judge were not unduly lenient but within the scope of the judge's discretion. Alternatively, she invites the Court to have regard, as it always does, to the principle of double jeopardy, that is to say that the offender is being sentenced a second time. 20. To all of these matters we have regard. As it seems to us, the criminality of the offender in the offences which we have described required a significantly higher sentence than that imposed on him by the learned judge. We would have expected in the court below a sentence of the order of 8 or 9 years' imprisonment. Taking into account double jeopardy, the sentence which we pass is one of 7 years' imprisonment. We achieve that by quashing the sentences of 5, 4 and 3 years imposed in relation to the offences of robbery and substituting for each of these sentences a sentence of 7 years' imprisonment. The other sentences imposed for handling and possessing an offensive weapon will remain unaffected. All the sentences will run concurrently. The total sentence is therefore one of 7 years' imprisonment.	[ "MR JUSTICE HENRIQUES", "MRS JUSTICE DOBBS", "S.36 CRIMINAL JUSTICE ACT 1988" ]	2004_10_28-354.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2768/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2768	1,022
b935d7a324f12a665cdbeb96e2e760b253fc513e4b5282025c59b4b323146970	[2010] EWCA Crim 2326	EWCA_Crim_2326	2010-10-13	crown_court	Case No: 2009 4609 C5 Neutral Citation Number: [2010] EWCA Crim 2326 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT MANCHESTER HHJ HUMPHRIES T932101 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/10/2010 Before : LORD JUSTICE HOOPER MR JUSTICE BUTTERFIELD and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : SULTAN SHAH Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 2009 4609 C5 Neutral Citation Number: [2010] EWCA Crim 2326 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT MANCHESTER HHJ HUMPHRIES T932101 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/10/2010 Before : LORD JUSTICE HOOPER MR JUSTICE BUTTERFIELD and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : SULTAN SHAH Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MISS M. SIKAND appears for the Appellant. MR. J. ASHLEY-NORMAN appears for the Respondent. Hearing date: 13 th October 2010 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. At the conclusion of the hearing yesterday we announced our decision that the appeal would be allowed and the conviction quashed. We now give our reasons. 2. On 28 March 1994 in the Crown Court at Manchester (HHJ Humphries) the appellant was convicted of conspiracy to evade the prohibition on the import of a controlled drug of Class A (Diamorphine) and was sentenced to 10 Years’ imprisonment. His renewed application for leave to appeal conviction was dismissed on 19 February 1996. 3. This is believed to be the last of the Pakistan Controlled Delivery cases which will need to be resolved in this Court. The conviction was referred to this Court by the Criminal Cases Review Commission (“CCRC”) for whose very thorough report we are grateful. 4. We do not propose to set out the background to this type of case which can be found set out in detail in earlier decisions of this Court: see R v Choudhery and Another [2005] EWCA Crim 1788 and [2005] EWCA Crim 2598 ; R v Latif and Others [2007] EWCA Crim 307 ; and R v Vernett-Showers [2007] EWCA Crim 2598 and R v Rafiq and Hussain [2008] EWCA Crim 1518 . 5. This case is unusual in that the participating informant (“PI”) known as the Doctor, together with the Doctor’s wife and SA, whom the Doctor falsely told the Drug Liaison Officer (“DLO”) was a minder required by the suppliers, were all fully bound witnesses. On the day of the trial Lord Archer QC for the appellant was told that they could not be traced. Mr Wigglesworth, for the prosecution, submitted to the judge that the trial should continue with the prosecution relying on unedited video and audio recordings of conversations (in Pashto and Urdu) between the Doctor and the appellant before and at the time of the handover of 10 kilos of heroin to the appellant by the Doctor. Lord Archer opposed that submission making it clear he wished to cross-examine the witnesses particularly the Doctor. The judge agreed with the prosecution. 6. The conversations contained a number of statements made by the appellant said by the prosecution (and accepted by the jury) to be incriminatory. It was his case, which he supported by giving evidence, that he had been set up and that he believed that he was dealing with and talking about illicit homeopathic medicine and not heroin. 7. The principal ground of appeal relates to the failure on the part of the prosecution to have the three witnesses available for cross-examination. There were other grounds which we did not need to consider. 8. The appellant was arrested on 17 March 1993. In interview he said that he thought that he was taking delivery of a homeopathic medicine called “Dumcap” used in the treatment of asthma. 9. On 9 August 93 an officer of HM C&E completed a reward application for the Doctor. In that application he wrote: PERSONAL INVOLVEMENT OF CIs [confidential informants] IN OFFENCE: The PI is central to the whole operation. He was heavily involved from beginning to end; whilst in Pakistan he had many unprotected meetings with the supplier and then undertook the negotiations in the UK for the handover of the drugs. His evidence will be the most crucial at the subsequent trial. During the build up, the Doctor led us to believe that the presence in the UK of his friend –[SA] – was necessary for the success of the case, we duly facilitated a visa for [SA] who has since claimed political asylum. I believe the CI deceived us in asking for the visa. There is every chance he has received money from [SA] for arranging the visa. Summary This turned out to be a complicated and difficult controlled delivery case, made more so by the PI’s devious scheming to try and work every single angle to his own profit. He took advantage of the Department in a number of areas and proved very difficult to control once in the UK. 10. The Doctor had told the DLO that the supplier had required the Doctor to be accompanied to England for the handover by SA, acting in effect as a minder on behalf of the supplier. 11. Another officer had added in handwriting “I am troubled that he may not make a good witness”. 12. On 23 August 1993 Mr Sinnott, an investigator in this country, wrote a memorandum with the heading: “PI’s” and then the names of the Doctor, his wife and SA. He was envisaging that the PIs may not be called to give evidence. He wrote: There is a possibility that the Prosecution case may proceed without above 3 PI statements. 13. He also wrote that he had been advised by Miss K Whelan, the HM C&E solicitor who was managing the case, that: certain matters within the statements of the PI, of his wife and SA “will need corroboration”. He then asked a series of questions asking for confirmation of the truth of a number of factual assertions in the Doctor’s statement and of one such assertion in the stement of SA. Mr Sinnott asked that the Karachi DLOs be asked to answer these and other enquiries. That document was received in Karachi on 9 September. 14. Miss Whelan has not made a statement concerning the matters the subject matter of this appeal. 15. The DLO, John Dodds, who had controlled the operation in Pakistan had by now returned to this country, leaving the handling of the PI to other DLOs. Dodds in his statement dated 31 August 1993 wrote: I explained to the doctor that if he was to cooperate with us he would have to give evidence when required in a British Court of Law 16. On 9 September 1993 Mr Sinnott wrote a memorandum which included the following: The Doctor was obstructive and unable to act in accordance with our wishes. At times he behaved in an underhand and untrustworthy manner. The inclusion of his wife, child and a “minder” proved to be superfluous and very costly operationally, as well as creating enormous domestic difficulties. Sultan Shah was probably the “front man” for A N Other or a “family business” and will hopefully plead guilty once all the audio and visual tape transcriptions are available. However, there is a possibility that the Prosecution may proceed without relying on the 3 PI statements, as it is felt that the Doctor would not make a good witness. He should not be used in this manner again. 17. At about this time a further reward for the Doctor of £5000 was authorised (he had received an earlier payment of £1000 before he had left the UK). The balance was paid in April 1994 after the trial. 18. On 29 October 1993 Miss Whelan noted that the “PI could be a problem”. 19. On 4 October 1993, the appellant pleaded not guilty. 20. In October the solicitors for the appellant wrote a letter to Miss Whelan seeking further information about the Doctor. That request was forwarded to the DLOs in Karachi. 21. On 8 November 1993 there was a hearing in the Crown Court at Manchester at which the trial, due to last some 10 days, was fixed for 21 February 2004. It seems clear that at his stage those responsible for the prosecution anticipated that the three witnesses would be called to give evidence. The estimate of 10 days and a note which refers to the need for interpreters as well as other things support this. 22. On the 11 November, three days after the trial date had been fixed, the Doctor spoke in person via an interpreter to two DLOs in Karachi, Messrs Will and Bragg, and gave information in response to the letter from the solicitors for the appellant. He does not appear to have been told the trial date. 23. According to what the Doctor said, he was a medical doctor, he had undertaken courses in homeopathic medicine and had produced amongst other “potions” a capsule called “Dumcap” for asthma. He gave the ingredients, one of which was arsenic! 24. That information supported the account which the appellant had given in interview. 25. In he memorandum setting out this information, DLOs Will and Bragg wrote: I hope that this covers the questions that have been raised. It should be borne in mind that the CI very often moves out of Karachi and contact with him is slow and laborious, having to leave messages with several people. This inevitably means there are sometimes quite lengthy delays in getting hold of the CI. 26. The information obtained from the Doctor was forwarded to the appellant’s solicitor on 5 January 1994. 27. Meanwhile on 3 January 1994 the Doctor spoke on the telephone to DLO Will. His note reads:: Call from CI Doctor. He has to go to tribal area within the next few days. 1. any news on trial date; 2. to get [passport] as old one has expired. He will be going ‘up country’ unless he hears from DLO within next 2 days. 28. There is no evidence that the Doctor or the other two witnesses were told at any time that the trial date was 21 February 2004. Nor is there any evidence that the DLOs in Karachi were asked to warn the Doctor and the other two of this date. We say that mindful of the fact that the records of the work of the DLOs in Pakistan and their communications with this country have been located as well as the records of the solicitor’s department. Missing are the records of the investigators. 29. On January 17 the appellant’s solicitors confirmed that the presence of the three witnesses was required at the trial. 30. Also in January solicitors for the appellant sought a new date for the trial and suggested 21 March 1994. Miss Whelan sent a fax to a senior investigator asking him to check the availability of witnesses for that date and for about three weeks thereafter. In the absence of the records of the investigators we do not know what they did. The Karachi DLO records reveal no contact with them on this topic. 31. On 20 January Miss Whelan wrote a letter to the appellant’s solicitors confirming the date of 21 March and saying: I have now ascertained that that date causes no difficulties with regard to prosecution witnesses. 32. Taking this letter at face value Miss Whelan must have been assured by the investigators that the three witnesses with which we are concerned were available on that day to give evidence. There is no documentation or other evidence to suggest that any of the three witnesses were contacted to be told of the new date. 33. Mr Wigglesworth had been made aware in his brief that the PI was not believed to be a very reliable witness and that the United States Drug Enforcement Agency, for whom the Doctor had previously acted as an informant in a heroin transaction into Miami, had expressed dissatisfaction at his services. 34. On 15 March Miss Whelan asked counsel to prepare a “batting order” of witnesses. 35. We have an undated typed “Witness order list” probably prepared by counsel and probably prepared for a conference that took place on 16 March. We say that because there are a number of manuscript entries including entries relating to the availability of the witnesses and when they should be called. 36. The three witnesses do not appear on that list and there is no documentary or other evidence to explain why they were not on the list. 37. Lord Archer, as we have said, was told by the prosecution only on the morning of the trial, Monday 21 March, that the witnesses were not available. The Court log shows that Mr Wigglesworth told the judge that the Doctor is “not here” and that he could not be traced in Pakistan. He pointed out to the judge that this would shorten the case considerably. The log also reveals that the judge was told that there was no statement from the DLO in Karachi as to why witnesses are not here today. The judge was also told that Mr Dodds was travelling to Manchester. When he did arrive that day he was not called to give evidence on this matter. He was called very briefly in the trial that afternoon but by then the judge had ruled that the case should proceed without the three witnesses and, presumably, Lord Archer did not ask questions about their non-attendance given that it would not be relevant as far as the jury was concerned. 38. According to Mr Wigglesworth the defence were told that the Doctor had disappeared “into the ether”. 39. The transcript of the hearing shows that Lord Archer was explaining to the judge why he wanted to cross-examine the three witnesses and why, given their unavailability, the video and audio recordings of the recorded conversations between the appellant and the Doctor should not be admitted. Their unavailability was, so it appears, accepted as a fact and not investigated any further. The prosecution submitted that the prosecution would be worse off without the witnesses and the judge ruled it would not be unfair to the defence to allow the transcripts into evidence and would be unfair to the prosecution not to allow it. It was this ruling which was the subject matter of the unsuccessful application for leave to appeal in 1996. As a result of the excellent work of the CCRC we now have documents unavailable to the Court at that time. 40. The trial continued and, before the prosecution had closed its case, the Doctor and his wife came to see DLO Bragg at 13.00 hours (8.00 am here) on Thursday 24 March 1994. They were told (so a note by DLO Bragg records) that the trial was on at the moment and that they may be required to give evidence. The Doctor and his wife gave contact telephone numbers in Karachi for both an office and residence. The CCRC points out that these were the same numbers as had been given to DLO Will in August 1993 and one of the numbers was on the file kept by HM C&E on the Doctor. 41. The Doctor also gave the address in Gateshead where SA was living. The CCRC notes that as long before as May 1993, the Doctor had told a DLO that SA was not planning to give evidence. 42. It seems clear that SA had arrived in England at the time of the handover, had been sent away by HM C&E because he was not needed and had then made an application on 8 September 1993 to remain in this country In his application he said that Customs officers had taken him to Newcastle. 43. More eloquent than what DO Bragg wrote is what he did not write. He did not say to the Doctor and his wife: “Thank goodness you are here. I have been looking for you everywhere because you are supposed to be giving evidence. I shall have to contact C&E in England to tell them that I have found you”. DLO Bragg, so it is safe to assume, had never been told that the three witnesses were required to give evidence and the date of the trial. For all we know the Doctor and his wife could have been in Karachi when the trial started. We say that because the DLOs had Karachi numbers for the Doctor. 44. There is no evidence that DLO Bragg contacted HM C&E in England to say what had happened. The fact that he did not do so is powerful evidence that the DLOs in Karachi had not been told that the three witnesses were required on 21 March. 45. If DLO Bragg had done so and if counsel had been informed then, before the close of the prosecution case, the judge would have been informed that the Doctor and his wife had been found and that the whereabouts of SA in England were known. That would have led, at the least, to an enquiry as to what had happened, an enquiry that would not, so it appears to us on the available documentation, show some of those responsible for the prosecution in a good light. 46. We are told that it would not have been difficult to have flown the Doctor and his wife to England straight away. 47. We return to what the judge was told on 21 March. To tell a judge that a witness cannot be traced carries with it the implication that efforts have been made to trace him. If no such efforts have been made, the judge is being misled. 48. Mr Ashley-Norman submits that the Doctor was up country at the start of the trial and therefore untraceable. If that is right how was Miss Whelan able to write that she had ascertained that the witnesses required by the defence would be available? If, as appears to be the case, no attempts were made to contact the Doctor and his wife, why should we assume that he was out of reach, particularly given what happened on 24 March, when the Doctor and his wife spoke to DLO Bragg? Why also was no attempt made to contact SA? 49. In our view the judge was misled into believing that steps had been taken to trace the three witnesses when, so the documents available to us show, no such steps had been taken. It is not now possible to say with certainty that the misleading of the judge was deliberately engineered by some unidentified person. It is sufficient for us to say that what happened was either deliberate (the decision having been made not to bring the three witnesses to court) or was the result of gross incompetence. Either way the appellant did not have a fair trial and his appeal succeeds. His conviction is quashed.	[ "LORD JUSTICE HOOPER", "MR JUSTICE BUTTERFIELD", "MR JUSTICE KENNETH PARKER" ]	2010_10_13-2522.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2326/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2326	1,023
575f1f6d175e81cc7a3aa51eed9eddf8213d3f6c75703a8e87ab3375c0e99a56	[2008] EWCA Crim 1111	EWCA_Crim_1111	2008-05-21	supreme_court	Neutral Citation Number: [2008] EWCA Crim 1111 Case No: 200606526 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2008 Before: LORD JUSTICE LATHAM MR JUSTICE DAVID CLARKE and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - Between: R v Steven Gallant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Timothy Roberts QC on behalf of Steven Gallant Nicholas Campbell	Neutral Citation Number: [2008] EWCA Crim 1111 Case No: 200606526 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2008 Before: LORD JUSTICE LATHAM MR JUSTICE DAVID CLARKE and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - Between: R v Steven Gallant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Timothy Roberts QC on behalf of Steven Gallant Nicholas Campbell QC and David Brooke on behalf of the Crown Hearing date: 12 May 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham : 1. On the 9 th November 2005 in the Crown Court at Hull the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 17 years. His co-accused, James Gilligan was also convicted of murder and received the same sentence. A third defendant, Shaun Wilson, pleaded guilty to an offence of assisting an offender and was sentenced to 21 months imprisonment. The appellant appeals against conviction with leave of the full court. 2. The deceased, Barrie Jackson, died on the night of the 24 th April 2005. The appellant believed that the deceased had been partly responsible for an assault on his girlfriend some eight days previously. The prosecution case was that on the night of the 24 th April, he arranged with the co-accused Gilligan to meet and attack the deceased who was known to be drinking that night in a public house known as The Dolphin. There would appear to be no doubt that the appellant was waiting outside The Dolphin when the deceased emerged after a violent incident inside the public house. There is equally no doubt that Gilligan’s white van had been seen parked in the area shortly before the deceased emerged, and was driven to the scene very shortly after the incident which culminated in the deceased’s death began. 3. As is so often the case, the evidence relating to the incident itself was somewhat confused. A witness, Gary Green, saw a person, whom he did not identify as the appellant, spray CS gas into the deceased’s eyes: the deceased started to run away, but was chased by the man with the spray who was swinging a hammer at him. He then described a van approaching and coming into contact with the deceased who fell to the ground. The man with the hammer continued to attack the deceased. Gilligan got out of the van and joined in the attack, there was then confusion during which he saw someone stamping and jumping on the deceased. 4. Other witnesses also described a man having something which looked like a gas canister, and an attack including stamping on the deceased whilst he was lying on the ground. 5. No one specifically identified the appellant as being the person who struck any blows. One witness, Jade Walker, came out of the public house at the time when the deceased was on the ground with three or four men around him. As she walked to the scene, the appellant left, carrying something in his hands. The deceased was still being attacked at that stage. 6. The appellant’s account was that he accepted that he was the person with the CS canister. He was not intending to do more than confront the deceased when he came out of the public house. The deceased however made as if to attack him, so he sprayed his face with gas. He accepted that he then punched and ultimately kicked the deceased whilst he was on the ground. He denied that any of the phone calls, which he had accepted he had made to Gilligan, were anything to do with organising an attack on the deceased. When the deceased was on the ground, and Gilligan’s van had arrived, but before anyone else was involved, he left the scene, taking a hammer from the rear of the van in case any friends of the deceased tried to attack him. 7. Gilligan accepted that he was there, and was the driver of the van. He agreed that the van came into contact with the deceased and the deceased then fell. The appellant fell on top of the deceased, punching his face. He, Gilligan, was trying to pull the appellant away, he saw the appellant kicking the deceased in the face and head up to four times. He played no part in the attack. 8. The pathologist, Professor Vanezis described severe injuries to the facial bones of the deceased and a fracture of the skull which were all consistent with stamping and kicking injuries. It was possible that a hammer could have been used to cause one of the injuries. It was the injuries to the head which caused the deceased’s death; but the pathologist was unable to say which particular injury or injuries either caused or contributed to his death. 9. The appellant has been granted leave to appeal by the full court on two grounds. The first ground is that the judge failed to direct the jury adequately or at all on the legal consequence if the jury accepted that the appellant left the scene before any fatal blows were struck. The second ground is that the judge failed to leave to the jury the possibility of an alternative verdict of guilty to manslaughter, in accordance with the principles set out in the speeches in the House of Lords in R v Coutts [2007] 1 CAR 60. 10. As to the first ground, the judge considered with some care in discussions with counsel before his summing up the form of this direction that he should give to the jury on joint enterprise. As a result, the judge gave what is agreed to be a wholly unimpeachable direction as to participation and intent, and then, turning to the case of each defendant, he said as follows: “So where does that leave the issues in the case? Let’s take Steven Gallant. He denies there was ever any plan in advance. He accepts that he did use violence on Barrie Jackson by punching him and kicking him, but he denies involvement with anybody else in doing that. He denies that any physical violence by him was a cause of the death of Barrie Jackson and he denies any intention to cause serious harm, although he admits he did intend to cause some harm. What about Mr Gilligan? He too denies any advance plan to attack Barrie Jackson. He denies that he himself used any physical violence at all or played any part in it and he says that if any action of his did cause any injury to Barrie Jackson it was entirely accidental during the course of the struggle and he denies any intention to cause any harm to Barrie Jackson. … Suppose either Gallant or Gilligan left the scene, left the actual point of violence, before the violence ended. We’re talking of a relatively short time on any view, are we not? If the defendant participated in the use of physical violence on Barrie Jackson in the kind of ways I have suggested are possible, and he intended serious harm to Barrie Jackson, he would remain responsible for the consequences of the violence after he left if the violence was, in fact, a continuation of the same joint attack, and it is for you, looking at the matter realistically to say whether it was the continuation of the same joint attack” 11. Mr Roberts QC, on behalf of the appellant, submits that this was an inadequate direction to the jury on the consequences of withdrawal. He submits that the judge should have directed the jury in accordance with the principles set out in this court in the case of R v O’Flaherty, Ryan and Toussaint [2004] 2 Cr. App. R. 20 . At paragraph 58, the court said: “A person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal, here murder, should not be liable for that crime.” 12. Later at paragraph 60, the court said: “To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury.” 13. Accordingly, Mr Roberts submits, the judge should at least have left to the jury the question of whether or not they were satisfied that the appellant had not withdrawn from the joint enterprise sufficiently to bring his participation to an end. 14. In one sense, the criticism is valid. The judge’s summing up was not a complete statement of the legal position. This is an extremely good example of the fact that a summing up does not have to be a complete statement of the law. It has to be tailored to the particular issues in the case. In this case, the appellant never claimed that he had withdrawn from the joint enterprise. He denied that there was any joint enterprise at all. The real issue was whether or not there was a joint enterprise. That was the context of the judge’s direction which, as we have said, was agreed as the appropriate direction by all counsel. In any event, the evidence made it clear that the appellant was the instigator of the incident; it was his grudge. In those circumstances, assuming that the attack started as a joint enterprise, he clearly would have had to do more than merely walk away in order to demonstrate that he was withdrawing from any further participation. In our view, the summing up was properly directed to the issues before the jury. 15. As to the second ground, there is no doubt, as this court emphasised in R v Foster and Others [2007] EWCA Crim 2869 , that in a trial for murder, the judge is obliged to leave the possibility of acquittal of murder and conviction of manslaughter on any available basis for which there is some evidence. This was the effect of the speeches in the House of Lords in Coutts . The important question in the present case is whether or not there was any evidence upon which an alternative verdict of manslaughter was available. Mr Roberts submits that the fact that the appellant admitted having fought with, and kicked the deceased was of itself sufficient to require the judge to direct the jury that there was available to them the alternative verdict of guilty of manslaughter. Mr Campbell QC on behalf of the Crown has taken us to the transcripts of discussions between judge and counsel which explain why the alternative was not left to the jury. On the 3 rd November 2005, the judge indicated that he was minded to direct the jury that what had to be proved against each defendant was that “either his attack, or if it was a joint attack that joint attack caused the death”. If that had been his ultimate direction, then clearly he would have had to direct the jury that there was an alternative verdict of manslaughter available on the basis of the appellant’s evidence that he did not intend either to kill or cause really serious harm. However, the judge thereafter clearly looked more carefully at the medical evidence. On the 7 th November 2005, shortly before he started his summing up, he said: “What concerns me is this; it doesn’t seem to me that there is any basis in the medical evidence for saying that only some of the injuries would have caused death.” 16. He then went on to indicate that as a result he proposed to direct the jury that they could only convict of murder if they were satisfied that there was a joint enterprise. In other words, if the jury concluded that there was no joint enterprise but that one or other of the defendants inflicted some injury, there was no evidence that such injury caused or contributed to the death. It follows that unless joint enterprise was established, there could be no conviction for either murder or manslaughter. Accordingly, there was no basis for leaving the alternative of manslaughter to the jury. 17. We therefore conclude that the appellant’s conviction was safe and dismiss the appeal.	[ "LORD JUSTICE LATHAM", "MR JUSTICE MACDUFF" ]	2008_05_21-1520.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1111/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1111	1,024
7ea3e5f16710a6a2ac9865879e9ed202deac137e64c66d851d185a69d4a3cf0f	[2019] EWCA Crim 2122	EWCA_Crim_2122	2019-11-26	crown_court	Neutral Citation Number: [2019] EWCA Crim 2122 2019/01108/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 26 th November 2019 B e f o r e: LORD JUSTICE HOLROYDE MRS JUSTICE LAMBERT DBE and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - DANIEL QUINN ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Stree	Neutral Citation Number: [2019] EWCA Crim 2122 2019/01108/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 26 th November 2019 B e f o r e: LORD JUSTICE HOLROYDE MRS JUSTICE LAMBERT DBE and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - DANIEL QUINN ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Mr R Menon QC appeared on behalf of the Applicant ______________________ J U D G M E N T ( Approved ) ______________________ Tuesday 26 th November 2019 LORD JUSTICE HOLROYDE: 1. On 19 th February 2019, following a trial in the Crown Court at Northampton, the applicant was convicted of murder. On 21 st February 2019, he was sentenced to life imprisonment with a minimum term of 27 years (less the 245 days during which he had been remanded in custody prior to trial). 2. His application for leave to appeal against sentence was refused by the single judge. It is now renewed to the full court. 3. For present purposes, the facts may be summarised briefly. The applicant was a drug dealer engaged in the trade of supplying crack cocaine. He was in dispute with one of his customers, a drug user called Cowdell. They would threaten each other when they met. 4. On 14 th June 2018, Daniel Fitzjohn, then aged 34, chanced to meet Cowdell through mutual friends with whom he was drinking. Mr Fitzjohn was persuaded, against his initial wishes, to join the others in going to Cowdell's house. On the way there, Cowdell went into a shop to buy alcohol and encountered the applicant. Those two men argued. They either left, or were persuaded to leave, the shop. Outside, the applicant walked away, but only as far as the grounds of a nearby house where he armed himself with a piece of wood, returned to the area outside the shop and tried to hit Cowdell. Mr Fitzjohn put an end to that attack by intervening and punching the applicant, knocking him down. The applicant got into his car and drove it onto the pavement towards Cowdell, although he did not hit him. The applicant then drove away. The group, which included Mr Fitzjohn, continued towards Cowdell's house. 5. Before they reached the house, the applicant reappeared in his car. He was now accompanied by Parminder Sanghera. The applicant and Sanghera spotted the group and left the car. The applicant was armed with a knife, Sanghera with a machete. The group ran away. Most were able to make their way to Cowdell's house and safety. The unfortunate Mr Fitzjohn did not know where Cowdell's house was, and he became separated from the others. The applicant chased him down. He stabbed Mr Fitzjohn in the abdomen. Mr Fitzjohn was, in fact, fatally wounded by that stab, but he managed to run off. The applicant pursued him, caught up with him and stabbed him a second time to the abdomen. This second wound punctured the aorta, resulting in catastrophic blood loss. Mr Fitzjohn, sadly, died soon afterwards. 6. The applicant and Sanghera left the scene. They changed to a different car; they disposed of their weapons; and they left the area. Both subsequently handed themselves in to the police a few days later. 7. At the conclusion of his trial, the applicant was convicted of murder. Sanghera was convicted of manslaughter. 8. The applicant was 27 years old at the time of the murder. He had a previous conviction four years earlier for possessing a knife, for which a magistrates' court had imposed a short suspended sentence. 9. Victim Personal Statements were before the court from members of Mr Fitzjohn's family. They made clear the impact of the applicant's crime. Mr Fitzjohn left a 4 year old son. 10. The judge, His Honour Judge Mayo, was required by section 269 of the Criminal Justice Act 2003 to have regard, when setting the minimum term, to the general principles set out in Schedule 21 to that Act. It was accepted by the applicant that paragraph 5A of that Schedule applies to this case and that the starting point for the length of the minimum term was, accordingly, 25 years. 11. The judge found that the offence did not involve a significant degree of planning and premeditation and that, accordingly, the aggravating factor mentioned in paragraph 10(a) did not apply. The offence was, however, aggravated by the fact that the killing was in the context of the applicant's established drug supply operation, and by the relative sophistication of the steps which had been taken after the killing. The judge rejected a submission by Mr Menon QC, then as now appearing for the applicant, that the mitigating factors listed in paragraph 11(a) and (b) applied. As to the first, the judge was sure that the applicant had intended to kill. As to the second, there was some premeditation. The judge accepted that the applicant now has some insight into the impact of what he had done, and he acknowledged that the applicant had worked lawfully in the past. He did not, however, accept that the applicant was genuinely remorseful. In those circumstances, the judge imposed the minimum term of 27 years. 12. Mr Menon submits that that minimum term was manifestly excessive in length. He advances five points in support of that principal submission: (1) The judge failed to give sufficient weight to the fact that none of the aggravating factors listed in paragraph 10 of Schedule 21 applied to this case. (2) The judge was wrong on the evidence to find that the applicant intended to kill but, in any event, that could not be an aggravating factor justifying an increase in the minimum term. (3) Although it is accepted that the wider context of this offence was one of drug dealing, this could not properly be regarded as a drugs-related killing. (4) The judge gave insufficient weight to the fact that Sanghera was acquitted of murder. That acquittal, submits Mr Menon, must mean that the jury were not sure of any joint plan to kill or to cause grievous bodily harm. Mr Menon relies on that as supporting his proposition that any intention on the part of the applicant may have been formed only very shortly before the fatal stab wounds were inflicted. (5) Finally, Mr Menon points to the fact that the applicant (now aged 28) had no previous convictions for violence, and submits that the conviction for possession of a knife in 2015 was a comparatively minor matter which could not justify any significant increase in the minimum term. 13. We are grateful to Mr Menon for the clarity of his well-focused submissions. We are particularly grateful because he has been good enough to appear pro bono . We are, however, unable to accept that the minimum term imposed by the judge was, even arguably, manifestly excessive in length. As the judge rightly pointed out, this murder had its origins in the dispute between the applicant and Cowdell, and that dispute related to the applicant's trade in supplying a Class A drug. The applicant was acting in furtherance of his drug-dealing activity when he picked a fight with Cowdell. When Mr Fitzjohn intervened in that fight, his knocking down of the applicant must have been, as the judge rightly observed, a considerable humiliation to the applicant. We have listened carefully to Mr Menon's submission that the drugs context forms no more than a part of the background. However, it seems to us that, when one stands back and asks the question: "Why did Mr Fitzjohn- who was aptly described by the judge as being in the wrong place at the wrong time - lose his life?" The answer is: "Because he humiliated the applicant by intervening when the applicant was seeking to further his drugs trade by attacking a drug user with whom he was in conflict". 14. The circumstances of the offence show that the applicant acted out of a desire for revenge, having been humiliated in that way. He drove his car towards Cowdell, before leaving the scene of the shop. He went to collect weapons and assistance. He then set about, together with Sanghera, finding the target or targets for his vengeance. The CCTV footage, which was played at trial and which has been made available to this court, shows the speed with which the applicant was driving to and from the scene. Having identified Mr Fitzjohn, the applicant chased him and stabbed him. He then remorselessly pursued him and stabbed him again. Given that he was already wounded, and by that wound slowed in his attempt to escape, Mr Fitzjohn's last moments of life must have been lonely and frightening. The judge was entitled, and in our view correct, to find that the applicant intended to kill. With respect to Mr Menon's submission, we do not see that the jury's verdict in relation to Sanghera has any logical impact on that finding by the judge. Thus, a statutory mitigating factor on which the applicant sought to rely was not made out. 16. The judge rightly did not find a statutory aggravating factor of significant premeditation. He did, however, find, and in our view was entitled to find, that the offence was significantly aggravated by the link to drug-dealing activity. 17. The judge was also entitled to reject the suggested mitigating factor of a lack of premeditation. The applicant's actions plainly point to a determined attempt to find and attack the object of his vengeance. Although there was not significant planning, the judge was plainly entitled to find that there was some planning. 18. In all the circumstances, and for reasons which are essentially the same as those given more succinctly by the single judge when refusing leave, we are satisfied that there is no arguable ground on which the minimum term could be said to have been manifestly excessive in length. The circumstances justified an increase of two years above the statutory starting point. 19. Grateful though we are to Mr Menon, this renewed application accordingly fails and is refused. ____________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ________________________________	[ "LORD JUSTICE HOLROYDE", "MRS JUSTICE LAMBERT DBE" ]	2019_11_26-4771.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2122/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2122	1,025
92189caf3e4327a2eb1bed88a8aff2f824917a8afe3d8875dcd87f5f7e3b082d	[2013] EWCA Crim 1865	EWCA_Crim_1865	2013-04-24	crown_court	Neutral Citation Number: [2013] EWCA Crim 1865 Case No: 201207099 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday 24 April 2013 B E F O R E: LORD JUSTICE DAVIS MR JUSTICE ANDREW SMITH MR JUSTICE JEREMY BAKER R E G I N A -v- ANWAR Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand W	Neutral Citation Number: [2013] EWCA Crim 1865 Case No: 201207099 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday 24 April 2013 B E F O R E: LORD JUSTICE DAVIS MR JUSTICE ANDREW SMITH MR JUSTICE JEREMY BAKER R E G I N A -v- ANWAR Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) MR C WARE appeared on behalf of the APPELLANT MR A JORDAN appeared on behalf of the CROWN J U D G M E N T 1. LORD JUSTICE DAVIS: This appeal, for which this court has given leave, yet again raises a point by reference to Section 327 (1) and Section 329 (1) of the Proceeds of Crime Act 2002 . More particularly, it calls into consideration the way in which the jury, after submitting a written note in the course of their deliberations, were instructed by the judge in the circumstances arising at the trial below. 2. The background is this. The appellant faced a number of counts on an indictment on which there was also a co-accused called Adeel Arshad. In due course the appellant pleaded guilty to three counts on that indictment, being counts of possessing articles for use in fraud. The co-accused also pleaded guilty to a number of counts. The prosecution offered no further evidence in respect of certain other counts on the indictment but three counts were pursued to trial. One was a count of possessing criminal property, contrary to Section 329 (1) (c) of the Proceeds of Crime Act 2002 ; and two other counts were counts of disguising or converting criminal property, contrary to Section 327 (1) (b) and (c) of the Proceeds of Crime Act 2002 . It may be noted that none of those three counts, as particularised on the indictment, included any specific allegations as to the precise nature or type of the criminal conduct in question. 3. On 1 April 2011, during a search of the appellant's home in East London, police found a total of some £2,240 in cash, variously discovered in two handbags belonging to the appellant's niece or under the bed of the niece's husband. This was to reflect what was alleged in count 1. 4. As to count 2, it was not disputed that on 20 August 2010 the appellant had purchased a BMW car from Mr Harkinson (in fact a serving police officer, as the appellant apparently knew at the time) for £38,500. The purchase of that car had been made using £37,000 in cash, with the balance being paid by use of a debit card. 5. As to count 3, this involved the purchase of another BMW from Mr Rhodes on 24 January 2011. The agreed price was £47,000 odd, apparently to be satisfied by way of part-exchange of the BMW previously acquired from Mr Harkinson together with a further payment of £12,500. The £12,500 was paid by the appellant by way of cash and use of a debit card or debit cards. At trial, his case was that the £12,500 had been provided by a friend called Mr Bhaji, part of which had been paid in cash into the appellant's own bank accounts to enable him to meet the payments on the debit cards. 6. The appellant was arrested on 1 April 2011 and interviewed. He declined to answer questions but provided a statement. This was to the effect that he denied that the cash found at his home belonged to him. As to the purchase of the BMW cars, amongst other things, he said that the acquisition - and certainly that relating to the car bought from Mr Harkinson - had been funded by use of a combination of wages, rental income and cash gifts from family and friends. 7. The matter came on for trial before Her Honour Judge Dean and a jury at Isleworth Crown Court. After a trial lasting some four days, the appellant was convicted on 15 November 2012 by unanimous verdicts of the jury on each of the two counts. In due course he was sentenced to a total term of twenty-two months' imprisonment which included the matters to which he had pleaded guilty. 8. In opening the case at trial the prosecution made clear - and this, indeed, accorded with the indictment - that it was not alleging any particular kind of criminal conduct. Its case was, in a nutshell, that the circumstances were such that it was an irresistible inference that the cash represented, and the acquisition of the cars derived from, the proceeds of unspecified crime. By agreement, the pleas of guilt by the appellant to the three counts of possessing articles for use in a fraud were before the jury. There was also as part of the prosecution case an unchallenged witness statement read out to the jury to the effect that the appellant's income, as contained in the records of HM Revenue & Customs, indicated that there were no employment records or details for the years 2005/2006 to 2008/2009. A very modest income for the year 2009/2010 in respect of employment by a flooring company was made good in the sum of £1,733 and for 2010/2011 in the sum of £4,160. He was also noted as receiving various tax credits and child tax credits with the amounts being given. 9. The prosecution case therefore, in essence, was that there was a very modest declared or recorded income but nevertheless access to large sums of money and a lack of any convincing explanation for the possession of such large sums. 10. Oral evidence was given at the trial by the appellant and also by his sister. The appellant's case at trial departed somewhat from what he had said in a prepared statement provided at interview. He now said, amongst other things, that he had little in the way of rental income; rather, the rental income from family property belonged to his mother. He also said that he had funded the purchase from Mr Harkinson in part from the sale of bridal gold jewellery originating in Pakistan, generating £14,850 odd, and also, in part, from the sale of yet another BMW car acquired by him for £15,000 in cash. He also relied on an alleged gift of £10,000 in cash, said to have been given to him by his mother. Various documents were produced at the trial to support his explanation. As to the purchase of the BMW car from Mr Rhodes (the subject of count 3), he said that Mr Bhaji had provided the cash balances and in due course he had sold the vehicle on to Mr Bhaji, receiving for himself payment of the appropriate balance. Mr Bhaji did not give evidence at the trial. 11. The appellant's sister in the course of her testimony for the defence gave evidence about the purchase of bridal gold, amongst other things. She also gave some evidence about her mother's tax return which included rental income and which return - the sister said - she had helped her mother to prepare. It was not put to the sister that there had been false statements in the tax returns. No questions were asked of the appellant in the course of his cross-examination as to whether he himself had been engaged in some kind of illegal activity involving the dishonest and unlawful evasion of tax properly payable. 12. During the course of the appellant's evidence, the jury had put in notes asking various questions. One question was this: "Was the gold declared to HMRC when imported to Pakistan? What was the duty/VAT paid?" The judge's response in due course to this question was to the effect that the jury simply had to decide the case on the evidence as presented to the jury. In the course of summing up on this aspect, the judge said (page 3A): "In this case there were a number of interesting questions which you raised. I hope you will forgive me for having dealt with them in the round and for not dealing, I am sure, with the questions in relation to the importation of the gold. Members of the jury, you simply have to decide the case on the evidence which has been presented to you. There won't be anymore. Please do not speculate, in other words guess, about what other evidence you might have heard." 13. The whole trial thus continued at that stage to be conducted on the footing that, so far as the prosecution were alleging, the circumstances were such that the jury could safely and surely conclude that the cash and acquisitions of the cars, in whole or in part, represented or were derived from, unspecified crime. And that is the basis on which the judge summed up. 14. Amongst other things, the judge said this in the course of her summing-up (page 7C): "The prosecution do not have to prove what the precise criminal conduct was because again the purpose of the legislation is to catch out criminals who are trying to conceal proceeds of crime and hence the prosecution do not have to prove what the precise criminal conduct was. But of course they do have to prove that the money or part of it came directly or indirectly from criminal conduct and the defendant knew or suspected that. The prosecution case in this trial is that that is the only sensible inference that can be drawn. Please bear in mind at all times, members of the jury, that it is not for the defendant to prove that it is was not criminal conduct. It is for the prosecution to prove that it was. Of course, members of the jury, this case, as I am sure is obvious, is not about whether the defendant got some small change for being a bit part man or middle man in some car deal. This case is about whether this defendant was involved in laundering quite substantial sums of money which came about from criminal conduct. So that is what the prosecution must prove." 15. A little further on in the summing-up the judge dealt briefly with the evidence relating to the applicant receiving working tax credits and child tax credit. She said: "You heard something about the working tax credits and the child tax credit that the defendant claimed. I am not going to remind you about those because they are not going to assist you in deciding the issues in this case. So he is not earning a great deal." 16. The judge proceeded to sum up the prosecution case and the defence case on the evidence fully and properly. No complaint is or can be made about the summing-up. 17. The problem arises - and which has generated this appeal - from a jury note which was sent in some two hours after the jury had first retired. The note was to this effect: "Can tax evasion in the UK constitute criminal conduct for the purposes of this case?" Quite rightly, the judge discussed this note with counsel. 18. Mr Ware, appearing on behalf of the appellant at trial, as he does on his behalf at this appeal, did not wish there to be an unequivocal answer "yes" to the question as put. Mr Ware submitted to the trial judge that "tax evasion" could be a somewhat blurred and confusing matter of law. Mr Ware further submitted to the judge that tax evasion had not been any part of the way in which the case was presented at trial. The judge initially appeared to be receptive to this argument advanced by Mr Ware. Mr Jordan, appearing on behalf of the Crown at trial and also on behalf of the Crown at this appeal, whilst fairly accepting that he had not conducted the trial on a footing that there had been some kind of tax evasion or, indeed, any particular kind of criminal conduct, submitted to the trial judge that the answer sought should not be denied to the jury and it was, indeed, a matter for the jury. 19. Mr Ware then asked for more time to consider the point. The judge rejected that and the debate continued. 20. With hindsight, it would have been very much better if some time to reflect and to research the legal authorities had been accorded to counsel and, indeed, so that the judge herself could reflect further. Of course, one can understand the time pressures on a judge conducting a trial when the jury is out and waiting for some type of answer. The judge, overall, as the argument developed, was clearly concerned that the jury, having asked a straight question (as the judge put it) were entitled to a straight answer. 21. At one stage in the course of debate before the judge, Mr Jordan is recorded as saying: "I don't want to speculate why they might be asking the question but it is possible that the fact that we are not charging him with tax evasion alongside these crimes has caused them to wonder whether tax evasion is a qualifying crime, if you like, and the clarification about it is quite straightforward, yes. As to whether they are correct in their analysis of tax evasion, we have not provided them with any evidence one way or another, so it is the man on the street's analysis, which may be as good as Mr Ware's or mine. It may not be as good as your Honour's in terms of knowledge of the law." 22. Mr Ware continued to maintain his objection, saying that tax evasion had been put neither to the appellant nor to the sister and the case had never been conducted by anyone on such a possible aspect and the point had not been addressed in speeches or otherwise. 23. The judge decided to direct the jury, indicating her view in this way: "It is not about how the prosecution puts its case. It is about what the law is. My duty is to tell the jury what the law is irrespective of how the respective cases are put." She then asked Mr Ware whether he agreed that tax evasion was a criminal offence. Mr Ware, not surprisingly, answered that in some circumstances it may amount to a criminal offence. 24. The judge had the jury back. She directed the jury in this way. She read out the note and said: "Members of the jury, as I have already reminded you in my summing-up, the prosecution case is that they do not know the sources of these funds in question and I explained to you that nor do they need to prove those sources. The prosecution case, for reasons that I won't remind you of is that the only inference in this case is that those funds were criminal and the defendant knew or suspected as much. You know what the defence case is that he has given an explanation for the sources of the funds, leaving out count 1 of course because that is a different issue, and has certainly had no reason to know or suspect that any of these funds came from criminal conduct. To answer your question shortly, members of the jury, for the purposes of this case can tax evasion constitute criminal conduct? Well, tax evasion is a criminal offence in the United Kingdom so that is the long and short of it. Thank you very much. Would you like to go with the jury bailiff?" The jury retired at 2.32 pm and returned with their verdicts at 2.55 pm. 25. In order to put the arguments before us in context, it is necessary to refer to some legal background. Section 327 (1) of the Proceeds of Crime Act 2002 reads as follows: "(1) A person commits an offence if he — (a)conceals criminal property; (b)disguises criminal property; (c)converts criminal property; (d)transfers criminal property; (e)removes criminal property from England and Wales or from Scotland or from Northern Ireland." 26. Section 329 (1) reads: "(1) A person commits an offence if he — (a) acquires criminal property; (b) uses criminal property; (c) has possession of criminal property." 27. Section 340 (1) (5) reads: "(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." 28. Those provisions of the statute have given rise in the past to some debate as to whether it was necessary to adduce evidence of the particular type of criminal conduct alleged to have given rise to the property in question. Many of the authorities are help fully summarised in the opinion of Lord Kerr in the Privy Council in Director of Public Prosecutions v Bholah [2011] UKSC 44 . The position, so far as the law of England and Wales is concerned, has been authoritatively stated by a constitution of this court in Anwoir [2008] EWCA Crim 1354 , [2008] 2 Crim App R 36. In that case the court reviewed the various authorities and concluded that there were two ways in which the Crown could prove that property derived from crime: (a) that it derived from conduct of a specific kind or kinds and that conduct of that kind or those kinds was unlawful; or (b) the evidence of the circumstances in which the property was handled, such as to give rise to the irresistible inference that it could only be derived from crime (see paragraph 21 of the judgment of the court delivered by Lord Justice Latham). 29. It is clear, as will be gathered from what we have said, that in the present case the prosecution case had been put at trial by way of seeking to establish the second proposition - that is to say (b) - having regard to the particular circumstances arising in this case. The prosecution thus had not set out to prove any kind of revenue fraud. But the jury note then raised this as a specific aspect which the jury might be considering. 30. The situation does have some similarity to the case of Gabriel [2006] EWCA Crim 229 , [2007] 2 Crim App R 11. In that case also the Crown had set out to prove money laundering without seeking to establish any particular kind of criminal conduct. A jury note submitted after the jury had retired asked if the regular buying and selling of goods to supplement household income without declaring it for tax purpose constituted a criminal offence. The Court of Appeal held that the fact of making profits from trading in legitimate goods without declaring it did not necessarily convert those profits into criminal property. Reference may also be made in this context to a further decision of a constitution of this court on different facts in R v K [2007] EWCA Crim 491 . 31. At all events, in Gabriel the court had said that there was a material error on the part of the judge in not directing the jury properly on this aspect arising by reason of the note. The Court of Appeal in Gabriel also said (Lord Justice Gage, paragraph 23): "This gives rise to what we consider to be one of the main difficulties in the way of the prosecution's attempt to uphold these convictions. The case as opened by counsel, and as put to the appellant, was one of alleged money laundering. It was not put on the basis of an income tax fraud or benefit fraud. The suggestion made to the appellant was that either she or someone else in her house had been engaged in some criminal activity. It was never suggested that she was trading legitimately and not declaring income to the Inland Revenue or the Department of Work and Pensions. The question from the jury raised a matter which had never been the subject of any evidence or any allegation." 32. In R v Yip [2010] EWCA Crim 1381 , the position was that the Crown had not sought to allege a specific kind or kinds of conduct by the defendant that was unlawful other than by cheating the Revenue. It was held by a constitution of this court, following Gabriel , that if the prosecution wished to rely on criminal conduct involving a failure to disclose to HM Revenue & Customs income or profits it needed to do more than show mere failure to declare a legitimate income and it would have to prove facts tending to establish the offence of cheating the Revenue. Further, in such a situation it was, as the court there held, incumbent upon the trial judge to instruct the jury at least as to the essential elements of the offence of cheating the Revenue. 33. A consideration of those cases really gives the answer to the proper outcome for this appeal. Mr Jordan, for the Crown on this appeal, accepted that the judge's direction "could have been better". He submitted in his written argument, however, that the only real fault in the judge's direction to the jury, in the light of the jury's note, was that the judge would have done better to have reversed the order of her remarks and should have told them first that tax evasion was a criminal offence. Thus whilst he conceded that the direction could have been improved, it was not a direction which, he submitted, was materially misleading. 34. In the judgment of this court the substance of the judge's direction cannot be changed simply by considering the order in which the judge made her remarks. Indeed, in his own written submissions Mr Jordan said: "It might also have been better had she crafted a direction based upon the authority of Gabriel ..... setting out the circumstances in which tax evasion could amount to criminal activity within the relevant parts of Section 340 of the Proceeds of Crime Act 2002 . That said, to do might have given undue prominence to something that was not part of either party's case and upon which no evidence had been heard." 35. As Mr Ware submitted: precisely so. That was indeed the difficulty. First, the jury were given no instruction as to the circumstances in which "tax evasion" could constitute criminal activity; second, the whole subject matter of tax evasion had been no part of anybody's case or evidence at trial. 36. The judge thought that the jury's note had raised a straight question which deserved a straight answer. We sympathise with that sentiment. We can also see the attraction of saying that if the Crown had not sought to specify or rely on any particular kind or type of criminal activity, then why should any particular kind or type of criminal activity be excluded from the jury's deliberation. 37. But matters demonstrably were not as simple or as straightforward as that and for a number of reasons. The first is this. What did the jury mean by "tax evasion"? Tax evasion is not of itself a defined statutory offence. As Mr Ware pointed out, both to the trial judge and to us, what is to one person lawful if contrived tax avoidance may be to another person unlawful (or at least immoral) tax evasion. The judge broadly gave the jury the answer yes without giving the jury any guidance at all as to the legal elements of the offence of cheating the Revenue. 38. Second, the previous jury note submitted during the course of the trial had indicated a possible interest on the part of the jury as to whether the importation of gold from Pakistan attracted VAT or duty to be paid. It is not clear from the jury note whether the jury still had some thoughts in that regard or indeed were contemplating the position about benefit fraud. All this highlights that it is not clear what the jury had in mind when asking about tax evasion. 39. Third, and reflecting these points, the jury were left with an answer enabling them to convict not only on a basis that was not legally explained to them but on a basis which had never featured at trial. We repeat that it had never been part of the prosecution case that there had been "tax evasion" of any kind. That had never been put to the appellant or to anyone else and it had not been alleged that he had been dishonest in not paying taxes properly due by him or by someone else. In consequence, Mr Ware had had no opportunity or reason to deal with any such point in his closing speech. 40. In substance, the position in the present case is in many way of a kind corresponding to that found objectionable in Gabriel and Yip . 41. As we see it, the judge had two choices. The first - and in our view the correct choice given the circumstances - was to instruct the jury that "tax evasion" had never been part of the prosecution, had never been subject to any evidence and the jury should simply not speculate on that matter any further. That approach would also have been consistent with the way the judge had earlier summed up with regard to the first jury question as to the importation of the gold and with the way she had dealt with the point about the tax and child credits. 42. The second possible approach was to give the jury some legal instruction as to the elements of "tax evasion", perhaps after ascertaining (to the extent that an appropriate question to the jury could reveal it) just what the jury may have had in mind. But that approach would very quickly have led to the difficulties of identifying that there had been no evidence directed to that point at all. 43. In the result, the judge adopted neither course in answering the note. She simply summarised the respective cases and then concluded that "tax evasion is a criminal offence in the United Kingdom so that is the long and short of it". The jury therefore were never told of the legal elements of the offence; nor were they ever reminded of the total lack of evidence on the point. Indeed, it may be noted that the jury, astutely, had not simply asked can tax evasion in the United Kingdom constitute criminal conduct, they had qualified their question by asking if that was so "for the purposes for this case". Had appropriate focus been put on these last words, we would like to think that the answer given to the jury would have been different. At all events, in the clear view of this court, the answer should have been different. 44. We should, in fairness to the judge, explain that in the result we have of course received far more extensive legal argument than was deployed before her. But that in part was due to the fact that the judge had not acceded to the request for an adjournment to enable further research to be made before the jury note was answered. 45. Given all this, we think there was here a material misdirection to the jury. We have considered whether nevertheless the convictions can be upheld as being safe. Given that the jury returned very shortly after the judge's instruction to them with unanimous verdicts, in the light of what the judge had said to them, we cannot be satisfied that these convictions are safe. Accordingly, we quash the convictions and the appeal is allowed. 46. Mr Jordan, do you have any application? 47. MR JORDAN: Yes. I am instructed to seek a retrial. I am in your Lordship's hands on that. 48. LORD JUSTICE DAVIS: He has pleaded guilty and served a sentence in respect of other matters, a sentence of sixteen months on these matters. 49. MR JORDAN: Yes. 50. LORD JUSTICE DAVIS: Your submission is that there should be a retrial on these matters. 51. MR JORDAN: Yes. 52. LORD JUSTICE DAVIS: Mr Ware? 53. MR WARE: Two matters: first, the length of time since the original alleged offences. They are, in my submission, of some age. 10 August 2010, one transaction with a car; 24 January 2011, the second car; and of course the circumstances on 1 April 2011. Indeed, Mr Anwar had been charged on 22 December 2011. 54. Second, I would invite you to consider the extent to which Mr Anwar has already served a custodial sentence. He is due for release, as I understand it, on 16 August. I am not aware of the position as to the home detention curfew but I understand that is under consideration. 55. LORD JUSTICE DAVIS: He has serve the equivalent of what - eight months? 56. MR WARE: Yes. 57. LORD JUSTICE DAVIS: Anything else? 58. MR WARE: No. ( Pause ) 59. LORD JUSTICE DAVIS: No. Mr Jordan, we think the interests of justice do not require a re-trial here and we decline to order a retrial.	[ "LORD JUSTICE DAVIS", "MR JUSTICE ANDREW SMITH", "MR JUSTICE JEREMY BAKER" ]	2013_04_24-3157.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1865/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1865	1,026
65a29dcddb2f9c32535d0d01e269831ed832983c88b60deff007dcfd98962d0e	[2009] EWCA Crim 2072	EWCA_Crim_2072	2009-08-13	crown_court	Neutral Citation Number: [2009] EWCA Crim 2072 Case No: 200706373/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 13th August 2009 B e f o r e : LORD JUSTICE GOLDRING MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE KING - - - - - - - - - - - - - - - - - R E G I N A v GRAHAM CUNDELL - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Stre	Neutral Citation Number: [2009] EWCA Crim 2072 Case No: 200706373/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 13th August 2009 B e f o r e : LORD JUSTICE GOLDRING MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE KING - - - - - - - - - - - - - - - - - R E G I N A v GRAHAM CUNDELL - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr M McDonald appeared on behalf of the Appellant Mr J Farmer appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GOLDRING: On 28th September 2006, after a seven day trial at Norwich Crown Court before His Honour Judge Jacobs, the appellant was convicted of three counts. Count 1 alleged that between 1st February 2005 and 21st September 2005 he solicited another to murder Tracey Cundell, his former wife. 2. The person whom it was said he solicited was a man called Clelland. At the time Clelland and the appellant were fellow prisoners in Norwich Prison. The appellant was serving a sentence of 5 years' imprisonment having pleaded guilty on 23rd October 2005 to a previous offence of soliciting his wife's murder. 3. The appellant was also convicted of counts 4 and 5. Those were allegations of doing acts tending and intended to pervert the course of justice. Count 4 alleged that he incited a man, Jason McCready, to commit perjury. Count 5 made an identical allegation in respect of a man called Mason. Both McCready and Mason were fellow prisoners at Norwich. The Previous Conviction 4. The appellant and Tracey Cundell were married in 1997. Divorce proceedings were begun in 2004. The appellant approached two men in that year. He agreed to pay them £15,000 if they murdered Tracey Cundell. He made a £5,000 down payment and agreed to pay the remainder after the murder. On 22nd December 2004, believing the murder had been carried out, he agreed to meet them and pay the remaining sum. The men were in fact undercover police officers. They taped their conversations with him. He was arrested and pleaded guilty. Given the existence of the tape and its contents he had little choice. The present indictment Count 1 5. Clelland had a formidable record. From 1968 he had committed crimes. The offences included theft, assault and burglary. In 2000 he murdered his wife. He was serving a life sentence in respect of it. He and the appellant worked on the same landing. According to Clelland, after several weeks the appellant came to his cell. He said words to the effect: "You're a man who knows where I can get my wife killed". Clelland said that he eventually agreed to arrange the killing of the appellant's wife although he had no intention that it should be carried out. It was agreed that Clelland would recruit someone to do the job. The appellant would pay £5,000 in advance and then £10,000 to Clelland upon his release. The appellant did not set a timescale but wanted his wife strangled on a Sunday, taken to Scotland and thrown in the River Forth. He wanted her dead so that he could have his house and his daughter back. Clelland said he asked for personal information about the former wife in order to make the arrangements for her murder. The appellant gave Clelland that information, said Clelland. It included her home address, the daughter's name, details of her life-style habits, when she arrived home, details of her motorcar and its registration number. According to Clelland the appellant became ever more demanding that the job should be done as soon as possible. 6. In fact Clelland left a note for a prison officer called Wall. The note is before the court. It contained a great deal of the detail which Clelland said the appellant had given him. It included the registration number of the motor car. It stated that the appellant wanted to kill his wife. It included, in addition to that registration number, the address, the daughter's name and the colour of the motorcar. 7. The Crown alleged that this was not the sort of detail which would be picked up in a casual conversation. After Clelland had contacted Mr Wall, there was no further contact between him and the appellant. As to why he did not go along with the scheme, Clelland said he was disgusted and did not want to see another woman killed by a man. 8. In cross-examination, Clelland confirmed that he had been looking for a transfer to another prison at this time due to poor health. He was not eligible for a less rigorous regime. He had been in Norwich for some 5 years and wanted to be closer to his family. He said he regretted killing his wife and leaving his children without a mother. He said the appellant claimed he would sell the house and give him £5,000. No motive for Clelland lying was in terms suggested to him. In re-examination, he said that after he made his witness statement, he had been moved to another prison in Bristol which was a category A prison with a harder regime. 9. We have a recent email from a prison governor which, on the face of it, states that Bristol ceased to be a category A prison in around 2002 to 2003 although at a material time it could have taken recall lifers who were category B prisoners. 10. Mr Wall handed the note to the police. The Crown submitted that Clelland's evidence was confirmed in several respects. The starting point of that confirmation was said to be a witness called Raghuwan. He too was a serving prisoner. He had made a witness statement. Put shortly, in that he claimed that the appellant had requested him to act as a go between and to make the delivery of money from the appellant to the as yet unidentified hit man outside the prison. 11. When Raghuwan gave evidence, he denied any such arrangement. He said that the appellant did not say he was trying to have his wife killed. He merely said that he disliked her. The judge permitted the prosecution to treat the witness as hostile. The contents of his witness statement were put to him. He disputed that much of what it contained had ever been said. He said it had been written out by DS O'Neill, the officer in the case, who had made it up. At first he denied signing it. In that statement, among other things, this is said: "For all the time I have known Graham he has been going on about getting his wife killed. I have been concerned for sometime as I know his wife has a nine year old daughter, as I do, and any plans to kill his wife could end up in injury or death to the child and at least great trauma at her mum dying. I have been trying during numerous conversations with him to put him off any plans to have her killed. I was due to be released on 10th August 2005, and he had asked me prior to that to go to his Dad's address in Fulbourne Cambridgeshire where I was to pick up £20,000, and to deliver this to a guy in Stradishall on Haverhill." 12. The statement said that the appellant told him in about mid July 2005 that someone had taken up the contract. It said the appellant did not tell him who that person was but the job was to be done soon afterwards. His only role was to drop the money off when told where when he got out. The statement said that he had no intention of doing it. It is said that he had spoken to the chaplain and his solicitor about his concerns. He had asked his solicitor to contact the police. It was in fact the case that Raghuwan had contacted a solicitor and asked the solicitor to contact the police. 13. In cross-examination, he agreed with a defence suggestion that the appellant did not want his wife dead. No motive for him having lied when he made his witness statement was suggested in cross-examination. 14. Sergeant O'Neill said that Raghuwan made the statement of his own initiative. He first approached the prison chaplain and then a solicitor. The sergeant said that Raghuwan was willing to tell him what the appellant had said. He would not at first make a witness statement until he was moved from Norwich to Chelmsford Prison. Each paragraph of the statement had been written separately. When finished it had been read and signed on each page. 15. In September 2005 the appellant was arrested for solicitation to murder. On 4th December 2005 there was a plea and case management hearing. 16. It was alleged that in January 2006 the appellant recruited three fellow prisoners, McCready (count 4), Mason (count 5) and a man called Wright to give false evidence at his trial. In short, they were to give evidence that Clelland and Raghuwan knew each other and were seen speaking to each other, the implication being they had conspired falsely to implicate the appellant in count 1. 17. McCready too had a formidable record. He had committed theft from an early age. He had received a sentence in a young offender institution. There were offences of taking and driving away, driving while disqualified, going equipped for theft, attempted burglary and finally money laundering. McCready said he met the appellant in prison in July 2005. He became friendly with him. He knew why the appellant was there. The appellant told him that two people had made an allegation that he was trying to get someone to kill his former wife. McCready said the appellant had asked him to make a false statement, saying that he had met Clelland and Raghuwan together at a medical hatch. The appellant offered to pay him £500. Mason too was offered £500. McCready said he was concerned for the well being of the appellant's ex-wife and daughter. He and Mason agreed to set up a further meeting with the appellant and secretly to tape conversation. 18. A tape recorder was placed out of sight in a locker. We have a copy of the transcript of the tapes. Each of us has read it with care. It is on its face highly incriminating. The appellant describes events that had taken place between his wife and himself. He describes the offence to which he pleaded guilty. He talks about Clelland. 19. The appellant did not dispute the contents of the tape. He said that after the recorded conversation he made it clear that he did not want to take this matter any further. The tape conversation took place in January 2006. Subsequently the appellant made an appointment for 2nd February 2006 for McCready and Mason to see his solicitors. It was cancelled by McCready and Mason. That, submitted the Crown, gave the lie to the appellant's claim that there had been a subsequent conversation in which he had said that he did not want to take the matter any further. 20. In cross-examination, McCready was asked, among other things, about a previous conviction for perverting the course of justice. That related to providing false details when arrested driving a motorcar. 21. He said in cross-examination that the appellant had asked him in February 2005 to find someone to kill his former wife. He denied making the tapes to blackmail the appellant. He said, as was the case, that he had handed them over to the prison officers. It was not the case, he said, of the appellant reacting to McCready's and Mason's suggestions. 22. Mason did not make a witness statement and did not give evidence. 23. The appellant gave evidence. Among other things he denied talking to Clelland about killing his wife. The appellant denied that he pestered Clelland. He said he had made no financial arrangement with him. Clelland had a better relationship than he did with the prison officer Wall. He said he spoke to Raghuwan, who was a listener in the prison. He did not discuss in great depth with him why he, the appellant, was in prison. He did not say he had taken up a contract on his wife. He said that he thought that Raghuwan might have made up the allegations as there was bad feeling between them in the end. He denied asking McCready if he could have his wife killed. He admitted meeting McCready in the cell. Mason had agreed to provide a statement. Mason was originally going to say that the appellant had done nothing wrong but then money was mentioned and the sum of £500. The appellant said he did not have £500. He was not buying statements. When referred to parts of the transcript of his cell interview, he said he was trying to go along with suggestions being made to him in order to find out what was going on. He did not know he was being recorded. He told McCready and Mason that he did not want to take the matter any further. 24. He was asked about the detailed note which Clelland had given to Mr Wall. He said it was possible that Clelland had got the name, address and car details of his former wife from a document in the cell. The jury had the relevant documents and they did not contain the car registration number. 25. Wright gave evidence on behalf of the appellant. He said Clelland lived in a fantasy world. He had never had any money. He offered to get rid of his, Wright's, daughter's boyfriend. Wright said he had been present when Clelland had read the appellant's case papers. The appellant had shown no desire to have his wife killed. The grounds of appeal Grounds 1, 2 and 4 26. It is convenient to take these grounds first. Ground 1 concerns the failure of the judge to give the jury an express warning as to the need to treat the evidence of McCready and Raghuwan with caution. Ground 2 concerns the failure of the judge to give the jury an express warning to treat the evidence of Clelland with caution. Ground 4 alleges that there is fresh evidence which casts doubt on the credibility of McCready's evidence. That fresh evidence, which we have heard de bene esse, it is said provides a fresh motive for McCready to have lied. Grounds 1 and 2 What the judge told the jury about the witnesses' previous convictions. 27. The direction was in the following terms: "Now, you have also heard that the witnesses have previous convictions. I may deal with some of them in more detail when I turn to their evidence, but so that we have it all together, let us go through it. Clelland; we know that from 1968 onwards, he has committed crime; theft, assault, driving whilst disqualified, burglary for which he got a nine month suspended prison sentence, and then finally he murdered his wife and he ended up with a life sentence of imprisonment in the year 2000. The next one is Raghuwan. There is not the slightest doubt that Raghuwan is a bit of a con man. He has got a lot of convictions for theft, forgery. He got 30 months for obtaining by deception, nine months for theft, three years for obtaining by deception. The next one is McCready. From an early age he was involved in theft. Youth custody he got for that. Taking and driving cars, driving while disqualified, going equipped for theft, attempted burglary, and then of course we know that he was involved in money laundering. He has got a lot of convictions. Mason we did not hear from and so it is much more difficult to fully understand why we heard about Mason's convictions. He was obviously in prison in any event, but they have been referred to. In fact, he has 17 in total; shoplifting, possessing controlled drugs, harassment, possessing an imitation firearm -- 30 months -- and assault, so you have heard about Mason's convictions although he has not given evidence before you. Finally, there is Mr Wright who was called for the defence. You will have to assess what you can of Mr Wright. Two matters emerge here. He has got two previous convictions for supply of Class A drugs on two separate occasions. He served one sentence, came out, supplied Class A drugs again, and in addition, of course, you will have to assess Mr Wright. You will have to decide whether or not there is something of the market trader about Mr Wright, whether or not he was selling you a story or not, but the main thing is the previous convictions that you have to concentrate on here. Now, how do you deal with those? Well, the direction I give you is very similar to what I have just given you in relation to the defendant. You should not assume that just because a witness has a bad character he is not telling you the truth. The relevance of the bad character goes precisely to the issue in that case, whether or not it helps you, the jury, in deciding if that particular witness has or might have concocted the story. Obviously, a person who is of bad character is perfectly capable of being believed, but on the other hand, it is relevant fact that you remind yourselves that that particular witness does have previous convictions and that many of those previous convictions in many cases are for offences of dishonesty, and in some cases such as Mr Raghuwan's deception." 28. There are two aspects of Mr McDonald's submission. First, he submits the judge was obliged to give the jury an express general warning to treat with great caution the evidence of the prosecution witnesses because of their previous characters and their records for dishonesty. He should too have explained why the caution was required. What the judge in fact told the jury was neutral. Second, Mr McDonald submits that specific warnings should have been given regarding the possibility of the evidence of each of the individual witnesses being tainted. Clelland wished to ingratiate himself with the Parole Board. He wished to ingratiate himself with the prison authorities in order to move to a more open and local prison. His custodial situation alone provided the incentive to lie. Raghuwan was on remand and yet to be sentenced when he made his witness statement. He had the incentive to lie in order to retain a lesser sentence. McCready, although sentenced by the time of the trial, had not been sentenced when he made his witness statement. 29. Mr McDonald relies in part on a series of cases which predate the Criminal Justice and Public Order Act 1994 (which by section 32 abolished the corroboration rules in respect of an alleged accomplice or a complainant in a sexual offence and the evidence of a child). He referred us to the cases of R v Beck [1982] 1 WLR 461 and R v Spencer & Ors [1987] 1 AC 128 . 30. Given two more recent decisions of the Privy Council it is not necessary to refer to those passages he has cited. Neither is it necessary to refer to the Australian and Canadian authorities to which he has drawn our attention. 31. In R v Pringle [2003] UKPC 9 , part of the evidence against the appellant, who had been convicted of murder, was a confession that he allegedly made to another prisoner, Simmons, in a cell at the police station, some days after being taken into custody. One of the grounds of appeal was that Simmons was a prison informer with an obvious interest to serve. When he made his witness statement to the police, he was untried and on remand. Subsequently he received a suspended sentence. The evidence was tainted, it was said. It should have been the subject of directions which were not given by the trial judge in his summing-up. The judgment of the Privy Council was delivered by Lord Hope Craighead. At paragraph 27 he said this: " The first question is whether there was evidence in this case to suggest that Simmonds's testimony was of such a character as to require the judge to draw the jury's attention to the possibility that it was tainted." The possibility of the evidence being tainted was not in that case fully explored in cross-examination. That was because of what the Privy Council regarded as an "unfortunate" intervention by the judge. At paragraphs 30 and 31, Lord Hope said this: "30. The next question is what the judge should have said about this in his summing up. It is not possible to lay down any fixed rules about the directions which the judge should give to a jury about the evidence which one prisoner gives against another prisoner about things done or said while they are both together in custody. There may be cases where the correct approach will be to treat the prisoner simply as an ordinary witness about whose evidence nothing out of the usual need be said. Examples of that situation are where the prisoner is a witness to an assault on another prisoner or a prison officer or is a witness to a drugs transaction which has taken place in the place where he is being held. 31. But a judge must always be alert to the possibility that the evidence by one prisoner against another is tainted by an improper motive. The possibility that this may be so has to be regarded with particular care where, as in this case, a prisoner who has yet to face trial gives evidence that the other prisoner has confessed to the very crime for which he is being held in custody. It is common knowledge that, for various reasons, a prisoner may wish to ingratiate himself with the authorities in the hope that he will receive favourable treatment from them. Of course, as Ackner LJ indicated in R v Beck at p 469A, there must be some basis for taking this view. The indications that the evidence may be tainted by an improper motive must be found in the evidence. But this is not an exacting test, and the surrounding circumstances may provide all that is needed to justify the inference that he may have been serving his own interest in giving that evidence. Where such indications are present, the judge should draw the jury's attention to these indications and their possible significance. He should then advise them to be cautious before accepting the prisoner's evidence." At paragraphs 33 and 34, he said this: "33. It is true that the judge drew the jury's attention to some matters that they might like to consider when they were assessing the veracity of Simmonds's evidence. But their Lordships consider that there was a significant omission from this part of the judge's summing up. He ought to have drawn attention also to the factors which might indicate that the witness had an improper motive which tainted his evidence. These were that he was an untried prisoner, that it is not unknown for persons in his position to wish to ingratiate themselves with the police and that to give them information that the appellant had confessed to the crime for which he was being held by them in custody was a convenient and obvious way of doing so. He ought then to have given an express direction to the jury that they should be cautious before they accepted this witness's evidence. 34. The Crown's case against the appellant was based mainly on Simmonds's evidence about the appellant's conversation with Montgomery when they were all together as prisoners in the police cell. It was crucial, if the appellant was to receive a fair trial, that the jury should be told that they should be cautious before they accepted this evidence in view of the possibility that it was tainted. As this was not done, their Lordships have concluded that on this ground also the appellant's conviction must be held to be unsafe..." 32. Benedetto and Labrador v The Queen [2003] 1 WLR 64 was another Privy Council case, this time on appeal from the British Virgin Islands. The charge was murder. The case against one of the appellants depended almost entirely on the evidence of a fellow remand prisoner of admitted bad character, who claimed the appellant had confessed to him. In the course of the judgment, again given by Lord Hope of Craighead, he observed that it would be hard to imagine a witness who was less deserving of belief than the witness relied upon by the prosecution in that case. Having referred to Pringle , he said this at paragraph 35: " It should be noted that there are two steps which the judge must follow when undertaking this exercise, and that they are both equally important. The first is to draw the jury's attention to the indications that may justify the inference that the prisoner's evidence is tainted. The second is to advise the jury to be cautious before accepting his evidence." 33. Mr McDonald submits that had the judge approached the case in the way suggested by Lord Hope in those cases, both a general warning and specific warnings regarding each witness would have been given. It is part of his submission that in each case, with facts such as the present, such a warning is necessary. The judge had no discretion in that regard. The failure to give the warnings rendered the conviction on count 1 unsafe. Our Conclusion 34. We express no view as to whether in every case, with facts such as the present, a general warning must invariably be given. Suffice to say each of us would, in the circumstances of this case, have given a general warning. In our view, the judge should have done so. Moreover, again, as was made clear by the judgments of the Privy Council, the judge must always be alert to the possibility that in a particular instance the evidence is tainted by an improper motive. We would anticipate that would involve discussion between counsel and the judge before summing-up. 35. Whether, of course, in a particular case the failure to give a general and/or specific warnings renders a conviction unsafe depends upon the facts of that case. 36. As far as Clelland was concerned, the only improper motives suggested by the defence concerned the Parole Board, and, primarily, his wish to move prisons. Although the judge did not mention those to the jury, he did remind them of what the witness said about his wish to move prisons. No doubt too, if thought to be a good point, this was a matter raised by defence counsel in his final speech, albeit, as Lord Hope made clear, that is not enough. The problem, as far as the appellant and Clelland was concerned, was not, as it seems to us, the absence of any warning by the judge, but the several discreet pieces of evidence which provided cogent support to his account; in particular the detailed note containing the appellant's former wife's car registration number. At the end of this part of the judgment, we shall refer to the evidence which went to support the prosecution witnesses in the round. 37. We do not think that any failure to warn the jury that Clelland might have been telling lies about the appellant because he might have thought that that would help him move prisons could begin to affect the safety of the conviction on count 1. The fact that Clelland said in re-examination that he had been moved to a category A prison when there was some evidence that Bristol was not at the material time such a prison does not seem to us to affect the position. We are of the same view regarding parole. 38. As to Raghuwan, it is the case that at the time he made his witness statement he was yet to be sentenced. However, in evidence he said the statement was untrue. He gave explanations as to how it came to be made. He did not suggest that when he saw DS O'Neill he was influenced by the possibility of a lighter sentence in the future. It would, in his case, not have been easy to devise an appropriate direction to the jury likely to help the appellant. As his evidence did not implicate the appellant, any warning would of course have had to be directed to his state of mind at the time he made his witness statement. In any event the judge gave a very careful direction regarding him and his evidence (see page 26B of the summing-up). Again, it does not seem to us that the failure to give any warning in his case could conceivably have affected the safety of the conviction on count 1. 39. As to McCready, it seems to us that there is a fundamental problem which the appellant has to face: the tape in which he took part effectively amounted to the commission of the offences on counts 4 and 5. There is no question of the evidence with respect to the tape having been tainted. That is why Mr McDonald makes no submissions on those counts. 40. With regard to count 1, Mr McDonald puts it in this way. In cross-examination, McCready said, for the first time, that the appellant spoke of an attempt to solicit him to murder the appellant's former wife. That, submits Mr McDonald, is evidence which went to support Clelland on count 1. The jury might have given less weight to it had they been given a general warning. (He makes further submissions regarding McCready and that aspect of the case in ground 4). 41. We cannot accept that McCready's evidence in that regard had the importance on count 1 ascribed to it by Mr McDonald. The fact that such a thing had never been before said by him was well before the jury. We cannot imagine that the failure to give the general warning could have made any difference to the jury's consideration of McCready's evidence on count 1. 42. Although each of us, as we have said, would have given at least the general warning, neither that or the specific warnings with respect to individual witnesses would have been of unalloyed benefit to the appellant. As Mr Farmer, on behalf of the respondent points out, the judge would also have had to indicate to the jury what evidence there was which supported the accounts that they had given. On tape and in evidence the appellant admitted that he did in fact discuss murdering his wife. The main difference as between the appellant and Clelland was whether the appellant asked Clelland to carry out the murder or Clelland merely offered the opportunity of having his wife murdered. On the tape the appellant conceded that as far as count 1 was concerned he would be "fucked" if Clelland had recorded the conversation between him and Clelland. On the tape, he said he assumed at the plea and case management hearing there had been full disclosure; that, in other words, there was no tape recording of his conversation with Clelland. That was cogent evidence of a conversation with Clelland. 43. The appellant accepted that he had had discussions with Clelland on the topic of the murder of the appellant's wife. On tape he discussed with McCready and Mason the methods by which his former wife could be murdered. That bears a similarity to the methods that Clelland said were discussed with him. The appellant agreed that he provided Clelland with an accurate and precise description of his wife; her height, hairstyle, the make, colour and registration number of her motorcar, her precise address, the name of the club which she regularly visited, some 20 or so miles from her home and the time in the early hours when it would be virtually certain she would be at home. Clelland said that he was given this information in order to help him arrange the murder. 44. Both Clelland and the appellant were in custody at the time of the alleged arrangement between them. The question, said the Crown, arose as to how the murderer might be paid. Clelland suggested that credit could be arranged until the appellant was released. Clelland did not know that money had been borrowed by the appellant when he had previously solicited his wife's murder. That, suggested the Crown, was unusual. 45. We have concluded, having considered the evidence as a whole that any failure by the judge to give the appropriate warnings does not begin to affect the safety of the conviction on count 1. We reject therefore grounds 1 and 2. Ground 4: the fresh evidence 46. It is agreed that before McCready gave evidence DS O'Neill, the officer in the case, saw him when he was at court. There is a complaint that no note was taken; also that the defence was not told. During cross-examination by Mr Brown, counsel then representing the appellant, Mr Brown suggested to McCready that the assertion that the appellant had sought to solicit him was untrue. He suggested it was "an invention [made] on the hoof." McCready disagreed. More than once he said he had no benefit from giving evidence. He asked rhetorically what motive he had to give evidence. He said: "I haven't done this to help the police. Let me make myself abundantly clear. I'm not doing this for the police I'm doing this for the benefit of his ex-wife and daughter. Listen, I will say it for the benefit of the court. I don't even want my parole." 47. On 13th December 2007, a little over a year after the trial, McCready wrote to the Crown Prosecution Service asking for details of the appellant's defence counsel. In that letter he first raised a number of allegations concerning DS O'Neill, which formed the basis of the fresh evidence that we have heard, as we say, de bene esse. The content of the letters is encapsulated in the witness statement he made to the Criminal Cases Review Commission on 30th December 2008, and which in broad terms he confirmed in evidence before us. In short he said that he had told DS O'Neill that he was only providing the tapes for intelligence purposes. When DS O'Neill saw him in prison, he had a prepared witness statement ready. He, McCready, signed it because DS O'Neill said there was a strong prima facie case and the appellant would plead guilty. He, McCready, was not willing to go to court and said so. When finally persuaded to go to court, he was seen there by DS O'Neill, who told him that if he wanted parole he had to give evidence, to which he said he did not want parole. He said too that when he gave the evidence he did, he told the truth. He said that what he said about not wanting parole was also the truth. He said he subsequently changed his mind. He then found out that Sergeant O'Neill had not provided the help which had been promised. He also complained of a delay of moving him from one prison to another; again, something which had been promised. 48. McCready also gave to the Criminal Cases Review Commission a letter said to be from his former wife. The letter states that McCready rang DS O'Neill regarding the parole application (presumably in 2007), as DS O'Neill had stated he would put in a letter for her husband in return for his help with the Cundell case. The letter goes on to state that DS O'Neill had said he would do that. It speaks of DS O'Neill having blackmailed McCready into giving evidence. She, of course, was not present when any conversation between DS O'Neill and McCready took place. 49. McCready has refused to provide Mrs McCready's present name and address. She did not give evidence before us. We can place little reliance on what the letter says. 50. Mr McDonald submits the fresh evidence indicates McCready had a motive to lie regarding the piece of evidence he gave concerning count 1 and to which we have already referred. Whatever he may now say about parole, it is evidence which would, had it been known about, have required a warning. It is a further basis that calls into question the safety of the conviction. Our conclusion on this aspect of this case . 51. By section 23(1) of the Criminal Appeal Act 1968 : "... the Court of Appeal may, if they think it necessary or expedient in the interests of justice... (c) receive any evidence which was not adduced in the proceedings from which the appeal lies." By section 23(2) the Court of Appeal. "... shall, in considering whether to receive any evidence, have regard in particular to- (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal." 52. In our view, the fresh evidence would not afford any ground for allowing the appeal. We have already said that we cannot accept that McCready's evidence, which touched upon count 1, had the importance ascribed to it by Mr McDonald. In short, even assuming that what Mr McCready said about DS O'Neill's conduct is true, it could not, in our view, affect the safety of the conviction. What the defence was or was not told by DS O'Neill, after seeing McCready is in these circumstances of no relevance. That, as it seems to us, is sufficient to dispose of ground 4. It is unnecessary further to refer to the evidence we have heard. Ground 3: the direction regarding the appellant's previous conviction 53. The previous conviction was admitted by consent under section 101(a) of the Criminal Justice Act 2003 . It was agreed to be relevant to the background of the allegations. They could not be explained without reference to it. It would have been admissible as "important explanatory evidence" under section 101(c). 54. Mr McDonald's submission was that the judge was wrong to direct the jury that the conviction was relevant to propensity. The judge said this: "We know that in 2005 he pleaded guilty to a similar offence to that alleged in count one. In fact, the details of that offence which have not been disputed have been read out to you. The prosecution submit it is highly relevant and submit that it may help you to resolve an issue that has arisen between the defendant and the prosecution, and the prosecution say that the defendant has a propensity to commit this offence, namely seeking to have his wife killed. It will be for you to decide whether based on that evidence, the defendant has a propensity to commit such an offence, and then go on to consider count one against the background of the prosecution submission that this is a continuing pattern of behaviour. If you decide there is such a propensity, you may use it in deciding count one. Obviously, you should not conclude that the defendant is guilty of count one simply because he has committed a similar offence in the past, and you must not convict him only because he has a bad character." 55. Mr McDonald's submission can shortly be summarised. He accepts that the judge had the discretion to admit the evidence of the previous conviction as going to propensity (see R v Highton & Others [2006] 1 Cr App R 7 at paragraph 10). The judge never heard proper argument about it because counsel then instructed did not appreciate that the judge had a discretion as to whether or not to admit the evidence as going to propensity. To admit the evidence was highly prejudicial. Because it consisted merely of one conviction, it was, submits Mr McDonald, of little probative value. 56. With respect to Mr McDonald it seems to us that this submission is hopeless. The appellant was charged with soliciting the murder of his wife (our emphasis). The previous conviction concerned soliciting the murder of his wife (again our emphasis). It seems to us hard to imagine a case in which the previous conviction could be more relevant to "an important matter in issue between the prosecution and the defence." There is nothing in ground 3. 57. In the result, therefore, and for the reasons we have set out, this appeal against conviction is dismissed. 58. MR JUSTICE GOLDRING: May we thank you very much, Mr McDonald, for your helpful submissions and in particular your speaking note and the clear way in which you put your case forward. 59. McDONALD: Thank you.	[ "LORD JUSTICE GOLDRING", "MR JUSTICE GRIFFITH WILLIAMS", "MR JUSTICE KING" ]	2009_08_13-2052.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2072/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2072	1,027
d2ee5ff3b72babfdc2c79bd1cf9ac73bf1e0d210f8bdc1c4e9a49036f681e6bc	[2016] EWCA Crim 801	EWCA_Crim_801	2016-07-01	crown_court	Case Nos: 2015/03299/A3 , 2015/04932/A3 , 2016/01407/A3 Neutral Citation Number: [2016] EWCA Crim 801 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/07/2016 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) and MRS JUSTICE ANDREWS DBE - - - - - - - - - - - - - - - - - - - - - Between: (1) REGINA Respondent -and- GEORGINA ROGERS Appellant (2) REGINA	Case Nos: 2015/03299/A3 , 2015/04932/A3 , 2016/01407/A3 Neutral Citation Number: [2016] EWCA Crim 801 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/07/2016 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) and MRS JUSTICE ANDREWS DBE - - - - - - - - - - - - - - - - - - - - - Between: (1) REGINA Respondent -and- GEORGINA ROGERS Appellant (2) REGINA (ENVIRONMENT AGENCY) Respondent - and - TAPECROWN LIMITED Appellant (3) REGINA Respondent - and – PAUL BEAMAN Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pamela Rose (who did not appear in the Crown Court) for the appellant Georgina Rogers Mr Timothy Cray and Mr L Ingham for the Respondent to the appeal in Georgina Rogers and Beaman Mr S Cramsie for the appellant Tapecrown Mr C Badger for the Respondent Environment Agency Mr Paul Wakerley (who did not appear in the Crown Court) for the appellant Beaman Hearing date: 5 May 2016 - - - - - - - - - - - - - - - - - - - - - Judgment LORD THOMAS OF CWMGIEDD CJ: This is the judgment of the court to which we have all contributed: 1. These three appeals were heard together as they gave rise to general questions as to the circumstances in which s.23 of the Criminal Appeal Act 1968 ( the 1968 Act ) applies to fresh evidence or other information which an appellant may seek to adduce before this court on an appeal against sentence. THE GENERAL PRINCIPLES S.23 of the Criminal Appeal Act 1968 2. As was made clear in the judgment of Lord Bingham CJ in R v A&B (Informer: reduction of sentence) [1999] 1 Cr App R (S) 52 at 56, the Court of Appeal Criminal Division is, in relation to sentencing, a court of review. Its function is to review sentences passed below and not to conduct a sentencing hearing. 3. However, it is clear that s.23 of the 1968 Act (as amended) permits the court to receive fresh evidence on appeal against sentence (as that term is defined in s.50 of the Act ), provided the conditions set out in the section are met. “(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2)The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to— (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. (3)Subsection (1)(c) above applies to any evidence of a witness (including the appellant) who is competent but not compellable. (4)For the purposes of an appeal under this Part of this Act , the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.” 4. There are circumstances, to which we refer at paragraphs 8 to 10, where the court will consider updates to information placed before the sentencing judge without the conditions in s.23 being applied, but otherwise s.23 of the 1968 Act is by its express terms of general application to all sentencing appeals. 5. In approaching s.23 of the 1968 Act , a court must always have in mind the observations of Lord Judge CJ in R v Erskine [2010] 1 WLR 183 , [2009] 2 Cr App R 29 , [2009] EWCA Crim 1425 at paragraph 39: “Virtually by definition, the decision whether to admit fresh evidence is case- and fact-specific. The discretion to receive fresh evidence is a wide one focussing on the interests of justice. The considerations listed in subsection (2) (a) to (d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied.” 6. Thus the general principles in relation to the admission of fresh evidence in appeals against conviction will generally apply. In the context of one of the appeals before us (Georgina Rogers), where expert evidence was adduced before the sentencing judge as to whether a dog was dangerous, the principles set out by Lord Bingham CJ in R v Steven Jones [1997] 1 Cr App R 86 apply: “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.” 7. In sentencing appeals the court will scrutinise intensely any application to give a factual explanation that was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing: see R v Thames Water Utilities [2015] EWCA Crim 960 , [2015] 1 WLR 4411 at paragraphs 8-12 and 24-25. It is therefore the duty of all advocates to deploy before the sentencing judge all the evidence, information and other material on which they seek to rely. The exception: the receipt of updated information 8. The circumstances in which the court will receive updated information not before the trial judge were described by Lord Judge CJ in R Roberts, R v Caines [2006] EWCA Crim 2915 , [2007] 1 WLR 1109 at paragraph 44: “From time to time, the court will be provided with updated information about the offender. This sometimes takes the form of prison reports, sometimes confidential information from the police. The sources vary. The information may serve to show, for example, that the prisoner has provided considerable assistance to the police; sometimes aspects of the mitigation are significantly underlined in a way which may not have been as clear or emphatic in the Crown Court; sometimes the information may indicate that the offender has made significant progress since the sentence began, a feature particularly relevant in cases involving young offenders. The formal procedures for the admission of fresh evidence are not followed. This court simply considers the evidence before it. So, for example, if a young offender has responded positively to his custodial sentence, and his progress is such that it may be counter-productive for him to serve the sentence actually imposed, it may be reduced on appeal, or changed to a non-custodial disposal, without any implied criticism of the decision of the Crown Court. In short, post-sentence information may impact on and produce a reduction in sentence (for a recent example of post-sentence evidence bearing on and explaining aspects of mitigation, with a consequent reduction in the minimum term following conviction for murder, see R v Sampson [2006] EWCA Crim 2669 ).” 9. As was explained in R v Beesley and Coyle [2011] EWCA Crim 1021 , [2012] 1 Cr App R (S) 15 at paragraphs 33-36, the exception is strictly limited. It will include updated pre-sentence and prison reports on conduct in prison after sentence, but not fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of s.23 : see R v Hughes [2009] EWCA Crim 841 and [2010] EWCA Crim 1026 and R v Vowles [2015] EWCA Crim 45 , [2015] 1 WLR 5131 at paragraphs 3 and 4. Compliance with s.23 is necessary for two reasons. First, because it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, persuasive evidence is required to explain why it was not all called. Second, the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before this court did not represent the applicant at the trial or sentencing hearing, that advocate must obtain information from the advocate previously instructed as to why the evidence was not called: see R v Roberts [2016] EWCA Crim 71 at paragraph 40. 10. Another limited exception is an updated text, but the circumstances in which this exception will apply are likely to be highly unusual for the reasons explained in R v AXN and ZAR [2016] EWCA Crim 590 . The conduct of a Newton hearing in this court 11. In the third appeal before us (Beaman) we were invited to conduct in this court a Newton hearing or a hearing analogous to that. In R v Guppy (1995) 16 Cr App R (S) 25 , this court conducted such a hearing in a case where the defendant wished to rely on certain alleged facts solely by way of disputed matters of mitigation. In such circumstances it was held that the evidential burden lay on the defendant to establish those facts on the balance of probabilities. In R v Malook [2011] EWCA Crim 254 , this court considered reviewing the findings made by the judge in a Newton hearing on the basis of fresh evidence before the court, as the court had no power to remit the matter to the Crown Court. It is not necessary to consider the position further, as it is clear that there is no basis for such a hearing in this court in the appeal in Beaman - see paragraph 126 below. THE SPECIFIC CASES (1) GEORGINA ROGERS 12. On 7 November 2014, the appellant, Georgina Rogers, pleaded guilty at the Crown Court at Wood Green to being the owner of a dog which caused injury while dangerously out of control in public contrary to s.3 (1) of the Dangerous Dogs Act 1991 ; she also pleaded guilty to being the owner of a dog dangerously out of control. On 16 June 2015, Georgina Rogers was sentenced by Mr Recorder Etherington QC to a community order with an unpaid work requirement of 175 hours. A Destruction Order was made under s.4 of the 1991 Act in respect of the dog “Bailey” and a contingent Destruction Order under s.4 A of the Act in respect of the dog “Socks”. 13. Her application for leave to appeal in respect of the Destruction Order was referred to the Full Court by the Single Judge. The background facts 14. A Newton hearing was begun before the judge, but not concluded as the facts became clear. As summarised by the judge in his very clear and helpful sentencing remarks, the facts were as follows. 15. Shortly before 8 o’clock in the morning on 30 June 2014 Georgina Rogers was walking her two Staffordshire bull terriers, Bailey and Socks, in Watling Park Burnt Oak, London, HA8, near to a children’s play area, although there were no children there at the time. Socks is a male and then 10 years old; Bailey is a bitch and was then around 7 years old. Georgina Rogers had owned the dogs for several years, Bailey since she was a puppy. 16. Both dogs were on leads, but Bailey’s lead was retractable, extending its reach out of the appellant’s control. The judge found that it was a wholly inappropriate type of lead for an untrained dog especially one which was known to have behavioural issues, as Georgina Rogers accepted was the case in respect of both her dogs. The dog should have been on a short lead. 17. The dogs became involved in a fight with a Rhodesian Ridgeback named Zeus which was being walked by Mr John Gadigbe. Zeus should have been, but was not, muzzled. It was, the judge found, a frightening incident. The judge found it unnecessary for sentencing purposes to resolve a factual issue as to which of the dogs began the fight. At least two of the dogs, including the Ridgeback, were injured. 18. The judge found that Georgina Rogers had no idea how to bring either of her dogs under control, and lacked the strength or training to manage them, if they became involved in an incident such as this. She was running a serious risk taking them both out together into a public park without having the first idea of how to control them, using a retractable lead for one of them. Inevitably something would go wrong, as it did. 19. Another dog walker, Richard Bingley, spotted the fight and intervened to try and assist. He tethered his own three dogs to a tree. At some point during the disturbance, Bailey slipped her lead, ran off and attacked one of Mr Bingley’s tethered dogs, an Irish terrier, biting that dog’s hind leg. Mr Bingley tried to protect his dog and suffered serious bites to his hand, knees and ankle. The injury to his hand was so severe that he had to stay in hospital and missed five days’ work. It was fortunate that his hand was not permanently disabled. The judge rejected any suggestion that Mr Bingley was in any way to blame for his own injuries. 20. The judge found that Georgina Rogers had quite a limited understanding of why what had happened, happened. She had not the first idea what to do to control Bailey when it broke away from her to attack the other dog The expert evidence of Dr Duncan Davidson which was before the judge 21. Georgina Rogers adduced evidence before the judge in a written report dated 9 June 2015 from an independent expert, Dr Duncan Davidson, a Member of the Royal College of Veterinary Surgeons. Dr Davidson had graduated in Veterinary Science in 1975 and had been a principal of a small-animal veterinary clinic in the Home Counties since 1985. He ran a behavioural clinic for the treatment of behaviour problems in all domestic species. He had provided expert evidence for very many years in relation to dogs in both the criminal and civil courts. He had studied aggressive behaviour in dogs and was a member of numerous committees. He confirmed that he had complied with the requirements of what is now Crim PR Part 19 and that he had acted in accordance with the code of practice for experts. 22. In his report Dr Davidson stated he had examined Bailey on 22 December 2014 with his professional colleague, Jennifer Dobson, a Certificated Clinical Animal Behaviourist, whom he described as a highly skilled and experienced dog handler and trainer. Bailey was in a cage and then removed from the cage. 23. He described Bailey as “very excitable”. She was wary and defensive if handled around the legs and feet and threatened to bite if attempts were made to touch these, with a distinct warning growl and sharp threatening head movements, and a sharply waving tail (which Dr Davidson described as usual with agitated behaviour). It was not considered safe to examine her physically and completely as a result of her temperament. She had an excitable response to a jogger in her proximity. 24. Bailey became very excited when a middle-aged, calm, non-aggressive Labrador bitch was walked nearby, despite the fact that the Labrador was mostly ignoring it; she pulled very hard on her tether in attempts to get at the Labrador. Dr Davidson described Bailey as a large dog, over twenty inches in height and at least twenty five kg in weight, and said that even if muzzled she would have the strength to barge into or knock people over if running excitedly towards them. 25. Bailey was resentful to lead restraint at times, and also showed frustration at her tether restraint on several occasions. Dr Davidson said that although Bailey was basically companionable and interactive, and probably very friendly with people with whom she was familiar, she was most certainly not a dog that he would regard as being safe in any public place, except on a lead and wearing a muzzle, due to potential dog to dog aggression and her likely response to any challenge, her attempted chase behaviour and the tendency to use her mouth and teeth to grab at objects and hands in certain circumstances. She would require very strong and very confident handling, even if on a lead and muzzled, due to its limited tolerance of restraint. The court would have to be sure, if it decided to impose a contingent destruction order, that any person walking the dog in a public place would have the strength and ability to prevent the dog again escaping from restraint and causing apprehension or injury or damage by running and barging at any passer-by or any dog. 26. Dr Davidson concluded that, although potentially containable and controllable when muzzled and held on a leash, Bailey was “inherently a potentially dangerous dog”, and that would be: “particularly dangerous if there was ever any occasion where: i) She might escape into a public area, un-muzzled, and come into close contact with people or animals with whom/which she was not familiar. ii) She might be able to remove her own muzzle, or have her muzzle removed, whilst in any public place, including a place to which the public have access, and feel challenged by people or dogs with which she was unfamiliar, where she might rise to that challenge with aggression, or displace her aggression on other persons or dogs in proximity. iii) She might feel challenged by persons unfamiliar to her conducting legitimate business at any address at which she was staying, and while she was not muzzled and controlled on a lead.” 27. He set out what he considered would be necessary if a contingent dog destruction order was made. The provisions of the Dangerous Dogs Act relating to destruction 28. The offence under s.3(1) to which Georgina Rogers pleaded guilty is an aggravated offence as a person had been injured. S.4(1) (a) provides that the court must order the destruction of the dog where an aggravated offence was committed under s.3(1) . However that consequence is qualified by s.4 (1A): “(1A) Nothing in subsection (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied— (a) that the dog would not constitute a danger to public safety; and (b)…. (1B) For the purposes of subsection (1A)(a), when deciding whether a dog would constitute a danger to public safety, the court— (a) must consider— (i) the temperament of the dog and its past behaviour, and (ii) whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and (b)may consider any other relevant circumstances.” 29. It is clear that the judge must consider both the temperament of the dog and the capability of the owner. In R v Flack [2008] EWCA Crim 204 , [2008] 2 Cr App R (S) 70 , this court summarised at paragraph 11 relevant considerations applicable. The decision of the judge 30. In the light of the evidence of Dr Davidson, which the judge set out at length in his sentencing remarks, the judge concluded that he could not possibly say that Bailey posed no danger to public safety, and accordingly he was required by law to order her destruction. He made a contingent destruction order in the case of Socks, recording that he had given considerable thought to ordering his destruction. The grounds of application for leave to appeal: the application to adduce the evidence of Dr Kendall Shepherd. 31. Miss Pamela Rose, who had not appeared for Georgina Rogers before the sentencing judge, contended on the application for leave to appeal that we should hear the evidence of another Member of the Royal College of Veterinary Surgeons, Dr Kendall Shepherd. She sought leave to adduce her evidence as contained in a report dated 29 August 2015 under s.23 of the 1968 Act . Miss Rose contended in her opening submissions that we should hear the evidence as the subject matter was a dog, the question was a matter of life and there was no graver penalty for a pet. Whilst she did not suggest that Dr Davidson was not a well-qualified expert, Dr Shepherd was an eminent dog psychiatrist and recognised as having a wealth of expertise in the field of small animal behaviour; she had examined Bailey on her own and (unlike Dr Davidson) she had video recorded the examination. Miss Rose also relied on a joint report signed by Dr Shepherd and Dr Davidson dated 2 May 2016. 32. In the alternative Miss Rose argued that on the basis of the evidence of Dr Davidson, the judge was in error to have ordered the destruction of Bailey. He should have made a contingent order. 33. In the course of the hearing of the appeal, when the court asked for an explanation of the circumstances in which the joint report of 2 May 2016 had been agreed by Dr Davidson and Dr Shepherd, it emerged that: i) The solicitors instructed in late April 2016 on behalf of Georgina Rogers had sought to ensure the expert evidence was put before this court in proper form. ii) There had been a number of exchanges in the days immediately before the hearing between Dr Davidson and Dr Shepherd. iii) In those exchanges Dr Davidson disclosed that he had provided an earlier report dated 24 December 2014 in which he had also dealt with the position of Socks in which he had concluded that “Socks was potentially very dangerous” in circumstances where Dr Davidson had been unable to remove him from the cage for examination at the time he examined Bailey. He concluded: “Unfortunately, on this assessment, Socks demonstrated a seriously aggressive temperament to humans, no responsiveness to basic training commands and complete intolerance of even lead restraint, so it would not be possible for me to advise the court to consider a Contingent Destruction Order in these circumstances. In my opinion, as it was the case that this dog showed he cannot be safely restrained at particular times, unless the Court can be certain that there is no risk of him ever escaping restraint if returned to the owner, or of him ever being at large in a public place, the court will be required to consider a destruction order on this dog.” iv) He had submitted the report of 9 June 2015 in which those very serious concerns about Socks had been deleted at the request of Georgina Rogers’ then solicitors. He stated in an email on 29 April 2016 that he wanted the original report of 24 December 2014 submitted to this court, as he considered it significant that the assessment of Bailey occurred in close proximity to Socks and the behaviour of one dog could serve as a catalyst to other; Dr Shepherd had examined Bailey when Bailey was almost all the time on her own. v) Dr Shepherd’s response on 29 April 2016 asked why, if the presence of Socks was relevant, Dr Davidson had omitted any reference to it in the report submitted to the trial judge. She doubted if they could agree to a joint report, as she would not deviate from a word of hers. vi) On 2 May 2016, Dr Davidson and Dr Shepherd signed a joint report in which Dr Davidson agreed with Dr Shepherd that Bailey did not represent a danger to the public per se and would not in the future if subject to 5 conditions. There was no explanation whatsoever for the apparent change in position of Dr Davidson or the circumstances in which the report had been agreed, or of the other matters set out in the preceding sub-paragraphs. We would wish to express our gratitude to the appellant’s solicitors, Payton’s, for their conspicuous attention to their duties as officers of the court in ensuring that the circumstances known to them as set out above were fully disclosed to the court. It demonstrates the commendable attachment of a firm of solicitors to their duties and to the highest ethical standards of the profession so essential to the maintenance of our system of justice. 34. After giving Miss Rose time to take full instructions and hearing further submissions, we decided in the light of the matters that had emerged to receive de bene esse the written and oral evidence of Dr Kendall Shepherd, leaving over until our judgment the issue of its admissibility under s.23 of the 1968 Act . The evidence of Dr Shepherd 35. Dr Shepherd graduated in Veterinary Science in 1978. She had worked in a number of capacities, and since 1999 had specialised in animal behaviour and the links between medical and emotional disorders. She was the first veterinary surgeon to be accredited by the Association for the Study of Animal Behaviour (ASAB) as a Certified Clinical Animal Behaviourist; she had been a full member of the accreditation committee of the ASAB. She had worked closely with universities on the subject of animal behaviour. She had acted on many occasions as an expert. She was a contributor to the British Small Animal Veterinary Association Manual of Canine and Feline Behaviour. She also served on many bodies associated with small animals and their behaviours and had been actively engaged in peer review in the newly emerging field of animal behaviour. 36. In her report of 29 August 2015 which was accompanied by a DVD of her examination of Bailey, she described her examination of Bailey on 19 August 2015. She described Bailey as immediately friendly and showing no sign of aggression. She then carried out several tests and examinations which were fully described and shown on the DVD. Bailey showed no aggression even when Dr Shepherd’s dog was circling around her. Her conclusion was that she saw no evidence of aggression. 37. She accepted that Bailey was an excitable and boisterous dog. Bailey had a predisposition to respond adversely to other strange dogs. In Dr Shepherd’s opinion, Bailey did not need to be destroyed and public safety could be addressed by Bailey being kept on a lead and muzzled at all times in public places. Bailey’s owner should also take instruction from a qualified behaviourist to improve Bailey’s view of other dogs, general compliance and to reduce her tendency to be over-aroused. 38. In her oral evidence Dr Shepherd explained the importance in her view of the proper approach to the control of a dog and that the use of inappropriate leads could have adverse consequences. She was very critical of Dr Davidson and his lack of expertise as a behaviourist. In her view he was not qualified to give evidence. She had not met Georgina Rogers. 39. In answer to questions from counsel for the prosecution she said she did not know why Dr Davidson had changed his mind. Her answers to counsel’s questions showed she was unfamiliar with the provisions of the Criminal Procedure Rules relating to expert evidence. Dr Davidson 40. Although Dr Davidson was present in court throughout the hearing of the appeal Miss Rose told the court that she was not going to call him to give evidence. As counsel for the appellant, she was fully entitled to make that decision. The submissions of the parties 41. After the conclusion of the evidence we afforded to the prosecution, Georgina Rogers and Dr Davidson the opportunity to make submissions. 42. It was the submission of the prosecution that we should afford little weight to the assessment of Dr Shepherd. The judge had found that Georgina Rogers was not able to control the dog. Substantial criticism could be made of Dr Shepherd’s evidence and her approach to the giving of expert evidence, but her evidence, even if accepted, could not displace the careful assessment of the judge who had taken the greatest care in assessing Georgina Roger’s ability to control Bailey. 43. It was submitted on behalf of Georgina Rogers that the DVD taken of the examination by Dr Shepherd together with her careful evidence showed that Bailey was a dog that could be safely made the subject of a contingent destruction order. That evidence should be admitted, supported as it was by Dr Davidson. 44. Dr Davidson made clear that, as he had not been asked to give evidence, he would not comment on the evidence or give any explanation of his position, other than to say that the court should not criticise him, because it had not heard from him. The issues relating to the expert evidence 45. As was properly accepted by Miss Rose, the way in which the expert evidence was presented to this court and to the judge was, as is evident from what we have set out, wholly unsatisfactory. There were obvious issues which arose from the matters we have set out, but as Dr Davidson did not give evidence, it would not be right for us to make any express findings in relation to his conduct. Nonetheless we must make clear that we were provided with (1) no explanation as to why the report before the judge had the opinion about Socks excised, (2) why Dr Davidson had agreed with the opinion of Dr Shepherd in May 2016 without providing any explanation and without disclosing to the court the existence of his unexcised report and (3) why the joint report did not set out the matters to which we have referred at paragraph 33 above. It would not be fair to Dr Shepherd or to Dr Davidson for us to make any further comments about their professional position other than that which is necessary to determine this appeal. 46. In addition there was a significant dispute between the experts as to issues relating to qualifications, expertise and to the video recording of examinations. Dr Shepherd appeared to insist, for example, that only those certified as Clinical Animal Behaviourists are sufficiently qualified to give evidence in this kind of case. We would invite the Royal College of Veterinary Medicine (to whom a copy of this judgment will be sent) to consider whether it should give guidance on these and other matters which would prevent similar disputes arising in the courts in the future. Very important issues relating to the safety of the public and very strong feelings on the part of owners and those injured by dogs can arise in cases under the Dangerous Dogs Act. For this reason it is a matter of some importance that the court should be able to have confidence that a person put forward as having the requisite expertise to give an opinion about matters, such as temperament, going to the heart of the issue whether a dog poses a danger to public safety, is appropriately qualified to express that opinion, and has sufficient data to support it. The statutory requirement as to the abilities of the owner of the dog 47. As we have set out at paragraphs 28-29, an important issue, which in many cases will be determinative, is the capability of the owner of the dog to control it. This was an issue to which the judge gave the most careful consideration. There is no basis on which it could be contended that the findings he so carefully made could be in any way criticised. 48. The expert evidence must therefore be considered in the light of those findings of the judge which were seriously adverse to Georgina Rogers. The admission of evidence relating to Dr Davidson’s original expert opinion 49. It is in our view first necessary to consider the evidence that is before us in relation to Dr Davidson’s original opinion as put before the trial court in his report of 9 June 2015 which had excised his opinion about Socks. 50. Although, as we have stated, we do not make any detailed comment in relation to Dr Davidson’s conduct in excising all reference to Socks from his report, the weight the judge was entitled to place on his evidence would have to be re-evaluated in the light of the evidence, if we admitted it, that at the request of the solicitors then instructing him, he agreed to withhold from the judge his expert opinion on Socks in respect of which it must have been appreciated that the judge would consider making a destruction order. Although we see the force of the contention of the prosecution that this withholding may not adversely have affected the judge’s decision in relation to Bailey, it must be in the interests of justice to admit the evidence in the report of 24 December 2014 under s.23 of the 1968 Act that an opinion in respect of Socks had been withheld from the court, especially since that opinion was based on an evaluation of the behaviour of both dogs on the same occasion and in each other’s presence. 51. Furthermore, Dr Davidson accepted without qualification in his joint report with Dr Shepherd dated 2 May 2016 the view of Dr Shepherd that Bailey did not present a danger to the public per se . Although we again see the force of the view that little weight can be attached to this opinion, as the opinion was not backed by reasoning, it nonetheless undermines, to an extent, the opinion on which the judge relied. Again it must be in the interests of justice to admit that report under s.23 . It follows, on the evidence that we have admitted, that the expert evidence before the judge may not have been as reliable as he believed it to be. However, Dr Davidson’s opinion on the threat to public safety, if Bailey is not properly controlled, remains valid. The result is that, on any view, the appellant cannot rely on Dr Davidson’s opinion to support the suggestion that Bailey is not a danger to the public. The alternative grounds of appeal which we have summarised at paragraph 32 must therefore fail, even if it could be argued that the evidence was sufficient, which it was not, to have allowed the judge to make a contingent order. 52. For the reasons we have given, this is an extraordinary case in that what has been put before us by the appellant has undermined the evidence of an expert on whom the appellant sought to rely at Crown Court. Yet even if that evidence had not been undermined, it did not establish that Bailey posed no danger to public safety, and the Judge’s evaluation of the owner’s inability to control her would have provided an insurmountable obstacle to a successful appeal in any event. The evidence of Dr Shepherd 53. Should we admit the other evidence of Dr Shepherd contained in her report of 29 August 2015 and her oral testimony? It is clear from the decision in R v Stephen Jones that it is not usually permissible to adduce expert evidence which could have been called before the judge. 54. We have very carefully considered Dr Shephard’s evidence. However, we cannot see any basis on which we should admit it, as the conditions in s.23 have not been satisfied. It was available to be called at the trial. We cannot consider that it is reliable; it did not appear that Dr Shepherd had a sufficient understanding of the duties of an expert in the context of this case; moreover the joint report from her and Dr Davidson had been put before us without in any way disclosing the matters to which we have referred in paragraph 33 as we have observed at paragraph 45 above. In any event the evidence would not have made any difference. She described Bailey as an “excitable and boisterous dog” with a “predisposition to respond adversely to other strange dogs”. Bailey displayed that predisposition on 30 June 2014 by attacking at least one dog who was no threat to her and the dog’s owner. There is plainly a threat to public safety unless Bailey is kept firmly under control at all times. We have seen in the DVD recording the way Bailey behaved when under the control of Dr Shepherd, but Dr Shepherd’s evidence did not deal with the ability of Bailey’s owner, Georgina Rogers, to control Bailey. The judge made very clear findings on this issue (as we have made clear at paragraph 47) and there is nothing which in any way addresses those findings. 55. Although we have some sympathy for Georgina Rogers and the position in which she finds herself, it is, in our view, clear that the judge made a decision which, even if we admitted the evidence of Dr Shepherd, contrary to the views we have expressed, there is no basis on which the appeal could succeed. 56. Although in the circumstances we grant leave to appeal, we dismiss the appeal. (2) TAPECROWN LIMITED 57. The applications by Tapecrown Limited (“Tapecrown”) arise out of Orders made at the Crown Court at Oxford after Tapecrown had pleaded guilty on 6 March 2015 to four counts of knowingly causing or permitting the operation of a regulated facility and one count of operating a regulated facility at the site without a permit in contravention of Regulation 12 and Regulations 38(1)(a) and (b) of the Environmental Permitting (England and Wales) Regulations 2010 (the 2010 Regulations). 58. The applications are for: i) leave to appeal against a Remediation Order made by HH Judge Eccles QC on 24 September 2015 at the Crown Court at Oxford pursuant to Regulation 44 of the 2010 Regulations requiring Tapecrown to remove illegal waste from its land at Chowle Farm, a site off the A420 near Faringdon in Oxfordshire, also known as Faringdon Business Park, ii) leave to appeal and an extension of 29 days for appealing against a decision made by HH Judge Ross on 17 November 2015 refusing Tapecrown’s application for an extension of time for compliance with the aforementioned Remediation Order, and iii) leave to adduce fresh evidence in support of the appeals in the form of a further report from its expert, Mr Terry Coleman. The applications were referred to the Full Court by the Registrar. 59. At the hearing of the applications we dismissed each of these applications for reasons to be given later. These are our reasons. The background facts 60. All commercial waste activities are regulated by the Environment Agency. Whenever waste is stored or treated, the operator is required to hold an environmental permit, or, if the waste activities are low risk, to register an exemption from that requirement. Regulation 38(1)(a) of the 2010 Regulations makes it an offence to operate a regulated facility without an environmental permit (or exemption). 61. Chowle Farm was a site managed by Tapecrown’s co-accused, David Crossley-Cooke, who was described by Tapecrown’s sole director, Mr Ismail, as the company’s “authorised surveyor”. Crossley-Cooke denied being an officer of the company, although he was the sole point of contact for the Environment Agency and acted as the face and voice of Tapecrown throughout the period to which the charges related. 62. Between April 2010 and June 2013 various waste operations took place at the Chowle Farm site. No exemptions or permits were in force for any operation at the site, and the waste activities were unlawful. 63. On numerous occasions between April 2010 and March 2011, environment officers attended the site and saw, amongst other things, skips filled with a variety of different types of waste, large piles of waste on the ground, and frequent occurrences of waste being burnt on a large scale. 64. In December 2011 David Ham, who operated a skip hire business at the site, pleaded guilty to depositing controlled waste and operating a regulated facility without a permit. When Ham’s operations ceased, large piles of waste were left behind. He was ordered by the court to remove them, but he failed to do so. In July 2013 Ham pleaded guilty to further offences of failing to comply with a court order to remove waste and keeping controlled waste likely to cause pollution to the environment or harm to human health. 65. Another person, Wayne Clarke, pleaded guilty on 17 December 2012 to one offence of operating a regulated facility (recovering metal components from wheels of vehicles and storing or depositing the tyres) without an environmental permit at the site between 31 October 2011 and 4 January 2012. 66. On 17 December 2012, environment officers discovered yet another person, Philip Cook, operating a mini digger in the area where Ham’s waste remained. Cook stated that he had been tasked by Crossley-Cook to tidy up and sort out and extract hardcore from the waste to use in filling in a hole at the equestrian centre on Little Coxwell estate. One of the officers of the Environment Agency, Mr Cave, visited that estate and spoke to Crossley-Cooke, who admitted that he intended to put the hardcore into the land and cover it with dressing. 67. On 12 April 2013, Mr Cave visited the Faringdon site, and noted that further tyres were stacked in an abandoned Portakabin and on the hard standing outside, which had not been present at his last visit on 16 January. On 1 May 2013, on a further visit, he noted further tyres recently cut from their rims deposited in unit 5. He photographed these tyres and tyres on the apron outside unit 5, on the hard standing further out, and in the old Portakabin. These tyres remained where they had been deposited until at least 5 June 2013. The offences committed by Tapecrown 68. Tapecrown was charged with four counts of knowingly causing or permitting the operation of a regulated facility and one count of operating a regulated facility at the site without a permit in contravention of Regulation 12 and Regulations 38(1)(a) and (b) of the 2010 Regulations. The counts related to various periods within an overall period of three years up to and including 5 June 2013. 69. The prosecution contended that the company’s officers (including for these purposes Crossley-Cooke) knew that the unlawful waste operations were taking place, given the prolonged period during which they occurred. The Environment Agency relied on the fact that they had written to inform Tapecrown what had been witnessed; the fact that Crossley-Cooke was present during many of the Environment Agency visits and lived a few hundred metres from the site; and the fact that local councils had written to the company expressing concerns. Ham and Clark both remained paying tenants at the site after the company was informed that offences were being committed. No adequate steps were taken to remove the operators from the site or to prevent waste being brought onto, kept, or treated on the site. 70. On 6 March 2015 at the Crown Court at Oxford, Tapecrown changed its plea to one of guilty to all the charges. The agreement made by Tapecrown 71. On the same date, it entered into an agreement with the Environment Agency under which the latter undertook to offer no evidence against Crossley-Cooke (who had been charged with consenting to or conniving in the commission by Tapecrown of the offences) provided that Tapecrown complied with certain conditions, including the removal of the waste from the site by 6 June 2015. However, Tapecrown failed to comply with those conditions. 72. Before us, Mr Cramsie (who did not appear in the court below) sought to argue that no undertaking was given to the court by Tapecrown; that the judge was wrong to characterise the agreement in that way. However, that was, in our view, purely an argument about semantics. In substance, Tapecrown was agreeing to take certain steps that were otherwise likely to have been imposed on it by order of the court; it was in effect an undertaking. Although this agreement had the attraction for Tapecrown of not being expressed in a form which would lead to proceedings for contempt if disobeyed, to all intents and purposes it was the equivalent of an undertaking given in lieu of a mandatory injunction or a remediation order. 73. HH Judge Eccles was fully entitled to deprecate Tapecrown’s failure to adhere to the terms of that agreement and to treat it as a factor militating against exercising his discretion to allow Tapecrown any further indulgence. The making of the Remediation Order on 16 July 2015 74. Since Tapecrown had failed to remove the waste from the site, on 15 June 2015 the Environment Agency applied for a Remediation Order pursuant to Regulation 44 of the 2010 Regulations. On 16 July 2015 the judge made an order for the removal of “uncontested waste” from the site and directed that issues relating to “contested waste” be adjourned part heard to a later date. 75. The “contested waste” initially consisted of a large pile of waste identified as P8. By the time of the hearing on 24 September 2015, a further large pile identified as P9 had been created out of waste that had not been removed in compliance with the order of 16 July 2015 and this also became “contested waste”. There were two further piles of waste at P10 and P11. The issue was whether Tapecrown should be permitted to recover any of the waste in P8 or P9 for use in the proposed construction of a garden centre on the site, or whether it should be required to remove all of the waste to an appropriate disposal facility. 76. In order for any recovery on site to occur, Tapecrown either had to ensure that the material achieved “end of waste” status or else obtain a permit from the Environment Agency. At the time of the hearing, it was envisaged that in order to achieve end of waste status Tapecrown would have to make an application to a panel. If the application failed, Tapecrown would then have to seek a U1 exemption for construction use. Tapecrown’s expert, Mr Coleman, assessed the chances of achieving end of waste status through the panel at less than 50 per cent; Mr Rice, the Environment Officer responsible for the management of the site at Chowle Farm, was more pessimistic. 77. The waste contained unknown quantities of contaminants such as asbestos, mineral oil and lead. Whilst Tapecrown believed that these quantities were at non-hazardous levels, further sampling was required to confirm this. Even if such confirmation were forthcoming, the presence of the contaminants had implications for the recovery and re-use of the waste. Tapecrown could not be certain how much, if any, of the waste could be re-used on site without further treatment and analysis. Tapecrown argued that either the application or the date for compliance with a Remediation Order should be adjourned or postponed for a period of six months, to enable Tapecrown to treat the waste in P8 and P9 on site and arrange further analysis. 78. At the adjourned hearing, on 24 September 2015, having heard evidence from both parties, including expert evidence from Mr Coleman and Mr Rice, the judge decided that what Tapecrown proposed was not technically feasible. The judge described Mr Coleman as an impressive witness with a wealth of experience, but the fact that Tapecrown had sought his advice so late in the day meant that he had had insufficient time to present his proposals in a form where they could be immediately and successfully implemented. The judge concluded that there was no realistic prospect of Tapecrown implementing the proposals successfully and in an economically viable way or in a timescale acceptable to the court, which had to bear in mind the overall environmental impact. 79. The judge made it clear that he was not minded to grant Tapecrown the indulgence of further time for Mr Coleman to work on the proposals, even if such an indulgence were sought, because of its previous criminal conduct and what he described as its disobedience to its undertaking to the court – a reference to its failure to abide by the terms of its earlier agreement with the Environment Agency to remove the waste. For those reasons, he made a Remediation Order requiring Tapecrown to remove P8 and P9 from the site. He made it clear that it would be up to Tapecrown to decide whether to dispose of the waste off-site, or have it treated and the re-useable material brought back, but in either case the material had to be off the site within eight weeks. The conviction and sentencing of Crossley-Cooke 80. Crossley-Cooke was subsequently convicted after trial of five of the six counts against him on the indictment, including a count of consenting to or conniving in the commission of the operation by Tapecrown itself of a regulated facility at the same site without a permit between 6 March and 9 June 2015 (namely the illegal sorting and burning of waste). The jury was therefore satisfied that, far from adhering to the terms of its agreement with the Environment Agency, Tapecrown was continuing its unlawful activities at the site after 6 March 2015. Crossley-Cooke was sentenced to a fine of £4,000 in total or 3 months’ imprisonment in default of payment. In his sentencing remarks Judge Eccles said that he was perfectly satisfied that Crossley-Cooke was the controlling mind of Tapecrown and that its director, Mr Ismail, was merely a figurehead. The sentence imposed on Tapecrown 81. At the sentencing hearing on 25 January 2016, HH Judge Eccles also sentenced Tapecrown for the offences to which it had pleaded guilty and ordered it to pay a fine of £20,000. The question of costs was adjourned until 1 April 2016, when Tapecrown was ordered to pay costs of £30,107. These financial penalties took into account the fact of the Remediation Order and the associated costs of compliance with it, which were assessed as being approximately £250,000 on the basis of evidence adduced at the time of the September 2015 hearing. Tapecrown’s most recent financial accounts indicated that as at 31 March 2015 it held net fixed assets worth in excess of £2 million. The application to adduce fresh evidence in this court 82. Logically, the application to adduce fresh evidence must be considered first, as it has implications for the substantive appeal. 83. The evidence in question consisted of a further expert report from Mr Coleman. Mr Cramsie accepted that in order to be able to adduce fresh evidence, Tapecrown had to satisfy the criteria set out in s.23(2) of the 1968 Act which we have set out at paragraph 3 above. There was no dispute that the evidence was capable of belief and was admissible in the court below. So far as the condition in subsection (2)(b) was concerned, Mr Cramsie submitted that the evidence did potentially afford a ground for allowing the appeal. If Tapecrown could deal with the waste in accordance with the CL:AIRE (“Contaminated Land: Applications in Real Environments”) Code of Practice it would not need to apply to the panel for “end of waste” status for the material in P8 and P9. He acknowledged that there were still significant uncertainties as to whether or not the waste could be dealt with in accordance with the CL:AIRE Code, but submitted that if it could be so dealt with, then it would increase the chances of Tapecrown being able to recover the waste within a reasonable time. Therefore, if it had been available at the hearing of the application for a Remediation Order, this information would have had a material effect upon the balancing exercise to be carried out by the court when exercising its discretion. 84. As for the condition in subsection (2)(d), Mr Cramsie submitted that there was a reasonable explanation for the failure to adduce the evidence before HH Judge Eccles. Tapecrown had engaged an expert to advise it and relied upon him, but, as Mr Coleman had accepted in his witness statement dated 28 April 2016, he did not know about the CL:AIRE Code of Practice until certain contractors on the site told him about it, which occurred only a matter of days before the hearing, leaving insufficient time for him to carry out further research and produce an addendum report. The judge had not permitted Mr Coleman to give oral evidence to supplement his expert report because the Environment Agency had objected to that course being taken. Although the judge had said it was regrettable that Mr Coleman had not been instructed sooner, he was instructed two months before the hearing, and it was not Tapecrown’s fault that Mr Coleman had not discovered the Code in that time. 85. In our judgement this is a case falling far short of compliance with the criteria in s.23(2) . The evidence on which Tapecrown sought to rely could have been obtained by it with due diligence prior to the hearing. Tapecrown could have found out the same information from its own contractors as Mr Coleman did, and much sooner. As the Environment Agency pointed out, it did not require a criminal conviction or an Order of the court for a site owner to make the necessary inquiries or arrangements to enable it to put forward viable proposals for remediation. 86. In any event, Mr Coleman’s lack of prior knowledge of the Code would call into question the value of any evidence that he would be able to give about it, and taken at its highest that evidence would not engender any greater confidence that the plans for recovery of the waste could be successfully implemented within a reasonable time. Insofar as Mr Coleman sought also to give evidence about the costs of Tapecrown’s proposal, so as to enable a comparison to be made between those costs and the costs of removal of the waste, there was no excuse at all for the failure to adduce that evidence at the time of the hearing before HH Judge Eccles. An appeal is not an opportunity for a litigant to make good the deficiencies in the way in which its case was prepared or presented before the original court. We therefore refuse the application to adduce the further evidence of Mr Coleman. The merits of the application for leave to appeal against the Remediation Order 87. We turn to the substantive grounds of application for leave to appeal. The judge was exercising a discretion under Regulation 44 of the 2010 Regulations. The proposals put forward by Tapecrown were dependent upon various permissions being granted, either by the special panel which grants “end of waste” status, or by the Environment Agency itself. They involved a substantial degree of uncertainty, as Mr Cramsie was constrained to accept. 88. Despite this, Mr Cramsie challenged the judge’s negative evaluation of the prospects of successful recovery and treatment of the waste in P8 and P9. He pointed out that removal was a remedy of last resort, and submitted that in accordance with the waste hierarchy the court should have given Tapecrown every chance to treat the waste unless the Environment Agency could show that there was no prospect of its doing so. He submitted that, because of the contaminants, it was inevitable that Tapecrown would be unable to say how much of the waste could be recovered and re-used until it had been treated; there was inherent uncertainty in what it was seeking to do, but the judge unfairly put the onus on Tapecrown to prove that it was certain. 89. We were unable to accept those submissions. The assessment of the evidence and the terms of any Remediation Order were essentially matters for the judge. He accepted that in principle the waste hierarchy applied to illegal waste and that outright disposal should be the solution of last resort, subject to an evaluation of the overall environmental impact in a case such as this, where the illegal deposit of waste has been permitted by the relevant undertaking to persist for a long period of time. He carefully considered the feasibility of Mr Coleman’s proposals and evaluated the environmental impact of remediation as against implementing the proposals as best he could on the information before him. He came to a conclusion that he was entitled to reach on the evidence. He did not require Tapecrown to prove that reclamation was certain; on the contrary, he found that there were so many hurdles for Tapecrown to overcome, and its plans were so inchoate, that the court had little confidence that they could be successfully implemented. That conclusion was plainly open to him. There was no merit in the application. 90. Mr Cramsie also criticised the judge’s treatment of Tapecrown’s previous conduct. The judge had said that if it should be argued that the environmental benefits of on-site treatment were such that Tapecrown should be permitted further time for Mr Coleman to work on his proposals, he would be firmly of the view that Tapecrown’s criminal conduct and disobedience to its undertaking to the court disqualified it from any such indulgence. Mr Cramsie submitted that there was a distinction between punishment and a Remediation Order and that the conduct of the offender should not be taken into account as a ground for refusing an adjournment, because that would be tantamount to punishment. 91. There is no substance in that criticism. The judge was entitled to refuse Tapecrown any further time to improve its proposals, in the light of its previous conduct, which he rightly described as deplorable. Its failure to comply with its agreement with the Environment Agency had effectively bought it an additional six months in which to do something with the waste on site or come up with proposals for treating it; however, far from taking steps to remove the waste or even to investigate the feasibility of recovery of much of the waste that it continued to accumulate on the site, Tapecrown continued its unlawful activities. The lengthy period during which the unlawful waste had already been on site by September 2015 was plainly a material factor that the judge was entitled to take into account. Tapecrown’s failure to do what it had expressly promised the Environment Agency in the past was bound to have an adverse effect on the court’s assessment of the likelihood that it would do what it said it intended to do with the waste in the future. 92. Finally on the first appeal, Mr Cramsie contended that the judge had made no reference in his sentencing remarks to the economic consequences for Tapecrown of requiring it to remove the waste. In the light of the fact that Tapecrown could plainly afford to remove the waste, and the contrary argument was never raised, this point goes nowhere. 93. For all those reasons leave to appeal against the Remediation Order is refused. The application for leave to appeal against the refusal of an extension of time for compliance with the Remediation Order 94. We turn to the application for leave to appeal against the refusal of an extension of time for compliance with the Remediation Order, the second application before us. Once again the application for leave to appeal concerns a challenge to the exercise of judicial discretion. 95. Tapecrown, which was then without legal representation, sought an extension of time for compliance with the Remediation Order until its appeal against that order was determined. In support of that application, it sought to rely on Mr Coleman’s further expert report as demonstrating that the appeal had a real prospect of success, and upon further evidence purporting to show that it would cost Tapecrown much more to remove all the waste from the site than to give effect to its proposals to re-use some of the waste. It was accepted that this financial information was not put before the court at the time when it made the Remediation Order. We have already refused to allow Tapecrown to adduce that evidence in support of its first appeal, since there was no excuse for the failure to adduce it before HH Judge Eccles. 96. The application for an extension of time was initially listed for hearing on Tuesday 17 November 2015, immediately after a directions hearing in the continuing proceedings against Crossley-Cooke. We have read the transcript of the proceedings before HH Judge Ross. The judge was initially unaware that he was due to deal with any matters pertaining to Tapecrown on that date, and because nobody was present who could represent Tapecrown (Mr Crossley-Cooke, who denied being an officer of the company, could not speak on its behalf) the judge indicated that he was minded to adjourn Tapecrown’s application to a later date. 97. It was pointed out to Judge Ross by counsel for the Environment Agency, Mr Badger, that Regulation 44(3) of the 2010 Regulations mandates that any application for an extension of time be heard before the period for compliance expires. Since the two months allowed in the Remediation Order was due to expire on Friday 20 November 2015, Tapecrown’s application had to be heard before then. Judge Ross therefore directed that the matter be re-listed for hearing on the morning of Thursday 19 November 2015. 98. However, later that day the judge became aware from the listing officer that Crossley-Cooke had contacted the court on the morning of 11 November 2015 to seek an adjournment of the directions hearing in his case, originally listed for 12 November 2015, stating that he was unwell. The court emailed him with a substitute date of 17 November 2015 and also rang the phone number he had supplied. The listing officer spoke to a woman, who said that Crossley-Cooke could not be contacted because he had gone back to bed, but that the new date would be passed on to him. 99. On the afternoon of 11 November 2015 the Environment Agency contacted the court office and asked if the Tapecrown matter could also be listed for 17 November. They told the listing office that since Tapecrown was no longer represented by the solicitors who had previously acted in the matter, it would have to contact the company directly. Accordingly, the listing officer rang Tapecrown’s office and asked to speak to the company director who had signed the application, i.e. Mr Ismail. They were told by someone in the office that Mr Ismail was receiving hospital treatment (as was indeed the case) but that they could put them through to someone else. That person turned out to be none other than Crossley-Cooke, who confirmed his understanding that someone from Tapecrown or who could speak for Tapecrown was required to attend the next hearing. 100. Counsel for Crossley-Cooke explained his client’s recovery to the judge on the basis that Crossley-Cooke had just come back from Egypt with a stomach complaint. The judge was plainly sceptical about that explanation, and remarked that on the face of it Crossley-Cooke appeared to have lied to a court officer. 101. However, it is clear from the transcript that the important factors derived from this information by the judge were (a) that Crossley-Cooke was speaking on behalf of Tapecrown during the afternoon conversation, and (b) that Tapecrown were aware that the hearing was listed for 17 November 2015, despite which they had sent no-one to court to pursue the application. It was the latter information that caused the judge to change his mind about the 19 November date and proceed to dispose of the application for an extension of time on 17 November 2015, as originally listed. 102. There was nothing unfair to Tapecrown about that. It had adequate notice of the hearing and sufficient time to arrange for representation. It failed to do so. Given that it had failed to appear on the appointed day to persuade the court to grant the extension of time, the court was justified in deciding to refuse the extension. In any event, the grounds for seeking an extension of time were without substance and based, to a large extent, on evidence that had not been adduced previously. They stood no real prospect of being allowed to be adduced on appeal by this court. 103. Mr Cramsie contended that it was unfair and wrong in principle for the judge to have concluded that Crossley-Cooke had told a lie to the listing officer about his health, without hearing evidence from Crossley-Cooke. However the judge’s views on that matter (which were expressed as being “on the face of it”) had no bearing on his decision to hear Tapecrown’s application on 17 November 2015 as originally listed. 104. It was further submitted that the judge should have allowed Crossley-Cooke to provide an explanation for his appearance on behalf of Tapecrown and to request a short postponement. However, given that Crossley-Cooke was running a defence on the basis that he had no authority to act on behalf of Tapecrown save on an ad hoc basis as a surveyor from time to time, it would have been contrary to the position he was adopting for the court to have treated him as having the status to make any requests on behalf of the company. 105. There is for these reasons no merit whatsoever in this further application for leave to appeal; the application for leave to appeal is also refused. It is therefore unnecessary for the court to make a decision on the application for an extension of time to seek leave to appeal out of time. (3) BEAMAN 106. On 17 November 2014, at the Crown Court at St Albans, the appellant, Beaman, having earlier pleaded guilty to possession of a disguised firearm contrary to section 5 (1A)(a) of the Firearms Act 1968 , was sentenced by HH Judge Griffith to a sentence of five years’ imprisonment. He appealed well out of time. Leave was given together with a very significant extension of time. After hearing argument, we allowed the appeal by substituting a sentence of 2½ years’ imprisonment. We said we would give our reasons later. These are our reasons. The background facts 107. In the early hours of the morning of Sunday, 15 June 2014 Beaman was among a group of people in Parliament Square, in the town centre of Hertford. At around 2.25 a.m., door staff thought that they had seen one of the group with a stun gun and alerted some police officers who were on foot patrol. The officers went to investigate. As they did so, they heard the distinctive crackling sound of a Taser type device being activated. On approaching the group, they saw Beaman crouching down behind a parked car. He appeared to be trying to hide something and was detained. A bag of 40 diazepam tablets and what appeared to be an Apple iPhone 4 were recovered from the floor. The apparent iPhone turned out to be a form of stun gun. The officers tried the machine out; it was functioning and produced thick blue sparks and made the crackling sound that they had heard. 108. Beaman immediately stated that the bag contained Valium, which he said was “not illegal”. He added that he had got the drugs on prescription and obtained them in Thailand. His home address was searched: nothing was seized. He made no comment in police interview and was bailed to return. On 29 August 2014, he telephoned the police station and stated that the iPhone was “a novelty item that he bought at the market and he didn’t know it was dangerous”. The proceedings in the Crown Court 109. On 13 October 2014, in the Crown Court at St Albans, Beaman pleaded guilty to possession of a controlled class C drug (diazepam) and to possession of a disguised firearm contrary to section 5 (1A)(a) of the Firearms Act 1968 . There was no written basis of plea. 110. The appellant was born on 27 August 1987. He was 27 years old at the date of the offences. He had a conviction for possession with intent to supply cannabis in 2004, when he was 17 years old, for which he received a Referral Order. His subsequent offending was for unrelated matters and was of a relatively minor nature. He had been out of trouble for some years. 111. A pre-sentence report was prepared in which Beaman’s version of events was recorded as follows. i) He had been performing in a nightclub earlier that evening. Prior to going on stage he had taken a couple of diazepam and consumed approximately 2 pints of Strongbow to calm his nerves. After his performance he had taken a train to Hertford, where he met up with two friends. ii) He had been showing one of these friends how the stun gun worked, by using it on himself, just before he was arrested. iii) He had purchased the disguised stun gun for the equivalent of £13 as a novelty item in a market in Bulgaria, from where he had returned some 5 days previously. It had remained in his bag ever since; he had taken that bag to work that night. iv) He did not know that the stun gun was illegal, and that his main concern when the police arrived on the scene was being found with the diazepam, because the tablets were not in blister packs and he did not have the prescription with him. v) He would not have brought the stun gun into the UK in his hand luggage from abroad if he had been aware that it was illegal. vi) Upon becoming aware that possession of novelty items of this type was illegal, he had warned two friends against purchasing similar items, and had purchased a domain name, “Lawawareness.co.uk” which he planned to use to convey information about the law relating to such items to others. 112. The author of the report expressed the view that Beaman did have some understanding that he was committing an offence, but that he was not aware of its seriousness or of its possible consequences. 113. The appellant’s account of having purchased the stun gun as a novelty item in Bulgaria was supported by a statement from a Mr Petkov, who also confirmed that it was not illegal to possess such items in Bulgaria. 114. At the sentencing hearing on 17 November 2014, Beaman’s advocate (who did not appear on the appeal) sought to persuade the judge that there were exceptional circumstances in relation to Beaman and his possession of the disguised stun gun, which would otherwise attract a mandatory sentence of 5 years’ imprisonment. Reliance was placed upon the fact that Beaman had bought the item legitimately in the open market in Bulgaria; the fact that he had had it for a short period of time; the evidence of an expert instructed by the prosecution to the effect that the weapon was marketed as an non-lethal high-voltage self-defence weapon; evidence that until shortly before the sentencing hearing such items could be bought on Amazon, and that it was through the appellant contacting Amazon that such items had now been withdrawn by them from sale; and finally, Beaman’s professed ignorance of the prohibited nature of the article in question. 115. So far as the last of these factors was concerned, the judge asked why, if that was the case, Beaman had tried to hide the stun gun when the police approached him. His advocate responded, consistently with the explanation given by Beaman to the probation officer, that he had panicked and put both of the articles down; he felt that the police might think that the bag of pills contained some other form of drug and that is why he got rid of them and the stun gun at the same time. 116. The judge rejected Beaman’s assertion that he was unaware of the illegal nature of the disguised stun gun, because of his behaviour in trying to get rid of it when he was approached by the police. He accepted that the offending was wholly out of character, but he concluded that there were no exceptional circumstances, and passed the mandatory sentence of 5 years’ imprisonment with a concurrent sentence of 28 days’ imprisonment in relation to the possession of the diazepam. The contentions advanced on the appeal as to the need for a Newton hearing 117. On the appeal, Mr Wakerley, who had not represented Beaman in the court below, first submitted on his behalf that in a case of this nature the key facts upon which the appellant wished to rely as giving rise to “exceptional circumstances” should not be treated as matters relating purely to mitigation, since in a sense they were also relevant to the circumstances of the offending. Therefore, if there was to be a trial of an issue to determine a key fact in the context of determining whether there were exceptional circumstances, it should be treated as a Newton hearing. 118. He next submitted that the provisions of Crim P.D. VII Sentencing B10 applied. The judge should not have proceeded to make an adverse finding as to the appellant’s awareness that the disguised stun gun was illegal without first hearing evidence from him. Mr Wakerley submitted that, at the very least, the judge should have asked the defence advocate who represented Beaman at the sentencing hearing whether he proposed to call his client to give evidence, or given some forewarning of his intention to make an adverse finding as to his state of knowledge. That reflected the possibility that a defendant might make a tactical decision not to engage in the process in case an adverse finding was made by the judge which would result in his losing some of the credit that he might otherwise have received for his guilty plea. Although the advocate then representing Beaman had not sought a Newton hearing, fairness demanded that there should have been a Newton hearing and as the case could not be remitted, this court should hold such a hearing. Our conclusions 119. The paragraphs of Crim P.D. VII Sentencing section B consolidate the practice developed by the courts in relation to determining the factual basis for sentencing when the facts are or may be in issue. The Practice Direction does not explicitly deal with the determination of a dispute of fact in relation to whether “exceptional circumstances” existed. We do not consider that the provisions of Crim P.D. VII B14 apply. That paragraph is concerned with a basis of plea where the basis of plea, although it should not have set out matters relating to mitigation, set out matters of mitigation which were closely aligned to the other facts. Nor is the position expressly covered by paragraphs B7 to B13. 120. However, in R v McCleary [2014] EWCA Crim 302 , this court treated a hearing before the judge in relation to disputed facts which were said to give rise to a contention that there were exceptional circumstances as a Newton hearing with the consequence that, as the judge had disbelieved the defendant, he lost some of the credit to which he would otherwise have been entitled. In R v McCarthy [2013] EWCA Crim 2500 , although the court did not describe the hearing at which disputed matters in relation to exceptional circumstances were resolved as a Newton hearing, this court concluded that the defendant had substantially reduced the mitigation which would have arisen by virtue of his guilty plea. 121. In our judgement the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in Lashari [2010] EWCA Crim 1504 , if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant’s account of the circumstances in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant’s version is correct. It does not, of course, follow that the judge, even if he accepts the defendant’s version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one. 122. The offence here was one of strict liability, but Beaman’s state of mind was relevant to the level of his culpability. He specifically sought to rely on his alleged lack of awareness that possession of the disguised iPhone was illegal as a reason why the judge should find exceptional circumstances exist and he should not pass the statutory minimum sentence. 123. However, this aspect of the case does not assist Beaman. His advocate did not seek a hearing and there is no obligation on the judge to accept a defendant’s assertions without hearing from him, or to alert his legal representatives to the potential consequences for him if he decides not to give or call evidence to substantiate his claim as to his state of mind, knowledge or intention. 124. In the present case, Beaman did not challenge the prosecution’s account of what happened when the police officers approached him in Hertford town centre. On the face of it, therefore, in the absence of evidence to the contrary, the judge would be entitled to draw obvious inferences about the appellant’s state of mind from his behaviour in seeking to hide both the drugs and the disguised stun gun. The possibility that an adverse inference might be drawn was an obvious one, and even if it had not previously occurred to the defence advocate, the judge flagged the matter up by raising an express query about it in the course of his mitigation. It was up to Beaman to seek a hearing on the issue; failure to do so ran the risk that the adverse inference would be drawn. There was no onus on the judge to forewarn him that in the absence of a trial of the issue, he might reach a view that was contrary to the submissions made by his advocate. 125. In the event, no request was made to the judge to call Beaman to give evidence to resolve any issue as to whether he was aware that possession of the disguised iPhone was unlawful. Mr Wakerley, in accordance with his duties to the court, caused inquiries to be made of the advocate who represented Beaman at the sentencing hearing as to why a hearing of the issue was not sought. He informed us that that advocate had told him that this was not the result of any consideration that Beaman might lose credit for his plea if adverse findings were made – after all, he was facing a mandatory minimum sentence. Rather it was because he, the advocate, did not consider that such a hearing was necessary. No hearing in this court 126. We reject the suggestion that there should be a Newton hearing in this court. This is not a case which satisfies the criteria for the calling of fresh evidence under s.23 of the Criminal Appeal Act 1968 . That evidence could and should have been adduced at the sentencing hearing. A deliberate decision was taken not to ask the judge for a Newton hearing, but to proceed on the basis of what was said in the pre-sentence report. That decision was well within the ambit of discretion conferred on the defence advocate at the time of the sentencing hearing. 127. Even if, in hindsight, it might now be felt that it would have been better to have taken a different course, that is no justification for treating Beaman’s evidence as fresh evidence and allowing it to be heard before this court. The application to adduce that evidence therefore fails. The contention that exceptional circumstances were in any event established 128. In the alternative, Mr Wakerley submitted that in any event, the judge was wrong in principle to find that there were no exceptional circumstances in the present case. He relied upon R v Rehman and Wood [2005] EWCA Crim 2056 , [2006] 1 Cr App R (S) 77 , R v McCleary ; R v McCarthy ; R v Zhekov [2013] EWCA Crim 1656 , [2014] 1 Cr App R(S) 69 and R v Withers [2015] EWCA Crim 132 . Withers, which deals in detail with earlier authorities concerning stun guns disguised as mobile phones, was decided after the appellant was sentenced, but none of the other cases appears to have been cited to the judge. If they had been, his conclusion may well have been different. 129. As Globe J stated in Withers , at paragraph 14, the approach to exceptional circumstances needs to be conducted in a structured manner in accordance with the statute and the principles within R v Avis [1998] 1 Cr App R (S) 420 and R v Rehman and Wood. The question as to whether exceptional circumstances exist depends on the facts of the particular case. Previous authorities have demonstrated that exceptional circumstances may exist even if the defendant is aware that it is illegal to possess the disguised stun gun. 130. In the present case, the four Avis questions are to be answered as follows: as to the type of weapon, it was marketed as a self-defence weapon. It did not shoot bullets; it was assessed by the expert as applying a non-lethal but high voltage electrical shock. It was purchased legitimately on the open market in Bulgaria. Possession of a similar item which was not disguised as a mobile phone or a torch would not attract a mandatory minimum sentence under the Firearms Act. As to its use by Beaman, it was in his possession for only five days. For most of that time it was kept in his bag. It was not used by him at all save to demonstrate to a friend what it did, and in demonstrating it the appellant administered the shock to himself and not to another person. However, he chose to do this in a crowded public place in the early hours of the morning. 131. As to the reasons why Beaman was in possession of it, he had bought it as a novelty item. His previous convictions were of no particular relevance to this offence. Although his behaviour in seeking to hide it when the police arrived indicated that he may well have been aware that it was unlawful, and the judge so held, after his arrest he did take active steps to warn others, including Amazon, that possession of such items is unlawful in the UK and this led to them being withdrawn from sale by Amazon. He pleaded guilty at the earliest opportunity, and there was genuine remorse as well as positive character references. 132. This is a case in which, on balancing all the relevant factors, the sentencing judge was undoubtedly right to conclude that there had to be an immediate custodial sentence. However, on the facts, the judge was wrong to conclude that there were no exceptional circumstances justifying a departure from the minimum term. On that basis, the appropriate sentence would have been one of 2½ years’ imprisonment. We therefore quashed the five year term and substituted one of 2½ years. To this extent the appeal was allowed.	[ "MRS JUSTICE ANDREWS DBE" ]	2016_07_01-3798.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/801/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/801	1,028
e80560a034179fc4e79f613d4b92a3b6a928ca2d9d33babc70b7c70ef6218217	[2024] EWCA Crim 447	EWCA_Crim_447	2024-05-03	crown_court	Neutral Citation Number: [2024] EWCA Crim 447 Case No: 202301958 A5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON UPON THAMES CROWN COURT HIS HONOUR JUDGE JOHN T20177455 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/03/2024 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE WALL and HIS HONOUR JUDGE RICHARDSON KC - - - - - - - - - - - - - - - - - - - - - Between : SHARRIFF DACRES Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Neutral Citation Number: [2024] EWCA Crim 447 Case No: 202301958 A5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON UPON THAMES CROWN COURT HIS HONOUR JUDGE JOHN T20177455 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/03/2024 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE WALL and HIS HONOUR JUDGE RICHARDSON KC - - - - - - - - - - - - - - - - - - - - - Between : SHARRIFF DACRES Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Clare Montgomery KC and Kwaku Awuku-Asabre (instructed by Stokoe Partnership ) for the Appellant Jonathan Polnay KC (instructed by Crown Prosecution Service ) for the Respondent Hearing date : 21 March 2024 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on Friday 3 May 2024 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 WILLIAM DAVIS : Introduction 1. Sharriff Dacres is serving a sentence of 14 years’ imprisonment imposed on 18 October 2018 in the Crown Court at Kingston upon Thames for an offence of conspiracy to transfer or sell prohibited weapons. He now applies for an extension of time in which to appeal against that sentence. The extension required is 1,672 days which equates to just over 4 ½ years. It is not said that the sentence imposed was not justified by the extent of the applicant’s involvement in the conspiracy of which he was convicted. Rather, the complaint is that the judge failed to give credit for time spent in custody prior to the sentence being imposed. The applicant spent time serving a sentence for another offence whilst he was also on remand for the conspiracy offence. That time was excluded from the period in custody to be credited administratively by HMPPS. Because the judge did not exercise his discretion to adjust the sentence to allow for that time, it is said that the sentence was manifestly excessive or wrong in principle. Factual background and the course of the criminal proceedings 2. The history of the criminal proceedings involving the applicant is not straightforward. On 12 June 2016 a large organised party took place near Watford. During the later stages of the party the event descended into violence. In the course of the violence someone was shot. A total of three shots were fired. The used cartridges were recovered from the scene of the shooting. Two days later a semi-automatic pistol was found at the address at which the applicant’s cousin, Alexander Dacres, lived. In addition, a white shirt was found at the address. It bore traces of gunshot residue. The applicant’s DNA was found on the shirt. 3. On 15 June 2016 the applicant was arrested. When interviewed he made no comment. Subsequently he was identified by someone who had been at the party as being the individual who had fired shots. The identifying witness said that the gunman had been wearing a white shirt. The applicant was charged with attempted murder, possession of a firearm with intent to endanger life and possession of a prohibited weapon. He was remanded in custody. 4. In due course he stood trial in the Crown Court at Harrow. In December 2016 he was acquitted on the trial judge’s direction of the offences of attempted murder and possession of a firearm with intent to endanger life. No verdict was reached in relation to the offence of possession of a prohibited weapon. A re-trial took place in January and February 2017. The applicant’s cousin, Alexander Dacres, was convicted of offences including possession of a firearm with intent to endanger life. The applicant was convicted of possession of a prohibited weapon. He was sentenced to a term of 7 years’ imprisonment. 5. On 11 April 2017 the applicant was arrested for and charged with conspiracy to transfer or sell prohibited weapons. The conspiracy began at some point after 1 January 2016. The applicant’s alleged role in it ceased on 17 June 2016 i.e. when he was arrested in relation to the alleged offences committed in Hertfordshire. There were two criminal agreements. The first agreement was to import prohibited firearms from Eastern Europe. It ran until early 2017. During the currency of the agreement, there were 9 shipments involving at least 72 firearms. The destination of the weapons was Sheffield and the South East of England. The second agreement, to which the applicant was a party, concerned the sale or transfer of 24 firearms with another 8 weapons being seized by the authorities before they reached the customers. Some of the firearms were the same make as the one discharged at the party near Watford. The applicant’s role in the conspiracy was as lieutenant to the organiser of the transfer of firearms in the South East. His role was taken on by someone else after his arrest in June 2016. 6. The trial in relation to the firearms conspiracies commenced in January 2018 before HH Judge John and a jury in the Crown Court at Kingston upon Thames. The applicant was convicted on 3 April 2018 of conspiring to transfer or sell prohibited weapons. He was remanded in custody to await sentence. Others who had been charged with the offence had pleaded guilty. It was necessary for the trial judge (who was not the judge who had dealt with the case in Harrow) to be in a position to sentence all defendants together. 7. On 15 May 2018 the Court of Appeal quashed the conviction of the applicant for possession of a prohibited weapon. This was because the direction of the trial judge in that case in relation to identification of the gunman had been deficient. A re-trial was ordered. The re-trial had yet to commence when the applicant appeared for sentence in Kingston upon Thames. 8. At the sentence hearing counsel who then appeared for the applicant invited Judge John to reduce the sentence of imprisonment which inevitably was to be imposed for the conspiracy to transfer or sell prohibited weapons. The proposition was that account should be taken of the time spent in custody serving the sentence for the offence of possession of a prohibited weapon. This was a period of 452 days i.e. from the date of conviction until the point at which the conviction was quashed. The judge refused to take that course. He said that he ignored the conviction and sentence of 7 years’ imprisonment “for one of the….handguns involved in this case as it has been quashed and the retrial is awaited on 10 December”. 9. In the wake of the conviction and sentence imposed for the offence of conspiracy, the prosecution decided not to proceed with the re-trial. On 4 December 2018 the case from Harrow was mentioned before HH Judge Lodder KC sitting in Kingston upon Thames. The indictment charging possession of a prohibited firearm was left on the file. Post-sentence events 10. Between 17 June 2016 and 17 February 2017 the applicant had been remanded in custody awaiting his trial in relation to possession of a prohibited weapon. Between 30 August 2016 and 29 October 2016 he was serving a sentence for an unrelated offence of assault. But the balance of this period on remand was not taken into account in relation to the sentence imposed on 18 October 2018. After representations by the applicant’s solicitor, HMPPS (HMP Wandsworth) decided that the period on remand in relation to possession of a prohibited weapon would count as time served. They determined that the possession charge was a “related offence” within the meaning of s240 ZA(8) of the Criminal Justice Act 2003 . 11. The applicant on 17 August 2021 was transferred to HMP Onley. That establishment made a fresh calculation of the applicant’s earliest date of release. It was decided that the possession charge was not a related offence. The applicant’s earliest date of release was adjusted accordingly. On 19 April 2023 the applicant’s solicitors sent a Pre-Action Protocol letter to HMP Onley. This set out the basis on which the applicant proposed to seek judicial review of the decision that the possession charge was not a related offence. On 9 May 2023 the decision was re-made. The earlier calculation by HMP Onley was reversed. The period between June 2016 and February 2017 (less the time serving the sentence for assault) was to count as time served in relation to the sentence of 14 years’ imprisonment. 12. There are two consequences of this re-made decision. First, the applicant’s sentence imposed at Kingston upon Thames requires no discretionary adjustment to take account of the period whilst he was remanded in custody awaiting the trial and verdict at Harrow. That period has been ordered to count towards the sentence by HMPPS. Second, HMPPS have determined for their purposes that the possession charge was a related offence within the terms of s240 ZA. Their judgment was that the possession charge was founded on the same facts or evidence as the conspiracy. Legal framework 13. The statutory regime in respect of time remanded in custody to count as time served is set out in s240 ZA of the 2003 Act . The parts which are relevant for our purposes are as follows: (1)This section applies where— (a)an offender is serving a term of imprisonment in respect of an offence, and (b)the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence. …. (1B)In this section any reference to a “sentence”, in relation to an offender, is to— (a)a term of imprisonment being served by the offender as mentioned in subsection (1)(a) …. (2)It is immaterial for the purposes of subsection (1)(b) or (1A)(b) whether, for all or part of the period during which the offender was remanded in custody, the offender was also remanded in custody in connection with other offences (but see subsection (5)). (3)The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence. But this is subject to subsections (4) to (6). (4)If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served. (5)A day counts as time served— (a)in relation to only one sentence, and (b)only once in relation to that sentence. ….. (8)In this section “related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A. (8A)Subsection (9) applies in relation to an offender who is sentenced to two or more consecutive sentences or sentences which are wholly or partly concurrent if— (a)the sentences were imposed on the same occasion, or (b)where they were imposed on different occasions, the offender has not been released during the period beginning with the first and ending with the last of those occasions. (9)For the purposes of subsections (3) and (5), the sentences are to be treated as a single sentence. This regime is applied administratively. A sentencing judge plays no part in determining the number of days for which the offender was remanded in custody. Nor does the judge have any role in deciding what in any particular case is or is not a related offence. 14. For an offender who has committed a single offence and has been remanded in custody prior to sentence in relation to that offence, the scheme is very straightforward. HMPPS will count the period spent on remand in custody as time served. Where an offender has committed more than one offence and each offence was founded on the same facts or evidence, HMPPS will count the total period spent on remand in custody in connection with all of the offences as time served. These consequences flow from s240 ZA(3). 15. If any period on remand for a relevant offence coincides with a period when the offender is detained because for instance he has been recalled on licence in relation to an earlier sentence, that period will not count as time served: s240 ZA(4). Where an offender is sentenced to imprisonment for unrelated offences on different days, the eventual total sentence will be a single sentence so long as the offender has not been released from the earlier sentence(s) when the last sentence is imposed: see s240 ZA(9). 16. Sometimes an offender will be charged in separate proceedings with two unrelated offences which then run in parallel. It can be the case that one offence is sufficiently serious to justify a remand in custody. Had the other offence been charged alone, the likelihood is that the offender would have been remanded on bail. What if the final outcome is that the offender is convicted of only the less serious offence? In those circumstances, the time spent remanded in custody in relation to the more serious but unrelated offence will not count as time served. The sentencing judge then has a discretion to adjust the sentence imposed in relation to the less serious offence to reflect the time remanded in custody in respect of the more serious offence. That discretion exists where to pass the sentence which otherwise would be appropriate would create an injustice: Prenga [2017] EWCA Crim 2149 . 17. The factual situation in Prenga was that the offender had been on bail for an offence committed in this country when he was arrested in relation to a European Arrest Warrant. He was remanded in custody in respect of the extradition offence. His bail initially was not revoked. Thus, for a period he was “detained in connection with any other matter” and the time spent in custody due to the EAW did not count as time served. After about three months the offender applied to have his bail revoked. He then was remanded in custody in relation to the offence in this jurisdiction. That allowed the period spent in custody thereafter to count as time served. By the time the offender came to be sentenced for the offence committed in the UK the EAW had been withdrawn. The issue was whether the sentence should be adjusted to take account of the three months when the offender was in custody solely in relation to the EAW. 18. It follows that the court in Prenga was not dealing with an offender charged with different UK offences. However, the court considered the nature of the discretion generally. It reviewed the relevant authorities. The court did not confine itself to the particular factual circumstances applicable to the offender with which it was dealing. 19. At [45] and [46] the court identified two overarching principles to be applied by a sentencing judge when considering whether to exercise the discretion: “First, the discretion to modify a sentence, which is otherwise lawful is, on the basis of case law, an exceptional jurisdiction. This is because the rules laid down in the CJA 2003 for the according of credit against sentence for periods spent on remand or on qualifying bail are intended to lay down a comprehensive scheme governing the issue. A defendant's entitlement to "credit" is thus fixed by statute. Parliament has made policy choices in approving this regime, for instance as to the amount of credit for time spent on qualifying curfew (50% of the actual days). Parliament has also made clear that time spent on remand in cases unrelated to the case under consideration should not prima facie warrant any adjustment to the sentence. The cases where the statutory regime does not ensure justice should therefore be rare.” “Second………It is not uncommon for two parallel or overlapping sets of proceedings to be brought against an individual for two different offences. It is not unusual for a defendant to be on remand in relation to one, serious, charge in circumstance where (otherwise) he would have been on qualifying curfew in relation to some other, less serious, charge. Where the most serious charge is discontinued, credit is not normally given in relation to sentence on the second charge.” 20. The court in Prenga also considered the relevance of the failure of those representing the offender to raise the exercise of a discretion at the sentencing hearing. That was because at the point of sentence in that case no-one had raised the issue. It appeared that neither the prosecution nor the defence were aware that the EAW had been discharged. The court concluded that no injustice had occurred. The onus was on the offender to put forward all matters of mitigation at the point of sentence. This factor is not relevant in the applicant’s case. The judge sentencing him in October 2018 was asked specifically to reduce the sentence to allow for the time in custody for the prohibited weapon offence. 21. There have been two more recent decisions of this court in relation to the approach to be taken when an offender has spent time in custody and the effect of s240 ZA(4) is that the time does not count as time served. In Williams [2022] 2 Cr App R (S) 5 the appellant was remanded in custody for an alleged offence of breaching a restraining order. At the time the alleged breach was committed the appellant was on bail for an earlier alleged breach of the same restraining order. For whatever reason the appellant’s bail for the earlier alleged breach was not revoked. He spent approximately 9 months awaiting trial remanded in custody solely in respect of the later alleged breach. He was acquitted of that offence but convicted of the earlier breach. The judge was invited to exercise his discretion and to reduce the sentence to take account of the period in custody which would not count as time served. The judge declined to exercise his discretion. He imposed a sentence of 4 years’ imprisonment in respect of the earlier breach of the restraining order. This court allowed the appeal and reduced the sentence by 9 months to take account of the time spent remanded in custody in respect of the offence of which the appellant was acquitted. 22. The court in Williams did not refer to Prenga . It did not consider the principles to which we have referred. The court expressed its view in very brief terms, namely “….Our view is that there ought to be appropriate recognition of the fact that the appellant has spent a significant period of time in custody in respect of an alleged offence of which he was subsequently acquitted, namely a period of approximately 9 months….” The court did not explain why it was appropriate to take account of that period in custody. It did not refer to the “exceptional jurisdiction” involved in modifying a sentence which was entirely lawful. 23. In Jones [2023] EWCA Crim 672 the appellant had spent approximately 2 months remanded in custody in relation to an allegation of assault. The appellant was acquitted of that offence. His appeal was directed towards the judge’s failure to reduce his overall sentence for a raft of other offences to take account of the fact that this period in custody would not count as time served. The court concluded that the overall sentence was modest by reference to the number of offences committed by the appellant. The court went on to say: “Nor do we think that in all the circumstances here there is any unfairness which needs correcting. The appellant had no right to any reduction for time spent in custody for the allegation of assault.” As in Williams the court did not refer to Prenga . However, the reference to the absence of unfairness equates to the concept that the court must not permit an injustice to occur. 24. We have no doubt that the principled approach in Prenga must be adopted in any case where the operation of s240 ZA(4) means that a period in custody will not count as time served. Cases where the statutory regime does not confer the appropriate benefit on an offender will be rare. The discretion to modify what otherwise would be the proper sentence is an exceptional jurisdiction. In this context, for the circumstances to be exceptional they must be more than unusual. They must be such that the application of the statutory regime would lead to real injustice. Extension of time 25. In order to pursue his appeal the applicant requires an extension of time of approximately 4 ½ years. His solicitor (who was first instructed in April 2017 in relation to the conspiracy charge) has provided a witness statement setting out the history since the date of the sentence. At the sentence hearing the applicant was represented by leading and junior counsel. As we have said, they asked the judge to reduce the sentence to take account of the time spent in custody for the offence of possession of a prohibited weapon. Following the hearing leading counsel took the view that the judge’s approach was not open to challenge on appeal. He considered that, were it to be legitimate to take account of the circumstances of the offence of possession of a prohibited weapon, this would aggravate the sentence for the offence of conspiracy. 26. When the prosecution decided not to pursue a re-trial of the offence of possession of a prohibited weapon, the case was mentioned before HH Judge Lodder KC. The issue of the time spent in custody in relation to that offence was raised before him. Judge Lodder said that any application in relation to the sentence imposed on 18 October 2018 should be made to HH Judge John or to the Court of Appeal Criminal Division. At that point the applicant was well within time to make an application to Judge John to vary the sentence pursuant to the slip rule. Leading and junior counsel disagreed about the course to take at this point. Leading counsel remained of the view that the sentence would not be varied whether at a slip rule hearing or on appeal. Junior counsel considered that there were grounds to reduce the sentence. 27. Leading counsel delegated the task of advising on an appeal against sentence to junior counsel. Junior counsel was not prepared to provide negative advice in relation to such an appeal. We have been told that this difference of opinion was not communicated to the applicant at the time. It is not clear whether the applicant’s solicitor was aware of the position. His witness statement does not provide clarity on this issue. Junior counsel (who by now had taken silk) on 29 June 2019 provided the solicitor with an advice in relation to an appeal against sentence. He advised that there were no grounds of appeal. This advice was not given to the applicant. Again the witness statement does not explain why the solicitor took that course. 28. At some point thereafter fresh leading counsel was instructed. On 14 February 2020 he advised that the applicant had arguable grounds of appeal against his sentence i.e. Judge John should have acceded to the submission that the sentence ought to have been reduced to take account of time spent in custody in relation to the allegation of possession of a prohibited weapon. On 27 May 2020 the solicitor wrote to HMP Wandsworth in relation to the time spent on remand in relation to the possession allegation. He argued that this period (245 days) should count as time served in relation to the sentence imposed by Judge John. In September 2020 HMP Wandsworth agreed to adjust the applicant’s release date. At that point nothing further was done in relation to the applicant’s sentence. 29. We have already set out the course of events following the applicant’s transfer to HMP Onley. They culminated in a return to the position reached in September 2020. The grounds of appeal with which we are concerned were not lodged until 14 June 2023. We have no satisfactory explanation from the solicitor as to why nothing was done in relation to the period of 452 days between February 2020 when fresh counsel advised and June 2023. His witness statement includes the following: “Since (the applicant was transferred to HMP Onley on 17 August 2021) the applicant’s family has been working to gather the necessary funds to appeal the sentence, leading to the instruction of present counsel in October 2022…. ….notwithstanding the delay in receiving advice on an appeal, the applicant and his family have been determined to pursue an appeal against sentence since the applicant was sentenced to serve 14 years’ imprisonment” There is no further explanation of the delay. 30. The authorities in relation to the circumstances in which this court will extend time to appeal are extensive. They were reviewed in JH [2024] 1 Cr App R 5 at [8]: “…. the applicant relies on the decision of this court in R. v King (Ashley) [2000] 2 Cr. App. R. 391 in support of the contention that an extension of time may be granted even if no proper explanation has been given for the delay. That, however, was an exceptional case involving the potential involvement of the CCRC, and reference must be made to more recent authority, including the decisions of this court in R. v Hughes (James) [2009] EWCA Crim 841 ; [2010] 1 Cr. App. R. (S.) 25 , R. v Thorsby (Adrian) [2015] EWCA Crim 1 ; [2015] 1 Cr. App. R. (S.) 63 , R. v Wilson (David) [2016] EWCA Crim 65 , R. v Roberts (Mark) [2016] EWCA Crim 71 ; [2016] 2 Cr. App. R. (S.) 14 , R. v James (Wayne) [2018] EWCA Crim 285 ; [2018] 1 Cr. App. R. 33 , R. v Gabbana (Jason) [2020] EWCA Crim 1473 , R. v Patterson (Ian) [2022] EWCA Crim 456 and R. v FG [2022] EWCA Crim 1460 . In short, the court will always examine all the circumstances of the case including the length of the delay, the reasons (if any) for it, and the overall interests of justice including the public interest in finality, the interests of victims, the practicability of a retrial, and any potential injustice to the defendant. Certainly, asserted strong merits cannot of themselves be assumed by prospective appellants and their lawyers to be some sort of trump card in securing an extension of time.” JH was an appeal against conviction. The same principles apply to appeals against sentence: see Thorsby and Roberts . A significant factor in determining whether an extension of time should be granted is the need for efficient use of resources and good administration: see Patterson . The same principles were reiterated in Brennand [2024] 1 Cr App R 14 at [28]: “…..As made clear in Paterson , simply demonstrating an arguable case on the merits is not a "trump card" that can overcome even substantial delay. As reflected in the judgment quoted above, the time limit on applications for leave to appeal is not imposed arbitrarily or for simple administrative convenience. Principally it is a measure designed to secure the proper administration of justice; it reflects the important principle of finality in litigation. Substantial delay in making an application for leave to appeal also risks impairing the Court's ability to do justice…..there may, exceptionally, be appeals sought to be brought where the ground(s) advanced are of such cogency that the court is satisfied that it would be contrary to the interests of justice not to allow the substantive appeal to be argued. In such exceptional cases, the Court may grant the necessary extension of time, notwithstanding that no satisfactory explanation for a significant delay has been given. Having considered the points argued on the Applicant's behalf, we are satisfied that the present case is emphatically not such a case.” 31. We conclude that no proper explanation has been given for the delay in this case. By February 2020 the applicant was in receipt of advice that he had grounds to appeal against his sentence. His solicitor has asserted that he had been determined to pursue an appeal since the imposition of the sentence. Nothing was done in relation to an appeal. The solicitor has referred to the gathering of funds by the applicant and his family from August 2021 onwards. This does not explain how it was possible to instruct counsel in February 2020 or the basis on which the solicitor was acting in May 2020. In any event, no particulars have been given of the efforts made to gather funds, of why they only began in August 2021 and of why it took 15 months from that point up to the instruction of counsel in October 2022. 32. The lack of an adequate explanation for the delay is an important consideration in any decision to extend time. It will not act to bar an extension of time. However, where the delay is as long as in this case, the applicant has a very high hurdle to overcome in terms of establishing injustice were the extension not to be granted. The respective positions of the parties on the substantive merits of the application 33. The applicant was represented before us by Clare Montgomery KC and Kwaku Awuku-Asabre. The prosecution were represented by Jonathan Polnay KC. We were greatly assisted by their detailed written submissions supplemented by oral argument. 34. The applicant’s first submission is that HH Judge John should not have sentenced the applicant when he did. In October 2018 it was understood that a re-trial was due to take place in relation to the offence of possession of a prohibited weapon. The judge ought to have postponed sentence until the outcome of that re-trial was known so that the sentence could reflect all relevant matters. When the judge proceeded to sentence but at the same time ignored the possession offence, he created an injustice. 35. The applicant goes on to argue that, in the circumstances which now obtain, this is a case in which the exceptional jurisdiction in Prenga should be exercised. The circumstances here are very rare. In the year ending September 2022 this court quashed 79 convictions. In the previous year 127 convictions were quashed. Only in some of those cases was a re-trial ordered. In even fewer cases was the individual sentenced for other matters following which the re-trial did not take place. That combination of circumstances can only be described as exceptional. The submission is that s240 ZA(4) was never intended to cater for this situation. Parliament did not intend to exclude this very unusual case. There was no policy decision to that effect. 36. In relation to delay, the applicant submits that the responsibility for the delay lies with the legal representatives. Further, the delay has caused no problem in dealing with the case since it only concerns allowing for a period in custody to count as time served. The applicant has spent 1 ¼ years in custody for which no allowance has been made. This is a serious miscarriage of justice. The applicant’s case is that the sentence should have been 11 ½ years rather than 14 years’ imprisonment. The time spent in custody serving the sentence for the possession offence equates to a custodial term of 2 ½ years. The argument is that the applicant would have been better off had his conviction stood. The effect of s240 ZA(9) would have meant that the whole period in custody from June 2016 to October 2018 (subject to the brief separate custodial term in the later part of 2016) would have counted as time served. 37. Mr Polnay argues that the judge cannot be criticised for taking the course he did in sentencing in October 2018 for the offence of conspiracy. All parties wished to know what sentence was to be imposed for that offence. It was a highly relevant consideration in determining whether a re-trial would be required. In any event, the fact that the applicant’s sentence was not postponed takes him nowhere in relation to the proposed appeal. 38. Mr Polnay accepts that the precise circumstances of this case are unusual. However, s240 ZA(4) does cover the situation in which the applicant finds himself. The terms of the sub-section are clear. The words “detained in connection with any other matter” encompass detention in relation to a sentence which later is quashed. Mr Polnay points to the operational guidance issued by HMPPS in relation to s240 ZA. This makes the same point under the heading “Quashing a sentence does not turn sentence time into remand time”. He argued that, whilst the particular set of circumstances affecting the applicant were unusual, a similar situation could arise where someone on licence is recalled at the same time as being prosecuted for further offences. If there were a delay in sentencing for the further offences, the offender would not be entitled to count as time served the period spent on recall. For those reasons, Mr Polnay argues that the policy of s240 ZA does apply to the applicant. 39. However, Mr Polnay recognises that there is a discretion which can be exercised in accordance with the principles in Prenga . He invites us to have regard to the following factors: whether there is a good explanation for the delay in bringing the application; the extent to which the two allegations are linked; the length of the period in custody involved; whether an injustice would be created were the period in custody not to be reflected in the sentence. 40. If, having taken those matters into account, the conclusion is that justice requires some adjustment of the sentence, it is argued that this cannot be an arithmetical exercise based purely on the relevant period in custody and the reduction needed to match that period. It is necessary to have regard to the effect any reduction in sentence would have on the period on licence. Discussion 41. We are satisfied that HH Judge John cannot be criticised for not adjourning sentence pending the outcome of the anticipated re-trial. He expressly excluded any consideration of the factual background of the possession offence from his sentencing decision. Thus, had there been a conviction for that offence at the re-trial, the sentencing judge would have been in a position to determine the appropriate sentence for that offence and would have been able to make any necessary adjustment to ensure that the overall sentence was just and proportionate. Moreover, we can understand why all parties were anxious for sentence to be imposed in relation to the conspiracy. Given the likely length of that sentence, it was likely to be relevant to any decision not to pursue the re-trial. In any event, we agree that a failure to adjourn the sentence is now of no relevance to the appeal. The argument is artificial. 42. We consider that the basis on which the applicant was detained between February 2017 and May 2018 plainly was within the policy boundaries of s240 ZA at the time of his detention. The fact that the sentence which underpinned that detention was quashed does not alter the position. S240 ZA is a comprehensive scheme in relation to remand periods counting as time served. For an individual to serve part of a custodial sentence which then is quashed on appeal is not a highly unusual event. In this case it occurred in the context of the quashing of a conviction which is a less common event. However, had Parliament intended that a person in that position should be entitled to count that time in custody as time served, it could and would have said so. 43. It follows that the applicant must demonstrate that this is an exceptional case where application of the policy will cause him real injustice. We do not accept the parallel which Mr Polnay sought to draw between the applicant and someone recalled on licence who then is sentenced for another offence is of particular assistance. It would be very unlikely that the offence for which the person was on licence had the same kind of connection with the new offence and the two offences in this case. We consider that the applicant probably was fortunate that HMPPS determined that the possession of a prohibited weapon was founded on the same facts or evidence as the conspiracy of which he was convicted. However, that was the view taken by HMPPS. It would be very unusual for that to be the position where a person was recalled on licence. Even if there were a proper parallel to be drawn, it would not assist us. The person recalled on licence is serving the balance of a sentence for an offence they had committed. The applicant must be taken not to have committed the offence of possession of a prohibited weapon. 44. On the other hand we reject the proposition that the applicant would have been better off had the conviction for possession of a prohibited weapon stood. Had Judge John sentenced the applicant in those circumstances, he inevitably would have ordered the sentence to run consecutively to the sentence imposed in February 2017. Although the weapon to which that sentence related was said by the judge to be one of the firearms imported and transferred pursuant to the criminal agreements, the offence of possession of a prohibited weapon could not be said to be subsumed by the conspiracy. That offence was linked to the use of the firearm in an attempt to murder someone. This feature went well beyond the transfer or sale of firearms. In addition, the offence attracted a mandatory minimum term. Doubtless the judge would have tailored his sentence on the conspiracy to take account of the need to ensure a total sentence that was proportionate. It is submitted that Judge John should have imposed a sentence of 11 ½ years for the conspiracy to allow for the time spent serving the sentence for possession. Had the sentence for possession not been quashed and had the judge been imposing a consecutive sentence for the conspiracy, we consider that the judge would not have reduced the sentence to that extent. In all likelihood the practical effect of the overall sentence would have been more onerous than the sentence about which he now complains. We consider that the proposition that the injustice to the applicant is demonstrated by him being worse off than if the conviction for possession had stood is untenable. 45. It is relevant to the issue of injustice that the applicant was not re-tried on the possession indictment. It is apparent to us that the view taken by the prosecution in December 2018 was born of pragmatism. The applicant had been sentenced to 14 years’ imprisonment. The issue for the prosecution was whether the public interest required a re-trial on the possession indictment. A significant factor was the sentence imposed by Judge John. The indictment was left on the file. The argument of the applicant is that the sentence imposed for the offence of conspiracy should have been 11 ½ years’ imprisonment. What the view of the prosecution would have been had that been the sentence imposed in October 2018 cannot be stated with certainty. However, there is a high likelihood that the re-trial would have been pursued. The applicant may have been acquitted in the re-trial. Equally, he might have been convicted. The outcome for the applicant is that he has avoided that risk. 46. When someone succeeds in an appeal against conviction resulting in a sentence of imprisonment being quashed, that person will have spent time in custody in relation to an offence they have not committed. There is no mechanism for the person to put that period of custody on deposit ready to be utilised in the event of further criminality even if the further criminality has some connection to the other offence. There is no question of any injustice being perpetrated as a result. In this case, the person whose conviction and sentence were quashed coincidentally was already due to be sentenced for other criminality. The period in custody spent serving the quashed sentence overlapped with the period of remand for the other criminality. It is not obvious to us that the situation which arose here gave rise to injustice when it would not have done had there been a separation in time between the two sets of proceedings. 47. We also take account of the fact that, were the sentence to be reduced whether by 2 ½ years or some lesser figure, the applicant would reap the benefit of less time on licence. Assuming the sentence of 14 years’ imprisonment to be appropriate – and it has not been suggested that it was not – the licence period would be 7 years. That licence period would be reduced pro rata depending on the extent of any reduction in the sentence imposed by Judge John. The purpose of licence conditions in substantial measure is to protect the public. The overall justice of the case must be considered with that factor taken into account. Conclusion 48. In light of the factors we have identified, we do not consider that the applicant’s case is exceptional so as to invoke the discretionary jurisdiction as set out in Prenga. We take account of the very considerable delay in making the application for leave to appeal. Although the applicant is said to have been “determined to pursue an appeal” since the date of sentence, he permitted the case to lie dormant for long periods. That feature is hardly indicative of a real sense of injustice on the part of the applicant. The applicant fell squarely within the provisions of s240 ZA. The specific chronology in his case was very unusual. But it was not very unusual that his conviction for possession of a prohibited weapon was quashed. It was an event sufficiently common for HMPPS to have operational guidance. That guidance properly reflected the policy and effect of s240 ZA(4). The statutory regime assumed that someone whose conviction was quashed would not be able to have the time spent serving a sentence count against a sentence imposed for a different offence. The coincidence of circumstance in relation to the proceedings against the applicant did not render the position exceptional in relation to the applicant. 49. It follows that the proposed grounds of appeal are not of such cogency as to justify an extension of time of more than 4 ½ years. We refuse the application to extend time. That means that the application for leave to appeal falls.	[ "LORD JUSTICE WILLIAM DAVIS", "HIS HONOUR JUDGE RICHARDSON KC" ]	2024_05_03-6142.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/447/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/447	1,029
0f438e514da24cf6532d320e9eb035ba2a5de6edb6a8ec06ca5642776994f8c6	[2023] EWCA Crim 1611	EWCA_Crim_1611	2023-12-14	crown_court	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 pers	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 1611 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/03148/A1 Royal Courts of Justice The Strand London WC2A 2LL Thursday 14 th December 2023 B e f o r e: MR JUSTICE TURNER and SIR ROBIN SPENCER ____________________ R E X - v – HAMZAH ALI HAMEED ____________________ 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) ____________________ Miss A Heyworth appeared on behalf of the Appellant ____________________ J U D G M E NT SIR ROBIN SPENCER: 1. This is an appeal against sentence brought by leave of the single judge. 2. On 23 rd August 2023, in the Crown Court at Cambridge, the appellant (who is now 25 years old) was sentenced by Mr Recorder Cooper to a term of two years' imprisonment for offences of possession of Class A drugs (crack cocaine and heroin) with intent to supply. He had pleaded guilty to those offences in the magistrates' court at the first opportunity and had been committed to the Crown Court for sentence. 3. We are grateful to Miss Heyworth for her written and oral submissions. In short, it is said that the sentence should have been suspended. The reason the single judge granted leave, as was made clear, was that following the sentencing hearing the author of the pre-sentence report expressed concern that the judge had misunderstood what his report was saying. The single judge directed that this must be clarified. The facts 4. The facts may be shortly stated in view of the narrowness of the issue. On the evening of 18 th July 2023, uniformed police officers on patrol in Peterborough were flagged down by a member of the public who was concerned about the behaviour of two males in the street, one of whom was the appellant. The concern was that one of them (not the appellant) was carrying a knife. In consequence the appellant was stopped and searched. The appellant was wearing a manbag beneath his jacket and in the bag the police found 193 individual packages of white powder wrapped in clingfilm or tin foil. The appellant was also in possession of three mobile phones and £100 in cash. It turned out that 187 of the wraps contained crack cocaine, with a street value of somewhere between £935 and £1,870. Six of the wraps contained heroin, with a street value of £30 to £60. 5. The appellant's home address was searched. A further four individual wraps of Class A drugs were found, together with a tick list of debts, a brand new iPhone and a set of digital scales contaminated with white powder. In a wardrobe the police found a large meat fork. 6. Examination revealed that on two of the phones recovered there were incoming and outgoing messages relating to drugs supply, some of which appeared to be block messages advertising the sale of heroin and crack cocaine. 7. In interview the applicant answered "No comment" to questions about the Class A drugs and the mobile phones. He said that the £100 found on him when he was arrested was cash from his universal credit benefit. 8. He pleaded guilty at the magistrates' court two days later, on 20 th July and was therefore entitled to full credit of one-third for his pleas. The sentencing hearing 9. The appellant had no previous convictions and only one caution in 2017 for possession of an offensive weapon. 10. There was a very full pre-sentence report which had been prepared just a few days before the sentencing hearing. It dealt in considerable detail with the appellant's troubled background, which included the impact of his mother's death from Huntingdon's disease some years earlier. 11. The appellant had been brought up partly in Peterborough, where his father lived, and partly in Glasgow, where his mother and her family lived. He had remained in Glasgow until he was seriously injured in 2017 when he was attacked by a group of people and struck on the head with a hammer. He had returned to Peterborough to live with his father and stepmother, but it was not a happy experience. He told the probation officer that he had been befriended by a group of people who lived nearby. The suggestion in the pre-sentence report was that he had been groomed and exploited by these individuals. 12. However, the pre-sentence report also contained the following passage: "The [appellant] reports that those who owned the drugs which were seized by the police have not sought payment for them from him and he feels that, given their considerable wealth, they're probably not perturbed by these losses from when he was working for them and it is not anticipated they will demand repayment for that loss." The appellant had told the probation officer that he was being paid £70 per day by people who were supplying him with drugs, in the expectation that he would supply them on the street to those callers who responded to the advertisements by phone. 13. The pre-sentence report made reference to the appellant's concern that, like many other members of his family who had died from Huntingdon's disease, he too might have inherited the disease, which is a cruel, incurable, progressive degenerative disorder. Reference was made in the pre-sentence report to a medical report which was before the court in which a GP explained this. The pre-sentence report also referred to learning difficulties arising from ADHD and dyslexia. The author of the pre-sentence report recommended that if a custodial sentence could be avoided, a constructive option would be a community sentence with various requirements. 14. There was also a liaison and diversion court report which investigated whether a mental health treatment requirement might be appropriate if a community order were to be imposed. The conclusion of that report was that such a requirement would not be appropriate, although there would be a recommendation for various referrals within the community if a non-custodial sentence were to be the outcome. 15. The judge was provided with character references from members of the appellant's family (two sisters and an uncle). They spoke of the continuing impact on the appellant of the serious assault in Glasgow, of the family tragedy concerning the mother's death from Huntingdon's disease, and of the appellant's fear that he might have inherited the condition. 16. In his sentencing remarks, the judge explained why he was satisfied that the appellant's role in this Class A drug supply was "significant" for the purposes of the relevant Sentencing Council guideline. The appellant was carrying a significant quantity of drugs around with him; he had cash on him; he had luxury goods at his home address, including a coat costing £300; he had a tick list and scales for weighing out the drugs. The appellant knew the quantity of drugs he had and knew the amount he was likely to make from it. He knew what was going on. 17. Although it had been submitted in mitigation that the appellant was fearful and had been threatened and forced into becoming involved in supplying drugs, the judge observed that this could not really be reconciled with that part of the probation officer's report which said, in the passage we have already quoted, that the appellant was not concerned about the people wanting the money back from the appellant. The judge observed that it would be extremely unusual for those higher up in the chain not to want money back. For that reason, the judge did not accept all that the appellant was now saying. 18. For an offence of Class A drug supply in category 3 "significant" role, the starting point under the guideline was four and a half years' custody, with a range of three and a half to seven years. 19. The judge identified the mitigating factors: the appellant's troubled childhood; the deterioration and death of his mother, which the appellant had witnessed; and "the awful attack" in Glasgow. The judge observed that, despite that experience of an apparently random attack, the appellant had embarked upon offending which was likely to bring him into contact with people who might well attack him. The judge did, however, accept that there might have been an element of grooming. 20. The judge referred to the appellant's psychological issues. He mentioned the neurological disease which the GP had suggested the appellant might have, although no diagnosis had been made at that stage. It is right to say that, in error, the judge added the words "resulting from your attack in Glasgow", although he must clearly have had in mind and meant that the neurological disease was the Huntingdon's condition. 21. Taking all these matters into account, from the guideline starting point of four and a half years' custody, the judge reduced the sentence to three years, before giving a further one-third reduction for the early guilty plea, resulting in the final sentence of two years. The judge considered whether that sentence might be suspended, but he was satisfied that the offences were so serious that it had to be immediate imprisonment. Subsequent events leading to the appeal 22. Soon after the sentence had been imposed, the author of the pre-sentence report emailed the appellant's solicitor expressing disquiet at the sentence which the judge had imposed, and in particular the judge's failure, as he saw it, to appreciate the seriousness of the potential diagnosis of Huntingdon's disease. He sent a further email the following day identifying what he considered to be the flaws in the judge's approach. 23. Subsequently, a further report was obtained from the GP in the form of a letter, dated 6 th September 2023, which the appellant seeks to adduce as fresh evidence and which we have read. That letter, in rather more detail, confirms what had been said in the original letter which was before the judge and Miss Heyworth confirms that in the course of her mitigation she focused on the seriousness, potentially, of Huntingdon's disease, if it was confirmed that the appellant was afflicted by it. 24. There was also an application to adduce as fresh evidence the series of emails from the probation officer, although that is no longer pursued for reasons which will become obvious shortly. The basis of the appeal 25. In granting leave, the single judge said: "The post-sentence correspondence from the author of the pre-sentence report is unusual. I have some reservations about how he has expressed himself. However, it appears that he thinks the judge misinterpreted aspects of the report and that he may not have fully conveyed the extent of his concerns in the report. This has persuaded me to grant leave. I will direct a further report. It will be for the full court to decide whether the additional material may be relied upon." 26. The single judge ordered expedition of the appeal and directed that the author of the pre-sentence report should provide a further report explaining the matter more clearly. 27. Owing to the urgency of the appeal, it has not been possible to provide the report the single judge asked for. It has not been possible because the probation officer concerned is not currently in work. The tone and content of the emails which the probation officer sent to the appellant's solicitors, and which had formed part of the material placed before the single judge with the grounds of appeal, attracted the attention and concern of the probation officer's manager, with the result that there is a letter to the court from the Regional Probation Director, dated 1 st December 2023. In that letter there is an apology on behalf of the Probation Service for the tone of the probation officer's comments following sentence, and it is explained that there is to be an investigation at regional level of his conduct. The letter respectfully invites the court to disregard the probation officer's opinions and comments made following sentence, on the basis that his professional judgment in this case did not meet the high standards of the Probation Service. 28. For that reason, wisely, Miss Heyworth has not pursued that aspect of the appeal. Putting it bluntly, that really disposes of the matter which concerned the single judge. It is not, however, the end of the appeal. 29. There is an up to date prison report from the appellant's offender manager upon which Miss Heyworth relies. It is a document dated 7 th December 2023 and is therefore completely up to date. The prison offender manager explains that when she first met the appellant back in mid-October she noticed that, although he engaged well, he appeared to be struggling and it was not until he mentioned a potential diagnosis of Huntingdon's disease that she realised that this might explain why he was slurring his words and struggling to concentrate. In consequence, she has referred him to the manager of the wing, to healthcare within the prison, and to the safety team. She saw him again a couple of weeks later to complete a sentence plan and noted that he contributed well. He has been identified as requiring work on victim awareness and thinking skills. He has settled in well, she says; he has a good working relationship with staff and gets on with his peers. He attends an English class and Islamic studies, and he attends Muslim prayers each week. There are no concerns expressed about his conduct in any way. 30. Miss Heyworth has told us in the course of her submissions that, on speaking to the appellant this morning, she is concerned that he does indeed appear to be slurring his words. He has told her that he has difficulties in prison, spilling hot drinks in particular, and he has a tendency to fall out of bed. That was also something mentioned in the supplementary report from the GP, dated 6 th September. 31. Based upon the fact that the sentence was two years' imprisonment and therefore within the range for consideration of a suspended sentence, Miss Heyworth urges us to say that the sentence the judge imposed should have been suspended. 32. In her written submissions in the grounds of appeal Miss Heyworth had said that the judge was wrong not to give more weight to the potential diagnosis of Huntingdon's disease and appeared to have misunderstood what was being advanced in the pre-sentence report and in the doctor's letter. We have already dealt with that. She submits that the judge was wrong not to give more weight to the grooming of the appellant into involvement with the drug dealing. In her grounds of appeal she disputes that there was anything in the pre-sentence report to undermine that inference. She submits that the judge failed to give sufficient weight to the appellant's good character and strong personal mitigation in concluding that only immediate custody could be justified. 33. In the course of her oral submissions, Miss Heyworth has focused, sensibly if we may say so, on the sole issue of whether the sentence should have been suspended. Discussion and conclusion 34. We have considered those submissions carefully, but we are unable to accept them. The judge plainly took into account all the mitigation in making such a substantial reduction from the starting point. We agree with the single judge that no possible complaint can be made about the length of the sentence – two years, after credit for the guilty plea. 35. It may be that the judge failed to make it clear that he understood the neurological disease to be Huntingdon's disease, rather than some consequence of the hammer attack in Glasgow. However, the judge clearly took the diagnosis into account and, as we have said, Miss Heyworth confirms that she focused on that in her mitigation. 36. We can well understand the appellant's anxiety, and the anxiety of the family, that he too may have inherited this dreadful condition, but we do not consider that it affords any additional mitigation beyond that for which the judge gave credit. We were a little surprised when, in the course of oral submissions, we were unable to obtain confirmation from Miss Heyworth that all this medical evidence gathered for the purpose of the sentencing hearing and the appeal has actually been passed on to the prison authorities, and more particularly to the medical officer at the prison. If it has not been passed on, it is both surprising and regrettable, because that would have alerted the prison to the problem and, one hopes, would have expedited any referral to a consultant for a formal diagnosis of the suspected condition. 37. As to suspension of the sentence, the judge did not specifically refer to the relevant Sentencing Council guideline, but he clearly had it well in mind. It is true that, looking at the factors in the guideline for and against suspension, the appellant's character was on the positive side, as was strong personal mitigation. But these were very serious offences involving the supply of Class A drugs on the streets of Peterborough, so serious that appropriate punishment could be achieved only by immediate custody. The appellant should count himself fortunate, in our view, that the length of the sentence passed by the judge fell into the range for which a suspended sentence might even have been theoretically possible. 38. Miss Heyworth also draws our attention to R v Ali [2023] EWCA Crim 232 ; [2023] 2 Cr App R(S) 25, in which this Court gave further guidance on the approach to the imposition of suspended sentences in substitution for short custodial sentences in the current climate of prison overpopulation. This is not such a case. 39. Despite Miss Heyworth's submissions, we are quite satisfied that these offences were so serious that only immediate custody could be justified. We hope that the appellant continues to make good progress in prison, and we are confident that once the authorities are provided with all the material which is already available, he will receive all the medical attention he requires. 40. The sentence was neither wrong in principle, nor manifestly excessive. Accordingly, the appeal is dismissed. _________________________________	[ "MR JUSTICE TURNER" ]	2023_12_14-5960.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1611/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1611	1,030
0ea8b8548668f3e65639a2fb1edc89232f4d872eab85a15d51413ac6a0b93832	[2017] EWCA Crim 2193	EWCA_Crim_2193	2017-09-28	crown_court	Neutral Citation Number: [2017] EWCA Crim 2193 No: 201700231/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28 September 2017 B e f o r e : LORD JUSTICE BEAN MR JUSTICE SPENCER MR JUSTICE GILBART - - - - - - - - - - - - - - - - - - - - - R E G I N A v FRANCY MCDONAGH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 02	Neutral Citation Number: [2017] EWCA Crim 2193 No: 201700231/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28 September 2017 B e f o r e : LORD JUSTICE BEAN MR JUSTICE SPENCER MR JUSTICE GILBART - - - - - - - - - - - - - - - - - - - - - R E G I N A v FRANCY MCDONAGH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Burke QC appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE SPENCER: On 13th December 2016 in the Crown Court at Aylesbury, the appellant, who is now 28 years of age, was sentenced by His Honour Judge Cole to a term of 54 months' imprisonment for an offence of section 18 wounding with intent, to which he had pleaded guilty shortly before trial. There is no complaint about that sentence. The judge also activated in full, and consecutively, a suspended sentence of 18 months' imprisonment imposed on 15th February 2016 in the Crown Court at Leicester for a very similar offence of section 20 wounding. The appeal is confined to the issue of whether the judge should have activated the sentence in full, bearing in mind that the appellant had complied with the unpaid work requirement of the suspended sentence order and had performed all of the 180 hours work required of him. It is contended that this was a fundamental error and that the resulting sentence of six years in total was therefore manifestly excessive. The appeal is brought by leave of the single judge. 2. The offence for which the suspended sentence was imposed was committed in a public house in Leicester on 25th May 2015. The appellant lives with his wife and children in Newport, Gwent but there was a social gathering in Leicester of members of his extended family, including his cousin Tom McDonagh. Late in the evening an argument developed between the appellant and his cousin. The appellant struck his cousin a blow to the left side of the face with a glass object of some kind. There was a second blow to the top of his head, although it is unclear who struck that. The glassing to the cheek by the appellant caused a deep cut requiring nine stitches. The appellant was charged with section 18 wounding with intent, but the prosecution accepted his plea of guilty to the lesser offence of section 20 wounding. As we have indicated, the sentence was 18 months' imprisonment suspended for two years, with an unpaid work requirement of 180 hours. There was also a restraining order prohibiting him from contacting his cousin directly or indirectly. There was an order for compensation in the sum of £1,750 payable within three months. That sum was duly paid in full. The unpaid work had to be completed within 12 months but to his credit the appellant completed the work within two months, by 11th April 2016. 3. Despite this encouraging compliance with the orders of the court, the appellant soon breached the suspended sentence by committing a further offence of glassing in a public house, this time a section 18 offence. It took place on 10th May 2016, just three months after the suspended sentence had been imposed. This time the offence was committed at the Beaconsfield Arms Public House in High Wycombe. Again it seems there was a large gathering of friends and family. The appellant and the victim, Jason Stokes had arrived there in the afternoon. All was going well until around 11.30 pm when there was an extensive fight between the appellant and Stokes which sprawled over different parts of the public house. It was all captured on CCTV. At a stage when it appeared the fight was over, the appellant took a glass from the bar and attacked Stokes with it. Stokes was trying to leave the public house at that point by the emergency exit with his wife. The appellant struck him with the glass and punched him. It seems the fighting continued even after that. The appellant and Stokes had to be separated. At one stage the appellant was on the floor and was kicked and punched by Stokes who himself was eventually removed by others. 4. Stokes sustained a fracture to his little finger, cuts to both sides of the head and a deep laceration to his forehead. A CT scan showed foreign bodies in the soft tissue to the left side of the frontal bone, believed to be glass. Although Stokes initially agreed to assist the police, he changed his mind and was not supportive of the prosecution. Indeed he wrote a letter to the judge saying that he bore the appellant no ill will and that it had been a drunken argument between friends that had got out of hand. 5. Apart from the suspended sentence, the appellant had a previous conviction for assaulting a police officer. That offence was in November 2015 and was dealt with by the magistrates in Hampshire on 22nd January 2016 by way of an order for costs and compensation. 6. By the time the appellant was sentenced by Judge Cole on 13th December 2016 he had spent several months in custody on remand. There was a wealth of material to demonstrate that he had made good progress and was regarded as a model prisoner. There were also strong supportive references from members of his family and others who spoke highly of his voluntary work. There was a pre-sentence report. The appellant acknowledged that the trigger for the offence had been his consumption of alcohol. He could recall very little of the incident. The author of the report was of the view that the appellant had failed to identify the seriousness of his actions and considered that he posed a high risk of further offending as he lacked insight into his violent behaviour which was unpredictable and impulsive when he was binge-drinking. The appellant lived with his wife and four dependent children, one of whom had special needs and was particularly close to the appellant and reliant upon him. 7. We note that at the conclusion of the prosecution's opening of the facts, when prosecuting counsel had outlined the circumstances of the suspended sentence offence, the judge said: "…and ... just to spell it out -- suspended sentence must be triggered in full and consecutive to any sentence I pass unless it would be unjust not to." To this prosecuting counsel replied: "Absolutely." As we shall explain, this was not in fact a correct statement of the position. There was a wider discretion not to activate the suspended sentence in full. 8. In passing sentence, the judge observed that the appellant was warned when he received the suspended sentence that if he re-offended during the period of its operation he would the liable to serve the whole of the sentence. The judge set out the facts of the present offence, which he described from his viewing of the CCTV as "beyond any argument" a premeditated repeated attack on Stokes culminating in smashing a glass into his head and having to be pulled away by several people. The judge then said this: "The fact remains that I must activate the suspended sentence in full and that will be consecutive, it certainly would not be unjust to do so; you committed the same kind of offence, but even more seriously, in blatant disregard of the suspended sentence." As he was obliged to do, the judge considered the issue of dangerousness and the possibility of an extended sentence, but in the event he decided that it was possible to deal with the matter by a determinate sentence. It was common ground that the offence was Category 2 under the Sentencing Council Guideline so the starting point was six years and the range five to nine years' custody. The judge acknowledged the personal mitigation and the fact that despite the appalling offending and re-offending there was shown to be another side of the appellant. He was a dedicated family man. Taking into account how well he was doing in custody, the judge said he was prepared unusually to take the sentence to the bottom of the category range, that is to say five years. For his guilty plea on the day of trial he would be credited 10 per cent, reducing the sentence for the current offence to four-and-a-half years. The judge then activated the suspended sentence in full and consecutively. He said that he kept the sentences as low as he could bearing in mind the impressive collection of character references including one from the complainant. The judge expressed the hope that once the appellant had served this sentence he could start to rebuild his life, and grow up and not cause serious violence in drunkenness. He said some would describe the sentence as lenient: "It is lenient; I have shown you a degree of mercy and kept it as low as I can." 9. The short ground of appeal is that the judge should have reduced the term of the suspended sentence which had to be served to reflect the fact that the appellant had completed the unpaid work requirement in full. It is submitted that, on the authorities, the judge should have made some significant reduction. This ground was argued in the advice of counsel who appeared at the sentencing hearing but the appellant is now represented by leading counsel, Mr Burke QC, for whose assistance we are grateful. In very thorough written submissions he has taken us to a host of authorities in which this court has generally expressed the view that where the suspended sentence order included an unpaid work requirement and that work has been fully or substantially completed, that fact should be acknowledged by some reduction in the length of the term to be activated. 10. The lesson from the present case, however, is the importance of heeding the words of the statute which governs the activation of suspended sentences. The provisions are in Schedule 12 to the Criminal Justice Act 2003 . Paragraph 8 is headed "Powers of court on breach of community requirement or conviction of further offence". The provisions of paragraph 8, we emphasise, apply equally in two separate situations which amount to breach of a suspended sentence order: first, that the offender has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order; second, as here, that the offender is convicted of an offence committed during the operational period of the suspended sentence. Applicable equally to either of those situations, paragraph 8(2) provides as follows: "(2) The court must consider his case and deal with him in one of the following ways— (a) the court may order that the suspended sentence is to take effect with its original term unaltered (b) the court may order that the sentence is to take effect with the substitution for the original term of a lesser term." Paragraph 8(3) provides that the Court must make an order under either sub-paragraph (2)(a) or (b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances including the matters mentioned in sub-paragraph (4) and where it is of that opinion the court must state its reasons. Paragraph 8(4) provides that the matters referred to are (a) the extent to which the offender has complied with any community requirements of the suspended sentence order and (b) in a case falling within sub-paragraph (1)(b), that is to say where there has been a further offence committed in breach of the suspended sentence, the facts of the subsequent offence. 11. The effect of these provisions, therefore, is that where there is a breach of a suspended sentence by the commission of a further offence, the court is obliged to activate the suspended sentence in full or in part unless it is unjust to do so in view of all the circumstances, including the extent to which there has been compliance with the community requirements of the order and including the facts of the subsequent offence. Thus the judge was in error in expressing the view that he was obliged to activate the sentence in full unless it was unjust to do so. The obligation, unless it is unjust to do so, is to activate the suspended sentence wholly or in part, taking account of all the circumstances. 12. We are satisfied from a review of the authorities that there will generally be some reduction of the term of the suspended sentence if there has been substantial compliance with an unpaid work requirement. For example, in Kavanagh [2011] 1 Cr.App.R (S) 63, at page 20, this court said: "In our judgment it is both necessary and appropriate in most cases to mark the commission of a further offence during the currency of a suspended sentence order by the activation of some part of the suspended sentence order. After all the warning that is given to an offender when such a sentence is imposed is that he will have to serve that sentence in the event that he commits a further offence during the currency of the suspended order. Ordinarily, therefore, it is likely to be appropriate to activate some part of the suspended sentence order." 13. That is not to say, however, that there will not sometimes be a case in which it is nevertheless appropriate in all the circumstances to activate the suspended sentence in full. 14. Because the judge proceeded in this case under a misapprehension which was not corrected by either counsel, which is a matter of concern, we need to look at the matter afresh. It was greatly to the appellant's credit that he performed all his unpaid work so promptly. However, the main purpose of the suspended sentence order was to discourage the appellant from committing any further offence and to mark the seriousness of what he had done. Complying with the unpaid work requirement and paying compensation were all very well. What the appellant signally failed to do was to learn the lesson that he must not indulge in drunken violence in public houses. Instead only three months into the operational period of the suspended sentence he was doing exactly the same thing again. 15. We have considered carefully whether, as the single judge perhaps hinted in granting leave, the judge's leniency in passing a sentence of six years overall should lead us to uphold the total sentence despite the judge's error of approach - after all, it is the totality of the sentence upon which we must concentrate. On reflection, however, we do not think it would be right to take that course. The judge went to great lengths to stress that he was passing the lowest sentence he considered he could properly pass, but that was on the mistaken assumption that all of the suspended sentence had to be activated consecutively. We do not know whether, had he been addressed on the point and reminded of the authorities, he would have taken the view that there should be some further reduction in the suspended sentence term as well. 16. With some hesitation, therefore, we shall reduce the term of the suspended sentence which must be served. Mr Burke submitted that having performed as many hours community service as this there should be a reduction in the term from 18 months to six months. We do not accept that submission. It fails sufficiently to take into account the balancing exercise which must be carried out. Doing the unpaid work to comply with the order is one side of the balance. The other side of the balance is how soon after the suspended sentence order was made the fresh offence was committed and the nature of the fresh offence. Because this breach occurred so soon after the suspended sentence had been imposed, and because the subsequent offence was identical in nature, we think the reduction could only be modest. We think the appropriate term which should be served is 14 months rather than 18 months and in reaching that decision we also have regard to the principle of totality. 17. We therefore allow the appeal. We leave intact the sentence of four-and-a-half years for the later offence, but we reduce the term of the suspended sentence which was activated from 18 months to 14 months. So the total sentence becomes one of five years and eight months rather than six years. To that limited extent the appeal is allowed. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400	[ "LORD JUSTICE BEAN", "MR JUSTICE SPENCER", "MR JUSTICE GILBART" ]	2017_09_28-4069.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2193/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2193	1,031
9c0e7136c4eff889812de96c0673507981a1cb371ee0d6fb2a8edda9001efe39	[2015] EWCA Crim 905	EWCA_Crim_905	2015-05-20	crown_court	Case No: CO//201305802 B5 Neutral Citation Number: [2015] EWCA Crim 905 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Wolverhampton Crown Court HHJ Watson T20097157 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/05/2015 Before : THE RIGHT HONOURABLE LORD JUSTICE FULFORD THE HONOURABLE MR JUSTICE SPENCER and THE HONOURABLE MR JUSTICE HOLGATE - - - - - - - - - - - - - - - - - - - - - Between : The Crown - and - Benjamin Hezekiah O'Meally Applicant - - - - - - - - - - - - - -	Case No: CO//201305802 B5 Neutral Citation Number: [2015] EWCA Crim 905 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Wolverhampton Crown Court HHJ Watson T20097157 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/05/2015 Before : THE RIGHT HONOURABLE LORD JUSTICE FULFORD THE HONOURABLE MR JUSTICE SPENCER and THE HONOURABLE MR JUSTICE HOLGATE - - - - - - - - - - - - - - - - - - - - - Between : The Crown - and - Benjamin Hezekiah O'Meally Applicant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Peter Grieves-Smith (instructed by CPS Appeals Unit ) for the Crown Mr John Butterfield QC (instructed by Waldrons Solicitors ) for the Applicant Hearing date : 8th May 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford Introduction 1. On 29 September 2009 the appellant was convicted at the Crown Court at Wolverhampton of nine counts of rape. 2. On the same day Her Honour Judge Watson sentenced the appellant to imprisonment for life and specified the period of eight years and nine months as the minimum term to be served under section 82 A Powers of Criminal Courts (Sentencing) Act 2000 . 3. The appellant appealed against his conviction on the nine counts of rape, but on 11 February 2010 the single judge refused leave to appeal and the application was not renewed to the full court. 4. In the present proceedings the appellant appeals against his conviction following a reference by the Criminal Cases Review Commission under section 9 Criminal Appeal Act 1995 . 5. The central issue that arises as a result of this reference is whether material uncovered by the Criminal Cases Review Commission casts doubt as to the credibility of the sole complainant in the case (HF) such as to render the verdicts unsafe. The Appellant’s Antecedent History 6. The appellant has a number of previous convictions about which the jury heard during his trial (see the admissions paragraphs 9, 10 and 11). On 15 September 1994, he was convicted at the Stafford Crown Court of two offences of buggery and two offences of assault occasioning actual bodily harm. In brief, the appellant committed buggery on his wife, who was three months pregnant, against her will and he forced her to perform oral sex on him. He was sentenced to a total term of four years and six months’ imprisonment. On 26 October 1998 the appellant was convicted at the Wolverhampton Crown Court of a number of offences against two women. The first was the victim of anal rape and forced oral sex, and the appellant urinated over her. The second was the victim of oral sex under duress. The indictment additionally contained counts of kidnap, false imprisonment, indecent assault and assault occasioning actual bodily harm of which he was convicted. He was sentenced to 13 years’ imprisonment. The Facts 7. HF gave evidence that the appellant, who had been released on licence from a prison sentence, pursued her following their first meeting on 6 June 2007. (We interpolate to note that although the evidence was not before the jury, it would appear that in July 2007 HF was warned by the West Midlands police about the appellant’s previous convictions.) He was returned to prison, and in May 2008 they began a sexual relationship following his release. Shortly thereafter he was once again returned to prison as a result of a breach of the terms of his Sexual Offences Prevention Order. He was released in August 2008 and he resided at a probation hostel in Stonnall prior to a further period in prison (as a consequence of a further breach of the Sexual Offences Prevention Order when he visited a red light district). 8. HF described the appellant as being possessive, and that he did not like her speaking or, otherwise interacting, with other people when they were together in public. HF maintained that the appellant told her that he was living in a bail hostel because he had been released from prison for armed robbery, whereas the truth was that he had been released from the 13-year prison sentence imposed at the Wolverhampton Crown Court on 26 October 1998. HF testified that the appellant telephoned her incessantly and that he sent her numerous letters. She also received three telephone calls from a stranger (a male) who told her that she must answer the appellant’s letters because he was “ getting mad ”. 9. When the appellant was released following his latest recall on licence, he went to live at Sycamore Lodge in Oldbury. The appellant threatened to kill himself if HF did not visit him. She complied. He was angry because she had not replied to his letters. They went to a public house where they drank alcohol, and according to HF they had sexual intercourse in the area of a canal close to the appellant’s hostel. This became a routine event. There was evidence from the landlord of the Junction Public House (William Smith) that the appellant and HF visited these premises on a number of occasions. HF described how the appellant demanded anal sex, and he used to urinate over her or into her mouth. Although she did not want sexual relations of this nature, the appellant insisted that it occurred regularly. On one occasion when she refused, the appellant held her head underwater in the canal until she consented. The appellant was stronger than HF and he knew that she was scared of him; therefore he did not expect her to resist. Whenever HF attempted to refuse, the appellant told her that she would get used to it and he would place his hand over her mouth to stop her from screaming. Ian Moran, a blacksmith whose premises was on the canal near the appellant’s hostel, testified that he had seen the appellant and HF having an argument close to his place of work. The appellant was shouting at HF, standing close to her face, whilst she was quietly talking. He had seen them on another occasion on a partially concealed piece of ground after dark. 10. The appellant instructed HF to say that she enjoyed their sexual relations. On three or four occasions the appellant ejaculated into a black-handled mug and he made the victim drink the contents. He also frequently ejaculated in her mouth and insisted that she swallow his semen. HF did not wish for oral sex to occur if it was associated with anal sex. In contrast, she would have consented to vaginal sexual intercourse and to oral sex, if unaccompanied by anal sex. 11. Generally, the appellant was obsessive and he repeatedly telephoned HF or sent text messages. Indeed, he sometimes used to prevent her from sleeping because he was in constant communication during the night. According to HF, there were two main topics of conversation. First, as to HF’s movements and, second, the appellant insisted on discussing sexual matters in lurid detail. Additionally, he indicated that no one would be able to end their relationship, and that he was prepared to blow up a police station. HF accepted that she sent text messages to the appellant, but she said that she was simply complying with his demands. These included, for instance, a message that she sent on 7 December 2008 which read “ I want to finger fuck your arse today. Fast phone me later ”. HF sent other sexually explicit text messages to the appellant during the period covered by the indictment, but she denied that they represented her true wishes. She said that she was in fear when she sent messages of this kind. She expressed her love for the appellant and she adopted his surname, but she denied that it was her real intention that they should marry. She testified that any indications to the contrary were because she was scared of him. The appellant made arrangements for their marriage but she failed to attend the mosque. William Smith, who had been asked to be the appellant’s best man, confirmed that there was an occasion when HF missed her wedding to the appellant. 12. HF said that she was particularly scared of the appellant because he knew where her mother lived. The appellant told HF that he had “ killed before ” and he said that if HF crossed him he would kill her mother and her children. She gave evidence that she believed this threat. He suggested that they should kidnap her five-year-old daughter and that they should run away together. HF told the appellant that she was pregnant in the hope that this would deter him from abusing her. 13. HF accepted that she cared about the appellant, at least to an extent, and that she believed that if she did not comply with his wishes he would kill himself. The appellant told HF that he loved her and she responded in a similar vein. He also called HF his slag and his whore. 14. HF gave evidence that she had not sought the protection of the police as a result of her desire to keep on friendly terms with the appellant because she was afraid of him. HF agreed that she had been concerned that social services might suspect that she was in a relationship with the appellant and that this may damage their attitude to her having contact with her children. 15. There was an issue in the trial as to the date when HF had become aware of the true nature of the appellant’s background. Evidence before the jury indicated that the police and social services had provided her with information relevant to this issue in January 2008. HF testified, however, that she had not believed the authorities and that the appellant had told her that the allegations were not true. He maintained that he had been imprisoned for armed robbery. Police Constable Catherine McAndrew is a domestic abuse officer who first had contact with HF on 30 May 2008. On 14 August 2008 a detective inspector gave HF a warning that she might be at risk from the appellant, and HF signed a document confirming that she had been warned in this way. HF had an alarm fitted in her flat, although she declined the use of a mobile telephone that was offered as one part of a range of possible protective measures. On one occasion, PC McAndrew received a text message from HF (in August 2008) in which HF suggested that she wanted to entice the appellant to Wolverhampton in breach of a court order. PC McAndrew advised HF not to take this step. HF told PC McAndrew that she had written to the appellant whilst he was imprisoned. The latter had bombarded her with text messages and telephone calls. HF maintained that she was afraid of the appellant, and that she preferred to have him as a friend rather than as an enemy. She accepted that in her letters and her statements to the police she was, at least to an extent, inconsistent as to whether she wished to remain on friendly terms with the appellant. 16. When social services became aware of the relationship, they imposed restrictions on contact between the appellant and HF in order to protect her children. The appellant attempted to dictate what HF should say to the authorities, and she was directed to indicate to them that she wanted to be with the appellant and that she intended that they should marry. 17. It was HF’s evidence that when the appellant showed her a document setting out his criminal convictions she decided that she had nothing to lose and thereupon reported the appellant to the police. On 9 January 2009 she alleged that the appellant had assaulted her, and in interviews on 14 and 20 January 2009 she revealed the full extent of the offences she said had been committed against her. 18. HF agreed that she had earlier been in a violent relationship with a man who was known either as Craig Douglas or Asher. She denied that she had blamed the appellant for violence in fact inflicted by Douglas. 19. We note at this stage that it was the appellant’s case that HF made the complaint on 14 January 2009 as a result of threats from social services that her children would not return to live with her if she maintained her relationship with him. Moreover, he relied on the fact that his previous convictions had been revealed to HF in January 2008. The Commission’s enquiries with the probation service have revealed a police interview with HF dated 10 July 2007, when HF signed and dated a copy of a disclosure notice that confirms that she was given details of the appellant’s previous convictions during that month. Furthermore, there is a note within the files of social services which provides a record of the reaction on the part of HF in August 2007 to the revelation of the appellant’s previous convictions: “… police have told HF of Mr O’Meally’s current convictions and initially she was angry but he is very persuading and she now feels it does not matter and they are writing to each other whilst he is in prison. ( Probation officer ) described this as all lovey dovey and ( they were ) talking about moving to Spain together.’ 20. In interview on 13 February 2009, following his arrest, the appellant indicated that he and HF were involved in a relationship. He said that they had had vaginal sexual intercourse but when HF fell pregnant this ceased. He stated that they had had sex together in a side street and in an alleyway. He maintained that HF had visited him in Oldbury three or four times a week and that she did not want the appellant to visit her address because this could place her in a difficult position. Save for the sexual relations to which we have just referred, the appellant denied the allegations made against him by HF. 21. In evidence during the trial, the appellant broadly gave evidence that was consistent with his police interview, save that in evidence he accepted that consensual oral sex had occurred, as well as vaginal sex. He maintained that HF was not afraid of him and that he had never forced her to maintain contact. He said that he had left a copy of his previous convictions at HF’s flat along with dozens of letters that she had written to him. His case was that HF pursued him and sought his telephone number. He claimed that she initiated the sexual contact between them and that she loved “ dirty ” sex. His account was that they had consensual vaginal and oral sex. He said that he was remanded into custody having breached his curfew on more than one occasion. HF visited him on a regular basis and that she asked the appellant to marry her. He agreed that they sometimes drank at the Junction public house, and he said that on one occasion HF – when accompanied by her cousin – brought him some Viagra. He denied that they had had sex in the area of the public house by the canal. He agreed that he had made arrangements to marry HF but she had failed to attend the ceremony. He believed her protestations by text message that she loved him. The Reference and the Grounds of Appeal 22. Following the reference by the Criminal Cases Review Commission, the principal contentions now advanced on behalf of the appellant have been drawn together in a helpful skeleton argument by Mr Butterfield QC dated 6 May 2015. In essence, it is argued that there have been some significant instances of non-disclosure by the prosecution in this case. As a result, it is suggested there is evidence concerning the credibility of HF which was clearly critical to the appellant’s conviction, and which should have formed part of the evidence heard by the jury. It is argued that as a result of the failure by the prosecution to fulfil its disclosure obligations, the appellant was deprived of significant tools that he ought to have been able to utilise in order to undermine the credibility of the complainant. This material falls into four separate categories. Ground one: the Craig Douglas material 23. The appellant asserted that HF had previously accused a number of other men of rape and robbery. The Commission investigated these claims, but nothing was uncovered which supported the appellant’s assertion that HF had falsely alleged that other men had raped her. 24. The Commission, however, found evidence that is consistent with the appellant’s contention that HF (along with her sister) had lied when making a complaint of robbery against HF’s former partner, Craig Douglas. Indeed, HF had made three complaints against Douglas. Some of the details of these complaints were disclosed to the appellant’s lawyers in June 2009 (therefore, prior to his trial), although the outcome of the investigations into them does not appear to have been revealed (subject to one caveat considered below). Defence counsel, Mr Edwards, who acted for the appellant during the trial, deployed the disclosed information when cross-examining HF, and in particular it was put to her that she was more frightened of Douglas than she was of the appellant. Mr Edwards sought to contrast the behaviour of Douglas and the appellant, in that he secured the agreement of HF during questioning that Douglas had been violent to her immediately after he was released from prison whereas the appellant, she agreed, was never violent to her save as regards the serious sexual offences with which this case is concerned. She agreed that Douglas had made her life hell. Those questions formed the basis for the assertion that HF had shifted responsibility for the present crimes from Douglas to the appellant, possibly as a result of confusion. HF’s testimony on this issue was summarised by the judge as follows: “She agreed that she had been in a violent relationship with Asher, known as Craig Douglas. She said that she had made a statement saying that Asher had just been released from prison and had been violent to her, and that statement was made on 13 October 2008, but she told you she was not confused as to who she was making the allegations of rape against. It was the defendant and not Asher.” 25. Following that summary, it is necessary to turn to the detail of the three complaints. 26. First, on 20 August 2007 HF complained that Douglas had threatened her with a knife. This complaint was investigated. Douglas was charged, but in due course no evidence was offered at the Magistrates’ court on 22 October 2007. 27. Second, on 13 October 2008, HF made a complaint against Douglas in which she alleged he had arrived at her house during the previous week and she felt she had no option but to let him in. She claimed that he stole her house keys. Douglas was arrested and interviewed. In the event, no further action was taken because there were inherent difficulties with HF’s account. In particular, she had failed to mention a taxi ride taken with Douglas at the relevant time and that she had left a text message for him on his telephone in which she indicated she had given him the keys she claimed had been stolen. Furthermore, shortly before he went to HF’s house, she had written to him declaring her love, her intention that they should marry and inviting him to come to her home. There is a suggestion that the outcome – namely, that no further action was to be taken – had been communicated to the appellant’s solicitor. On the documentation, and in particular on the relevant log, it seems unlikely that this happened. Even if the result was revealed, however, it is clear that the appellant’s lawyers were not told the reasons why no charge was brought. 28. Third, on 11 November 2008, HF made a further complaint about Douglas. She suggested he had taken her mobile telephone from her by force in Wolverhampton city centre. This complaint was investigated; the appellant was charged; and his trial took place on 13 and 14 May 2009 (some four months prior to the appellant’s trial). During Douglas’s trial HF and her sister gave evidence. HF was found to be a thoroughly unreliable witness. The judge in upholding a submission of no case to answer, observed: “…. I shall just briefly say for the record that I am in no doubt whatsoever that this is under the test in Galbraith, both on limbs one and limb two, a case such as that should not go any further. It cannot be left the jury. In relation to HF’s evidence, the jury could not find her a reliable witness. She has not told the truth within her own evidence today in court. She has contradicted herself on key matters, in particular the question of the keys and whether she gave him any keys or whether she did not. Therefore, in relation to that, the case is taken at its highest on her evidence is not something that should remain with the jury.… in relation to the evidence of ( HF’s sister ), she contradicts her sister directly on the major points about the incidents on that day.… their accounts… are mutually inconsistent and the jury would not be able to be clear about which one they could rely on.… she (the sister) … makes it clear that there is no reliable evidence that this crime are has in fact ever been committed.” 29. The cases of the appellant and Douglas were investigated by the same police force, namely the West Midlands police. Some officers were aware of both cases, and in particular Police Officer McAndrew would have known of HF’s involvement in both trials. 30. Mr Butterfield suggests it was inevitable that the appellant’s previous convictions would form part of the evidence in the trial, and he highlights that before HF had completed her evidence the judge had made a ruling to this effect. He submits that a robust approach should have been taken as to the appellant’s criminal record, and in particular counsel ought to have suggested to HF that she had crafted false allegations which fitted with his previous convictions. It is his contention that the Douglas material, if it had been disclosed in its entirety, would have enabled the appellant to suggest that HF tended to make complaints against her sexual partners if the relationships became oppressive and that she had used the appellant’s convictions for this purpose. 31. We note that it would appear that the CPS lawyer who had responsibility for the case and prosecuting counsel were unaware of the outcome of these three allegations. 32. The appellant complains, therefore, that the information provided to the appellant’s solicitors in the instant case was improperly restricted to certain logs which revealed that HF had made complaints against Douglas, as set out above, and that his lawyers were not told about the result of the three allegations (save possibly as regards some limited information concerning the stolen house keys). It is also highlighted that it was not revealed that HF had sent letters to Douglas which, in certain important respects, mirror the expressions of love and the desire to marry which she expressed to the appellant. As set out above, HF started using the appellant’s surname and similarly she adopted the name of Douglas in her letters to him. 33. It is undoubtedly the case that the credibility of HF was one of the central issues at the trial. It is undisputed that HF admitted in evidence that she lied to police officers and social workers about her relationship with the appellant, and that she lied to the appellant (as well as to certain police officers) as to whether she was pregnant and about having had an abortion. It was the appellant’s case that her lies were not restricted to those matters, but permeated the entire case. 34. The appellant wrote to his solicitor in March 2009 stating that HF had told him that after she made the complaint of robbery against Douglas, she asked her sister to make a statement falsely alleging that she had witnessed what had occurred. Although the appellant’s solicitor did not write to the prosecution asking for the outcome of these three complaints or this alleged false statement, they sought disclosure of other matters relating to the credibility of HF. 35. The respondent accepts that this material should have been provided to the appellant’s lawyers, and that it would have been admissible if the appellant had decided to deploy it. That said, Mr Grieves-Smith for the Crown asserts that this non-disclosure is essentially irrelevant because the appellant would not have utilised this material. Furthermore, it is argued that in any event it does not have the significance for which the appellant contends. 36. In our view, it was a serious failing on the part of the West Midlands police that they did not alert either prosecuting counsel or the solicitor who was responsible for this case within the Crown Prosecution Service to the outcome of the three events concerning Douglas, as set out above. The potential relevance of this material was palpable and there are significant lessons to be learnt in this regard. 37. Notwithstanding that serious failing, whilst it is quite clear that the appellant’s counsel at trial deployed suggested inconsistencies and lies on the part of HF – indeed, the trial judge prevented counsel from developing certain lines of cross-examination in this vein – we are of the view that on careful analysis the significance of the evidence relating to the three Douglas incidents is not as great as it appears at first glance. 38. For the first incident, there is no information as to why no evidence was offered at the Magistrates’ Court. This is simply unexplained. 39. As regards the second incident, whilst it is correct that HF had provided contradictory accounts, the context ( viz. it was a relatively minor allegation of theft) was entirely dissimilar to the circumstances of the present case. 40. With the robbery allegation – the third Douglas incident – the judge, when allowing the submission of no case to answer, focused particularly on the circumstances of the second incident ( viz. the theft of the keys), given they were investigated in evidence during the trial. Furthermore, she concluded that HF and her sister’s evidence were in many ways markedly contradictory. Most critically she decided, on the basis of the account of HF’s sister, that it was possible that no robbery had occurred at all. Her ruling ended as follows: “That leaves me in the position that I have already indicated that essentially there is no reliable evidence that this crime has been committed and I shall direct the jury to acquit the defendant.” 41. In all the circumstances, in our judgment this material is to be approached in the following way. The first incident, which involved Douglas threatening HF with a knife, was available to be used by defence counsel to support the appellant’s contention that Douglas had acted in a violent manner towards her. In that sense, it was to the appellant’s advantage that the jury were unaware that no evidence had been offered on the charge preferred against Douglas following that event. Additionally, there was no explanation available as to why the prosecution had not been pursued. The second and third incidents overlapped, because the second incident featured significantly during the trial of the alleged robbery. The theft of the keys, as we have already indicated, was a relatively minor crime and it was self evidently of a totally different nature to the profoundly serious allegations advanced in the present case. Defence counsel for the appellant in this trial was able to highlight and emphasise numerous contradictions within HF’s evidence, and the discrepancies in her account concerning this earlier and wholly unrelated case of theft involving another man would not have added significantly, in our view, to the jury’s understanding of the character and reliability of HF in the present case. Finally, it is critical to observe that Judge Bush in giving her ruling on the submission of no case to answer in the Douglas trial highlighted the contradictions between HF and her sister but she did not indicate which account she preferred or whether she concluded that they were both lying. As we have just emphasised, the judge was particularly impressed by the fact that, on the account of HF’s sister, it appeared that no crime had been committed. 42. It follows that the results of these three incidents would not have provided the appellant with a significant opportunity to undermine the evidence of HF. We do not accept the submission of Mr Butterfield that it revealed a pattern of lies on the part of HF, which demonstrated that she invented allegations against her partners when the relationships became oppressive. This evidence simply does not provide the foundation for a conclusion of that kind and we do not accept, had it been available to be deployed before the jury, it would have had any significant impact. The evidence that was available in this context, and the form in which it was disclosed, provided instead the foundation for the appellant’s case as regards Douglas, namely that he had behaved in a violent way towards HF (he had been accused of threatening her with a knife and robbing her) and that HF had transposed the roles of the appellant and Douglas. We note, furthermore, that the appellant chose not to pursue the potential line of cross-examination that HF had persuaded her sister to lie about an incident at which the latter had not been present (as set out above, the appellant indicated in a letter to his solicitors that he was aware of this potential line of attack). Ground two: the Social Services material and some other Police material 43. It is accepted that notwithstanding the request by the appellants’ lawyers for disclosure of any relevant material held by social services, no information was forthcoming. On 28 July 2009 the solicitors wrote to the Crown Prosecution Service making the following request: “We would be grateful if you could please advise us as to whether or not there are any relevant documents that you may have or are privy to in relation to the social services involvement with the children and the complainant. In particular, we wonder whether you have any information as to whether social services were anxious for HF not to have the children in her care if our client remained in contact with her.” 44. It would appear that this request remained unanswered and it was not pursued. 45. As indicated above, HF stated in evidence that the appellant insisted, and she accepted, that he had been sentenced for robbery. She testified that she had not believed the information which the police and the representatives of social services provided on this subject, and it was her account that she only became aware of the true nature of his offending when she saw the record containing his antecedents in January 2009. It was at that stage that she decided to make the complaint against him on the basis that she had nothing to lose. At the very end of her evidence, HF said that she believed the appellant when he told her that the police had told her lies about his previous convictions and that she accepted his account that he had been incarcerated for robbery. 46. Although the jury was aware that the complainant had received information in January 2008 concerning the appellant’s past convictions, it is contended that the position at trial would have been markedly different if the court had been provided with the complete picture as regards the level of her knowledge in this regard. 47. We note that HF arguably downplayed the significance of the information she received in January 2008, in that she maintained that no details which she believed had been provided by the authorities. She testified that she had not understood the full history of his offending as set out in the document she signed in January 2008. Instead, she said “ It was just the odd one or two things ” and “ They told me he couldn’t be in the same room or live with a woman. That’s all they told me. They weren’t allowed to tell me anything else ”. Furthermore, HF appeared uncertain as to whether she read the document before she signed it in January 2008. 48. A summary of the correct position was set out in the Admissions that were before the jury, as follows: 12. On 3 January 2008, (HF) signed a document in the presence of PS Babbs and Geraldine Lynch from Social Services.That document disclosed some details of the defendant’s previous convictions.It was disclosed that the defendant had committed rapes and indecent assaults on women. (HF) was told that the defendant had forced women to have sex against their will, acted violently towards them, threatened them and caused injury, including putting a screwdriver to the neck of a victim when she was three months pregnant. (HF) was also told that the defendant had forced a woman into a graveyard and forced her to have oral sex. She was further told that the defendant attacked a prostitute, forced her to perform oral sex, was violent towards her and made her drink urine. (HF) signed the document and above her signature it states, I fully understand the contents of this report. 49. Undisclosed to the defendant was that within the social services files there is an entry for 3 January 2008 in which it is recorded that HF said that she knew about the kidnapping, rape and other offences. She also said that the appellant had admitted that he had raped someone. In a similar vein, there is an entry for 9 January 2008 in which it is recorded that HF indicated that the information set out in admission 12 (above) had been accepted as true by the appellant. 50. On 10 July 2007 HF was informed additionally by way of the same formal disclosure notice that the appellant had these grave convictions recorded against him, spanning the years 1972 and 1998. HF declined to make a statement on that occasion but she signed the exhibit label on the original notice, thereby acknowledging receipt of it. 51. As part of the argument for the appellant it is suggested that HF could not have avoided, marginalised or misrepresented her level of knowledge following the meeting in January 2008 if it had been appreciated that this was the second occasion when she had been provided with that information. HF emphatically denied that she had been provided with the detail of the appellant’s antecedents, saying in evidence “ I didn’t know. Do you think I would carry on if I knew what he was like? ” 52. In our judgment, notwithstanding the able submissions of Mr Butterfield, there could have been no doubt that the jury appreciated the significance of admission 12, in which the appellant’s previous convictions were set out. Indeed the judge summed up the evidence in this regard in the following way: ”Then Mr Edwards was given permission to raise two matters which he’d not covered earlier in relation to her explanation for only going to the police some seven weeks after the defendant was sent back to prison, in relation to the disclosure of the paperwork to her, and it transpires that the police and Social Services together had told her about this background a year earlier, in January 2008, and she’d been warned in January 2008 not to associate with him, so that she was aware, you were told, the nature of the man that she was seeing, and she said to you that the defendant had told her that it was all lies and that she believed the defendant. The police were lying, and that he been in prison for armed robbery.” 53. Although the material contained within the social services files, and including the material relating to July 2007, essentially put the matter wholly beyond doubt, nonetheless in our judgement it was sufficiently clear that HF had been informed of these matters and would have understood what was being said to her. Given the unequivocal nature of admission 12, it admitted of no other sensible conclusion. 54. We accept, additionally, the argument of Mr Grieves-Smith that there would have been significant dangers for the appellant if he had attempted to deploy this information, if disclosed. Most particularly, it is clear from the Social Services’ records that the appellant accepted that he had committed the offences about which HF had been informed: this was in direct contravention to his case at trial. Although Mr Butterfield is entitled to argue that a defendant will craft the detail of his trial tactics on the basis of all the information in the case, he is not entitled to maintain that he would have given a different account in evidence if he had been aware of the material that was improperly withheld. Put otherwise, it is not open to an appellant to say that he would have given a different account to the jury in order to exploit an alternative evidential scenario. 55. We deplore the fact that the prosecution failed to disclose these matters to the appellant – an error for which the police seemingly bear responsibility given they were fully aware of the existence of these records – but in the final analysis we do not consider that this serious omission has had any material impact on the safety of the appellant’s convictions. Ground three: the Telephone Records 56. It is suggested that the telephone evidence was deployed in a way which was highly damaging to the appellant, in that it was used to depict him as dominating and controlling. In this respect, there were two key documents before the jury. 57. First, there was an unchallenged document utilised at trial entitled the “ Memory Analysis Report ” which contained a selection of the text messages exchanged between the appellant and HF. We note in passing that this document was compiled in a conspicuously unhelpful way, because the text messages are not itemised in chronological order and it is difficult to establish, apart from the content of the messages, whether the author was the appellant or HF. At trial the appellant was able, therefore, to cross-examine HF on the basis of an agreed selection of text messages that she sent to, and received from, the appellant. 58. Second, there was a schedule before the jury that had been compiled by an intelligence analyst, dated 2 September 2009. This document was disclosed to the appellant’s lawyers but it only revealed the telephone calls and text messages that emanated from the appellant’s telephone. When re-examining HF during the trial (on 21 September 2009), Mr Shakoor, counsel for the Crown, focused particularly on telephone calls and text messages made and sent by the appellant between 15 November 2008 and 24 November 2008, and he based his questions on this one-sided schedule. The purpose of this questioning was to illustrate the high frequency of contact emanating from the appellant’s telephone. In her evidence HF had said that the appellant would contact her “ all the time. I’d speak to him all through the day ”. She also testified “ I knew it weren’t right. I had to listen, to answer him. He did phone me all the time. I weren’t getting no sleep because I had to talk to him all through the night, and it was making me ill .” It was, furthermore, HF’s evidence that she only contacted the appellant by telephone because she was compelled to do so because she was in fear of him. 59. It is argued on behalf of the appellant that it was unfair for the Crown to criticise the appellant’s telephone usage whilst withholding relevant evidence which purportedly revealed a different picture, in the sense that there was an additional schedule which demonstrated that both HF and the appellant used their telephones to contact each other. It was dated 12 December 2008 and it is headed “ Restricted. For intelligence purposes only ”. It was compiled by an intelligence analyst and it lists telephone calls and text messages initiated by both telephones for the period 12 November 2008 to 24 November 2008. Of particular interest, between 12 November 2008 and 16 November 2008 there were a number of occasions when HF contacted the appellant. For the period 12 – 15 November 2008, there were thirty-eight attempts by HF to contact the appellant by telephone. The appellant did not respond. On 16 November 2008 HF used her telephone to contact the appellant on 30 occasions, whereas he only responded once. It is to be noted, however, that for most of the remainder of the period covered by this schedule the overwhelming preponderance of the communications (which were considerable) were from the appellant to HF. 60. In essence, Mr Butterfield suggests that the failure to disclose this schedule undermined the fairness of this trial, because the prosecution presented a distorted picture on a critically important issue in the case. 61. We disagree. As the respondent highlights, it was accepted – certainly as a matter of generality – that the appellant and HF telephoned and sent text messages to each other. Although this evidence reveals a period of intense contact, or attempted contact, on the part of HF during a relatively short period of time, that is not inconsistent with HF’s evidence that she was acting out of fear. The schedule of text messages before the jury revealed beyond doubt that HF initiated contact with the appellant, sometimes using sexually explicit language. In those circumstances, although we again deprecate the failure by the prosecution to disclose this evidence, it does not add significantly to the position as it was put before the jury. Ground 4: Contact during the Trial 62. The appellant submits that notwithstanding the warning that the judge gave in open court that there should be no contact between the police officers in the case and HF over a three-day weekend adjournment whilst HF was giving evidence (the cross-examination of HF was adjourned between the evening of Thursday 17 September 2009 and the morning of Monday 21 September 2009), there are reasons to conclude that Police Officer McAndrew was in contact with her. 63. This ground of appeal was unsurprisingly only faintly argued by Mr Butterfield. The instruction by the judge to HF at the end of her evidence on Thursday 17 September 2009 was as follows: “ Good. Now, you are of course now in the middle of your evidence so do not speak about your evidence to anybody else, just clear your head of everything and we will start again on Monday morning, all right?” 64. Following the trial, DC Alderwick was asked to provide a statement regarding the investigation into the appellant. Her statement, dated 29 July 2013, included the following: In regards to the nature and it extent of (PC McAndrew’s) role in the complaint by (HF) against (the appellant) , my understanding is that her role was minimal. I was aware that (McAndrew) would not speak to (HF) about the detail of her complaint and was interviewed by (another officer) . While the trial was taking place, (McAndrew) told us on the DV team that (HF) was not doing well at court and was feeling intimidated. Over the weekend she had offered (HF) some support but I don’t know if she actually saw her in person or if this was done over the telephone and I don’t know what was said. (…) I became aware that (McAndrew) had been the point of contact for (HF) over the weekend adjournment when I returned to work on the Monday morning and (McAndrew) told all of us on the team that she had offered (HF) some support over the weekend. Again, I don’t know what this support consisted of. 65. There is no evidence that Police Officer McAndrew spoke to HF about her evidence, or that she otherwise disobeyed any instruction by the judge. The judge told HF that she was not to speak to anyone about her evidence. There was no order prohibiting contact with police officers who were providing support to this witness who was considered to be a victim of serious domestic abuse. 66. This ground of appeal is accordingly without substance. The Case against the Appellant 67. Although in one sense the case concerned the credibility of HF, the appellant gave evidence during the trial with the result that his credibility also became a central issue for the jury to assess. He denied that anal intercourse took place, and it follows from the verdicts that the jury disbelieved him on that issue. Furthermore, in many respects this was a strong case against the appellant which was dependent on a number of different strands. First, his previous convictions provided powerful evidence as to his propensity to commit offences of this kind and the circumstances of the appellant’s previous convictions and the present trial contained strong similarities as regards the nature of the conduct alleged against the appellant. Second, the evidence HF gave about a black handled mug which she testified the appellant used in order to make her drink his semen (which he brought in his jacket pocket when they met) was potentially of high significance. In interview the appellant denied owning a black and white mug. His evidence was that HF had never been to his room and that he had never carried a mug in her presence. When his room was searched, two mugs were found, one of which was black and white. Although in one of his letters to HF the appellant referred to his wish to “ piss ” and “ cum ” in a cup, HF would only have known about the cup or mug’s black and white colouring if she had seen it with the appellant. Third, he sent a large number of letters to HF in which he referred in graphic terms to his wish to have anal sex with her. In evidence, he said that this was simply the expression of a fantasy which he committed to paper at the request of HF. Given his previous convictions, this purported explanation must have weighed significantly against the appellant. The jury returned unanimous verdicts of guilty after deliberating for little more than two hours. Conclusion 68. It follows from the conclusions set out above that notwithstanding the failure by the prosecution to comply with its disclosure obligations, taking all the circumstances of the trial into account – including the strength of the case against the appellant – there is no realistic possibility that a court would have arrived at different verdicts had the necessary disclosure been made. The key task for the judges on an appeal of this kind is to decide whether the fresh material ( viz. the undisclosed evidence) renders the verdicts unsafe. In this regard, the correct approach was helpfully summarised by Hughes LJVP in Mushtaq Ahmed (2010) EWCA Crim 2899 at paragraph 24: The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury’s deliberations, since ex hypothesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We have had the advantage of seeing the analysis of Pendleton [2001] UKHL 66 ; [2002] 1 Cr. App. R. 34 and Dial [2005] UKPC 4 ; [2005] 1 WLR 1660 made recently by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99 – 101) and we entirely agree with it. Where fresh evidence is under consideration the primary question “is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.” (Dial). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial. 69. For the reasons set out above, we do not doubt the safety of the convictions and in the result, these verdicts are safe. Postscriptum 70. We add that we are grateful to the Criminal Cases Review Commission for their careful investigation into these matters – it is evident that painstaking care has been taken to obtain and analyse all the relevant undisclosed material – and we consider it entirely appropriate that this case was referred to this court, given the highly regrettable history of non-disclosure. The impact of these failings by the prosecution has required careful judicial determination. The Commission provided this court with a high degree of assistance, to which we wish to pay tribute. If this case had come to the court by way of section 31 Criminal Appeal Act 1968 , it would undoubtedly have been necessary to hear the prosecution on the merits as part of a full appeal, thereby justifying the grant of leave. 71. Similarly, the court is indebted to Mr Butterfield and Mr Grieves-Smith for their succinct, focussed and realistic submissions. 72. During the course of his submissions Mr Butterfield did not address the sentence imposed by judge, an issue that had been raised by the Commission and to which there was reference in the appellant’s skeleton argument. The Court assumed that this matter was no longer pursued. However, in his comments on the draft of this judgment, Mr Butterfield indicated that this remains a live issue. As a result we give the respondent until 4 pm Friday 29 May 2015 and the appellant until 4 pm on Friday 5 June 2015 to file any final written submissions on this discrete matter. The court will thereafter hand down a reserved decision.	[ "THE RIGHT HONOURABLE LORD JUSTICE FULFORD", "THE HONOURABLE MR JUSTICE SPENCER", "THE HONOURABLE MR JUSTICE HOLGATE" ]	2015_05_20-3609.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/905/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/905	1,032
b184f910ea60de959f5087097e825d594a869692a5ec41dbdacfbbaed292d4cf	[2019] EWCA Crim 934	EWCA_Crim_934	2019-05-21	crown_court	Neutral Citation Number [2019] EWCA Crim 934 No: 201901375 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 21 May2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE PICKEN SIR DAVID FOSKETT REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DESMOND PAUL ANTHONY SAGE Ms D Heer appeared on behalf of the Attorney General Mr U Ali appeared on behalf of the Offender Computer Aided Transcript of the Stenograp	Neutral Citation Number [2019] EWCA Crim 934 No: 201901375 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 21 May2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE PICKEN SIR DAVID FOSKETT REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DESMOND PAUL ANTHONY SAGE Ms D Heer appeared on behalf of the Attorney General Mr U Ali appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: After a trial before a recorder and a jury in the Crown Court at Chelmsford, Desmond Sage (to whom we will refer as "the offender") was convicted of offences of aggravated burglary, wounding with intent and having an offensive weapon. On 13 March 2019, he was sentenced to concurrent terms of imprisonment amounting in total to 6 years 6 months. 2. Her Majesty's Attorney General believes that total sentence to be unduly lenient. Application is accordingly made by her Majesty's Solicitor General, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed. 3. The victim of the offences was David Webb. At the time of the offences Mr Webb was living with his mother, then aged 90; his son Mark; and Mark Webb's friend, Jodie Collins. 4. It appears that about 2 weeks before the offences were committed, some jewellery had been stolen from the offender's partner. She told the offender that Jodie Collins and Mark Webb were the thieves. She also told him not to get involved. The offender nonetheless went out looking for them and eventually learned their address. 5. On 26 June 2018, the offender drove to Mr Webb's house. It should be noted that he did not hold a valid driving licence and was not insured to drive. He had with him in the pocket of his trousers an extendable baton. He knocked at the front door. Mr Webb, who can be seen on the relevant CCTV footage to be appreciably smaller than the offender and who at the time was only wearing a pair of shorts, opened the door. The offender demanded to know whether either Jodie Collins or Mark Webb was in the house. Mr Webb said that they were not. The offender demanded to know where they were. Mr Webb said he did not know. The offender said that Jodie Collins had stolen something from him and insisted that Mr Webb must know where they were. He then grabbed Mr Webb around the throat and pushed him backwards into a glass cabinet which stood in the hallway. As Mr Webb struggled to breathe, the offender pushed him back and forth into the cabinet two or three times, causing the glass to break. 6. The offender then began to reach into his trousers, causing Mr Webb to fear, rightly, that he had a weapon. Mr Webb ran out of the house in his bare feet, pursued by the offender, who was by now carrying the extended baton. The offender struck Mr Webb several times about the body with the baton, pushed him backwards into a bush and kicked him in the legs. This attack came to an end when a neighbour, an off-duty police officer, intervened and pulled the offender away. The offender shouted at Mr Webb that he would "come back and burn your house down" and then drove away. 7. Mr Webb was taken to hospital, where he was found to have suffered multiple lacerations to his scalp, his back, his right upper arm, his right leg and one of his toes. He could not move his right elbow without pain. There was a deep wound to his right forearm with skin loss and associated tendon damage. Initially this wound was sutured under local anaesthetic but Mr Webb later required plastic surgery and a skin graft to replace the lost skin. 8. In a victim personal statement recorded about 10 weeks later, Mr Webb indicated that he had had to take 6 or 7 weeks off work so that he could attend the necessary hospital appointments and allow his wounds to heel. The injury to his elbow still gave him pain, he had lost strength in his right arm and there was permanent scarring on the right forearm. He said he had initially found it difficult to sleep and was very worried when he heard any noise. He remained scared if someone knocked at his front door. 9. The offender was arrested on 6 July 2018. In interview under caution he admitted that he had gone to Mr Webb's house, but denied that he had been armed and claimed that he had only intended to ask for the return of the stolen jewellery. He falsely alleged that Mr Webb had become aggressive towards him, that Mr Webb had fallen into the glass cabinet during the ensuing struggle and that Mr Webb had then tried to attack him with part of an umbrella. The offender said he had not known there was an elderly lady in the house at the time and that he would not have gone there if he had known. 10. At we have indicated, the attack upon Mr Webb gave rise to three charges. On count 1 of the indictment, the offender was charged with aggravated burglary, contrary to section 10(1) of the Theft Act 1968, the particulars being that he had entered Mr Webb's house as a trespasser with intent to inflict grievous bodily harm on Mr Webb, a person therein, and at the time of committing that burglary he had with him a weapon of offence, namely an extendable baton. 11. Count 2 charged him with wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. 12. Count 3 charged him with an offence contrary to section 1 of the Prevention of Crime Act 1953 of having an offensive weapon, the extendable baton, in a public place, namely the road on which Mr Webb's house is situate. 13. The offender is now 52 years of age. He had 32 previous convictions, a number of which were for offences involving violence, public disorder and the possession of offensive weapons. His first offence of violence was an assault occasioning actual bodily harm in 1998, for which he was sentenced to 12 months' imprisonment. He received a short prison sentence in 2000 for possession of an offensive weapon. He was sentenced to 6 months' imprisonment in 2003 for offences of assaulting a police constable and threatening behaviour. In February 2007, he was made subject to a community order for possessing a bladed article in a public place. In September 2007, he was sentenced to 8 months' imprisonment for possessing an offensive weapon, namely an extendable baton in a public place. In 2009, he was sentenced to 6 months' imprisonment for offences of threatening behaviour and possession of an offensive weapon, the circumstances being that he threatened his victim with an extendable baton. In 2011, he was sentenced to 6 months' imprisonment for possession of a prohibited weapon, namely a CS gas canister. In 2013, he was sentenced to 12 months' imprisonment for an offence of assault occasioning actual bodily harm, the circumstances being that he had punched his victim in the head, grabbed him by the throat and thrown him down a flight of stairs. 14. No pre-sentence report was thought to be necessary and none is necessary at this stage. The recorder was provided with evidence confirming that the offender was the main, though not the sole, carer for his mother, who at the age of 85 has the misfortune to suffer from vascular dementia following a stroke. The remanding in custody of the offender had had an adverse effect upon his mother, who had lost the benefit of his management of her daily routine, felt frightened on her own and had difficulty understanding that she might not see her son again. Evidence from the offender's sister, who also assists in the care of their mother, indicated the practical difficulties of providing the level of daily care which the offender had provided. 15. Submissions were made about the appropriate categorisation of the offences under the relevant sentencing guidelines. The recorder concluded that the offence charged in count 1 was a category 2 offence. He rejected a submission by prosecuting counsel that the offence fell within category 1 and in particular he rejected a submission that the offence involved higher culpability because a weapon was present on entry into the house. Although that was factually correct, said the recorder, it was in any event a necessary ingredient of the offence. The recorder concluded that the offence charged in count 2 was a category 3 offence, rejecting a prosecution submission that it fell into category 2. In relation to count 3, the recorder and counsel all agreed that the offence fell into category B1. 16. In his sentencing remarks, the recorder noted that the offender had taken the weapon away from the scene with him and it had never been recovered. He rightly described the incident as a "completely unprovoked and violent assault on a man inside his own home". He referred to the physical and psychological injuries sustained by Mr Webb. He described the offender's criminal record as "appalling", although the last conviction for any offence had been in late 2013, and he particularly noted the four most recent offences involving violence and the possession of weapons. He noted that the offender had been in work since 2013 and had been living with and caring for his elderly mother, who was affected by the imprisonment of the offender. 17. The recorder then turned to the sentencing guidelines and in particular to the Sentencing Council's definitive guideline on burglary offences. He indicated that although there had been a degree of planning, he did not accept the prosecution submission that the aggravated burglary offence involved the higher culpability factor of "a significant degree of planning and organisation". Although the weapon had been present when the offender entered Mr Webb's house, the recorder viewed that as an essential ingredient of the offence and therefore declined to place the offence into higher culpability on the basis of the factor "weapon present on entry". 18. He added that in terms of weapons he regarded this case as falling at the lower end of the range of weapons of offence, and he noted that in any event the weapon had not been brandished within the house at the time the burglary was committed. He went on to say: "And so on the facts of this case I don't regard this as comfortably fitting within the category of higher culpability. There are no factors indicating lower culpability. It's not a straightforward case applying the guidelines on the facts of this case but I treat it as being effectively within category 2, with a starting point of 6 years and a range of 4 to 9 years." 19. In relation to count 2, the recorder accepted that Mr Webb had been pushed into the glass cabinet several times, but was not convinced that the offence therefore came within the description of "a sustained or repeated assault". He therefore regarded the offence as falling within the higher end of category 3 in the relevant guideline. 20. As to count 3, he said that there was no dispute that it fell within category B1. 21. In relation to each of the offences, he noted the aggravating factor of the relevant previous convictions. He did not find the offender to be dangerous for sentencing purposes. 22. In the result, the Recorder imposed a sentence of 6 years 6 months' imprisonment on count 1 with concurrent sentences of 5 years' imprisonment and 30 months' imprisonment on counts 2 to 3 respectively. 23. A number of summary motoring matters were also to be dealt with. The Recorder imposed no separate penalty for these, other than to order licence endorsement with 3 points for driving without a licence and 6 points for using a vehicle without insurance. 24. Finally, one summary matter which the offender had denied was remitted to the magistrates' court. 25. Ms Heer, for the Solicitor General, submits that the judge misapplied the sentencing guidelines and passed a total sentence which was unduly lenient. As to count 1, she submits that the offence involved three factors indicating greater harm: the victim was at home, significant physical or psychological injury was caused to him and violence was used against him. She submitted that two factors indicating higher culpability were present: a significant degree of planning and a weapon present on entry. There were no factors indicating either lesser harm or lower culpability. The case was therefore one of greater harm and higher culpability and so fell within category 1 of the guideline with a starting point of 10 years' custody and a range from 9 to 13 years. 26. Ms Heer submits in particular that the judge fell into error in failing to treat the undoubted fact that the baton was present when the offender entered Mr Webb's house as a higher culpability factor on the basis that it was an essential element of the offence. She further argues that the judge failed to recognise the element of significant planning involved in the offender's searching for Mark Webb and Jodie Collins and attending Mr Webb's house armed with a weapon, and in concluding that the use of the weapon could not be taken into account in respect of count 1 as the baton was not used until after Mr Webb had fled from the house. 27. By way of alternative submission, Ms Heer argues that even if one or more of the factors on which she relies was properly left out of account at step 1 of the sentencing process, it should have been regarded as a significant aggravating factor at step 2. 28. As to the offence charged in count 2, Ms Heer submits that the offence involved higher culpability because there was a significant degree of premeditation and a weapon was used. It did not involve greater harm. Accordingly, it was a category 2 offence with a starting point of 6 years' custody and a range from 5 to 9 years. The recorder, she submits, was wrong to think that the factor relating to the use of a weapon was not present. 29. As to count 3, Ms Heer accepts that this was correctly placed into category B1: it involved the use of a weapon which was not a bladed article or highly dangerous weapon to threaten or to cause fear and the offence actually caused serious alarm or distress. The starting point was therefore 9 months' custody and the range from 6 to 18 months. 30. Ms Heer acknowledges that recorder was correct to impose concurrent sentences and she accepts that the offender's role as the main carer for his mother was a mitigating factor to be taken into account. But, she submits, a total sentence of 6 years 6 months' imprisonment following a trial failed to impose proper punishment for the overall offending and was unduly lenient. 31. For the offender, Mr Ali submits that whilst the total sentence might be regarded as lenient, it was not unduly lenient. He emphasises that the recorder had heard all the evidence over the course of a 3-day trial and had therefore had a good opportunity to make an assessment of the overall criminality of the offender. Mr Ali argues that the recorder had taken into account all of the violence, both inside and outside the house, but he points out that the principal injuries were sustained inside the house and there was no clear evidence as to what, if any, further injury was caused by the use of the baton outside. 32. Mr Ali goes on to submit that the recorder correctly rejected the allegation of a significant degree of planning. He points out that the offender arrived at the house alone, knocked at the door and made no attempt to conceal his identity. 33. Mr Ali further relies in relation to count 1 on a number of matters of mitigation, including the fact that the offender had only gone to Mr Webb's house because of the theft from his partner of items of jewellery which had a sentimental value for her, and the offender's important role in caring for his elderly mother. 34. Mr Ali also points out that the offender has turned his life around since late 2013. He has held responsible employment since then and has avoided any offending. He adds that the offender was extremely remorseful, though it may be difficult to reconcile that submission with the unsuccessful contesting of a trial. 35. As to count 2, Mr Ali repeats the submission that it was difficult to identify what, if any, injuries had been caused outside the house and he submits that the injuries as a whole were less serious than is often found in cases involving this offence. 36. We are grateful to both counsel for their written and oral submissions. Before coming to our conclusions about them, we should refer to one other aspect of the sentencing. Section 28(4) of the Road Traffic Offenders Act 1988 provides that: "Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that will be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed on the offences on the later occasion or occasions shall be restricted accordingly)." 37. The two offences which the offender admitted were driving without a licence, which has a range of between 3 and 6 points; and using a vehicle without insurance, which has a range of between 6 and 8 points. Thus, the maximum number of penalty points which it was open to the Recorder to impose was 8, from which it follows that the imposition of a total of 9 penalty points was unlawful. We understand that a belated attempt was made to correct this error under the slip rule, but the criteria for the use of that procedure were not met and the attempt was accordingly without legal effect. Thus, as things stand, the order imposed in relation to penalty points is unlawful. 38. We consider first the issue raised as to the application of the higher culpability factor "weapon present on entry" in the aggravated burglary guideline. Section 9 of the Theft Act 1968 provides: "(1)A person is guilty of burglary if— (a)he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or (b)having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm. (2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm and of doing unlawful damage to the building or anything therein." 39. By section 10 of the 1968 Act: "(1)A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive ... " It is unnecessary for present purposes to set out the precise definition of "any weapon of offence": it clearly applies to the extendable baton carried and used by the offender in this case. 40. Ms Heer has helpfully invited our attention to the cases of R v O'Leary [1986] 82 Cr App R 341 and Attorney General's Reference (R v Powell ) [2018] 1 Cr App R (S) 40. In O'Leary , the court held that the phrase "at the time" in section 10 of the 1968 Act relates to the time when the relevant offence of burglary is committed. It is therefore necessary to consider which limb of section 9 of the Act applies in a particular case. The circumstances in O'Leary were that the appellant had been unarmed when he trespassed in a private house but had then picked up a knife from the kitchen and had used it to injure the occupants when confronted by them. The particulars of the charge of aggravated burglary in that case identified the relevant burglary as a section 9(1)(b) offence, the allegation being that the offender had entered as a trespasser and stolen various items. That offence was complete in law when the appellant, having entered the house as a trespasser, stole property within it. The court said at page 343: "It follows that under this particular charge, the time at which the defendant must be proved to have had with him a weapon of offence to make him guilty of aggravated burglary was the time at which he actually stole." 41. In Powell , the appellant was charged with aggravated burglary, the particulars of the charge being that he had entered the relevant premises as a trespasser and had inflicted grievous bodily harm on his victim and that at the time of committing that offence he had with him a knife. The underlying offence of burglary was therefore one contrary to section 9(1)(b) of the Act. The circumstances were that the appellant had gone to his victim's home armed with a knife, he had forced his way into the property and there attacked his victim using the knife. It was submitted on his behalf that the only potential higher culpability factor was that there was a weapon present on entry but that should be disregarded as a form of double counting because it was inherent in the commission of the offence. On that basis, it was successfully submitted on behalf of the appellant that the case was not one of higher culpability and the offence fell into category 2 rather than category 1 of the sentencing guideline. 42. Upon a reference to this court by the Attorney General, it was held that the judge below had been in error. At paragraph 12 of the judgment of the court given by Treacy LJ, it was said: "That analysis might apply to the form of aggravated burglary where a person enters a property as a trespasser intending inter alia to commit grievous bodily harm and had a weapon with him at the time of entry. The form of offence alleged in this case is complete when grievous bodily harm is inflicted and all that the Crown has to prove is that the offender had the weapon with him at the time of infliction of the injuries. Accordingly the presence of the knife at the time of entry was open for consideration as a higher culpability factor since its presence on entry is not inherent in the offence." 43. We respectfully agree with the decision in Powell on the facts of that case. It is, however, important to note that the court was there concerned specifically with a section 9(1)(b) offence, which required proof that the appellant had the weapon with him at the time when he inflicted the injuries and not necessarily at the earlier time when he had entered the premises as a trespasser. The court did not decide that the higher culpability factor of "weapon present on entry" would inevitably apply also to a case such as the present, where the underlying offence of burglary is a section 9(1)(a) offence and the offender has the weapon with him at the point when he enters the relevant premises. Indeed, it seems to us to be implicit in the language used at the end of the paragraph which we have quoted that in a section 9(1)(a) case the presence of the weapon on entry would not necessarily be "open for consideration as a higher culpability factor". 44. We see the force of the point made by Ms Heer that a burglar who goes to the premises already armed commits an inherently more serious offence than one who goes to the premises unarmed but later picks up a weapon whilst inside the premises. On the other hand, it must be borne in mind that the sentencing levels in the aggravated burglary guideline are substantially higher than the levels for corresponding offences in the burglary guideline. 45. We have concluded that in cases such as the present, that is a section 9(1(a) offence of burglary with intent to commit grievous bodily harm by an offender who is armed with the relevant weapon at the time of entry, there be will a substantial level of double counting if that factor alone is relied upon as elevating the case to one of higher culpability. There may be circumstances in which no improper double counting would be involved, though no such circumstances have been suggested in the course of argument today. In the circumstances of the present case, however, we are not persuaded that the recorder was wrong to reject the submission that the factor of "weapon present on entry" would alone be sufficient to make this a case of higher culpability contributing to an overall finding of a category 1 offence with a starting point of 10 years' custody. 46. Nor are we persuaded that the recorder was wrong in deciding that the circumstances here did not involve the higher culpability factor of a significant degree of planning or organisation. Certainly the offender had devoted time and energy to finding out where the suspected thieves lived and had armed himself before going to that address. Nonetheless, we agree with the recorder that it is difficult to regard the offence of aggravated burglary as involving a significant degree of planning or organisation. 47. In our judgment, accordingly, the aggravated burglary offence charged in count 1 was a category 2 offence involving greater harm but not higher culpability. Given the presence of a number of factors indicating greater harm and the serious aggravating feature of the offender's previous convictions, a sentence high in the category 2 range was called for. 48. As to count 2, this, in our judgment, was plainly a category 2 offence involving higher culpability because of the use of a weapon. With respect to the recorder, it seems to us that the result of his approach was that in the end no weight at all was given to the undoubted and serious fact that the offender had used an extendable baton to strike a number of blows. 49. Although count 3 may be said to have added comparatively little to the overall criminality, the feature of having an offensive weapon in a public place was significant in the light of the offender's previous convictions. 50. It was of course necessary for the recorder to have regard to the important principle of totality. The three offences were three aspects of what could fairly be regarded as a single incident, and it was important to avoid double counting. We are nonetheless satisfied that the sentence imposed failed to impose just and proportionate punishment for the overall offending. It is, we think, relevant to consider what the position would have been if Mr Webb's attempts to run out of the house had been unsuccessful and the offender had caught him and set about him with the baton just before he left the hallway. In such circumstances, it is difficult to resist the conclusion that it would have been a category 1 offence of aggravated burglary with a starting point of 10 years' custody before consideration of the aggravating feature of previous convictions. Whilst we have concluded that the aggravated burglary was properly regarded as falling within category 2, it is difficult to see why the overall criminality should be regarded as substantially less serious merely because Mr Webb managed to escape and run a few yards before being caught. Whilst the feature of being attacked with a baton inside his own home is absent, the added feature of pursuing and further attacking an already injured man is present. 51. We sympathise with the position of the offender's mother and sister, who suffer as a result of his crime. However, in the circumstances of this case, there is a limit as to how far that mitigating factor can assist the offender, who was of course aware of his mother's position when he chose to drive to Mr Webb's home with an extendable baton. It is also relevant to note that although the offender did not know it, and she did not witness the attack on her son, there was in fact an elderly woman present in the house when the offender entered it and attacked Mr Webb. 52. We accept that the other points of mitigation advanced by Mr Ali are factors which must be taken into account and which go some little way to reduce the overall sentence. 53. In all the circumstances of this case, we do not see that an overall sentence of less than 9 years' imprisonment can be justified. We therefore grant leave to refer. We quash the sentence on count 1 below as being unduly lenient and we substitute for it a sentence of 9 years' imprisonment. Thus, the total term of imprisonment is increased to 9 years. 54. We quash the 3 penalty points imposed for the offence of driving without a licence. We quash the 6 penalty points imposed for the offence of using a vehicle without insurance, and substitute 8 penalty points. Thus, the total number of penalty points is reduced from 9 to 8. 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]	[ "LORD JUSTICE HOLROYDE", "MR JUSTICE PICKEN", "SIR DAVID FOSKETT" ]	2019_05_21-4594.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/934/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/934	1,033
a92512e2f77e9292c1bf13f1ec704723ee0372b8d833271ce9470e72b0548500	[2017] EWCA Crim 2244	EWCA_Crim_2244	2017-11-16	crown_court	Neutral Citation Number: [2017] EWCA Crim 2244 Case No. 2017/02163/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 16 th November 2017 B e f o r e: LORD JUSTICE TREACY MR JUSTICE TEARE and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - R E G I N A - v - ROBERT DAWSON - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020	Neutral Citation Number: [2017] EWCA Crim 2244 Case No. 2017/02163/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 16 th November 2017 B e f o r e: LORD JUSTICE TREACY MR JUSTICE TEARE and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - R E G I N A - v - ROBERT DAWSON - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Miss C Langevad appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) MR JUSTICE SPENCER: 1. On 26 th April 2017 in the Crown Court at Blackfriars the appellant pleaded guilty to an offence of possessing a prohibited firearm (a pistol), contrary to section 5(1)(aba) of the Firearms Act 1968 (count 1) and to possessing ammunition without a firearm certificate, particularised as seven live cartridges, contrary to section 1(1)(b) of the Act (count 2). The offence in count 1 attracted the application of the mandatory minimum sentence provisions of section 51A of the Act. The court was therefore obliged to impose the minimum sentence of five years' imprisonment, unless it was of the opinion that there were exceptional circumstances relating to the offence or to the offender which justified its not doing so. His Honour Judge Clarke QC found that there were no exceptional circumstances and imposed the minimum term of five years' imprisonment. On count 2 he imposed a concurrent sentence of two years' imprisonment. 2. The appellant appeals against sentence by leave of the single judge. The sole ground of appeal is that the judge was wrong to find that there were no exceptional circumstances. 3. The appellant was 26 years old at the date of the offences; he is now 27. On Saturday 25 th February 2017, police officers executed a warrant at the appellant's home address – a warrant granted under section 46 of the Firearms Act 1968. They knocked at the front door. The appellant asked who it was. He did not open the door. Fearing that evidence would be lost, the police officers then entered the premises by force. 4. Inside they found the appellant alone in one of the bedrooms. He was shaking and extremely nervous. He kept looking out of the window. Another man was seated in the living room. Two other men had escaped through a window and were never identified. We observe that they no doubt escaped during the time when the appellant refrained from opening the door to the police. The appellant declined to name these men. When the police officers looked through the bedroom window, they saw a handgun lying on the grass below, which was part of a children's play area. There were five unfired cartridges in the magazine of the gun. The premises were searched. In a drawer in the bedroom where the appellant had been seen, the police found two more unfired cartridges. They were in a small plastic self-seal bag under some clothes. They were of a different calibre and did not fit the handgun found outside. 5. The gun was forensically examined. It was a .32 calibre automatic German Walther model 4 self-loading pistol. It had a broken firing pin, but when that was replaced it was found to be in working order. The five cartridges in the magazine fitted the gun. 6. The appellant was arrested and interviewed. He gave a detailed prepared statement. In opening the facts, prosecuting counsel summarised that statement for the judge, but it is regrettable that important parts of it were not mentioned. We infer that the judge had not in fact seen the statement, judging by some of the observations he later made. Specifically, the judge was not told of the admissions made by the appellant that these men had been using his flat for some time for drug dealing. We shall return to this aspect of the case. In summary, the appellant said in his statement that the two men who had escaped through the window had given him the gun only moments before they escaped, when they realised that the police were at the door. The men had told him to get rid of the gun, so he had thrown it out of the window. He refused to name the two men who had escaped. He said that he was afraid for the safety of himself and his family. He said that he had been assaulted by them twice in the past, and said that on one occasion he had been shot with an air rifle. 7. The judge was informed that the explanation given by the appellant in interview was the basis on which his guilty pleas were entered, although there was no written basis. The judge enquired what information the prosecution had about these other two men. Prosecuting counsel confirmed that they had exited the premises but had not been identified. The other man who had been present in the flat had told the police in his interview that all four of them had been present in the flat from the early afternoon watching football and "hanging out". Prosecuting counsel confirmed that the firearms warrant related to the appellant's premises and said that if the appellant were to give evidence, the Crown would want to explore some matters with him in cross-examination. Prosecuting counsel did not suggest that the Crown took issue with the factual basis of plea. 8. We have a transcript of counsel's mitigation which was ordered by the single judge because it seemed difficult to ascertain precisely the factual basis on which the court had proceeded. In the light of her grounds of appeal, we were surprised to find that Miss Langevad made no submission to the judge that there were exceptional circumstances for not imposing the minimum term of five years, nor did she invite the judge to find that there were such circumstances. It seems to have been accepted that the minimum term was unavoidable. She emphasised the appellant's effective good character. He had only one previous conviction, for possessing cannabis a month or so before the present offences, for which he had received a conditional discharge. The judge said that he would treat him as a person of good character. He was a qualified electrician and had worked since he left college in 2012. He had a 2 year old son. It was submitted that the appellant had been put under considerable pressure by these two men. There had been threats in the past, including the occasion when he claimed that he had been shot in the leg for not allowing them to attend his premises. He knew what they were capable of. He wished he had never become involved, but when the gun was handed to him he felt he had no choice but to throw it out of the window. Counsel said in terms that she did not think that the case would fall under the exception. She said that the appellant and his family fully understood that it was a case where even a guilty plea would not save him from the minimum term. 9. In passing sentence the judge said that he was entirely satisfied that there were no exceptional circumstances. He was also entirely satisfied that the appellant was in possession of the handgun for no more than seconds. It was plain that the appellant had been a victim of the people he associated with on occasions, but it was a social association, said the judge, not a criminal association. He was a victim of their actions. The judge said that he did not need to know what the explanation was for the ammunition found in the drawer in the bedroom, because he did not propose to add to the sentence for that offence. He said that his hands were tied and he had no alternative but to pass a sentence of five years' imprisonment. 10. In her grounds of appeal and in her oral submissions this morning, Miss Langevad contends that there were in fact exceptional circumstances, even though she did not advance them to the judge. She relies on the following. The appellant was a man of effective good character who had been threatened. The judge accepted that the firearm was in his possession for only a matter of seconds. The gun was incapable of being fired in its condition at the time of the offence. There was no suggestion that the appellant knew it was loaded with ammunition. The judge accepted that he was a victim of the people he associated with. He had been threatened in the past and was frightened of them. 11. Miss Langevad also relies on the analysis of the minimum term provisions in R v Rehman and Wood [2005] EWCA Crim 2056 ; [2006] 1 Cr App R(S) 77 , where Lord Woolf CJ said at [16]: "… It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of section 51A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence." The court also said that it was necessary to look at the case as a whole. Sometimes there would be a single isolated factor that would amount to exceptional circumstances, but in other cases it would be the collective impact of all the relevant circumstances. The Court of Appeal would only interfere if it was shown that the judge was clearly wrong in declining to find exceptional circumstances. 12. It was with the submission contained in the grounds of appeal that the court should consider whether this was an arbitrary and disproportionate sentence in mind that the single judge granted leave, so that the full court could consider whether the circumstances in this case, viewed cumulatively, were truly exceptional. He directed that the prosecution should serve a respondent's notice. 13. In the respondent's notice it is said that, although the judge found as a fact that the appellant was in possession of the handgun only for seconds and had been a victim of the people with whom he associated socially, those facts had not been agreed by the Crown and the appellant did not give evidence. It was said in the respondent's notice that the appellant accepted through counsel that over a period of time he had allowed others to use his home as a base for criminal activity, but there was no evidence to support the assertion that he had previously been shot. When he disposed of the loaded firearm out of the window, the police were at the door of his flat forcing entry. 14. We have to say that it was unsatisfactory that the factual basis for sentence was not established in accordance with the procedure laid down by this court in R v Rogers [2016] EWCA Crim 801 ; [2016] 2 Cr App R (S) 36. At [121] Lord Thomas CJ said: "In our judgment the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in Lashari [2010] EWCA Crim 1504 , if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant's account of the circumstance in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant's version is correct. It does not, of course, follow that the judge, even if he accepts the defendant's version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one." We note that those important observations by the Lord Chief Justice do not seem to have been given the publicity which they merit. Although referred to in Archbold 2018 and in Banks on Sentence, in connection with exceptionl circumstances, we note that in the 2018 edition of Blackstone’s Criminal Practice the decision is not referred to in the immediate context of how the court should approach the issue of exceptional circumstances in a case such as this. 15. Here it was never even made clear to the judge that he was being asked to find exceptional circumstances. Nor did the prosecution make clear that any part of the appellant's account was challenged. Had the matter been dealt with in accordance with the guidance in Rogers , the judge would no doubt have wanted to explore rather more closely some of the assertions being made. 16. Nevertheless, we must proceed on the basis of the findings of fact which the judge made, namely: first, that the appellant was in possession of the firearm for no more than seconds; and second, that the appellant was the victim of the actions of people he associated with but it was not a criminal association. 17. The other material parts of the appellant's statement which were not referred to in the court below, to which we said we would return, included the following: "The flat I live in is on a big council estate known for crime. For the last three years I have been bullied but too scared of them to tell the police. I have known these people for a few years and they totally intimidate me, giving me ultimatums to do things like let them smoke drugs in my flat, keep drugs in my flat, they have used my flat as a safe house to distribute drugs. I have tried to say no to them on a large number of occasions and they either threaten me or my dad, saying 'You won't see your little boy again …' This situation has totally petrified me. Yesterday was the first time I had seen a gun in my flat and I accept I threw it out my window. As I was so scared I just put it out there. I do not get involved in any gang issues. As I state, I work Monday to Friday, but I am made to leave my key behind for them to use when I am not there. I have previously been slashed on the arm and shot in my leg with an airgun which made me go to hospital. Even then I left going to hospital till a week later through fear. This resulted in the pellets left in my leg." We observe that, had the appellant been charged with permitting his premises to be used for the supply of drugs, he would have had no defence of duress. We are concerned that this part of the background to the present submission of exceptional circumstances is something of which the judge was unaware. It may be that what the appellant said about innocent association was accurate insofar as the day in question was concerned, but as for the previous weeks and months, a rather different picture emerges from the prepared statement when it is considered in full. 18. As this court made clear in Rogers at [129], the approach to exceptional circumstances needs to be conducted in a structured manner in accordance with the statute and the principles set out in R v Avis [1998] 1 Cr App R(S) 420 and R v Rehman and Wood . We address the four questions posed in Avis : 1. What sort of weapon was it? It was a loaded pistol which could be fired, once the broken pin was replaced. It was potentially lethal. 2. What use was made of the weapon? The appellant had it in his hands only for seconds before throwing it out of the window. We observe, however, that below the window was a children's play area; but for the swift action of the police in recovering it, the firearm could very well have come into the hands of children or into the hands of criminals. 3. With what intention did the appellant possess the weapon? His intention was not to use it but to dispose of it immediately, on the instructions of the men who had given it to him, so that it would not fall into the hands of the police. 4. What is the appellant's record? He was effectively of good character. 19. As the single judge rightly observed in granting leave, it is important that the courts do not undermine the intention of Parliament by accepting too readily in cases of this kind that the circumstances of a particular offence or offender are exceptional and that the minimum sentence would be unjust. It must also be borne in mind that, as this court has said, the fact that an offender is subjected to pressure and threats cannot in itself be regarded as unusual or exceptional: see Attorney General's Reference No 37 of 2013 (R v Culpeper) [2013] EWCA Crim 1466 ; [2014] 1 Cr App R(S) 62 . In that case, as police officers entered the house to execute a search warrant relating to the suspected supply of drugs, the offender ran off. When the police chased him, he threw to the ground a pistol loaded with five rounds of ammunition. His basis of plea, which the judge accepted, was that he was in debt due to his ecstasy addiction. His suppliers had threatened to harm him and his partner if he did not agree to allow their home to be used to grow cannabis plants and to store the gun and ammunition. He was punched and agreed out of fear. He said that he could not name those who had given him the gun because they were dangerous and would harm his family if he did. He had stored the gun for about ten days. The judge found that his account, his long-standing depression and his guilty plea amounted to exceptional circumstances and imposed a sentence of two years' imprisonment. This court found that the judge was in error and, on the application of the Attorney General, substituted the minimum term of five years' imprisonment. The court observed that to conclude that pressure brought to bear on the offender amounted to exceptional circumstances, even in combination with the other factors, would in large measure blunt section 51A, contrary to the scheme of deterrent sentencing for which Parliament had made provision and which the courts had repeatedly emphasised was necessary. 20. That case was plainly more serious than the present case in that the offender had stored the gun for ten days. Here the possession of the gun was fleeting. That is certainly a factor which has been recognised as being capable, at least in combination with other factors, of amounting to or contributing to exceptional circumstances: see R v Moffat [2014] EWCA Crim 332 ; [2014] 2 Cr App R(S) 37. Possession merely with an intention to dispose of the firearm may also be capable of amounting to or contributing to exceptional circumstances: see R v Harrison [2006] EWCA Crim 345 ; [2006] 2 Cr App R(S) 56. In that case police officers stopped the defendant's car and found that he was in possession of a handgun and live ammunition. He was sentenced on the basis that he was on his way to dispose of the gun by throwing it into a lake. It was accepted that he intended to remove the gun permanently from circulation and that the gun and ammunition came into his possession only that day. The judge imposed the minimum term of five years' imprisonment. On appeal this court substituted a sentence of two years' imprisonment. 21. In the present case we think that it is appropriate and important to focus on the nature and outcome of the appellant's possession of the firearm, rather than merely its fleeting duration. As we have emphasised, the judge was never made aware of the full background of the appellant's relationship with the two men, and the use he allowed them to make of his flat. Whilst their association that afternoon may have been innocent rather than criminal, as the judge accepted, the appellant knew perfectly well the sort of men with whom he was associating. He was allowing them to use his flat as a safe house for drug dealing. If he was so frightened of these men and their power over him, one might have expected him to be almost relieved to hear the police at the door. 22. We will assume, as the judge did, that the appellant's account is truthful, and that he was handed the gun by one of the men just before they left the flat by climbing over the balcony. Rather than throwing the gun out of the window, he could simply have put it down on the floor so that when the police forced an entry they could recover it without any risk of its falling into the wrong hands. Instead, in order to obstruct the police and to help the two men, the appellant chose to throw the gun out of the window. Not only that, but he threw it down onto a children's play area with the obvious risk that it would be found by children, or fall into the hands of those who might use it for criminal purposes. 23. Furthermore, although the judge declined to investigate the circumstances in which the other two cartridges came to be under clothing in a drawer in his bedroom, the fact is that the appellant pleaded guilty to possession of those two cartridges, as well as the five recovered in the gun. By his guilty plea, he acknowledged that he must at least have known that these cartridges were there, yet he was content to keep them in his flat. That is relevant to the overall assessment of whether there were exceptional circumstances. 24. As to the threats and fear that the appellant says he was under, the reasoning explained in Attorney General's Reference No 7 of 2013 applies equally in this case. To treat that as amounting to or contributing to exceptional circumstances would blunt the effect of section 51A, contrary to the scheme of deterrent sentencing for which Parliament has made clear provision, and which the courts have repeatedly emphasised is necessary. 25. We are not persuaded that there were exceptional circumstances here to avoid imposing the minimum term of five years' imprisonment. We are satisfied that the imposition of the minimum term in this case has not resulted in an arbitrary and disproportionate sentence. 26. Accordingly, this appeal against sentence must be dismissed. ____________________________________	[ "LORD JUSTICE TREACY", "MR JUSTICE TEARE", "MR JUSTICE SPENCER" ]	2017_11_16-4109.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2244/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2244	1,034
d3f7a9721ad01bddebe4ee94250f02cac7f984271a4a06f6d4b23bc114437159	[2021] EWCA Crim 657	EWCA_Crim_657	2021-02-16	crown_court	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 pers	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: [2021] EWCA Crim 657 CASE NO 20201446/A4 Royal Courts of Justice Strand London WC2A 2LL Tuesday 16 February 2021 Before: LORD JUSTICE HOLROYDE MR JUSTICE LAVENDER MRS JUSTICE ELLENBOGEN DBE REGINA V DAVID MARKS __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ The Applicant appeared in person _________ J U D G M E N T MR JUSTICE LAVENDER: This is a renewed application for an extension of the time limited for appealing against the sentence imposed on the applicant on 13 April 2018 in the Crown Court at Croydon following his conviction on 2 March 2018 on four counts of acting in breach of a restraining order, contrary to section 5(5) of the Protection from Harassment Act 1997. The restraining order was made in December 2012 and restrained the applicant from contacting a man called David Mooney or posting derogatory remarks about him on social media. The applicant breached the order repeatedly before committing the breaches which gave rise to the four counts with which this appeal is concerned. On 8 September 2014 he was sentenced to six weeks' imprisonment, suspended for 12 months, for breach of the restraining order, having earlier been given a community order for that breach. On the same occasion he was given a consecutive suspended sentence of six weeks' imprisonment for another breach of the restraining order. On 9 January 2015 he was sentenced to 120 days' imprisonment for two further breaches of the restraining order. He was also convicted in 2015 of harassment and in 2016 of sending indecent or offensive messages. Those offences did not involve Mr Mooney. Count 1 concerned litigation which the applicant pursued against Mr Mooney between July 2015 and October 2016, seeking an injunction against Mr Mooney. By their verdict, the jury found that this litigation was commenced simply in order to harass Mr Mooney. Counts 2 to 4 concerned three derogatory comments about Mr Mooney posted by the applicant on social media: two on Sound Cloud on 31 August 2016; and one on NMB Live on 26 September 2016. There was a psychiatric report which stated that the applicant suffered from cerebral palsy and that he exaggerated both his singing prowess and physical health problems, but that these were fantastical beliefs rather than psychotic beliefs. It appeared that he had been diagnosed with paranoid personality disorder and delusional disorder. He was treated with an anti-psychotic drug. His behaviour was described as secondary to a paranoid personality disorder. There was no evidence of a psychotic illness. In his sentencing remarks, the judge expressly referred to the psychiatric report and set out its contents. The judge noted from Mr Mooney's victim personal statement that the applicant's actions were a very great drain on his life. The judge said that a longer sentence than had previously been imposed was required in order to mark the applicant's continuing conduct. The proposed grounds of appeal are as follows: "1. The Judge did not take into account my mitigation and my defence and my health problems. 2. The Judge knew that the victim was a police informer and also knew that the victim was hijacking my accounts. 3. The Judge knew I was denied a fair trial as the police picked up my solicitor and threatened him on the first day of the trial. I was denied a solicitor and a defence." The application for leave to appeal against sentence was received in the Criminal Appeal Office on 14 May 2020, which was 733 days out of time. In section 2 of his Form NG the applicant stated: "The reasons why I didn't appeal was because I was told it was too late. Also this Covid virus has also delayed my appeal." In refusing the extension of time, the single judge said as follows: "I have considered the papers in your case and your grounds of appeal. I refuse the lengthy extension which you require because I do not consider that there is any good reason for the delay in seeking permission to appeal against sentence. The fact that you had previously been told that you were too late is not a good reason. Nor does Covid-19 provide a good reason – an application for permission to appeal should have been made more than 2 years ago. In any event, it is not arguable that the judge committed any error in sentencing you to concurrent sentences of 12 months' imprisonment, after trial, on each of the 4 counts. Such sentence was in accordance with the applicable sentencing guidelines. None of the matters which you have raised in your grounds of appeal gives rise to an argument that your sentence was manifestly excessive or otherwise inappropriate: - The judge was aware of your health problems: he had read the psychiatrist's report (as have I), and had seen you over a number of days at the trial. - The allegation that the victim, Mr. Mooney, was a police informer is unsubstantiated, and (even if true) would not warrant any reduction in your sentence. - The court log shows that you were not denied representation by virtue of the conduct of the police on the first day of the trial. The trial started on 26 February, and you were represented on that day and on subsequent days, up to the afternoon of 1 March, by counsel. You then decided to represent yourself, and were in due course found guilty by the jury. The sentence was an appropriate one irrespective of whether you were being represented or were representing yourself, and in any event I have seen nothing to indicate that your trial was unfair." We have considered all of the papers and have looked afresh at the merits of both the application for an extension of time and the proposed grounds of appeal. We have also considered carefully the submissions which the applicant made to us today, although it has to be said that they were largely concerned either with his conviction or with other irrelevant matters, including: (1) a submission that he wants to be able to cross-examine his former solicitors; (2) an allegation that the judge was a liar who had set him up; (3) the assertion that he is not a criminal; (4) complaints that he is being harassed and stalked; and (5) other complaints about the conduct of Mr Mooney. Taking all of these matters into consideration, we have come to the clear conclusion that the single judge was right for the reasons which he gave to refuse the extension of time and to find that the proposed appeal had no merit. Accordingly, we refuse this 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]	[ "LORD JUSTICE HOLROYDE", "MR JUSTICE LAVENDER", "MRS JUSTICE ELLENBOGEN DBE" ]	2021_02_16-5096.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/657/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/657	1,035
99a8d8281cd85d201b762f8af22d43b66da9d3cc5dee5cde418451af6d4f4a88	[2005] EWCA Crim 1880	EWCA_Crim_1880	2005-07-13	supreme_court	Case No: 2002/01644/D1 Neutral Citation Number: [2005] EWCA Crim 1880 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER (Mr Justice Field) Royal Courts of Justice Strand, London, WC2A 2LL Wednesday, 13 July 2005 Before: LORD JUSTICE SCOTT BAKER MRS JUSTICE GLOSTER and JUDGE METTYEAR - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - FAQIR MOHAMMED Respondent - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 2002/01644/D1 Neutral Citation Number: [2005] EWCA Crim 1880 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER (Mr Justice Field) Royal Courts of Justice Strand, London, WC2A 2LL Wednesday, 13 July 2005 Before: LORD JUSTICE SCOTT BAKER MRS JUSTICE GLOSTER and JUDGE METTYEAR - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - FAQIR MOHAMMED Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Stephen Kamlish Q.C and Mr Ali Bajwa (instructed by Stephensons ) for the Appellant Mr Paul Reid Q.C (instructed by The Crown Prosecution Service ) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Scott Baker: 1. This application was listed first as an application to re-list a renewed application for permission to appeal against conviction and, if granted, with the renewed application to follow. 2. The applicant was convicted of murder in the Crown Court at Manchester before Field J and a jury on 18 February 2002. He was sentenced to life imprisonment. He was refused leave to appeal against conviction by Tomlinson J. He renewed his application, which was refused by the full court on 18 March 2003, the court being presided over by the Lord Chief Justice. 3. The present application first came before a different division of this court presided over by Clarke LJ on 26 October 2004. The circumstances are set out in Clarke LJ’s judgment and we do not repeat them here. Suffice it to say that the court accepted there had been an administrative error, and that, if that error had not occurred, the strong likelihood was that the applicant’s renewed application would have been adjourned with the view to being argued by the applicant’s new legal team rather than disposed of as a non-counsel application. 4. The court was, however, concerned with the delay of about a year that had occurred after 18 March 2003 before the application to re-list was made in March or April 2004. It adjourned the application for an explanation. 5. That explanation has now been provided in the form of an affidavit sworn by Mr Campbell Malone. The Crown, having read that affidavit, do not seek to argue that the application should be refused on the grounds of delay. We too have read the affidavit and are of the same opinion. We have therefore considered the applicant’s application for permission to appeal on its merits. Mr Kamlish Q.C, who has appeared for the applicant, has advanced this application on the basis of his perfected grounds of appeal. They have entirely replaced the earlier grounds. Before dealing with them in detail it is necessary to describe broadly the facts of the case. 6. The deceased, Shahida, was the applicant’s daughter. She lived with him in the family home at Longsight near Manchester. He was a devout Muslim. On the evening of 28 June 2001 he returned from the mosque to discover Bilal Amin, a young man with whom she had been having a relationship since the previous February, in her bedroom. The applicant, who had previously obtained a spare key to the bedroom door, locked the door and fetched a knife from his bedroom. He returned to Shahida’s bedroom. Bilal was by then leaving through an upstairs window. The applicant went downstairs and found Shahida whom he then stabbed to death. The pathologist noted at least 19 knife injuries. 7. The applicant accepted he was guilty of manslaughter but ran two defences, either of which would have reduced murder to manslaughter, namely lack of intent and provocation. 8. The Crown’s case was that the relationship between Bilal and Shahida was kept secret, except from Shahida’s sisters. About a month before Shahida was killed, the applicant became suspicious and accused her of going out with Bilal. When Shahida denied it, the applicant became angry and threw a television remote control at her. Majida, one of her sisters, witnessed this and said the applicant made a gesture and also said that he would, “get her later.” Shahida faced up to him, saying: “go on, hit me.” The applicant apologised. About this time, Shahida’s brother and step brother warned Bilal off. 9. We turn in a little more detail to events on the day of the killing. On 28 June 2001, Majida said that her father had been unhappy as she and Shahida had not got up until about 1pm. His mood later lightened. He went to the mosque. On his way back he visited the restaurant of his son in law, Mohammed Ishfaq, who testified that the applicant was in a good mood, albeit concerned that his daughters were not spending much time at home. 10. Whilst the applicant was out, Shahida arranged for Bilal to visit her later that evening when the applicant would again be visiting the mosque. The applicant returned home, where an aunt and uncle dined with the family. The applicant remained in a good mood before leaving for the mosque at 8.15pm. He was expected back at between 11.30pm and midnight. Bilal came round, and he and Shahida went into her bedroom. At about 10pm Majida heard the applicant’s car return, and so telephoned Bilal on his mobile to warn him. She got a response but there was no conversation. 11. The applicant asked where Shahida was. He went upstairs and knocked on her door. Majida heard some conversation between them. Shahida came downstairs after locking her bedroom door and went to make tea. There was a commotion upstairs. Shahida went into the hallway and asked the applicant in Punjabi what was wrong. She then screamed three times in English, “some one help me!” The applicant had her in a headlock, and was stabbing her in the stomach with a knife. She had her hands over her stomach, trying to stop the knife. He was trying to look her in the face, and to get her on the floor. She was trying to stay on her feet. She said in Punjabi, “hit me, go on hit me” but this made no difference. The applicant stabbed her three or four times, pushing the knife in really hard. When Majida tried to grab his arm, which was around Shahida’s neck, he held the knife out, aiming at Majida’s neck. Majida backed off and tried to telephone the police on her mobile, but could not get the digits correct. The applicant carried on stabbing Shahida. Majida eventually got out of the house and saw some neighbours. The applicant was in his drive. He was covered with blood. When Majida called him a “bastard” he started to run at her, but the girl next door took her in. The police arrived and took him away. 12. Bilal’s evidence was that he had stayed overnight at the house on the day before Shahida’s death, leaving at 12 noon. Immediately before the killing, he was in Shahida’s bedroom with her when they heard the applicant’s footsteps and learned that he had returned unexpectedly. Shahida went downstairs at the applicant’s request to make a cup of tea, locking the bedroom door behind her. When the applicant unlocked and opened the door shortly afterwards, he appeared calm but had an angry look. As Bilal climbed out of the window, the applicant left the room, locking the door behind him. 13. Sajida, one of Shahida’s sisters, said that, in the month before the killing, the applicant’s attitude changed and he appeared to be quieter. Quite often he mentioned a boy to Sajida but did not name him. Sajida suggested he take the car away from Shahida. The applicant said, “I am just watching. If there is a lad, I will either kill her or myself.” 14. When interviewed, the applicant, through an interpreter, said that what Bilal and Shahida had done was not permitted by his religion. He wanted to catch Bilal but Shahida had stopped him. He could not control himself, lost his temper and killed Shahida. There were the following questions and answers: “Q. Despite it being against your culture, do you think it is reasonable to kill somebody for what your daughter did? A. Absolutely. It is in our religion it’s in our holy book, the Koran, without marriage, a man and women can not sleep together on the same bed. If they sleep together, they can’t call themselves Muslim. There is no alcohol allowed in our religion and there is no sex allowed before marriage. This not allowed in our religion. If it was disallowed in your religion, you would have done that. Q. Would your daughter not have been entitled to some sort of trial, under the Muslim religion, sir? A. No. You can speak to someone amongst the family or in the bazaar or market, but not in bed.” And a little later: “Q. So, you believe that what you did to your daughter was reasonable, Mr Mohammed? A. I can’t say that it was reasonable, or not, but at that time, I had lost my temper and I had killed her. Q. Do you have a habit of losing your temper, sir? A. Not like that but, but if something like that happens I, myself, is not a Muslim. Three times I have been to Saudi Arabia for pilgrimage. Q. Do you have a problem controlling your temper, on a day to day basis? A. No, that is a normal life, if one always is in anger. Q. And you are not an angry man, I take it? A. No. Q. Are you a, normally violent man, Mr Mohammed? A. No.” 15. The Crown called a great deal of evidence that showed the applicant was a man of violent disposition. It is this evidence that gives rise to the applicant’s main ground of appeal. The evidence was given by the applicant’s children. It can be summarised for present purposes as follows. 16. Majida said the applicant was a strict, violent and angry man who used to beat her mother breaking her arms and bruising her. On one occasion she tried to jump out of the window. He also beat Abida and Shahida on one occasion and, on another, hit her aunt with a stick. The younger boy, Acmal, suffered most and she and Shahida the least. 17. Abida said the children would be beaten when they broke a rule. The applicant would strike anywhere or everywhere, using his hand or a shoe or a stick. When she was late for school she was required to undertake a punishment known as “chicken” which involved squatting with her head through her legs and her hands on her ears until her legs gave way. Isgar suffered the same punishment. Abida ran away from home on two occasions because of the applicant’s violence. Acram was beaten with a stick and left outside naked. In re-examination Abida said she feared the applicant might react to Shahida’s relationship with Bilal by killing Shahida. 18. Khalada Rashid gave evidence that the applicant lost his temper a lot and was violent to all the family. When she was 14 he hit her over the eye with an axe handle, she required stitches and still has the scar. On another occasion he held her hand in scalding steam. Once she was put in a cold bath for wetting the bed. She too ran away from home and complained to social services about the applicant’s violence. The applicant frequently assaulted her mother. 19. Acram’s evidence was that the applicant was violent to all the family. As the eldest he bore the brunt. When he was 4 or 5 the applicant split his head open with a poker leaving permanent scarring. He was once hit with a scythe leaving two scars on his lower left arm. The applicant used to beat his wife with whatever came to hand. In cross-examination Acram he said he was in a state of shock about Shahida’s death but that it was inevitable sooner or later. 20. Isgar described the applicant as short-tempered. He did not think twice about lashing out at his wife and children. When he was 10 or 11 he was stripped naked and beaten with a brass bar. His grandfather saved him. He too was subjected to the “chicken” punishment. On one occasion he was tied up and threatened with having boiling water poured over him unless he owned up to a misdemeanour. Once the applicant apologised for his anger, saying he could not control it. 21. Turning to the defence case, the applicant denied that he was violent. His children were not telling the truth. His children had caused problems but he had only disciplined them in the ordinary way. His religion forbade hitting daughters with a weapon. He admitted throwing a remote control at Shahida but had not intended to hit her. When Shahida told him she did not have a boy friend, he accepted it and was no longer suspicious. He said that, on 28 June, when he went to Shahida’s room, the way that Bilal Amin looked at him said: “I have just slept with your daughter.” The thrust of his evidence was that, from that point on, he effectively lost it. For two weeks he could not remember what happened next. 22. The essence of the case on provocation, for it was provocation rather than lack of intent that was in reality his main defence, was that, as a Muslim of devote belief, he believed that his daughter should not have boyfriends but should enter an arranged marriage. Also, sex outside marriage is a grave offence which, if discovered, brings shame on the families of the individuals involved. What he discovered on the fateful night caused him sudden loss of self-control and to behave in an entirely uncharacteristic way. His wife had died in 2000, since when he had had problems with depression. There was independent evidence of this, including medical evidence. He had been badly affected by his wife’s death. 23. We proceeded to hear full argument from both sides notwithstanding that the case was before the court on a leave application only. At the conclusion of the hearing we indicated that we were prepared to give leave to appeal on grounds 1 and 4 but not on the other four grounds. Mr Kamlish did not wish to advance any further argument on grounds 1 and 4. We deal with those grounds therefore as an appeal, with the leave of the court, notwithstanding that, for convenience, we shall continue to refer to Mr Mohammed as the applicant. Ground 1 The prosecution called inadmissible and prejudicial evidence of the applicant’s past violence towards his second wife and his children. 24. The summary of the evidence that we have recited makes it clear that the evidence of past violence adduced by the prosecution was indeed very considerable. It spanned for the most part a period of between 20 and 6 years before Shahida’s death. Indeed the judge asked counsel, after the close of the evidence and during submissions prior to summing up, why the Crown had called, “all this evidence…..to suggest that the defendant is of a violent disposition.” 25. It is necessary to examine with a little care how the trial proceeded. The Crown’s case was that the genesis of the incident that led to Shahida’s death was to be found a month before, when the applicant threw the remote control at her. He brooded on what he had learned and, if Sajida’s evidence was correct, had said that he was watching and would kill either himself or her. Unbeknown to Shahida and her sisters, he had obtained a key to her room. 26. The Crown approached the trial on the basis that the first issue was whether the applicant lost his self-control. His violence was, so the Crown submitted, severe, controlled and motivated by anger; it was not something that emerged for the first time on the day of the killing. What he believed to be the relationship between Shahida and Bilal had been gnawing away at him for some time. The violence, although sadly far graver in result, was no different in pattern, from what had gone before. The burden was on the Crown to disprove provocation. The applicant had said in interview that he was a placid and peaceful man and was running his defence on that basis. Evidence of violent disposition was therefore relevant to negative that aspect of his personality and to refute the suggestion that he was of such a nature and that his conduct could only be properly understood as brought about by loss of self-control as a consequence of grave provocation. 27. The applicant was represented at trial by experienced leading and junior counsel, Mr Stephen Riordan Q.C and Mr Ahmed Nadim, as well as a very experienced solicitor, Mrs Unterman. In a letter of 3 February 2005 Mrs Unterman wrote: “We would like to confirm that the issue of Mr Mohammed’s character was anxiously and critically considered both before the evidence was put before the jury and after the jury returned the verdict of guilty. Upon mature reflection, we remain of the view that in the light of our instructions and the overall evidential dynamics of the prosecution faced by Mr Mohammed it was inevitable that evidence of his character would be brought before the jury.” 28. An earlier attendance note of 29 January 2002 makes it plain that the defence intended to call witnesses to prove the applicant was a good kind man, who loved his children. In the event such witnesses were called. Mrs Unterman’s letter continues: “Strategically, from Mr Mohammed’s prospective, if the evidence of character was going to be heard by the jury it was preferable that it be heard in chief as opposed to the prosecution calling it by way of rebuttal evidence. In the circumstances, it was felt inappropriate to raise arguments against the admissibility of evidence when our collective judgment was that they were doomed to fail.” 29. In January of this year, privilege having been waived, leading counsel signed a note dealing with this and other criticisms that had been made of the conduct of the trial. In it, he pointed out that the applicant’s defence was that he was a peaceable, non-violent man, with deep and sincerely held religious beliefs, who possessed ordinary powers of self-control. He was a man of (effectively) good character. The behaviour of Shahida and Bilal under his roof was intensely provocative and caused him to lose his self-control and kill Shahida. His behaviour was sufficiently excusable to reduce murder to manslaughter. The Crown’s case was that this was a completely misleading picture. The truth was the applicant was a man who lost his temper easily and had shown this over a lengthy period with repeated violence towards his daughters and second wife. The witness statements of the applicant’s children showed that his violence was severe, apparently controlled, and motivated primarily by anger. 30. Mr Riordan said that the defence was faced with the contention that this evidence was admissible, first to show that, on the fateful night, the applicant lost his temper rather than his self-control and, second, that his violent disposition was a characteristic which the jury ought to have in mind when deciding whether the applicant’s conduct was sufficiently excusable to warrant a verdict of manslaughter rather than murder. In the light of the law of provocation as it is now understood, it is no longer relevant to consider whether a defendant’s conduct was sufficiently excusable to warrant a verdict of manslaughter rather than murder. Accordingly the evidence was not admissible on the issue of excusability. There was in truth no such issue. We shall turn later in this judgment to the recent change in the law. 31. Mr Riordan went on in his note to say that the defence team had considered the admissibility of the evidence before the trial began. He said they came to the conclusion the evidence was relevant and admissible for the two purposes advanced by the Crown. Any application to exclude it was bound to fail. Mr Riordan was in our view correct, albeit as the law is now understood there was no issue of excusability on which past violence could be relevant. However, the main and underlying reason why the evidence was admissible was to refute the defence case that the applicant was a placid and peaceful man. The evidence was properly admissible on that ground. Mr Riordan said that the defence team considered three further questions: (i) whether the interviews could be edited by redacting reference to his peaceable non-violent nature; (ii) whether the more ancient allegations of violence could be excluded; and (iii) whether the judge could be persuaded to exclude the evidence in the exercise of his discretion on the ground its prejudicial effect outweighed its probative value. 32. In our judgment the first of these questions really holds the key to this ground of appeal. Mr Riordan points out in his note that redaction was not a viable option because reference to the applicant’s alleged peaceable and non-violent nature was such an important feature of the case that the defence would be hopelessly emasculated without it. It is a trite observation that the defence in a criminal trial has to be conducted within the ambit of the defendant’s instructions. No one was better placed than the applicant’s counsel and solicitors to assess the “feel” of how the applicant sought to answer the allegations against him. Mr Reid, for the Crown, readily conceded that it would have been simple to edit the interviews so as to exclude the questions and answers relating to peaceable and non-violent nature. But there was little point in doing so if the issue was going to emerge at a later stage in the trial. Much better for the jury to have the whole story from the beginning rather than for devastating new information to come out during the trial. As Mr Riordan pointed out, strictly speaking the evidence was in rebuttal of the defence of provocation, but this was foreshadowed in the interviews and the burden was on the Crown to disprove provocation. It was therefore sensible for the evidence to be led so that the applicant knew what case he had to meet from the start. It also occurs to us, in a case such as this where the Crown’s evidence about the applicant’s past behaviour came exclusively from members of his family, that he may well have hoped, or even anticipated, that the Crown’s witnesses would not come up to proof. We shall come in a moment to what three of the daughters did in the course of the trial which perhaps bears this out. 33. On the second point, we agree that it would have been unrealistic to exclude the earlier part of the evidence, as the Crown’s case was that the evidence, as a whole, presented a continuous picture. On the third point, it is difficult to evaluate the strength of an application that was not made. Much would depend on the context and stage of the trial at which it was made. If the applicant was not advancing a positive case that he was a peaceable non-violent man (i.e. with the interviews redacted) the position would have been very different. It would have been much easier to advance an argument that the prejudicial effect of introducing the evidence outweighed its probative value. But that is not what in the event what happened. It is possible that other counsel might have applied to exclude the evidence and the judge would then have had to exercise his discretion. Even if the evidence was initially excluded, it might have been admitted in rebuttal following the applicant’s own evidence. It is apparent that junior counsel had some initial misgivings after the trial about whether the right course had been taken (see attendance note of conference with junior counsel immediately after the trial). However, three days later, on 21 February 2002, another attendance note records that a long discussion had taken place between leading and junior counsel and that they were satisfied that the judgments made and decisions taken did not fall outside the scope of those which could have been made and taken by competent counsel. We agree with this assessment, self-serving as it was, and we certainly do not agree with the submission by Mr Kamlish that failure to object to the admissibility of the evidence and/or to edit the interview was “flagrantly incompetent.” For reasons which will become apparent, we do not think the admission of this evidence rendered the conviction unsafe. The judge’s direction to the jury. 34. The judge was plainly concerned how he was to direct the jury about the relevance of evidence of the applicant’s violent disposition and raised the matter with counsel before final speeches. Counsel had conducted the trial, and the judge summed up, on the basis that the law on provocation was as decided by the House of Lords in R v Smith (Morgan) [2001] 1 AC 1 ; that is to say, that, when the jury came to consider the objective element of provocation, they should adopt the approach advocated by Lord Hoffmann in that case, the critical question being whether the applicant’s loss of self-control was excusable. We shall return in more detail to the law and in particular the recent change in a moment. 35. Mr Kamlish complains that there was some change of position by Mr Reid, for the Crown, during the course of argument at the trial and that this illustrates that he was, himself, not clear about the relevance of the evidence. We are, however, unpersuaded that there is anything in this because, by the morning of 15 February 2002, when submissions were being made as to how the judge should direct the jury, his position was plain enough. What, in the end, is critical is the manner in which the judge directed the jury. This is to be found at 6D of the summing up. The judge directed the jury that, provocation having been raised, they had to consider two questions. First, was or might the applicant have been provoked by things said or done by Shahida and/or Bilal into a sudden loss of self-control so that he was no longer the master of his mind and killed as he did? And second, were the circumstances of the killing such, or might they have been such, as in their reasonable view to make the applicant’s loss of self-control, so that he acted as he did, sufficiently excusable to reduce the gravity of the offence from murder to manslaughter? 36. The judge gave the jury the standard direction that loss of self-control was more than mere loss of temper. The applicant had to be so overcome that he was incapable of controlling his behaviour. He told them they should take into account any characteristic which increased, or may have increased, the effect of the provoking conduct and, in particular, his Muslim and cultural beliefs. Also they should take into account his depression and, “any conclusions you may reach on whether or not the defendant had a violent disposition.” He directed the jury that, on the second question, they should ask themselves whether there was anything about the applicant’s own personality, character, or religious beliefs which reduced his power of self-control and, if so, whether it amounted to a sufficient excuse for the killing to reduce the crime from murder to manslaughter. He told them a man cannot rely on his own violent disposition by way of excuse. There then followed this passage at 7H: “The defendant contends that he is a peaceable, non-violent man. The prosecution have sought to rebut that by calling evidence from six of his children, to the effect that he was violent to them and to their mother. You must, therefore, consider whether you are sure that the defendant has a violent disposition, that is to say he is prone to lose his temper and resort to violence much more readily than you would regard as reasonably normal. If you are sure that the defendant is a man of violent disposition, go on and ask yourselves whether you are sure that it was his violent disposition which was the sole, I emphasise sole cause of his loss of self-control. In answering this question, you must bear in mind the defendant’s other characteristics, namely, his depression and his strongly held religious and cultural beliefs. If, notwithstanding these other characteristics, you are sure that the sole reason for the defendant’s loss of control was his violent disposition, this will not be a case of provocation. If you are not sure that the defendant is a man of violent disposition or you are not sure that a violent disposition was the sole cause of this loss of control, go on and consider his other characteristics and ask whether anything about them provides a sufficient excuse to reduce his crime from murder to manslaughter. Mr Kamlish submits that it never was the Crown’s case that the sole reason the applicant lost his self-control was his own violent disposition. Be that as it may, the judge had to direct the jury how to approach their decision on the basis of the various findings that were open to them. 37. The judge returned to the applicant’s temperament at 13G where he said: “Temperament is, of course, a characteristic and it is something for you to take into account when considering the issue of provocation. The defence say that the defendant is a peaceable, non-violent man, who did not have a quick temper. The prosecution have sought to rebut that, by calling evidence from six of his children, to the effect that the defendant was a violent father and husband.” 38. The judge then summarised their evidence, the applicant’s response to it and the evidence of the defence witnesses, who had testified that he was a kind man. He then directed the jury as to the relevance of evidence about the applicant’s temperament in these terms at 28B: “It is relevant, first, to whether the defendant lost his self-control. The prosecution say that the defendant was a man who could be violent in a calm and calculated way. The fact that you lose your temper does not mean that you have lost your self-control, say the prosecution. They point to the evidence of cold baths, the chicken punishment and use of boiling water, and that the defendant could be violent, in this calm calculated way. They say that on the occasion of the death of Shahida, the defendant did not lose his self-control when he found Bilal in Shahida’s bedroom and when Shahida blocked his way. The prosecution say that the defendant did not lose it, he was angry, lost his temper, but acted in a cool calculated manner.” 39. The judge then continued as follows at 28E: “The defendant’s temperament is also relevant to the second question that arises, on the question of provocation. I will remind you, members of the jury of what that second question is. The second question is this: were the circumstances of the killing such or might they have been as, in your reasonable view, to make the defendant’s loss of self-control sufficiently excusable to reduce the gravity of this offence from murder to manslaughter. Now members of the jury, in respect of this second question, you must consider whether you are sure that the defendant was a man with a violent disposition, that is to say, that he is prone to lose his temper and resort to violence much more readily than you would regard as being reasonably normal.” 40. It seems to us, therefore, that the effect of the judge’s direction was as follows. On the first question, whether the applicant lost his self-control, if the sole reason for loss of control was the applicant’s violent temperament, then provocation could not arise. If, on the other hand, the reason the applicant lost his self-control was either nothing to do with his violent temperament, or only partly caused by it, then the jury had to go on and consider the second question, namely whether there was anything about his other characteristics, strongly held cultural and religious beliefs and depression, that provided a sufficient excuse to reduce murder to manslaughter. Earlier in his summing-up the judge had warned the jury that a man cannot rely on his violent disposition as an excuse and that everyone has a duty to try and exercise self-control. That is undoubtedly the law. But the second question, as framed by the judge, involved consideration of whether the appellant’s loss of self-control was excusable. In answering that question, the jury needed to look at what caused the applicant to lose his self-control. This may have been, in part, his religious and cultural beliefs and, in part, his violent disposition. It would have been unrealistic, in the circumstances of this case, to have sought to divide the applicant’s personality or character so that the jury were able to consider only a part only of it on the issue of excusability. 41. The judge returned to this topic at the very end of his summing-up at 55A, when he told the jury that, if they were not sure that he was a man of violent disposition, or not sure that his violent disposition was the sole reason he lost his self-control, then they were to put on one side any question of violent disposition with regard to whether his loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This appears on its face to be inconsistent with the earlier passage. However, he did go on to say that they should, have regard to the applicant “in the round”. The current state of the law. 42. The submission of counsel to the judge, and the directions of the judge to the jury, naturally proceeded on the basis of the law as it was then understood to be, which was as expressed in the majority speeches of their lordships in Morgan Smith . Very recently, indeed since the present appeal was argued before us, the Judicial Committee of the Privy Council has again considered the law of provocation and concluded, in H. M. Attorney General for Jersey v Holley (Privy Council Appeal No3 of 2004), by a majority of six to three, that Morgan Smith was wrongly decided and that the view of the minority in that case is to be preferred. We have given counsel on both sides the opportunity of making further written submissions in the light of the decision in Holley and this they have done. Although Holley is a decision of the Privy Council, and Morgan Smith a decision of the House of Lords, neither side has suggested that the law of England and Wales is other than as set out in the majority opinion given by Lord Nicholls in Holley and we have no difficulty in proceeding on that basis. In the circumstances we do not think that this change, or perceived change, in the law affects the outcome of this appeal because, as we shall explain in a moment, the objective yardstick against which the effect of provocation falls to be measured has become tighter. Indeed the law is once again as it used to be before the decision in Morgan Smith. 43. Provocation is a statutory partial defence to murder and the burden of disproving it, once raised, rests on the prosecution. Section 3 of the Homicide Act 1957 provides: “Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.” 44. Stripped to its bare essentials two conditions are necessary for the defence. These are (i) the subjective condition that the accused was actually provoked so as to lose his self-control and (ii) the objective condition that the reasonable man would have done so. As Lord Nicholls of Birkenhead pointed out in Holley, at paragraph 6, this second condition has two elements. The first calls for an assessment of the gravity of the provocation and the second for application of an external standard of self-control; what is to be expected of a person of ordinary self-control. 45. In the present case there was an issue whether the applicant in fact lost his self-control or merely lost his temper. The prosecution relied on the applicant’s past conduct as evidence that what he did was all part of a picture that had been the scene many times before, albeit on this occasion with far graver consequences. The line between loss of temper and loss of self-control is in our view incapable of precise definition and is in each case a matter for the jury. 46. Turning to the objective condition, how the reasonable man would have reacted is too a matter for the jury, but as Blackstone’s Criminal Practice 2005 points out at page 141, how the judge should direct the jury as to the meaning of the reasonable man test has become a vexed question. For many years the test adopted was that propounded by Lord Diplock in DPP v Camplin [1978] AC 705 , 718: “……a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused characteristics as…..would affect the gravity of the provocation to him….” 47. The question was not merely whether such a person would, in like circumstances, be provoked to lose his self-control but also whether he would react to the provocation as the accused did. Thus, see for example Luc Thiet Thuan v The Queen [1997] AC 131 where brain damage that merely affected the power of self-control rather than the gravity of the provocation was irrelevant to the reasonable man test. Luc Thiet Thuan however, itself a majority decision, gave rise to other expressions of view that the reasonable man test, as then understood, was too tightly drawn to operate justly in some cases. The House of Lords reconsidered the test in Morgan Smith where the certified question was: “Are characteristics other than age and sex, attributable to the reasonable man, for the purpose of section 3 of the Homicide Act 1957 relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected.” 48. The House of Lords held by a majority of 3 to 2 that they were. The particular characteristic in question in that case was the defendant’s severe depression. Lord Slynn of Hadley said at p153 that it was not enough for the accused to say that he was a depressive and therefore could not be expected to excise control. The jury had to ask whether he had exercised the degree of self-control to be expected of someone in his situation. 49. Lord Hoffmann said at 173C that, while not departing from the principle in section 3 , rather than describing the objective element in the provocation defence by relevance to a reasonable man, with or without the attribution of personal characteristics, it might be more helpful to describe in simple language the principles of provocation. He went on at 173D: “First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control. For better or worse section 3 left this part of the law untouched. Secondly, the fact that something caused him to lose, self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowances for human nature and the power of the emotions but, on the other hand not allowing someone to rely on his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide, as Lord Diplock said in Camplin [1978] 705, 717, what degree of self-control everyone is entitled to expect that his fellow citizens will exercise in society as it is today… The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonable have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.” 50. His conclusion was that the judge should not have directed the jury as a matter of law that the effect of Smith’s depression on his powers of self-control was “neither here nor there.” 51. It was on the basis of Lord Hoffmann’s speech that the judge directed the jury. In particular he invited the jury to consider whether the circumstances were such as to make the appellant’s loss of self-control sufficiently excusable to reduce the offence from murder to manslaughter. Although the other members of the majority put it slightly differently and did not use the word ‘excusable’ they each sought to loosen the perception of the reasonable man in Section 3 so that the jury could consider the particular circumstance of the defendant and see whether he had measured up to the standard of self-control to be expected of him. In other words, in answer to the certified question characteristics other than age and sex were to be attributed to the reasonable man as relevant to the standard of self-control to be expected of him. 52. It has always been the law, at least as far back as R v Kirkham (1837) 8 CP 115 that a man cannot pray in aid his own violent disposition to bolster a defence of provocation. Coleridge J observed at 119 that: “though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions”. That passage was cited by Lord Clyde at 177F in Morgan Smith and also by Lord Nicholls in Holley . There are other references in the reports to an unusually excitable or pugnacious individual not being entitled to rely on provocation which would not have led an ordinary person to act as the defendant did. See e.g. Mancini v Director of Public Prosecutions [1942] A C 1, 9 . 53. Lord Nicholls in Holley stressed that a ‘reasonable man’ in Section 3 means a person of ordinary self-control citing Lord Diplock in Camplin at p717 and Lord Simon of Glaisdale in the same case. He said at paragraph 14 that the statutory reasonable man has the power of self-control to be expected of an ordinary person of like sex and age. In other respects, that is in respects other than power of self-control, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to him. 54. In following the minority opinions in Morgan Smith, Lord Nicholls said this: “Exceptional excitability or pugnacity is one thing. But what if the defendant is suffering from serous mental abnormality as in the Morgan Smith case where the defendant suffers from severe clinical depression? Is he, for the purposes of the defence of provocation, to be judged by the standard of a person having ordinary powers of self-control? The view of the minority in the case of Morgan Smith is that he is. The standard is a constant, objective standard in all cases. The jury should assess the gravity of the provocation to the defendant. In that respect, as when considering the subjective ingredient of provocation (did the defendant lose his self-control) the jury must treat the defendant as they find him, ‘warts and all’ as Lord Millett observed. But having assessed the gravity of the provocation to the defendant, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of self-control. That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the defendant’s response to it: see Lord Millett, at page 211.” 55. Thus the majority of their Lordships in Holley returned to the view of the law that had been expressed by the majority of the Board in Luc Thiet Thuan. They rejected the alternative view that the jury should apply the standard of control to be expected of the particular individual. It was not appropriate for the jury to ask themselves whether the defendant exercised the degree of self-control to be expected of someone in his situation. The standard of self-control to be expected of the reasonable man in section 3 is fixed and not variable. Lord Hoffmann’s test of excusability introduced an unwarranted development of the law by the courts. The law was as settled by Parliament in 1957 in section 3 . 56. The difficulty for the judge in the present case was to cope with the interplay between the applicant’s past history of violence on the one hand and his cultural and religious beliefs and depression on the other. This was complicated further by the applicant’s past violence showing either or both of calculated violence on the one hand and the loss of temper on the other. 57. In our judgment the judge’s summing-up accurately reflected the law of provocation as it is was then understood. But the law has changed, as is apparent from the majority opinion of the Board in Holley delivered by Lord Nicholls. The law is back where it was before Morgan Smith . What that means, for the purposes of this case, is that the applicant’s temperament was relevant to the first or subjective element of provocation. It was also relevant to the gravity of the provocation to him where as Lord Nicholls noted, the jury has to take the appellant ‘warts and all’. It was not, however, relevant to how the reasonable man would have reacted for the reasonable man is a fixed rather than a variable creature. The yardstick is a person of the age and sex of the appellant having and exercising ordinary powers of self-control. 58. Properly directed the jury should therefore have applied a narrow and strict test of a man with ordinary powers of self-control rather than the wider test of excusability that was put to them by the judge. The jury having convicted on the basis of the wider test, we cannot see any unsafety in the conviction. The same result would have been inevitable if the provocation direction had been on the basis of Holley . Ground 4. The judge erred in failing to direct the jury not to allow the evidence of the applicant’s past violence to prejudice them towards the applicant. 59. This is the other ground on which we granted leave to appeal. Mr Kamlish submitted that this ground should logically be taken with ground 1 and we agree. 60. The applicant’s past violence was, submitted Mr Kamlish, of a serious and scandalous nature. It was likely to excite emotion and cause hostility and prejudice towards the applicant. Indeed, he submitted, there was even a suggestion by Majida that the applicant had killed his second wife. This was not, however, part of the Crown’s case and emerged unexpectedly in cross-examination. The judge, understandably, made no reference to it in his summing-up. Mr Kamlish submitted the potential prejudice was made worse because the applicant’s six children gave evidence from behind a screen. There were a great many allegations of past violence and if the jury were satisfied that they, or only some of them, had occurred, the jury was likely to take an adverse view of the applicant as an individual. The jury should have been warned specifically not to let the evidence of past violence prejudice them against the applicant and to put it out of their minds if they were not sure it was relevant to the issue of provocation. 61. The judge at the beginning of his summing up gave the jury the standard warning to put aside emotion and sentiment and try the case on the evidence. He drew attention to the fundamental issue between the applicant and the Crown whether he was a peaceable non-violent man or someone who readily resorted to violence. He summarised the evidence and directed the jury as to the relevance of violent disposition if that was what they found. He told them at 28A that his temperament was relevant to whether he lost his self-control. If they were not sure he was a man of violent disposition, or they were not sure his violent disposition was the sole course of his loss of control, they had to go on and consider the second question, namely whether there was anything about his other characteristics to amount to a sufficient excuse to reduce his crime from murder to manslaughter. He said at 28E, rightly in our view, that the applicant’s temperament was relevant to this second question as the law then required it to be put. We are unpersuaded that any additional warning about the evidence of the applicant’s violent disposition was required. Grounds 2, 3, 5 and 6 62. We declined to grant permission to appeal on these grounds and give our reasons briefly. Ground 2 The judge erred in refusing the defence application to discharge the jury in the light of letters received from two prosecution witnesses qualifying the evidence they had given. 63. On 11 February 2002 after they had completed their evidence, but before the close of the prosecution case, the court received letters from Sajida and Khaleda. The broad purport of these letters can be described as partial retraction. They were directed to the statements they had made to the police rather than to the evidence they had given at the trial. The judge was invited to discharge the jury. He heard full argument, reserved his decision overnight and declined to do so. He had a discretion. Mr Kamlish no longer pursues this ground, conceding that the judge was entitled to reach the conclusion that he did, on the basis that the witnesses would be available to be recalled if the defence required this. Ground 3 The applicant’s counsel’s decision not to have Sajida and or Khaleda recalled renders the conviction unsafe. 64. Mr Kamlish submits that the position could not have been made any worse by recalling these witnesses. We do not agree. The defence legal team was understandably suspicious of the circumstances that caused Sajida and Khaleda to write to the court. There had been contact over the previous weekend between Sajida’s husband and Aslam, the applicant’s son by his former marriage, who was very supportive of his farther. Also, Sajida had not gone so far as to withdraw her evidence that the applicant had mentioned the possibility of killing Shahida or himself. 65. It is plain from the notes supplied by Mr Riordan that the defence team gave careful consideration to whether these witnesses ought to be recalled and decided, on balance, that the dangers of doing so were too great. That was why an application was made to discharge the jury. Decisions of this kind are highly dependant on the “feel” of those who have the conduct of the defence. We do not think any justifiable criticism can be made of those then acting for the applicant. Nor is the safety of the conviction threatened by the course that was followed. Ground 5 The judge erred in failing to direct the jury that the applicant’s good character was relevant in his favour to the likelihood of his having committed murder. 66. The applicant had a conviction in 1971 for malicious wounding, contrary to section 20 of the Offences against the Person Act 1861 , for which he was bound over to keep the peace and fined £10. The judge directed the jury that they should treat the applicant as a man of previous good character and directed them that it was relevant to his credibility. He gave no “propensity” direction. That was in accordance with the law as then understood: see R v Vye (1993) 97 CAR 134, 139: “It might be thought that in such a case (where the defendant charged with murder admits manslaughter) a second limb direction would be little help to the jury.” Subsequently, in Paria v R [2004] Crim LR 228, the Privy Council quashed a murder conviction and substituted manslaughter because the judge had not given any good character direction. The defence at the trial had been provocation. The jury should have been reminded that a man of good character might be unlikely to indulge in very serious violence without first being provoked. We were also referred to R v Gray [2004] EWCA Crim 1074 , where Rix LJ set out various principles relating to the good character direction, albeit Paria does not appear to have been referred to. 67. Any direction on propensity in the present case would have to have dealt separately with whether or not the jury thought the applicant had committed the acts of past violence alleged against him. It does not seem to us that any direction that the applicant’s good character was relevant as showing a lack of propensity to commit offences of violence would in the circumstances have been of any material assistance to him. Ground 6 The judge erred in failing to direct the jury that certain evidence was not evidence against the applicant. 68. The evidence of which complaint is made was given by Mohammed Ishfaq and Bilal. The judge referred to Mohammed Ishfaq’s evidence at 11A in the summing up: “The defendant’s son in law, the man who is married to Sajida and works in Mr Aslam’s restaurant, told you that he, like the defendant, is a very strict Muslim. He said, “if we see a girl….” He meant a daughter, “…..have sex outside marriage, we will kill her.” At the same time, he told you that it is undoubtedly the case that killing is forbidden by the Muslim religion.” 69. Bilal gave evidence that he was warned off by Acmal, Shahida’s brother, and by Aslam his step brother. The judge directed the jury at 11F: “The fact that he was warned off in this way, shows the attitude in the Pakistani community in England, that Pakistani girls should not have a boyfriend, they must remain chaste until marriage and then must only have sex within the marriage.” 70. This evidence was all part of the overall picture in the case. It did not require any comment or direction from the judge. 71. Following the decision in Holley, the applicant, through counsel, sought leave to add a further, seventh, ground of appeal in the following terms: The learned judge misdirected the jury in directing them that they could reject the defence of provocation if they found that the sole reason for the applicant’s loss of self-control was his violent disposition. In our judgment there is nothing in this ground and we refuse leave to appeal on it. The judge was simply covering the possible, albeit unlikely, situation where the only reason the applicant lost his self-control was his own violent disposition rather than as required by the section, “…….provoked (whether by things, done or things said or by both together), to lose his self-control.” Conclusion . 72. This was an unusual case in which the jury heard a great deal of evidence about the applicant’s previous violence to his family. The reason that it was called by the Crown was to refute the defence case that the applicant was a peaceable and non-violent man, whose loss of self-control was completely out of character and explicable only by the provocation to which he was subjected. The evidence was led, understandably in our judgment, without objection from the defence. The judge’s summing-up was fair and appropriate for the case. He explained the law to the jury as it was then understood, following the decision of the House of Lords in Morgan Smith . What we have to decide is whether we are satisfied the conviction is safe in the light of the law as it now is following Holley. 73. The trial proceeded and the judge summed up on the basis of the law of provocation as it was understood to be at the time. That involved a more favourable interpretation to the applicant of the second limb, or objective condition, than is now the law. The jury was invited to consider, broadly, the excusability of the applicant’s conduct in accordance with Lord Hoffman’s speech in Morgan Smith, whereas they should have been invited to consider whether a person of the age and sex of the applicant of ordinary self-control would have acted as the applicant did. The jury should have been told that the applicant’s disposition for violence, if that is what they found that he had, could not assist him on that question; it was irrelevant. The jury, by their verdict, following the directions the judge had given them were satisfied, assuming the other criteria for provocation were met, that the applicant’s behaviour was not excusable so as to reduce the offence of murder to manslaughter. It is impossible to conclude that their verdict would have been any different if they had been directed on the tighter test, as explained in Holley. Accordingly, on the two grounds on which we have granted leave, the appeal is dismissed.	[ "LORD JUSTICE SCOTT BAKER" ]	2005_07_13-550.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1880/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1880	1,036
b08ac4965e5d94a9cf82b81b064f0acac1a8a6175e25fbbc0cb708b75cfd3d04	[2008] EWCA Crim 1374	EWCA_Crim_1374	2008-04-17	crown_court	Case No: 2008/0122/C5 Neutral Citation Number: [2008] EWCA Crim 1374 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 17 April 2008 B e f o r e : LORD JUSTICE MOSES MR JUSTICE DAVID CLARKE MR JUSTICE CRANSTON - - - - - - - - - - - - - R E G I N A v B - - - - - - - - - - - - - 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	Case No: 2008/0122/C5 Neutral Citation Number: [2008] EWCA Crim 1374 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 17 April 2008 B e f o r e : LORD JUSTICE MOSES MR JUSTICE DAVID CLARKE MR JUSTICE CRANSTON - - - - - - - - - - - - - R E G I N A v B - - - - - - - - - - - - - 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 W Clegg QC appeared on behalf of the Appellant Mr A Bird appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES : This is an appeal against a decision of His Honour Judge Bursell of 13th December 2007 at Bristol in which he refused to vary or discharge a restraint order made by His Honour Judge Foley on 20th November 2007 pursuant to section 41 of the Proceeds of Crime Act 2002 ("the 2002 Act"). 2. The appellant was the majority shareholder and managing director of a company incorporated in 1995, "the company". The company mainly deals in the supply of parts of aircraft although from time to time it is undisputed that it also sold aircraft. The circumstances in which the restraint order was made rest upon transactions undertaken by the company through the appellant between September and November 2006. In order to make the restraint order, the judge, His Honour Judge Foley, had to be satisfied that a criminal investigation had been started in regard to an offence and that there was reasonable cause to believe that the alleged offender had benefited from criminal conduct − see section 40(2) of the 2002 Act. Criminal conduct is defined in section 76(1) of the 2002 Act and means "conduct which constitutes an offence in England and Wales". The conduct alleged is identified in section 327 of the 2002 Act and, in short, concerned an allegation that this appellant had concealed or disguised criminal property. Criminal property is defined in section 340(3) and was alleged in the instant proceedings to be property probably from the proceeds of drug trafficking which it was said this appellant knew or suspected constituted a benefit from that conduct. 3. The circumstances in which it was alleged that there was reasonable cause to believe that this appellant had benefited from his criminal conduct were set out in a witness statement from a Judith Ansell dated 2nd November 2007. She is a financial investigator with the Serious Organised Crime Agency. She said in that statement that there had been an arrangement between Mr B in Madrid to sell three aircraft to a company which he had heard was a Venezuelan mining company. The important feature of her statement relates to the manner in which those three aircraft were paid for by the company from South America. The total sale price was US$7,000 but in order to secure the purchase the company was required to pay a deposit of US$310,000. 4. The account of the financial investigator sets out not only the fact that there was going to be a cash deposit of US$310,000, but also the circumstances in which the deal was concluded. 5. The appellant had booked a flight to Madrid early in November 2006. There he met a man (now deceased) who from time to time acted as an agent for his company. There was also present a third man, Jose Armegual, who was acting on behalf of the purchasers. Two unknown males were present. In interview Mr B was asked who he thought these people were; he did not identify them. 6. The sale was concluded for the total figure of US$700,000 as we have said. US$300,000 was paid in cash and carried back by this appellant not by air but rather by train into France and then via France across the ferry. Apparently this appellant had met a member of his family (an uncle) somewhere in Northern Europe (we think Paris) before they travelled back across to England by ferry. 7. The cash was not banked but was placed in a wardrobe at the appellant's address. It was left there until March 2007. He then bought a safe and kept it there. It was discovered on his arrest on 17th May 2007. 8. The financial investigator asserted not only that those facts gave rise to a reasonable cause to believe that he had benefited from the offence we have already identified, but also that there was a risk of dissipation of assets. It was pointed out that he had now been interviewed on four occasions, would have become aware of the seriousness and depth of the investigation and, having regard to the fact that he is financially astute, would have an opportunity to dissipate his assets. 9. The judge making the ex parte order obviously accepted not only that there was reasonable cause to believe that this appellant had benefited from his criminal conduct, but also that there was a real as opposed to a fanciful risk of his dissipating the assets. We emphasise that second feature of the grounds which it is necessary for the prosecution to establish before such an order may be made. It is beyond dispute that any order made against someone in the shoes of this appellant is an order which interferes with his rights of property enshrined in Article 1 of the First Protocol to the European Convention on Human Rights. There can be no justification for such a restraint unless the prosecution establish that there is a real risk that assets will be dissipated which might otherwise meet a confiscation order should there be a conviction. If any further authority is needed for such a proposition it can be found within the very terms of the 2002 Act in section 69(2) which requires that the powers to make a restraint order must be exercised with a view to the value for the time being of realisable property being made available for satisfying any confiscation order which may be made − see section 69(2)(a). 10. The judge considering the application to vary or remove the restraint order on 13th December 2007 considered the facts on which it was said there was reasonable cause to believe that the appellant had benefited from his criminal conduct. He related the circumstances of the cash payment of the deposit, the journey of this appellant back to the United Kingdom and the keeping of the money in the wardrobe without any possibility of it earning interest. He also referred to another feature of the evidence, namely an email that this appellant had sent afterwards which suggested that the aircraft might be used in the future for drug dealing. The email read: "I'm sure there's plenty of use for a four−tonne cargo GI down in that part of the world. Know what I mean." Whether that was intended as a joke or not, it clearly shows that he did associate those with whom he was dealing with nefarious activities in South America. 11. Today, Mr Clegg QC on behalf of the appellant has sought to suggest that there was an insufficient basis for saying that there was reasonable cause to believe that the appellant had benefited from his criminal conduct. He points out that the contract of sale of these three aircraft was to be found on the hard drive of the business computer and accurately recorded the sale of these three aircraft by the company to World Turbo Prop Support Corp (the buyer) in the correct figure of US$700,000. Moreover, there was in existence, although we were only shown it this afternoon for reasons that escape us, a hard copy of that agreement for sale with the correct date on it and signed on behalf of both seller and purchaser. There were other documents that suggested a sale of the self−same aircraft at a much lower figure, US$390,000, to an intermediate company, Gulf Wings FZE. There is an agreement for the sale of the aircraft to that company in the sum of US$390,000 and a sale on for US$700,000 by Gulf Wings FZE to the purchaser. There was a document dated 8th November 2006 confirming that US$310,000 had been received by Gulf Wings as settlement of monies due in respect of the sale of the self−same three aircraft. 12. We do not have to reach any concluded view as to whether the appellant's explanation of these documents removes other inferences which might be drawn from the circumstances of the sale and in particular the carrying back of that very substantial amount of cash once this appellant had met what must have appeared to him to be rather shady purchasers of these three aircraft. Suffice it to say that the judge was on those grounds entitled to conclude, in our view, that there was reasonable cause to believe that the appellant had benefited from his criminal conduct. 13. The next and to our mind important feature of this case was whether the prosecution could establish that there was a real risk that this appellant would dissipate his assets so that there would not be sufficient to meet a confiscation order. Any such confiscation order would not of course be limited to the value of the aircraft, but might be in respect of all his assets if they represented a lifestyle coming within section 10 of the 2002 Act. But the logically prior question is not as to the amount in which the restraint order should be made, but whether there was established a real risk of dissipation. The prosecution were entitled to rely as a feature tending towards proof of a risk of dissipation the very fact of dishonesty which founded the reasonable cause to believe that he had benefited from his criminal conduct. Clearly where there are grounds for suspecting dishonesty those self−same grounds might afford the basis of a real risk of dissipation. If authority is needed for so self−evident a proposition it can be found in the decision of the Court of Appeal, Civil Division, in Jennings v CPS [2005] EWCA Civ. 746 . In that case, Laws LJ said that where there were accusations of dishonesty the risk of dissipation will generally speak for itself − see paragraph 55. With greater precision, Longmore LJ pointed out that in a case where dishonesty is charged there will usually be reason to fear that assets will be dissipated but, he pointed out, if no dissipation has occurred over a long period, particularly after a defendant has been charged, the prosecutor should explain why dissipation is now feared − (see paragraph 61). If there has been a delay between charge and the date of an application then it will be incumbent on the Crown to explain why dissipation was initially not seen as a major risk − (see paragraph 65). The case therefore is important not only in establishing that an inference may be drawn from the very allegation of dishonesty, but also the importance of not overlooking the need for the Crown to establish a real risk of dissipation. We repeat that absent such a risk being established there can be no justification for any interference with property which belongs to a citizen whose rights are protected by article 1 of the first protocol. 14. In the instant appeal the appellant points out that from the date of arrest in May 2007 until the application was made ex parte and was granted in October 2007, no attempt whatever was made to remove the assets from the reach of the prosecution. There is no basis for any suggestion of an attempt to dissipate them. Thereafter there was further delay following a second series of interviews in November 2007 of six weeks before the application was made and even thereafter a further delay of two weeks from the swearing of Miss Ansell's statement. 15. Thus there was a clear opportunity from the time when the appellant was aware of the interest of the prosecuting authorities for him to dissipate his assets. That opportunity was not taken. But the matter does not stop there. Once the order was made and he was aware of it, he was required to disclose the full extent of the assets. He did so and complied with it by disclosing the existence of a donor account in which the company had a credit balance in excess of US$1 million. Not only had he not sought to dissipate any of the finances within that account, but he had disclosed its existence, it being previously unknown to the prosecuting authorities. Furthermore, once the order was granted it was discovered that it had been made wholly without justification, also in respect of the assets of the company of which this appellant was the managing director, a majority shareholder. Once that mistake was discovered the restraint order was varied by consent on 26th November 2007 so that the company's assets were removed from the order. Since he was the managing director and majority shareholder of that company it would have been all too easy for him to take the opportunity of removing at least a proportion of the credit balance in excess of US$2 million which the company held. On the contrary, he did nothing of the sort. This is consistent with the fact that the company had traded honestly so far as one knows, with full disclosure both of company accounts and accounts to the appropriate Revenue authorities successfully for a period of some 14 years. 16. There might be explanations as to why this appellant had not taken advantage of that opportunity to dissipate his assets had there been a real risk that he would do so, but at least that explanation ought to have been carefully set out and considered. The most that was said on behalf of the prosecution was that by the time of the third or fourth interview this appellant might have appreciated that the investigation was more serious than he had hitherto suspected, although it is difficult to see why. The main source of information was an interview and confession of a Mr Armegual in the United States. At no stage has that man, despite his having given evidence to the prosecution, implicated this appellant. 17. Whatever the strength or otherwise of this feature, it called for rebuttal or resistance by the prosecution to explain why there was a real risk of dissipation notwithstanding the opportunity that had clearly been presented to this appellant to dissipate his assets. The judge dealt with the matter in his judgment by finding as a fact that the appellant had indeed had an opportunity to dissipate his assets of which he had not attempted to avail himself. He found that as a fact at page 6F. Nevertheless, having regard to the evidence of dishonesty and one other feature to which we shall return, he took the view that there was a reasonable fear that the assets would be dissipated. 18. The feature on which he relied was, he said, a lack of candour in the first interview. It was said that the appellant had not revealed that he knew that the deposit was going to be paid in cash and further that the "officers had gained intelligence" that the appellant had purchased a cash counting machine to take with him to Spain. It now emerges, and has never been gainsaid by the prosecution, that the appellant himself at the first interview disclosed the fact that he knew that part of the payment for the aircraft was to be in cash, although he said that it often turns out that that would not be the case when a purchaser appears to conclude the deal. Secondly he revealed in interview that once he appreciated that it was correct that part of the purchase price would be paid in cash he had required his company to purchase and send by courier a cash counting machine to Madrid where the deal was to be concluded. It was therefore quite wrong to suggest he had been guilty of a lack of candour in the interview and misleading to suggest that it was the police who had discovered by intelligence that a cash counting machine had been purchased. It was the appellant himself who had revealed that. That is no criticism of the judge who did not have the interviews before him and certainly no criticism of Mr Bird, who was not counsel before the judge and certainly did not have the opportunity to go through the interviews. Indeed it appears neither the appellant nor the prosecution before His Honour Judge Bursell QC had had that opportunity. So part at least of the basis upon which the judge appears to have founded his conclusion that there was a real risk that the assets would be dissipated goes, on analysis of the facts as they are now revealed to us. Furthermore, in the light of the facts that we have identified of this appellant not taking the opportunity with which he was presented to dissipate his assets, it was incumbent both on the prosecution and the judge by way of reasoning to explain how it could be said that there was a real risk that he would dissipate the assets in the future when he had had every opportunity to do so in the past. In our view no such explanation has ever been forthcoming; no reasoning has been advanced upon which such a conclusion could be based. 19. The powers of this court on appeal have been helpfully explained by Mr Bird. We have power to make the order that we believe appropriate pursuant to sections 43(2) and (3). The Criminal Procedure Rules 73.7.3 are based upon our jurisdiction to allow an appeal where we take the view that the decision of the Crown Court was wrong. Of course in many cases a Crown Court Judge will have a better opportunity than this court to evaluate evidence, but it should be noted that in a case such as this the only proper safeguard of the rights of one whose property is to be interfered with by a restraint order is careful scrutiny by the judge both on the ex parte hearing and on any application to vary or discharge not only of the issue as to whether there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct, but whether there is a real risk that the assets will be dissipated. It should be noted that in the case on which the prosecution founded its argument, Jennings, the application was made after the subject of the restraint order had been prosecuted and indeed during the trial. Here, where a citizen has not even been charged and still has not been charged, it is particularly important to see that there is a proper basis for such a serious order. 20. In the instant appeal Mr Clegg has relied upon the disastrous consequences not just to the appellant personally but also to his business as a result of the order being made. The company depends upon, as one would expect, credit and financial facilities from banks which are no longer available whilst such a restraint order is in place. That of itself is not and should not be a ground for allowing this appeal if the conditions and basis upon which such an order may properly be made have been established. But those facts do serve to demonstrate how serious it is to make an order such as this and therefore the obligation upon any judge either considering it ex parte or on an application to vary or discharge to see that those bases are not only established but that there are goods reasons for making and reaching the conclusion that they have been established. After all, the giving of reasons for making such a decision not only tells the subject of such an order why they have been made, but afford a powerful discipline to the judge who is obliged to consider whether the grounds have been established. We note that pursuant to the Criminal Procedure Rules 16.61.3 such applications are to be dealt with without a hearing unless the Crown Court orders otherwise. But we wish to stress that the fact that they are to be dealt with without a hearing does not in any way obviate the need for careful scrutiny by the court on an ex parte application, lest rights enshrined in the European Convention of Human Rights should be infringed. In the instant case it is by no means clear why it was that the judge on the ex parte application made this order notwithstanding the fact that there had been an opportunity to dissipate the assets which had not been taken. 21. There was no justification for the conclusion that there was a risk that this appellant would dissipate his assets, having regard to the history of his failure to take advantage of the previous opportunity. In those circumstances we will allow this appeal. 22. So far as the cash recovered, that is already protected under a Magistrates Court order, as we understand it, and the rest of the order will therefore be discharged. 23. MR CLEGG: My Lord, I apply for costs in this court and the court below. 24. LORD JUSTICE MOSES: Do they get sent off for taxation? 25. MR CLEGG: Yes. 26. LORD JUSTICE MOSES: Who do they come from? 27. MR CLEGG: From or to? 28. LORD JUSTICE MOSES: From. Is it central funds? 29. MR CLEGG: The parties, as I understand it. 30. LORD JUSTICE MOSES: Yes, Mr Bird? 31. MR BIRD: My Lord, there were, I think, three grounds of appeal upon which only one succeeded. So in my submission my learned friend if he is to have costs of the appeal they should only be one−third and should not include the costs of the witness statement which form no feature of your Lordships' judgment. As far as the overall costs are concerned, there will be of course the costs below as well so I would ask they go off for taxation. 32. LORD JUSTICE MOSES: Who is the order made against? 33. MR BIRD: The order will be made against the prosecutors, so the Revenue and Customs Prosecution Service. 34. LORD JUSTICE MOSES: Yes. 35. MR CLEGG: Does my Lord want to hear me about whether the order ought to exclude the witness statement, or not? I think my learned friend suggested that you should order costs against the Revenue and Customs except for the costs of the witness statement. 36. LORD JUSTICE MOSES: One moment. (Pause) What do you want to say about the witness statement? 37. MR CLEGG: My Lords allowed me to refer to the witness statement. It included largely material that was before the judge at first instance and therefore was part of the material that he had before him. It is in our submission an important part of the background of the case. I anticipate my Lords looking rather surprised if I had come along here and not told you what the impact the order had. 38. MR JUSTICE DAVID CLARKE: If you are getting your costs of the court below as well then if this court did not cover it that would, but in fact it was only done after. 39. MR CLEGG: It was in fact only done after, my Lord yes, because we were short of time before. 40. LORD JUSTICE MOSES: You can have all your costs, to be taxed if not agreed. 41. MR BIRD: Your Lordship should say the appeal and the proceedings below. 42. LORD JUSTICE MOSES: Of the appeal and the proceedings below.	[ "LORD JUSTICE MOSES", "MR JUSTICE DAVID CLARKE", "MR JUSTICE CRANSTON" ]	2008_04_17-1460.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1374/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1374	1,037
7fff2b7eaec6e79a264ecf95c260014e7d0ca2fc6c0968fe5d89cf96fecc6dd6	[2018] EWCA Crim 2944	EWCA_Crim_2944	2018-12-18	crown_court	Neutral Citation Number: [2018] EWCA Crim 2944 Case No: 201804592/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 18 December 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE RECORDER OF STAFFORD (HIS HONOUR JUDGE MICHAEL CHAMBERS QC) (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - R E G I N A v TOMMY JOE TREMAYNE - - - - - - -	Neutral Citation Number: [2018] EWCA Crim 2944 Case No: 201804592/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 18 December 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE RECORDER OF STAFFORD (HIS HONOUR JUDGE MICHAEL CHAMBERS QC) (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - R E G I N A v TOMMY JOE TREMAYNE - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr J Polnay appeared on behalf of the Attorney General Ms R Bradberry appeared on behalf of the Offender - - - - - - - - - - - - - - - - J U D G M E N T (Approved) WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. 1. LORD JUSTICE HOLROYDE: On 10 September 2018, in the Crown Court at Taunton, Tommy Joe Tremayne pleaded guilty on re-arraignment to an offence of assault with intent to rob, contrary to section 8(2) of the Theft Act 1968. He was sentenced to a 2-year community order with a requirement to undertake 200 hours unpaid work and to complete over 20 days a rehabilitation activity requirement. He was also ordered to pay compensation to the victim of the offence in the sum of £500. 2. Her Majesty's Solicitor General believes that sentence to be unduly lenient and accordingly applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing can be reviewed. 3. We express at the outset our gratitude to counsel, Mr Polnay for the Solicitor General, and Ms Bradberry, here, as below, for Mr Tremayne. Their written and oral submissions have been of a high quality and have been of great assistance to the court. 4. The offence was committed on 15 September 2016. Mr Tremayne was then aged 24. As the pre-sentence report before the sentencing judge indicated, Mr Tremayne's life as a child had been chaotic. For some of his childhood his mother was in prison and he had lived with an aunt. He was excluded from school at the age of 14 and attained no formal qualifications before reaching school leaving age. He ran away from home at the age of 15 and thereafter lived on the streets, spending his time with older men who introduced him to drugs. He described to the reporting probation officer that he had been a victim of sexual abuse. He committed crimes to finance his drug habit. By the time of the sentencing of the present offence he had accumulated some 80 previous convictions, the majority of which were for offences of dishonesty but some of which were for offences involving drugs, damage and violence. 5. The victim of the offence was Mr Mullins, a man aged in his early 50s who has the misfortune to have sustained a brain injury and to suffer from learning difficulties and schizophrenia. His disabilities required him to live with carers. A witness to the events described Mr Mullins as "dishevelled and vulnerable". 6. Mr Mullins enjoyed visiting and sitting in a local park and was doing so when he was approached by Mr Tremayne. Mr Tremayne was heavily intoxicated. He had been spoken to by police officers only about 15 minutes earlier. He approached Mr Mullins and demanded his money. Mr Mullins tried to run away. Mr Tremayne chased him and shouted at him. Mr Mullins asked to be left alone. But Mr Tremayne continued to pursue, his conduct being described by an eyewitness as "very aggressive". Mr Mullins then slipped or tripped and went to the ground. Mr Tremayne, shouting "give me your money", knelt on him, held him down and punched him. He then bit off the top of Mr Mullins's right ear before, as a witness described it, swaggering off. 7. Mr Tremayne was arrested nearby. He was aggressive with the arresting officers. At the police station he made remarks appearing to say that he had beaten up someone who had raped him. Plainly Mr Mullins had done no such thing. When interviewed under caution, Mr Tremayne made no comment to the questions but put forward a prepared statement in which he expressly denied the offence. He initially pleaded not guilty. The case was prepared for trial and defence expert evidence was obtained with reference to bloodstaining found on Mr Tremayne's clothing. 8. Mr Mullins, for his part, was taken to hospital after the incident. His injured ear was stitched but we understand he is left with a very visible deformity. In a victim personal statement prepared about 6 months after the assault, Mr Mullins said that for about 2 months after the incident he had not visited Taunton at all and then had only visited in the company of care staff. He had not returned to the relevant park. He now avoided back streets, became frightened if he saw people in groups and still became upset when he reflected on the incident. 9. At the time of committing this offence Mr Tremayne was on licence from a sentence of 30 months' imprisonment which had been imposed on 8 January 2015 for an offence of robbery. The circumstances of that offence were that Mr Tremayne, whilst intoxicated by drink and/or drugs, had robbed a shopkeeper at knife point. Remarkably, that offence had itself been committed whilst on licence from a prison sentence totalling 23 months for a number of offences of dishonesty, driving whilst disqualified and breach of a suspended sentence. Thus, to put it shortly, at the time of the present offence, Mr Tremayne was on licence from a sentence imposed for an earlier offence which had itself been committed on licence. 10. Following his arrest for the present offence it seems that Mr Tremayne was on bail for a time but was then recalled from licence in about early January 2017 and remained in prison until 4 July 2017. Although we do not have precise dates, we take it that he was recalled from licence for a period of about 6 months. 11. It is also relevant to note that in July 2016 Mr Tremayne had committed an offence of criminal damage to which he was later to plead guilty. He had been required to attend court on 19 September 2016. It follows that this offence, in addition to being committed on licence, was committed only days before he was due to appear in a court. 12. Having been charged with the present offence, Mr Tremayne was sent for trial by the magistrates on 8 February 2017. He then made no fewer than 10 Crown Court appearances before entering his guilty plea. An initial listing for trial was stood out because both prosecution and defence wanted more time to prepare and in particular, the prosecution had not served all their evidence. A later trial listing in November 2017 did not proceed because of a combination of a lack of court time and the defence lawyers still awaiting the report from the instructed expert witnesses. In the course of these hearings a defence case statement was served in which Mr Tremayne denied that he was the person who had assaulted Mr Mullins. 13. His eleventh appearance in the Crown Court was on 10 September 2018, when the case was listed for trial. Counsel on his behalf sought a Goodyear indication, on the basis of a guilty plea accepting the prosecution evidence as to the facts, but asserting that Mr Tremayne had little, if any, recollection of the incident because of his level of intoxication. Submissions were made to the judge as to the guidelines. Although there is no offence-specific guideline for the offence of assault with intent to rob, it was common ground between the parties, and accepted by the judge, that the Sentencing Council's Definitive Guideline for Robbery Offences, in particular the section devoted to street robberies, was relevant to this case. In terms of that guideline the prosecution then submitted that it was a category 1B offence. The defence submitted that it was between category 1B and category 2B. The judge took the view that it was a category 2B offence. He indicated that he would be prepared to give credit for a guilty plea of between 15% and 20%, because although the plea would be coming very late in the day, it would spare a very vulnerable victim from having to give evidence. By that route the learned judge indicated that in the event of a guilty plea at that stage the maximum sentence he would impose would be one of 3 years 4 months' imprisonment. 14. Mr Tremayne then entered his guilty plea. An alternative count of wounding with intent was ordered to lie on the file. 15. The pre-sentence report referred, as we have indicated, to the very unhappy personal history of Mr Tremayne. It indicated that he was now living with a female partner who had mental health problems and for whom Mr Tremayne acted as carer. The report regarded Mr Tremayne as being unable to comply with an unpaid work requirement because of his care responsibilities. It was however submitted by counsel on Mr Tremayne's behalf that the practical difficulties of his care responsibilities towards his partner could be overcome and should not stand in the way of a community order. 16. The author of the pre-sentence report observed that immediate custody "would have a negative impact on Mr Tremayne's mental health". She assessed his level of risk as being manageable in the community and said that immediate custody "would provide Mr Tremayne with significant barriers in the future which could lead to further offences being committed". She proposed a community order of 24 months' duration with a rehabilitation activity requirement, focusing on victim awareness and alcohol and substance misuse and also combined with a curfew requirement and a financial penalty. 17. On Mr Tremayne's behalf, counsel submitted that his personal circumstances had changed dramatically since the commission of the offence. In the long period which had elapsed he had stopped taking illicit drugs, had cut down on his consumption of alcohol and was now living with and caring for his partner. He had mental health issues of his own for which he had appropriately consulted his general practitioner. Counsel acknowledged that since his commission of this offence, and following his release from the period of recall to custody, Mr Tremayne had been involved in an incident with a neighbour, which had resulted in his pleading guilty on 14 July 2018 to an offence contrary to section 4 of the Public Order Act, for which he was fined. That offence, as we understand it, involved threatening words or behaviour in the course of an incident which, as counsel put it "got out of hand". She submitted that Mr Tremayne was fearful, that if imprisoned he would resort to the use of drugs in order to cope with his sentence, and that on release he would be thrown back into the company of undesirable companions from whom he had succeeded in distancing himself. 18. In his sentencing remarks, at page 12C-G the judge said this: "A sentence of 3 years and 4 months' imprisonment, even though you pleaded guilty on the day of trial, would be justified. I do not consider, in the circumstances, however, that such a sentence would benefit either society on a wider basis or you on an individual basis, and I am going to take an exceptional course of action and sentence you considerably outside the guidelines. I am doing so for those reasons: 1) you have kept out of trouble for the past two years. 2) you seem to have turned your life around, and the drugs and alcohol abuse that was previously a significant factor in your life has come to an end. 3) you are the carer for your partner, who is a lady with considerable needs and, without you, it seems her life would become even more difficult. 4) you have your own mental health difficulties. 5) I consider that it is infinitely better that society should benefit from your rehabilitation rather than you spend a period of imprisonment, where you would get little support on your release and where you may well go back to your past life and way of behaviour." 19. In his submissions to this court Mr Polnay seeks to depart from the submissions of prosecuting counsel below and argues that this case fell into culpability category A of the guideline for two reasons, namely that biting should be equated with "use of a weapon to inflict violence", and that the biting off part of the ear could only be regarded as the "use of very significant force in the commission of the offence". On that view, putting the case into category 1 for harm because of the serious physical and/or psychological harm caused to the victim, Mr Polnay points out that the guideline indicates a starting point of 8 years' custody and a range from 7 to 12 years. In addition, he submits there were a number of serious aggravating features. First, Mr Tremayne has relevant previous convictions. Secondly, he committed this offence when awaiting a court hearing for another matter. Thirdly, he committed the offence whilst on licence. Fourthly, the victim was targeted due to an apparent and actual vulnerability. Fifthly, the offence was committed whilst under the influence of drink and/or drugs. 20. Mr Polnay acknowledges the presence of mitigating features, namely that Mr Tremayne suffers from anxiety and depression, that he had taken steps to try to address his addiction or offending behaviour and that he was the sole or primarily carer for a dependent relative. This personal mitigation, though highly relevant, he submits can carry only limited weight in the face of such serious offending. 21. As to the credit given for the guilty plea, he submits that there was no good reason to allow more than the 10% credit indicated for a plea at trial in the Sentencing Guidelines Council's guideline which was applicable to this case. He reminds us of the case law which states that the fact that a guilty plea has been entered after a Goodyear indication is not in itself a bar to this court finding a sentence to be unduly lenient, even where prosecuting counsel at the court below has failed to state specifically that the Goodyear indication would not be a bar to an Attorney-General's Reference. 22. Mr Polnay submits that even if in this court disagrees with his categorisation of the offence under the guideline, the offence was simply too serious to be met with anything other than a significant custodial sentence. He submits that the judge below was wrong to allow the mitigating factors to outweigh that consideration. 23. Ms Bradberry submits that the sentence was not unduly lenient. The experienced judge properly considered all the relevant factors and was entitled to take the course which he did. Ms Bradberry submits that the case was correctly placed in category 2B. She argues that it is not appropriate to treat biting as the use of a weapon and submits that there was no basis for regarding this as a case of very significance force. The harm caused was plainly serious but not so serious, she argues, as to fall into category 1. Under the Sentencing Guideline Council's guideline a reduction of 10% for a late guilty plea was not a fixed maximum. 24. She reminds us that the purposes of sentencing specified in section 142 of the Criminal Justice Act 2003 are: "(a) the punishment of offenders (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences." She argues that the lengthy period which passed between the commission of the offence and the sentencing hearing enabled the court to see that Mr Tremayne had the capacity to be reformed and rehabilitated. His rehabilitation and reform would be the best protection for society. In that respect it would be more effective than, unhappily, previous prison sentences appeared to have been. She quotes in her written submissions the sentencing remark which we have cited above and argues that a prison sentence would have no benefit in terms of rehabilitation, the reduction of crime or the protection of the public. She emphasises the risk that a prison sentence would cause Mr Tremayne to resort once again to drug use and would give rise to the prospect of homelessness upon release. 25. We have reflected on the able submissions made on both sides. We agree that the Sentencing Council's Street Robbery Guideline is relevant. There is, in our view, room for argument as to the appropriate categorisation of this offence in terms of that guideline and we remind ourselves that at step 1 of the sentencing process the guideline specifically says that: "Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender’s culpability." 26. Biting can properly be regarded as the use of a weapon. However, we disagree with Mr Polnay's submission as to the use of "very significant" force. There is, as it seems to us, no evidential basis in this case for coming to such a conclusion.In our view, the judge was entitled to conclude that category B was a fair assessment of the level of culpability. As to the level of harm, it seems to us that there was much to be said for Ms Bradberry's initial submission in the court below that the case fell between categories 1 and 2. We agree with Mr Polnay's summary of the relevant aggravating and mitigating features. We conclude that the learned judge would have been entitled to say that the appropriate sentence, before giving any credit for the guilty plea, would be one of 5 years' imprisonment. In the event, it would appear that the learned judge took a sentence of 4 years' imprisonment before allowing a reduction of 15% for the guilty plea. That was, in our view, very generous to Mr Tremayne. Bearing in mind however that Mr Tremayne was for a time recalled to prison and that he has for a time now been subject to the requirements of the order, we would not think it appropriate, at this stage, to depart from the length of sentence which the judge indicated when giving his Goodyear indication. 27. We turn now to the question of whether in all the circumstances of the case it was properly open to the judge to depart altogether from the category range appropriate under the guideline and to impose a non-custodial sentence as he did. The following factors are, in our judgment, relevant. First, with all respect to the learned judge, we think that it rather overstates the position to say that Mr Tremayne had "kept out of trouble for the past 2 years". He had been recalled to prison for some 6 months of that period and when at liberty he had in fact re-offended, albeit in a substantially less serious way. Secondly, the personal mitigation in this case is undoubtedly significant, and it is much to Mr Tremayne's credit that during his recent period at liberty he appears to have been avoiding drugs. The other side of the coin, however, is that during the period after the commission of the offence he was very far from showing any remorse for his actions. After his initial drunken statements about what had happened, he continued to deny the offence and to contest the proceedings. He was of course entitled to do so. But his decision to do so, in our view, weakens the claim that he has shown himself to be reformed. It must not be forgotten that although in the end the guilty plea spared the victim giving evidence, that was at the conclusion of a very lengthy process during which the victim must have been worrying about the prospect that he would have to give evidence. 28. Thirdly, it would be wrong to think that when released on licence after a custodial sentence Mr Tremayne would be left largely without assistance and that meaningful support for him in addressing his various problems could only be obtained by the imposition of a community order. 29. Fourthly, we agree that imprisonment would be hard for Mr Tremayne and risks testing his current good resolutions beyond his capabilities and we agree that that it would be very hard on his partner. But set against all that is the necessity to have regard to the need to impose appropriate punishment for this very serious offence against a most vulnerable person. 30. We bear very much in mind that the experienced judge had a discretion to exercise. He clearly considered the relevant factors and took care to set out his reasoning. We have hesitated as to whether it is right to conclude that he could not properly have come to the decision he did. We are however driven to that conclusion. The sentence imposed, in our judgment, was simply not adequate to reflect, and to provide just and proportionate punishment for, this very serious offence committed against a vulnerable victim whilst on licence. The personal mitigation available to Mr Tremayne has, as it seems to us, received significant acknowledgement in the length of the sentence indicated by the judge below. We accept, of course, that the rehabilitation of offenders is very important and we do not lightly go behind the decision of a judge who has had that factor in mind. It is however important also not to lose sight of the position of the victim. 31. We conclude that the sentence was unduly lenient. We therefore grant leave to refer, we quash the sentencing below in all its aspects and we substitute a sentence of 40 months' imprisonment. 32. Ms Bradberry, the offender will have to surrender. Are you able to assist us with the relevant police station? 33. MS BRADBERRY: Bridgewater Police Station. 34. LORD JUSTICE HOLROYDE: Bridgewater. 35. MS BRADBERRY: Obviously Mr Tremayne is in Taunton, his instructing solicitor hopefully will pass that message on to him as well as today's proceedings and he will have to get himself there. There is a police station in Taunton and I think if he gets into any difficulties he will just have to present himself there and the police make arrangements to get him to Bridgewater. 36. LORD JUSTICE HOLROYDE: Bridgewater Custody Centre. If we say by 4.00 pm today? 37. MS BRADBERRY: Certainly. 38. LORD JUSTICE HOLROYDE: Thank you very much indeed. Is there anything else Ms Bradberry, Mr Polnay? 39. MR POLNAY: I hesitate to raise it, the administration variation of the statutory surcharge. 40. LORD JUSTICE HOLROYDE: There must in addition be the surcharge in the appropriate sum. Thank you for reminding me. £170. We are grateful to the Associate as always. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE HOLROYDE", "MRS JUSTICE ANDREWS DBE" ]	2018_12_18-4459.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2944/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2944	1,038
0bcfcd7cdfd74566dd0975858c610afd85e2ad7f17023e1d7de986c09995a8e5	[2022] EWCA Crim 266	EWCA_Crim_266	2022-02-16	crown_court	WARNING: reporting restrictions apply to the contents transcribed in this document, as shown 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.	WARNING: reporting restrictions apply to the contents transcribed in this document, as shown 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 IN THE COURT-MARTIAL APPEAL COURT CASE NO 202103314/B5 NCN [2022] EWCA Crim 266 Royal Courts of Justice Strand London WC2A 2LL Wednesday 16 February 2022 LORD JUSTICE HOLROYDE MR JUSTICE PEPPERALL MR JUSTICE SWEETING REGINA v ADAM SINEY 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 (Approved) 1. LORD JUSTICE HOLROYDE: This is a renewed application for leave to appeal against sentence in a case involving sexual offences. The victim of the offences (to whom we shall refer as "C") is entitled to the lifetime 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 these offences. 2. On 1 October 2021, in the Military Court Centre at Bulford, this applicant, then a Lance Corporal in the Princess of Wales's Royal Regiment, pleaded guilty to an offence of misconduct through alcohol, contrary to section 20(1) (b) of the Armed Forces Act 2006 . He was convicted following a trial of three offences, contrary to section 42 of that Act , of committing a criminal offence namely sexual assault, contrary to section 3 of the Sexual Offences Act 2003 . The third of those offences was a multiple offence charge relating to at least five occasions other than those mentioned in the other charges. The applicant was sentenced to a total term of 180 days' Service detention, comprising 180 days on the third charge and 30 days concurrent on each of the other charges. He was further sentenced on charge 3 to be reduced in rank to Private. As a result of his convictions he became subject to the notification requirements in Part 2 of the Sexual Offences Act 2003 . 3. For present purposes the relevant facts can be stated very briefly. All of the offences were committed in the course of one night in early 2020. C was a private soldier in the same regiment. She had previously got on well with the applicant. On the night in question, however, he behaved wholly inappropriately towards her at an informal party. He complimented her on her bottom, made unwelcome comments about her appearance and repeatedly groped, hit and slapped her buttocks. When she left the party she told him not to follow her, but he did so, and made persistent attempts to enter her room, asking her for a kiss. 4. The applicant was 33 years old at the time of his sentence. The Court-Martial took into account his 6 years of service and a testimonial from his senior officer who described the offending as being "out of character". The court agreed with the submission of both advocates that the sexual assaults fell into category 3B of the relevant sentencing guideline, with a starting point of a high-level community order and a range from a medium-level community order to 26 weeks' custody. The repeated nature of the offending, the fact that it was committed in front of others and the applicant's intoxication were aggravating factors. There was limited personal mitigation. 5. The court indicated that the offences have had a significant effect on C, and took the view that it was necessary to deter anyone who thought that such behaviour would be tolerated. It indicated that the applicant could consider himself lucky not to be dismissed from Her Majesty's service. They said that his conduct had shown a complete lack of respect for a fellow soldier and was unacceptable, particularly for a junior NCO who was expected to set an example to others. 6. In his grounds of appeal the applicant submits that the sentence was unduly harsh when compared to other, unspecified, cases. He particularly appeals against the notification requirements, which he submits may result in his being discharged from the service even though the Court-Martial did not order his dismissal. 7. In refusing leave to appeal on the papers, the single judge referred to the paragraph 5.10.3 of the Judge Advocate-General's Guidance on sentencing in the Court Martial, Version 5 which states: "Minor sexual assaults are more serious in a Service context than in civilian life because they can cause resentment and undermine unit cohesion. Where the offender is superior to the victim the rank differential is an aggravating feature. Normally a short period of custody is appropriate, even for very minor offences and reduction in rank is almost inevitable." 8. We must make clear that we are concerned at this stage only with the renewed application for leave to appeal against sentence. We understand that the applicant also wishes to appeal against his conviction, but that is a separate matter which is not before this court. 9. In our judgment, the Court-Martial correctly identified the aggravating and mitigating factors and was entitled to conclude that a total term of 180 days' Service detention was appropriate. Offending of this nature is particularly serious in the military context, and the Court-Martial was entitled to take the view that an element of deterrence was necessary. No case has been drawn to our attention in support of the suggestion that the sentence was excessive by comparison with other cases. Like the single judge, we can see no arguable ground for challenging the sentence. 10. Notification requirements under Part 2 of the 2003 Act are an automatic consequence of conviction of certain sexual offences. They are not a separate part of the punishment. The effect of the relevant provisions of the Act , namely sections 80 , 82 and 137 and paragraphs 18 and 93A of schedule 3 to that Act , is that a person who is convicted by a Court-Martial of an offence of committing a criminal offence of sexual assault, and is sentenced to more than 112 days' Service detention, automatically becomes subject to those requirements. It would not have been proper for the Court-Martial to reduce the lowest sentence which it regarded as appropriate, namely 180 days, in order to avoid that statutory consequence. There can therefore be no successful appeal against the notification requirements. 11. We note that paragraph 3.4.15 of the Guidance indicates that the Court-Martial has no power to forbid or prohibit the subsequent administrative discharge of a serviceman, but adds that in fairness the Services ought not to discharge subsequent to a decision of the court not to dismiss unless there are other relevant factors which were not before the court. 12. For those reasons, which are essentially the same as those given by the single judge, this renewed application fails and is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE HOLROYDE", "MR JUSTICE PEPPERALL", "MR JUSTICE SWEETING" ]	2022_02_16-5271.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/266/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/266	1,039
13260cbdecd504e3170f8ff23b61cff0b6934bbe1e32b1ef57fa66bb572e698e	[2020] EWCA Crim 1387	EWCA_Crim_1387	2020-10-29	crown_court	Neutral Citation Number: [2020] EWCA Crim 1387 Case No: 201902069 B4 201902071 B4 201902075 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM His Honour Judge Sampson T20167439, T20167433,T20167434 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29 th October 2020 Before : LORD JUSTICE GREEN MR JUSTICE SPENCER and HIS HONOUR JUDGE MENARY QC (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Bet	Neutral Citation Number: [2020] EWCA Crim 1387 Case No: 201902069 B4 201902071 B4 201902075 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM His Honour Judge Sampson T20167439, T20167433,T20167434 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29 th October 2020 Before : LORD JUSTICE GREEN MR JUSTICE SPENCER and HIS HONOUR JUDGE MENARY QC (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and – JOHN LOWTHER LUKE LOWTHER DAVID LOWTHER Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ivan Krolick (instructed by Khan Solicitors ) for the Appellants Ben Isaacs (instructed by CPS Appeals and Review Unit ) for the Respondent Hearing date: 6 th October 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 protocol: This judgment will be handed down by the Court remotely, by circulation to the parties’ representatives by email and, if appropriate, by publishing on www.judiciary.uk and/or release to Bailii. The date and time for hand down will be deemed to be 29 th October 2020 at 10.30 am Mr Justice Spencer: Introduction and overview 1. These three appellants, who are brothers, appeal by limited leave of the single judge against confiscation orders made against them in the Crown Court at Nottingham following their conviction for serious conspiracy offences involving blackmail, money laundering, intimidation and perverting the course of justice. They also renew their applications for leave to appeal on all the grounds for which the single judge refused leave. 2. The appellants each pleaded guilty on 16 th March 2017, the fourth day of the trial. On 7 th April 2017 they were sentenced by His Honour Judge Sampson. For John Lowther (now aged 42) and Luke Lowther (now aged 37) the total sentence was 8 years’ imprisonment. For David Lowther (now aged 28) the total sentence was 9 years’ imprisonment. Each of them was made the subject of a serious crime prevention order under section 19 of the Serious Crime Act 2007 for a period of 5 years. There were other ancillary orders. 3. The confiscation proceedings eventually came on for hearing before Judge Sampson nearly two years later in February 2019. There was a five-day hearing, at the conclusion of which, on 8 th February 2019, the judge gave a ruling on the issues of principle which had been raised. Mr Krolick appeared at that hearing on behalf of John and Luke Lowther. David Lowther was represented by other counsel. Mr Isaacs appeared for the Crown. The judge directed that counsel should endeavour to agree the figures for the respective confiscation orders based upon his ruling. That is what happened. There was liaison between the prosecution’s financial investigator, Ms Naylor, and the forensic accountant instructed on behalf of the appellants, Mr Davidson. 4. The matter came back before the judge on 29 th March 2019. Substantial progress had been made in agreeing the figures, but three outstanding issues were the subject of further argument and ruling. By this stage David Lowther and his lawyers had parted company and he was unrepresented. The judge adjourned his case for two weeks so that he could obtain fresh representation. The ruling the judge gave on 29 th March therefore related only to John and Luke Lowther. 5. The matter finally came back before the judge on 10 th May 2019. The judge enquired whether the confiscation issues had been resolved in the case of David Lowther and was assured by his new counsel, Mr Harry, that the figures were now agreed in his case as well. The judge went on that day to deal with the applications for serious crime prevention orders but returned briefly to the confiscation orders at the end of that hearing to deal with a discrete matter relating to compensation orders and apportionment, to which we shall have to return at the end of this judgment. 6. On 10 th May 2019, at the conclusion of the hearing, the judge made confiscation orders as follows. 7. In the case of John Lowther the benefit figure was £263,719.40. The available amount was found to be £198,202.41 and a confiscation order was made in that sum. 8. In the case of Luke Lowther the benefit figure was £172,722.50. The available amount was found to be £170,540.77 and a confiscation order was made in that sum. 9. In the case of David Lowther the benefit figure was £248,869.41. The available amount was found to be £183,759.06 and a confiscation order was made in that sum. 10. In each case the order was to be paid within 3 months, with appropriate periods of imprisonment in default. 11. On behalf of each of the three appellants Mr Krolick settled grounds of appeal supported, in each case, by a fully reasoned advice on appeal. Mr Isaacs settled a detailed respondent’s notice and addendum, addressing each of the grounds. 12. The single judge refused leave on all grounds but one. In respect of that ground there was a concession in the respondent’s notice that the judge should have deducted from the value of the various properties still held by the appellants the costs of sale if the properties had to be realised. In the light of that concession the single judge granted limited leave on that ground only. He directed that the parties should agree the financial consequences of the appeal being allowed on this sole ground and directed that an agreed order should be lodged within 21 days. He granted a representation order for counsel, limited to the work in agreeing the order. 13. Pursuant to that direction there were exchanges of emails between the parties. Mr Isaacs, on behalf of the prosecution, prepared a draft agreed order based on the figures for costs of sale provided by the appellants’ solicitors. The draft was not agreed by Mr Krolick and his solicitors. At the outset of the hearing of the appeal and the renewed applications on 6 th October 2020 we were informed that the figures Mr Isaacs had included in the draft order were now agreed. There remained an issue of principle, however. Mr Isaacs contends that the costs of sale should be deducted only from the figure for the realisable assets of the respective appellants, whereas Mr Krolick contends that the costs of sale should also be deducted from the benefit figure for each appellant as well. 14. Accordingly, we have to deal with two matters. First, we must consider whether any of the renewed grounds are arguable. Second, if we refuse leave on all those grounds, we must deal with the outstanding ground of appeal on which leave has been granted and decide what adjustment should be made to the confiscation orders in the light of the concession that the judge should have deducted the costs of sale in determining the value of the relevant properties. We heard the appeal and the renewed applications on 6 th October 2020. We reserved our decision in view of the volume of documentation we needed to review in the light of counsel’s submissions, including additional material supplied after the hearing which counsel wished us to consider. There has also been an extensive exchange of further written submissions on one aspect of the case, which is dealt with in the footnote at the end of this judgment. 15. We are grateful to Mr Krolick and to Mr Isaacs for all their submissions, written and oral. In his oral submissions Mr Krolick highlighted the points advanced very fully in his grounds of appeal and written advices, all of which we have considered carefully. We do not propose to rehearse every point and every argument. We shall concentrate on the issues of principle which Mr Krolick has urged upon us. The renewed applications for leave to appeal The facts of the offences 16. We deal first with the renewed applications for leave. It is necessary to set the submissions in their factual context. The three appellants were born into the travelling community, although they are not Romanies. The appellants were convicted of a series of offences arising from their operation of a “protection” business, as the prosecution described it. There was targeted and persistent extortion of businesses backed up with threats and, when necessary, the use of violence. The appellants laundered the proceeds of the crimes. None of the appellants had any formal employment or income but each built up a portfolio comprising several plots of land and a number of properties. 17. Four sets of complainants and businesses provided evidence against the appellants and their associates. Two are particularly relevant to the confiscation proceedings. 18. Count 1 charged all three defendants with conspiracy to blackmail Steven and Paul Horobin, directors of a haulage and concrete mixing business operating across Derbyshire. The appellants repeatedly targeted the Horobins and made numerous demands for money, accompanied by acts of intimidation, threats of violence and damage to property. As a result, the Horobins acceded to the blackmail demands and paid a total of £29,500 to the appellants in instalments. John and David Lowther were paid £29,000. Luke Lowther was paid £500. 19. Count 2 charged Luke and David Lowther with conspiracy to blackmail Garry Longdon, a skip driver with a company called Heanor Mini Skips, obtaining £1,500 by menaces. Following the theft of one of his lorries Mr Longdon was directed to the appellants who said they could assist him for a fee. His lorry was subsequently returned but he was accused of denigrating the appellants. As a result he was assaulted and further cash was demanded from him by Luke Lowther. When the matter was reported to the police there was further intimidation by David Lowther and the co-accused, Ryan Colson, which led to Mr Longdon attempting to retract his statement. That gave rise to a charge of perverting the course of justice. 20. It was discovered that the appellants had been laundering the proceeds of their criminal activities through the co-accused Colson’s company. The police investigation had uncovered numerous financial transactions between the parties and from the evidence of the recorded calls from prison it emerged that John Lowther and his sister Caroline McDonagh had discussed how they would obtain the £70,000 that the appellants had invested in Colson’s company. That gave rise to count 21 which charged John and David Lowther and Colson (and others) with a money laundering conspiracy to arrange the removal collection and transfer of cash to and from Colson. In the event the prosecution contended that the benefit obtained by the appellants John and David Lowther from the conspiracy in count 21 was limited to £30,000. By the time of the confiscation hearing the co-accused Colson had already satisfied a confiscation order for £30,000 in respect of count 21. Consequently, and to avoid double recovery, this sum of £30,000 was not included in the benefit figure for John Lowther or for David Lowther. The confiscation proceedings 21. The confiscation proceedings were very protracted. There were delays on the part of the appellants in filing their evidence and supporting documentation. We have been provided with the section 16 prosecutor’s statements of information in relation to John and Luke Lowther and various other documents including John Lowther’s witness statements. It is plain, however, that the judge had a great deal more documentation than we have. Mr Krolick told us that for the hearing in the Crown Court there was a separate bundle of documents for each appellant running to 400 pages or so. Following the hearing, by agreement between counsel, we were supplied with a copy of the report of the forensic accountant, Mr Davidson, dated 31 st January 2019, in relation to the confiscation application against John Lowther, as an example of the material the judge had before him. This was only one of several reports Mr Davidson prepared in respect of each appellant. 22. At the confiscation hearing before Judge Sampson there was a measure of agreement as to the relevant benefit figures. The extent of benefit from “particular criminal conduct” was comparatively modest. It related to count 1 (£29,500, alleged by the prosecution against each appellant) and count 2 (£1,500, alleged against Luke Lowther and David Lowther), In addition, however, it was common ground that this was a “criminal lifestyle” case. The principal issue for the court, therefore, was to decide whether each appellant had benefited from his “general criminal conduct”. This involved examination of the statutory “assumptions” in section 10 of the Proceeds of Crime Act 2002 (POCA). The prosecution’s position was that all four assumptions applied. 23. The issue was whether the appellants could discharge the burden of proof which rested upon them (to the civil standard) to displace the statutory assumptions. They each gave evidence. We were told that each was in the witness box for the best part of a day, mainly under very thorough cross-examination by Mr Isaacs. They each said that their land, properties and other assets, as well as all credits to their bank accounts, were derived from legitimate income such as general building work, labouring, trading in vehicles and/or horses, and occasional loans from business associates. This evidence was roundly challenged by the prosecution. The appellants called no witnesses of fact to support their evidence but relied on the reports from the forensic accountant, Mr Davidson, who was also called to give evidence. In particular, the appellants did not call the accountant, Mr Akhtar, who had belatedly prepared accounts for them and submitted tax returns shortly before the hearing. 24. In support of their case the appellants asserted that in a separate investigation into their financial affairs which began in 2013 the National Crime Agency (NCA) accepted that the appellants had earned a legitimate income from genuine trading. That was not in fact the position. The prosecution called a senior officer of the NCA, Mr Bonnen, whose evidence the judge accepted. The judge rejected any suggestion by the appellants that the NCA had in any way accepted the truth of the explanations given to the NCA as to their income and their financial affairs generally. The NCA investigation was interrupted by the criminal proceedings and was never completed. The appellants did, however, each pay a lump sum to the NCA on account of tax liability. John Lowther paid £20,000. Luke Lowther paid £10,000. David Lowther paid £10,000 as part of £10,596 paid to the NCA and HMRC combined. 25. With that brief summary we turn to the renewed grounds of appeal arising from the judge’s findings on the issues of principle in his ruling given on 8 th February 2019. The ruling came at the end of the five-day hearing. The judge had the benefit of detailed closing written submissions dated 7 th February from Mr Krolick (at that stage representing only John and Luke Lowther) and from Mr Isaacs on behalf of the prosecution. Count 1, £29,500, Luke Lowther (Ground 1) 26. The first issue identified by the judge related to count 1 and the benefit (in the case of each defendant) arising from the particular criminal conduct resulting in the payment of £29,500 by the Horobins. In evidence John and David Lowther each accepted receiving half of £29,000. Luke admitted receiving only £500. The judge was satisfied that all three appellants were jointly and severally liable for the full sum of £29,500. Luke Lowther seeks to challenge that finding in his first ground of appeal. 27. In short Mr Krolick’s submission is that although the judge was entitled to find that each was jointly involved in the offending, it did not necessarily follow that each had acquired the benefit jointly. Mr Krolick relies on the observations of the Supreme Court to that effect in R v Ahmad and Fields [2014] UKSC 36 ; [2015] AC 299 , at [50] - [51]. However, to put this in context it should be noted that at [46]-[47] it was said in Ahmad , after reviewing the authorities: “46. Accordingly, where criminal property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators thus “obtained” the whole of that property….However, that will by no means be the correct conclusion in every such case. 47. ….. [W]hen a defendant has been convicted of an offence which involved several conspirators, and resulted in the obtaining of property, the court has to decide on the basis of evidence, often relying on common sense inferences, whether the defendant in question obtained the property in the sense of assuming the rights of an owner over it, either because he received it or because he was to have some sort of share in it or in its proceeds…. 51. ….Where the evidence supported a finding that the asset acquired from a crime was obtained effectively on a several basis, the judge should make it, but there are cases in which a finding of joint obtaining is the proper, indeed the only available finding…” 28. It is clear from the judge’s ruling overall that he disbelieved the evidence of the appellants on this as on every disputed issue of fact. The obtaining of the whole of the £29,500 by blackmail was a joint offence. It mattered not who had personally taken delivery of the cash on each occasion that monies were paid over by the Horobins. They were, in effect, a firm or a partnership or, as the judge put it, “a team”. We note from the prosecution’s opening note (at paragraphs 9-12) that the initial £20,000 was paid over to the appellants in three or four instalments, John and David coming to collect the money. There was a further occasion on which Steven Horobin was instructed to meet Luke Lowther to collect a further £500. Later again, in response to further blackmail demands, the final £9,000 was physically handed over to John and David Lowther. 29. The judge was, therefore, fully entitled to conclude on the evidence that the appellants were at all times “… a team, who by agreement extorted money out of the Horobins through one indivisible course of conduct over a period of time.” Luke had been sentenced on the basis that he played an equal role; his contribution was to provide the “muscle”, as needed. The judge may not have spelt out in so many words that he was finding as a fact that the three appellants all received the whole of the monies jointly, but that was plainly his conclusion. We agree with Mr Isaacs that a finding of joint obtaining and joint benefit was therefore the proper and indeed the only available finding. We refuse leave on this ground of appeal. Provenance of cash deposits, Ground 1 (John and David), Ground 2 (Luke) 30. Applying the statutory assumptions in section 10 of the Act , the judge was satisfied, as a starting point, that the benefit resulting from the appellants’ general criminal conduct included: first, cash deposits into their banks accounts; second, the proceeds of sale of various properties sold after the relevant day (6 years before charge): third, the value of various properties in which they continued to hold an interest, whether alone or with others. 31. In relation to cash deposits the appellants relied on their own evidence. The judge set out his findings in relation to their evidence and their lack of credibility. They relied on the tax returns belatedly submitted by their accountant, Mr Akhtar. The judge concluded that he was not prepared to accept the appellants’ tax returns as evidence of legitimate earnings without satisfying himself that the evidence on which the tax returns purported to be based was reliable. Mr Davidson, the forensic accountant, had not examined the documentation on which the returns were said to be based. Throughout his report on John Lowther, in reviewing various property transactions and the provenance of the monies which funded them, Mr Davidson noted that the prosecution did not accept that the transactions came from “legitimate earned income”, which was “ultimately a matter for the court to decide”. That is precisely what the judge did. He said it was astonishing that Mr Akhtar had not been called; that gave rise inevitably to the suspicion and the conclusion, on the balance of probabilities, that information given to Mr Akhtar by the defendants would not stand up to scrutiny. 32. More generally, in relation to the provenance of the appellants’ income the judge said, at page 8C: “The burden is on the defendants to show, in effect, on the balance of probabilities, that their income or any part of it, was not the result of assumed general criminal conduct. Having heard each defendant, I reject the evidence of each as incredible. In respect of income the assumptions remain intact.” 33. That fundamental and critical finding of fact is the subject of a common ground of appeal for all three appellants. Mr Krolick contends that the judge erred in failing to consider all the evidence relating to the provenance of the cash deposits paid into the appellants’ bank accounts, in particular their lifestyle as members of the travelling community and their inability to read or write. This he submits went a long way to explain why there was little documentary evidence to support their case. They had been brought up to deal only in cash and from a young age had been encouraged to put their cash savings into bank accounts which they later invested in properties. Mr Krolick developed this ground in his oral submissions. He says the judge should have stood back and considered whether there was a risk of injustice having regard to the appellants’ background and lack of education. 34. The difficulty with this submission is that the judge heard all the evidence. The appellants each gave evidence at considerable length. The judge disbelieved the appellants. He was quite entitled to reach the conclusion he did. In his ruling on 8 th February the judge gave examples of the lack of credibility of their evidence. One will suffice for present purposes. David Lowther was asked in cross-examination if he could give even one single example of a piece of legitimate work. He was unable to do so convincingly. The appellants failed to produce any corroborative evidence of their involvement in any sort of lawful trade. 35. Mr Krolick criticises the judge’s approach as altogether too broad brush. He submits that the judge failed to review the evidence in any detail in his ruling; he should have set out his findings on the individual transactions; the appellants were entitled to know why the judge found against them. 36. We reject that criticism. It ignores the reality of the case and the starkness of the central issue of the appellants’ credibility. It fails to acknowledge that the starting point of the judge’s assessment was the statutory assumptions, and that the burden of proof was on the appellants to demonstrate, by evidence, that the assumptions could be displaced. Mr Krolick addressed us, by way of example, on the evidence relating to John’s alleged legitimate purchase and sale of a large number of horses. In fact the judge dealt with that comprehensively in his ruling, at page 5 B-E. 37. There is a further crucial point in relation to the cash deposits which only became clear during the course of counsel’s submissions. It overlaps with the next grounds we shall consider, but it needs to be emphasised in its own right straightaway. Although the judge concluded that the cash deposits were the product of general criminal conduct, it is important to emphasise that the cash deposits were not included as part of the benefit figure for any of the appellants. This was to avoid double counting, because the prosecution relied on those cash deposits as illustrative of the source of the funds used to purchase the succession of properties which featured in the confiscation and which formed part of the benefit obtained as a result of the appellant’s general criminal conduct. That was made clear in Mr Isaacs’ closing written submissions. In the course of his oral submissions before us Mr Krolick very properly abandoned his “aggregation” argument before us once the position had been clarified. He could no longer assert that the prosecution were seeking to “have the penny and the sweet” (as Toulson LJ put it in R v Pattison , cited later in this judgment). 38. We are satisfied that this ground of appeal, in the case of each appellant, is unarguable and leave is refused. Real property, Grounds 2-4 (John and David), Ground 3 (Luke) 39. In his ruling of 8 th February the judge then turned to the real property. He accepted the prosecution’s submission that if the court was of the view that the appellants had not established that they earned any legitimate income, the benefit obtained from their general criminal conduct was the value of the following: a) any properties [i.e. the sale proceeds of any properties] which were bought after the relevant day and in respect of which the purchase was not funded by the sale of any other property, and the sale of which did not fund any other property (only Portland Road, Selston and part of the proceeds of Toad Hole Close fall into this latter category); plus b) all properties held; plus c) vehicles; plus d) expenditure incurred. The judge then dealt with specific properties and parcels of land. Mr Krolick submits that the judge erred in principle in his approach, and illustrated that submission by reference to purchases and sales of properties by John Lowther, although the points apply equally to the other two appellants. 40. The judge’s findings here give rise to two common grounds of appeal. In relation to John and David Lowther, Mr Krolick argues in ground 2 that when considering the effect of section 10(2) of the Act in relation to the properties sold after the relevant day, the judge erred in law in holding that the provenance of the funds used in the acquisition of those properties was a material factor and failed to consider the more restrictive provisions of section 10(2) . Developing this ground a little further, Mr Krolick’s argument is that the relevant assumption in section 10 (2) applies only if the property transferred to a defendant was obtained “as a result of his general criminal conduct”, whereas section 76(4) of the Act provides that a person benefits from conduct “if he obtains property as a result of or in connection with the conduct ”. Mr Krolick submits that in section 10(2) the omission of the underlined words found in section 76(4) must be deliberate, and that consequently the test of causation in s.10(2) must be stricter than under s.76(4) .Thus the provenance of the underlying property which was sold is not relevant. Quoting from Mr Krolick’s written submissions: “If the question asked is: ‘as a result of what were the various purchase monies transferred?’, the answer must be: ‘the sale of the property in which the defendant held an interest and which he was authorised to sell.’” Mr Krolick complains that in his ruling the judge did not address this issue of law which, he submits, raises a point not hitherto the subject of judicial authority, so far as he is aware. 41. The single judge observed in refusing leave on this ground, that the point of law raised in ground 2 is unarguable. The single judge said: “…It has never previously been decided because nobody has ever thought it worth raising. Section 10(2) POCA 2002 does not require the court to focus only on the final transaction of a money laundering exercise and ignore the fact that the original assets were obtained by criminality and then converted into a property which was lawfully owned. The words in the section are obviously broader than that. The phrase “as a result of general criminal conduct” requires a causal connection between the general criminal conduct and the transfer of property: the one must be “the result” of the other. It does not require that the transfer must itself be part of the general criminal conduct by itself being a crime. Even if it did, on the findings of the judge, the transfer would be a result of a series of transactions which together would amount to an offence under section 327 POCA 2002 .” 42. We respectfully agree with that analysis. As Mr Isaacs pointed out in his written submissions, if Mr Krolick’s argument and interpretation were correct it would mean that any conversion of criminally obtained property would frustrate the confiscation regime. For example, he says, a defendant may use the proceeds of a fraud to buy a Lamborghini. If he then sells the Lamborghini in an arm’s-length transaction, the proceeds of sale are plainly not to be excluded from the benefit figure merely because they were transferred to the defendant as a result of a legitimate sale, rather than the original fraud. We agree with Mr Issacs’ analysis that this ground of appeal would undermine the whole principle and process of tracing, which is a crucial element of the confiscation regime and enshrined in section 80(3) of the Act . We refuse leave on this ground. 43. The second common ground of appeal in relation to the judge’s findings on the properties is that the judge erred in failing to give any adequate consideration to the evidence concerning the provenance of the funds used in the acquisition of the properties, and erred in failing to find that the appellants had shown that such properties had not been obtained as a result of any criminal conduct. The grounds of appeal identify different properties for each appellant in this regard, but the point of principle is the same. For example, Mr Krolick took us through the history of the purchase and sale of the plot of land at Toad Hole Close, on which three houses were built, one for each of the appellants. In his report, the forensic accountant Mr Davidson traced the history of these and all the other properties. Mr Isaacs does not take issue with the factual history of the conveyancing transactions. The prosecution’s submission, accepted by the judge, was that the provenance of the monies which funded the purchase of the properties was the result of the appellants’ general criminal conduct. 44. Thus, again, the difficulty Mr Krolick faces with this submission is the judge’s very clear and crucial finding that he rejected the evidence of the appellants as incredible. In his ruling of 8 th February, at page 8H-9A, the judge took as an example supposed loans made to the appellants by a man called Brett Smith. He said that he was not satisfied that the appellants had discharged the burden of proof so as to demonstrate that the monies coming from Brett Smith did not represent the result of general criminal conduct, and that this observation “would need to be applied to any relevant property.” 45. The judge was entitled to conclude that the appellants had failed to discharge the burden of proof upon them to show that the properties had not been acquired with monies acquired from their general criminal conduct. He was not obliged to set out the history of the property transactions in minute detail and make finings at every juncture. Again we are satisfied that this ground is not arguable in the case of any of the three appellants. Sums paid to the NCA, Ground 5 (John and David), Ground 4 (Luke) 46. The final common ground of appeal relates to the treatment by the judge of the sums paid by the appellants to the NCA: £20,000 for John Lowther, £10,000 each for Luke Lowther and David Lowther. In his ruling of 8 th February the judge acknowledged that each of them must be “given credit” for this payment in calculating the benefit figure. This gave rise to some ambiguity which was resolved at the next hearing on 29 th March 2019. The judge made it clear he was satisfied that the money used to pay the NCA came from the proceeds of crime. It was clear, however, that the money had already been paid to the State. It obviously should not be paid twice (i.e. paid again as part of the “recoverable amount” in the final analysis) but equally obviously the appellants should not have the benefit of its being deducted twice. The judge pointed out, as is the fact, that in her s.16 statement the financial investigator did not include these sums in her computation of benefit. As the judge put it, to deduct the sums again would be to “…cheat the public of those proceeds of crime.” It was certainly not his intention, he said, that the appellant should have the benefit of that money being deducted twice. 47. The judge was unarguably correct in his approach. As Mr Isaacs put it in the respondent’s notice, the suggestion that there should be a further deduction to reflect the payments to the NCA has no logical foundation. We agree with the single judge that this ground of appeal is based upon a misunderstanding or misinterpretation of the judge’s ruling and the eventual order. The order which was eventually made was correct, even if the phrasing of the original ruling might have been a little ambiguous. We refuse leave on this ground. 48. It follows that we refuse leave on all the grounds which Mr Krolick renews. That leaves the ground of appeal on which the single judge granted leave and is not contested. The appeal Costs of sale, Ground 5 (John), Ground 4 (Luke and David) 49. In his ruling on 8 th February the judge said there was an issue as to whether the costs of sale should be deducted “at this stage”. His view was there should be no deduction because it was possible there might be no sale. We note that in the prosecution’s closing written submissions, Mr Issacs had suggested, at paragraph 54, that the cost of realising the sale of the properties was “speculative” and that the normal practice is that the costs of sale are administratively deducted from the available amount by varying the confiscation order after the properties are sold. 50. It is now common ground that the judge was inadvertently led into error. His attention was not drawn to the decision of this court in R v Cramer ( 1992) 13 Cr App R (S) 390. There it was held as a matter of principle that the costs of sale should be taken into account in determining the market value of a property. We observe that in that case the property had in fact been sold so there was no element of speculation as to what the costs might be. 51. Mr Isaacs now very properly concedes that the costs of sale should be deducted from the market value of each of the relevant properties in calculating the “available amount” and thus the “recoverable amount” for the purposes of the confiscation order. 52. Mr Krolick argues that the costs of sale should also be deducted from the value of the properties in calculating the benefit figure . In fact it makes no practical difference anyway. They will only be required to pay the “realisable amount”. So provided the costs of sale are deducted from the realisable amount for each of them, no equivalent reduction in the benefit figure would affect the amount they are actually required to pay. In the cases of John and David Lowther the realisable amount is very significantly less than their benefit figure, by some £69,000. In the case of Luke Lowther the realisable amount (after deducting the costs of sale) is still more than £2,000 less than his benefit figure. The only situation in which it could make any difference is if an appellant were to come into new wealth in the future, enabling the Crown Court to review his “available amount” and increase the confiscation order up to the amount of his benefit figure. 53. Mr Krolick submits that s.79 POCA (Value: the basic rule) and s. 80 POCA (Value of property obtained by conduct) both state in terms that the value of property at any relevant time is the “market value” of the property. He submits that Cramer is of general application, and that whenever “market value” has to be assessed, the actual or prospective costs of sale must be deducted, as much in calculating “benefit” as in calculating “available amount.” 54. As a general proposition we cannot accept Mr Krolick’s argument, and the more so as applied to the present case. In Cramer there was no need to consider whether the costs of sale fell to be deducted from the benefit figure. The property had already been sold. The only issue was whether, in fixing the amount of the confiscation order, it was only the net proceeds of sale (rather than the gross figure) that should be included in the defendant’s realisable assets. 55. Interestingly and in passing, we note from Mr Davidson’s report that the deduction of costs of sale is suggested only in respect of the “realisable amount”. It is also relevant to contrast the position in relation to properties such as Toad Hole Close, which had long since been sold and thus did not feature as part of the “available assets” still there to be sold if necessary in order to meet the confiscation order. In calculating the “benefit” resulting from the sale of such properties, for example 3 Toad Hole Close, the prosecution’s s.16 statement quite properly identified only the “amount received” by John Lowther (£87,020). We note from Mr Davidson’s report dated 31 st January 2019, para 5.40, that the costs of sale had been deduced in arriving at the figure of £87,020.Thus the costs of sale were properly taken into account in respect of those properties in calculating the contribution they made to the benefit figure. 56. We are satisfied that the position is different in relation to properties still held, which will form part of the available assets. Mr Isaacs argued that there is clear authority to support the proposition that it is only against the realisable assets that there should be a deduction for the costs of sale. In R v Pattison [2007] EWCA Crim 1536 ; [2008] 1 Cr App R (S) 51 this Court was concerned with the valuation of a freehold property as part of the benefit obtained as a result of the defendant’s criminal conduct. It was contended that in assessing the value of the property there should be deducted (inter alia) “…the legal and other expenses associated with its acquisition and its intended sale”. The Court upheld on appeal the judge’s conclusion that those expenses should not be deducted. Counsel for the defendant had referred the Court to various cases where the costs of realising a sale of the property had been taken into account. At [16] Toulson LJ, giving the judgment of the Court, said: “Those are cases where the Court has been looking at the question of what are a defendant’s realisable assets, rather than the question of what benefit he received. In considering what are a defendant’s realisable assets, it may be relevant to take into account the costs inherently involved in the realisation of those assets, but the cost involved in their potential realisation has no relevance to the assessment of the original benefit received.” 57. In addition to this clear authority on the point, we note the observations of the Supreme court in R v Ahmad and Fields (supra), at [61], in addressing the question of the value of the benefit received by a defendant who steals property: “…the court takes the market value of the property because that is the value of what the thief has misappropriated, viz what it would cost anyone to acquire it on the open market… ” [emphasis added] In other words, at the benefit stage the market value of the property is what someone would be prepared to pay for it, not the net proceeds of sale which the defendant would obtain from its sale. 58. To similar effect, in R v Islam [2009] UKHL 30 ; [2010] 1 Cr App R (S) 42 , in a confiscation case where the Supreme Court was considering the valuation of vast quantities of imported heroin, the distinction was recognised between the value of the consignment of heroin at the time the defendant received it (which was the black market value of the drugs at that time) and the value of the same drugs when it came to assessing his realisable assets (at which stage it could not be said that the drugs had in any legitimate market value). Speaking of the former, it was said by Lord Mance SCJ at [35]: “The assessment under s.80(2) (a) of the benefit consisting of the market value of property obtained looks simply at the objective value of the property if put up for sale on the market. Here that means (under s.80(2) (a)) at the time when the defendant obtained it, i.e. at the moment of importation…”. 59. Accordingly, we are satisfied that in the present case the costs of sale of the properties included in the benefit figure fall to be deducted only against the appellants’ realisable assets in calculating the available amount (and thus the recoverable amount for the purpose of fixing the amount of the confiscation order). The potential costs of sale of those properties are not to be included in the benefit figure. This is consistent with the objective of the Act , which is to ensure that the sum required to be paid in satisfaction of a confiscation order is no more than the amount of the defendant’s realisable assets. If a property has to be sold, then it is only the net proceeds of sale which are available to meet the confiscation order. That was essentially all that was decided in Cramer (supra). Disposal 60. On the basis of the agreed figures provided by the Appellants’ solicitors, the total costs of sale of the properties forming part of their respective realisable assets are as follows: for John Lowther, £3,759.12 ; for Luke Lowther, 5,573.04 ; for David Lowther, £4,795.47 . 61. The consequence is that the confiscation orders fall to be reduced by those amounts. The order against John Lowther is reduced to £194,443.29 . The order against Luke Lowther is reduced to £164,967.73. The order against David Lowther is reduced to £178,963.59. 62. We therefore allow the appeals of each appellant to that limited extent. We quash the confiscation orders made by the Crown Court on 10 th May 2019 and we substitute confiscation orders in the sums just mentioned. Footnote Counts 1 and 2, credit for compensation orders paid and joint benefit 63. There is one final matter. It relates pricipally to count 1, where the judge found that each of the three appellants had obtained the sum of £29,500 from the Horobins jointly, and that their respective benefit figures must therefore each include that full amount of £29,500. The same was true of the sum of £1,500, as between Luke Lowther and David Lowther, which they obtained jointly from Garry Longdon in respect of count 2. It was conceded that this full amount of £1,500 must be included in the benefit figure for each of those two appellants. 64. It was common ground that out of the funds recovered by the confiscation orders there should be compensation paid to the Horobins in the sum of £29,500 and to Garry Longdon in the sum of £1,500. At the conclusion of the final hearing of the confiscation proceedings on 10 th May 2019, at page 9G-16B, the judge was addressed by all counsel in relation to the practicalities of achieving this, including apportionment. There was an extended discussion at the end of which agreement seemed to have been reached. All that was left was for the Crown Court to draw up the orders, with the assistance of drafts provided by Mr Isaacs, and for the judge to approve the orders. 65. In the event, compensation was apportioned between the appellants as follows in the orders approved by the judge: John Lowther : £14,500, presumably representing one-half of the £29,000 physically received by himself and David Lowther jointly from the Horobins (count 1). Luke Lowther : £1,250, presumably representing the £500 he physically received himself from the Horobins, (count 1) plus £750 representing one-half of the £1,500 obtained by himself and David Lowther jointly from Garry Longdon (count 2). David Lowther : £15,250, presumably representing one-half of the £29,000 physically received by himself and John Lowther jointly from the Horobins (count 1), plus one-half of the £1,500 obtained by himself and Luke Lowther jointly from Garry Longdon. 66. We should make it clear that Mr Isaacs does not accept that this apportionment was necessarily appropriate, but it has not been challenged by the prosecution on appeal. He would have argued, no doubt, that the £29,500 compensation in favour of the Horobins should have been apportioned equally between the three appellants. It was, however, a matter for the judge’s general discretion to decide on the appropriate apportionment of the compensation. 67. The confiscation order for each appellant dealt in the same way with the payment of compensation out of funds recovered by the confiscation order. Taking the order for John Lowther as an example, the confiscation order stated (at the foot of the first page): “The defendant is ordered to pay £198,202.41 of which part, namely £14,500 is to be paid as compensation according to the compensation order that is sent to the Regional Confiscation Unit with this order.” 68. Mr Krolick has invited us to direct, in effect by way of appeal against the judge’s confiscation orders, that there should also be a provision in each confiscation order to ensure that the sum of £29,500 (arising from count 1) forming part of the benefit figure for each appellant should not be paid more than once. The same would presumably apply to the sum of £1,500 as between Luke Lowther and David Lowther (arising from count 2). 69. In support of this proposition, Mr Krolick relies upon the following passage in the judgment of the Supreme Court in R v Ahmad and Fields, at [74] – [75]: “74. Accordingly, where a finding of joint obtaining is made, whether against a single descendant or more than one, the confiscation order should be made for the whole value of the benefit obtained, but should provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit. A subsequent confiscation order made against a later-tried defendant in relation to the same benefit may well be such an order. In theory a court might therefore need to consider whether to stay the enforcement of a confiscation order made against one or more defendants to await the outcome of a later criminal trial against other defendants in respect of the same criminal conspiracy. However, except perhaps when a second trial is imminent this would not normally be appropriate bearing in mind the purpose of the 2002 Act and the statutory stipulation for a speedy hearing… Orders made on the basis of lifestyle assumptions will require special consideration on their facts [emphasis added] 75. This conclusion is in line with the outcome in the case of R v Gangar [2012 [EWCA] Crim 1378; [2013] 1 WLR 147 , although it is based on slightly different reasoning. In that case the Court of Appeal held that, when assessing the “available amount” the court must recognise that the same asset cannot be sold and converted to cash twice. Once the solution now propounded is adopted, the confiscation order will be for the full amount obtained by the conspirators against each defendant, but its enforcement more than once will be prevented.” 70. We agree that, as a matter of principle, it is quite correct that in the present case there must not be enforcement more than once of that part of the confiscation order against any of the appellants which unequivocally represents all or part of the confiscation order which is referable to the joint benefit found by the judge, and which has already been paid by another appellant. 71. However, the situation is complicated in the present case by the fact that for each appellant this was a “criminal lifestyle” case, in which the benefit figure comprised not only the benefit from their “particular criminal conduct” arising from specific counts on the indictment (i.e. £29,500 in count 1, £1,500 in count 2) but also significant additional benefit from their “general criminal conduct” arising from the assumptions in section 10 of the 2002 Act which they had failed to displace. We have no doubt that this situation is a good example of the reason for the qualification in the final sentence of paragraph 74 in R v Ahmad and Fields , highlighted above. 72. To illustrate the point, take John Lowther’s case. After deducting from his realisable assets the costs of sale of properties still held by him at the date of the hearing (in accordance with this judgment) the figure for his realisable assets is now £194,443.29. That is the revised amount of his confiscation order. However, his benefit figure is still £263,719. 40 The difference is some £69,000. If he pays the whole of the confiscation order, the amount of the unrecovered benefit from his general criminal conduct, some £69,000, is way in excess of the £29,500 forming part of his benefit figure. Thus it is unnecessary for there to be any restriction on the enforcement of his confiscation order up to the full figure of £194,443.29. That sum does not touch upon the £29,500 contained in his full benefit figure which he does not have the realisable assets to pay. There can be no presumption in logic or in law that the sum of £29,500, represented by the joint benefit, is deemed to be the figure paid first in the confiscation order where the realisable assets fall short of the full benefit figure. 73. Similarly, in the case of David Lowther the figure for his realisable assets is now £178,963.59 (after deducting costs of sale in accordance with this judgment). That is the amount of his confiscation order. However, his benefit figure is still £248,869.41. The difference again is some £69,000. If he pays the whole of the confiscation order up to the full figure of £178,963.59, the amount of the unrecovered benefit from his general criminal conduct, some £69,000, is way in excess of the £29,500 (count 1) and £1,500 (count 2) forming part of his benefit figure. Thus again it is unnecessary for there to be any restriction on the enforcement of his confiscation order up to the full figure of £178,963.59. That sum does not touch upon the £31,000 contained in his full benefit figure which he does not have the realisable assets to pay. 74. The only situation in which it might become necessary to examine the position further and give credit to one of these two brothers for the payment by the other of the amount of their joint benefit, would be if one or other of them came into unexpected wealth in the future (such as a win on the National Lottery all the Football Pools) such that his confiscation order could be increased in line with his then greater available assets. In that event the matter would have to come back to the Crown Court, pursuant to section 22 of the 2002 Act . That would be the appropriate stage at which to re-examine, if necessary, the extent to which the ensuing increase in the confiscation order (up to the full amount of his benefit figure) might have to be adjusted in accordance with the principle in R v Ahmad and Fields in order to prevent double recovery. 75. We do not consider it appropriate to attempt to address, by some provision in the confiscation orders, this somewhat remote possibility. Such a provision might well serve only to confuse for the time being. The position of John Lowther and David Lowther in relation to compensation is already adequately covered by the Crown Court orders as drawn and approved by the judge. The provision in those orders which we have quoted at [67] above deals only with the disposition of the monies realised under the confiscation order; it does not affect the liability to pay the amount of the confiscation order in full. 76. The position of Luke Lowther is, superficially at least, somewhat different. The figure for his realisable assets is now £164,967.73 (after deducting costs of sale in accordance with this judgment). That is the amount of his confiscation order. However, his benefit figure is still £172,722.50. That is a difference of only some £6,000. If he pays the whole of the confiscation order up to the full figure of £164,967.73, the amount of unrecovered benefit from his general criminal conduct, some £6,000, is less than the £31,000 (£29,500 plus £1,500) forming part of his benefit figure. It follows that if it could be demonstrated that some or all of that £31,000 had already been paid by John Lowther and/or David Lowther as part of the payment of their confiscation order, it would be wrong to enforce the confiscation order against Luke Lowther to that extent, in order to avoid the double recovery precluded by R v Ahmad and Fields . 77. However, that entitlement to credit for payment by John Lowther and/or David Lowther would only arise if it could be demonstrated that they had in fact paid the relevant part of the benefit figure comprising joint benefit. In other words, for the reasons we have already explained in their cases, Luke Lowther would only be at risk of overpayment through double recovery of the kind envisaged in R v Ahmad and Fields if there had been a substantial increase in the realisable assets of John Lowther and/or David Lowther, resulting in an increase in their confiscation order(s), pursuant to section 22 of the 2002 Act , and if in consequence they had paid all or part of the £31,000 forming part of the benefit they obtained jointly with Luke Lowther. 78. Again, we do not consider it appropriate to attempt to address this even more convoluted hypothetical situation by some form of words in Luke Lowther’s confiscation order, which might well serve only to confuse for the time being. It will be sufficiently clear from the terms of this judgment that care will have to be taken by the prosecution, and by the Regional Confiscation Unit, to ensure that in his case too any risk of prohibited double recovery is avoided. 79. We are also satisfied that the orders, as drawn, deal perfectly adequately with the interrelation between compensation and confiscation and need no alteration, save for the reduction in the amount of the confiscation order in each case for the deduction of costs of sale from the available assets, in accordance with this judgment. 80. We have had to deal with these issue at length in this footnote because the parties were unable to agree the appropriate course to be taken to observe the principle in R v Ahmad and Fields , mindful of the last sentence of paragraph 74 in the judgment of the Supreme Court in that case. We should record that we heard no full argument on these matters at the hearing of the appeal. 81. In his original grounds of appeal for each appellant, dated 30 th May 2019, Mr Krolick had included an addendum querying whether the final form of the Crown Court’s confiscation orders (which he had not then seen) met with the requirements in R v Ahmad and Fields ; if they did not, and if any application under the slip rule had been unsuccessful, Mr Krolick said in the addendum that “… it will be necessary to add the omission as an additional ground of appeal.” No such additional ground was ever formulated or pursued. 82. When Mr Krolick finally saw the confiscation orders issued by the Crown Court, he said in a letter to the Registrar dated 20 March 2020 (dealing principally with how the single judge’s direction to the parties to agree a draft order should be pursued), that he now assumed that any application under the slip rule (which he described as “rectification”) had been refused, although he would need more information from his instructing solicitors. This letter concluded by saying that, if the prosecution agreed, he would want this Court to direct rectification, “… otherwise I will be driven to ask for permission to appeal on this additional ground.” Again, no such additional ground was formulated in writing or the subject of an application to amend the grounds out of time after the decision of the single judge. 83. It was only on 5 th October, the day before the hearing of the appeal, when the Court requested from both parties an explanation of the latest position on agreeing the order for deducting costs of sale (as directed by the single judge), that Mr Krolick raised again the point mentioned in his proposed additional ground, saying that this was one of three issues relating to the draft order which the Court would be asked to consider. No ground of appeal was formulated in writing, as would be required, despite the passage of over 16 months since the proposed additional ground was first trailed. This is far from satisfactory. 84. The point was the subject of further written submissions, following the circulation of the Court’s draft judgment. We then gave directions in the hope that agreement could be reached between the parties on an appropriate form of wording for inclusion in the confiscation orders (should it be necessary). The parties were again unable to reach agreement. We have therefore had to deal with the matter at considerable length in this postscript. 85. For the avoidance of doubt, we do not consider that the point was ever properly raised as a ground of appeal in accordance with the Criminal Procedure Rules and the judgment of this Court in R v James [2018] EWCA Crim 285 ; [2018] 1 Cr. App. R. 33. If it was, we in any event refuse the necessary extension of time and refuse leave. Directions 86. It will be necessary for the Crown Court to amend the figures in the confiscation orders for each of the three appellants to reduce the sums ordered to the figures set out at [61] above as the agreed sums for costs of sale in accordance with our judgment. This will also necessitate appropriate amendments to the figures for the value of the properties in question in the schedule of assets comprising the “available amount” attached to each confiscation order. We ask that Mr Isaacs, and his solicitors, liaise with the Crown Court in order to make the necessary amendments and revisions so that fresh confiscation orders can be issued reflecting the agreed adjustments as set out in this judgment and in the order on appeal which will be issued by this Court.	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7e61e70b2ee5a29f7a57a9776e22b0137f6092c649c7b97cf448cba56d950021	[2011] EWCA Crim 2	EWCA_Crim_2	2011-01-13	crown_court	Neutral Citation Number: [2011] EWCA Crim 2 Case No: 2009/01425/D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD (MR JUSTICE BEATSON) 200057643/2 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/01/2011 Before: LORD JUSTICE LEVESON MR JUSTICE DAVIS and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : CURTIS LEE GORING Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Neutral Citation Number: [2011] EWCA Crim 2 Case No: 2009/01425/D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD (MR JUSTICE BEATSON) 200057643/2 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/01/2011 Before: LORD JUSTICE LEVESON MR JUSTICE DAVIS and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : CURTIS LEE GORING Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Dominic D’Souza (instructed by the Registrar of Criminal Appeals) for Curtis Lee Goring Miss Sarah Wright (instructed by the Crown Prosecution Service) for the Crown Hearing dates : 23 September 2010, 16 December 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson 1. On 12 February 2009, in the Crown Court at Sheffield before Beatson J and a jury, this appellant was convicted by majority verdicts of the murder of Brett Blake (10:2) and possession of an offensive weapon (11:1); he was also unanimously convicted of affray. Also by majority verdicts (10:2), Danny Craig Hockenhull was similarly convicted of murder and possession of an offensive weapon. Both men were sentenced to life imprisonment for murder (the minimum term specified under s. 269 of the Criminal Justice Act 2003 being that each should serve 21 years less time on remand) with concurrent terms of 18 months imprisonment for possession of an offensive weapon; Goring received a further 12 months imprisonment, concurrent, for affray. On 2 February 2010, this court, differently constituted, reduced the minimum term to one of 18 years less time on remand. Curtis Goring now appeals against conviction for the offences of murder and possession of an offensive weapon by leave of the full court. 2. By way of short summary, the background to the case was that there was a history of bad feeling between the deceased, Brett Blake, on the one hand and Hockenhull and the appellant on the other (although, in relation to the appellant, this was challenged). On Friday 6 June 2008, shortly before midnight, Hockenhull and the appellant visited the Uniq nightclub in Sheffield. Just before 2.30 am on 7 June, the deceased entered the club and went to the upper dance floor. There was then a confrontation between the deceased and Hockenhull who was seen on CCTV to aim a blow to the neck of the deceased. The case for the Crown was that this blow was a fatal stab wound which severed his jugular vein. Immediately after this incident, the appellant was seen on CCTV moving towards the deceased. The prosecution also contended that he had a shiny object in his hand which it alleged was a knife. A few seconds later the appellant was seen to move into a position adjacent to a large speaker on the lower floor of the club by a corridor formed by a wall on one side and a line of speakers on the other. This was some distance from the upper floor. The prosecution case was that he struck towards the stomach of the deceased with his right hand. Although no knife was visible, the case was that this resulted in what was also a fatal stab wound to the front of his abdomen. 3. The defence case was that the deceased suffered a wound to his abdomen before the encounter with the appellant which, given that he only suffered one abdominal wound, made it clear that he had not delivered this fatal blow. It was also argued that the appellant did not have a knife; he was not identified and the description of the man with the knife did not match him. On the contrary, when the two did meet, the deceased had aggressively come at him and the appellant had put his hand out to fend him off. Thus, the central issue at trial was whether the appellant had a knife and had stabbed the deceased in the abdomen. 4. The primary ground of appeal is that there was no case for the appellant to answer. At the close of the prosecution case, it was put by Mr D’Souza that there was no, or alternatively no sufficient, evidence (all of which was circumstantial) from which the jury could properly infer that the deceased was stabbed by the appellant in the abdomen. It is thus necessary to consider not only the specific eye witness evidence that deals with what happened to the deceased and his condition throughout the incident but also, in order to determine what inferences could properly be drawn, the other surrounding evidence: we focus primarily on the evidence relating to or involving the appellant. The Evidence 5. As to the background, the prosecution adduced evidence that, on 22 December 2007, there was an incident between the deceased and a man nicknamed “Wasman”. This was said to result in the deceased falling out with Hockenhull and, to some extent, with the appellant on the basis that they had failed to support him. On 28 December, there was a further incident in the Sadacca Club, this time between the deceased and (according to what the deceased later reported) the appellant, when each cut the other with a knife. The appellant (later supported by Laqita Godfrey) denied that he had ever cut the deceased or been cut by him, although he accepted that there had been a “face on” or confrontation between the two about a dispute between the deceased and Wasman; he said that this dispute was resolved three nights later on New Year’s Eve when he had shaken hands with the deceased at a night club. 6. On 16 May 2008, there was a fight between the deceased and Hockenhull when Hockenhull punched the deceased in the face (leading to his attendance at an A. & E. unit). The appellant was present and grabbed the deceased by the arm saying loudly “I allowed you last time. I let you off” which was taken as a reference to the earlier incident at the Sadacca Club: that evidence was also challenged. There was another incident between Hockenhull and the deceased a few days before the fatal encounter: this was clearly relevant to the case against Hockenhull. 7. On the night of Friday 6 June 2008, a number of people (including Hockenhull and the appellant) met at a public house in Sheffield, eventually ending up in the Uniq night club at just after midnight. At one stage, Natalja Gordon, the girlfriend of the deceased and the mother of his child, telephoned the deceased and told him not to come to the club because of the atmosphere. There was also a conversation between the appellant and Charlene Ramsey (who was Natalja’s cousin and had previously gone out with the appellant). She said they talked about the arguments going on with what she described as “all the supposedly S3 clan” and that the appellant had said “Brett’s going to get it”. She said that she believed he was talking “codswallop” it not being in his nature to be aggressive; when she told him to shut up, he just smiled and said “You watch”. It ought to be added that she denied that she had understood the appellant to mean that he was going to ‘get’ the deceased. 8. Natalja Gordon, who had seen the argument between the appellant and Charlene, asked what the matter was: she thought he replied “I don’t want anything with you or your family but your baby father [i.e. the deceased] is a pussy”. She added that he asked why her man did not come and speak for himself to which she replied “Why doesn’t Danny [Hockenhull] come and speak for himself?” whereupon the appellant said “Danny will” and started sniggering. The appellant remembered this conversation; he explained that he had said the way the deceased was going on it was going to end up that something would happen to him. Another witness (Delsina Wallman) saw the appellant and Natalja Gordon “having words”. Beatson J explained her evidence to the jury as the appellant “moving or shaking his right hand, gesticulating with two fingers held up at times, a gesture which she described as a gun gesture and not a gesture”. His expression was not a good one; he was not smiling but frowning. She decided to leave the club. 9. It is now necessary first to describe the general layout of the Uniq night club which is a comparatively narrow building with the entrance and cloakroom at one end. To the right of the entrance and beyond the pay desk, there is an area with seating. Down one stair, there is what is described as a corridor between a wall and two speakers, leading to a lower dance floor beyond which up two or three stairs is an upper dance floor. The club is covered by CCTV and the Crown led evidence from Mr Andrew Laws, an expert in the interpretation of images, that it was possible not only to identify and track the movement of the deceased on the CCTV but also to identify the appellant and Hockenhull, along with a number of the other witnesses. 10. As to the identification of the principal actors (based by Mr Laws on a number of indicia), there was no issue between the prosecution and defence. Mr Laws, however, went further: he also gave evidence of his interpretation of the CCTV images as to what transpired; he did so (recognising that he was expressing an opinion) on a six point scale representing levels of support from ‘no support’ to ‘powerful support’. Even ‘powerful support’ did not indicate scientific 100% certainty. 11. It is unnecessary to detail the entire analysis and we focus on events which impact on the appellant. By way of leading up to his interaction with the deceased, it is worth noting that at 2:29:11 am the deceased was seen to enter the club; at 2:30:31, he walked towards the lower dance floor; at 2:30:38, he was on the upper dance floor. Significantly, at 2:31:17, Hockenhull moves towards the deceased whom he is seen to attack with a stabbing or jabbing movement in the vicinity of his neck at 2:31:22. Two minutes have elapsed since the deceased was seen to enter the club. No witness described any altercation before the incident with Hockenhull and no disturbance involving the deceased is shown on any of the CCTV cameras prior to this incident which was described in the trial as Incident 1. The pathologist, Professor Vanezis noted that the area of this blow was consistent with the position of one of the two fatal stab wounds (to the front left side of the neck, breaching the jugular vein). In addition, blood from the deceased was found on the dance floor. 12. Incident 2 (described from the CCTV timed over 16 seconds between 2.31.28 and 2.31.44) concerned the appellant who is seen to get into a confrontation with another man (Simeon Jones). Mr Laws explained the images as reflecting some sort of melee from which the appellant breaks free at which moment (2.31.44) he is seen to be holding something in his right hand. Looking at a number of images, Mr Laws considered that it had the strong appearance (also articulated as a very, very strong appearance) of a knife. He accepted that he could not speak with scientific certainty but his opinion that it was a knife was unequivocal. He rejected as implausible a variety of other objects (a key fob, silver Rizla packet or mobile phone) which it was suggested that the appellant might have been holding: he did not discount the possibility that it was a bottleneck. 13. Five seconds after the encounter between the appellant and Simeon Jones, the appellant is seen moving to the lower dance floor towards the bar area. At roughly the same time, the deceased was on the other side of the wall and can be seen walking towards the seating area on the lower dance floor. The critical confrontation (described as Incident 3) occurred eleven seconds after the image in which Mr Laws described himself as confident that the deceased was holding a knife. Mr Laws describes these images as showing the left hand of the appellant reaching towards the deceased and his right hand appearing to strike the deceased in his midriff. The body of the deceased then appeared to “arch slightly backwards by the force of the impact”. In the light of the position of the appellant’s right hand, his position and the position of the deceased, it was his opinion (for which he said that there was strong support) that the appellant struck the deceased. 14. There is no doubt that subsequent pictures reveal the deceased clutching his stomach with pictures showing some staining consistent with blood and blood was found in the area near the speaker (although it must be borne in mind that this incident followed blood having been shed on the upper dance floor). It is important to underline that Mr Laws made it clear that the images were such that it was not possible to see whether the appellant was holding a knife at this stage. The case for the Crown was that it was appropriate to infer that he continued to hold the knife that he had been seen with eleven seconds earlier and that he had used it fatally to stab the deceased in the front of his abdomen, penetrating the intestine, through the vena cava and contacting the vertebrae (as later identified by the pathologist). The case put by Mr D’Souza, later repeated by the appellant, was that the deceased lunged at him and all the appellant did was to seek to fend him off. It was suggested that the arching of the body of the deceased (relied upon by Mr Laws) probably occurred while the appellant was pushing the deceased away. 15. The value of the evidence of Mr Laws, along with its limitations, is reflected in answers which he provided in cross examination. First, dealing with the object held by the appellant, Mr D’Souza put to Mr Laws that Simeon Jones (who did not give evidence at the trial) had made a statement in which he did not speak of seeing a knife and that another witness, Warren Holmes, did not see anything in his hand. He asked whether that affected Mr Laws’ opinion. It did not. Mr Laws said: “We have the luxury in this environment of looking at a permanent record of what actually happened. We have a large number of images that provide a record – whether it is fully accurate or not is up to some interpretation – but they are an incontrovertible record of what happened at that time. As we have already discussed, these incidents are happening very quickly. In my experience, it is entirely normal for witnesses to events such as this not to see something that has happened pretty quickly and, as a consequence, I confine … my comments to the images.” 16. Secondly, dealing with Incident 3, Mr Laws explained that although the imagery did not itself allow him to assert that the appellant struck the deceased in the midriff, that was his interpretation or opinion as to what had happened. Mr D’Souza put the proposition (based on the evidence of Mr Lewis Blair to which we shall refer) that the deceased had already been injured in the stomach before this confrontation. Mr Laws replied: “[I]f there was evidence before the court that allowed the court to conclude that Brett Blake had been injured elsewhere, then it doesn’t change to my mind what the imagery tells us. It tells us that at a certain time, in my opinion, Mr Goring had a knife. Some 11 seconds later there was an incident involving Mr Goring and Mr Blake which, in my view, supports the contention that Mr Goring effectively strikes Mr Blake in the midriff. That is my evidence, which really needs to be taken in context with the other evidence in the case by others than me…” 17. The evidence from the CCTV (both visible to the jury and analysed by them during the course of the trial) and the interpretations offered by Mr Laws were not the only evidence of what occurred. In particular, Mr D’Souza relies on the evidence of four eye witnesses, called by the Crown, which he argues is inconsistent with the inferences which the Crown sought to rely on. 18. The high water mark of this evidence comes from Lewis Blair who was working as a steward at the club. He was at the far exit at the back of the club when he heard shouting and screaming on the lower dance floor and went round the back of the speakers and stood just before the seated area. He saw the deceased coming down the corridor made by the wall of speakers, coming towards him clutching his stomach with blood running. He had no doubt that the deceased had been injured in the stomach and thought that he needed medical attention. Two men (who were not doormen but members of the public) were trying to escort the deceased out of the building. He first saw the deceased when he was at least ten feet away with people behind him and someone “jumping around on the back” who ran round the back, passing him and attacking the deceased again. He saw the deceased coming from the crowd by the stairs to the upper dance floor. He (Blair) was standing on the lower dance floor near the dummy CCTV camera on the speakers. He saw a man make a motion towards the deceased’s mid belly area. He could not see if the man was holding anything at that stage. The man could have caught the deceased on the arm. He saw the deceased clutching his stomach before he saw a man in a white t-shirt going for him. He was shown the CCTV of Incident 3 but said he could not be sure if this was the incident he had seen. 19. Mr Blair said that the man in the t-shirt was the man who later stabbed him (Blair). He described the attacker as having a half gold tooth, of medium build with a broad nose, 5 ft 9 ins – 5 ft 10 ins and of mixed race with short if not shaved hair. He was unable to identify his attacker at a VIPER identification procedure. 20. When cross examined by Mr D’Souza, Mr Blair said that he could not be sure if the person who stabbed him was the same person who had made a stabbing motion at the deceased although he acknowledged that in his interview he had said that there was no doubt and that “if it says it on this paper then that’s the truth”. He confirmed that at the time he saw the deceased emerge from the melee on the dance floor, he was already clutching his stomach so as to leave him in no doubt that he had been injured in that area. He later said that the patches of blood seemed to be more on the chest area. 21. Warren Holmes is Lewis Blair’s brother and was also working as a steward or doorman. He said that he saw the deceased emerge from the upper dance floor with blood on his t-shirt from the top of his chest to about his navel and agreed that that area “pretty much was all covered in blood”. Another doorman, James Derbyshire, was shown Incident 3 but did not remember seeing it: when cross examined by Mr D’Souza, he said “from memory” that when he saw the man who had run from the dance floor at the bottom of the stairs near the reception, he was bleeding from the chest and stomach area. In later questions, Mr D’Souza referred only to bleeding from the stomach: Mr Derbyshire agreed. 22. Raymond McKenzie, the head doorman, came from the street, down the stairs and into the club where he saw two men; one had cuts to his neck and he saw blood; the other man (who went onto the dance floor) had a knife. He did not recall seeing Incident 3. He took the injured man (the deceased) up the stairs and out into the street. He said that he was with him from the time the deceased had been standing at the open floor space in front of the dance floor and he was not assaulted while he was with him. There was some confusion as to whether this was the upper dance floor (prior to the incident depicted in Incident 3) or the area of Incident 3 described as the lower dance floor. In re-examination, when viewing Incident 3 again, he accepted that he saw the two men “somewhere around there”. Mr D’Souza points to the CCTV which shows Mr McKenzie coming along the corridor from the direction of the upper dance floor. 23. In addition to the accounts as to the events in the club, the Crown also led evidence that, with his solicitor, the appellant surrendered to a police station (presumably on the basis that he learnt that he was being sought). He made no comment in interview but provided a prepared statement to the effect that he had seen a fight involving the deceased and Hockenhull, had tried to leave the club but then became involved in splitting up another fight before being himself attacked. He refused to elaborate on this statement. Finally, it is appropriate to add that the appellant discarded his jacket and mobile phone after the incident: they were not recovered. The Submission 24. Mr D’Souza argued before Beatson J that there was no case to answer under the first limb of Galbraith because there was no circumstantial evidence capable of properly supporting the inference that the appellant stabbed the deceased or, alternatively, if there was, it was ‘tenuous and inherently inconsistent’. Thus, he submitted that the evidence of Lewis Blair was clearly inconsistent with the proposition that the abdominal wound occurred during Incident 3 because that witness was clear that the deceased was clutching his stomach as he came off the upper dance floor. Further, the evidence of the other eye witnesses who spoke of blood around the stomach area of the deceased was also inconsistent with the Crown’s case as was the absence of any evidence from any of these witnesses that they had seen the appellant with a knife. The Crown resisted the submission on the basis that there was strong evidence from which the necessary inferences could be drawn: it was open to the jury to take the view that Mr Blair had seen the deceased at a moment later than Incident 3; it was suggested that Mr D’Souza had misrepresented Mr Blair’s evidence. 25. Beatson J concluded that this was a classic case for consideration by the jury. He took a different view of to that expressed by Mr D’Souza of Lewis Blair’s evidence and noted that he had described his attacker (whom he thought had also stabbed towards the deceased) as having a half gold tooth (which he said that the appellant had), that the stabbing motions were after the deceased emerged from the speaker area and that the perpetrator of that attack had run round the speakers. He pointed to the CCTV images supporting the conclusion that the appellant had a knife 11 seconds prior to the ‘clinching encounter’ and that none of the images of the deceased prior to that encounter showed him holding his stomach. He noted that the Crown also relied on the history of antipathy, the evidence of what had been said to Charlene Ramsey and the fact that the appellant had discarded his jacket and mobile phone after the incident. 26. Because of the argument about the effect of Lewis Blair’s evidence, transcripts had been ordered. They became available immediately after Beatson J had given his ruling: there was an issue at the Bar as to whether the transcript was consistent or inconsistent with the ruling. The judge was disinclined to revisit what he had said but he did make it clear: “If he [Mr D’Souza] wants me to re-visit the question of stopping the case, I will of course hear you but, other than that, it is going to be for others to decide this matter.” 27. There the matter rested and there was no further argument on the issue. The Defence Case 28. For the sake of completeness, we summarise the relevant evidence of the appellant. He said that that he did not have a knife at all that night. He had two mobile phones, a silver Rizla packet, cigarettes, car keys with a metal fob, money and tickets in his pocket. He went through the metal detector when he entered the club and it did not go off, so he was not patted down. He went to the bar and then went to the top dance floor. He had spoken to Charlene Ramsey and told her that the way the deceased was going on, something would happen to him. This did not mean that either he or Hockenhull were going to do anything; he was talking in general terms. He had also spoken to Natalja Gordon (the deceased’s girlfriend) but denied saying to her that her baby father (ie the deceased) was a pussy. He had told her to go away. 29. As for what was described as Incident 1, when he was on the dance floor, the appellant caught a glimpse of the deceased through the crowd, standing at the back wall, in front of but not close to him. He tried to make his way through the crowd because he wanted to get away. He was concerned about Hockenhull because of what had happened previously between the deceased and Hockenhull. There was pushing and shoving and people were holding on to him. He was not trying to follow the deceased; he wanted to leave the club. He did not then leave because he was looking for his younger brother. 30. Moving to Incident 2, the appellant saw Thomas Carling and Simeon James. Simeon James was impeding his progress. He did not threaten James but was telling him to get off, because he was holding him. He thought that James wanted to keep him away from trouble. The object in his hand was possibly his key fob, his Rizla packet or his mobile phone. He then went down towards the toilets looking for his younger brother; he was near the male toilets exit, by the kitchen. The area was relatively empty and his friends must have been on the top dance floor. 31. The appellant said that he was making his way to that area at roughly the same time as the deceased was on the other side of the wall and the speaker, but they could not see each other, it was probably coincidence; it was nothing to do with him. As for Incident 3, he heard shouting and took a step in the direction of the shouting; he saw the deceased step out of the corridor and he stepped aside. The deceased lunged at him aggressively and he thought the deceased had a knife, so he put out his left hand to try to stop him. He jumped back and the deceased came forward towards him. It all happened very quickly. The area by the speakers was dim, but not pitch black. He could not see what state the deceased was in. The bouncers then took the deceased out and he heard a lot of shouting but could not hear what the deceased was saying. The Appeal 32. As we have identified, the primary argument advanced on appeal was that there was no case to answer. This point was articulated by Aitkens LJ when giving leave to appeal (see [2010] EWCA Crim 1240 at para 12) in this way: “The Crown specifically stated that its case in relation to the first of the stab wounds was on the upper floor and in relation to the second was on the lower floor. On the evidence there was no possibility of there being two stabbings in the stomach. Accordingly, in order for the Crown to convince the jury that the appellant had fatally stabbed the victim in the stomach after the fatal stabbing in the neck, it is at least arguable that the Crown would have had to have satisfied the jury that there was no possibility of any other stabbing in the stomach before the stabbing in the neck. The argument must be (given there was only one stab wound in the stomach) that if there was a possibility that the victim had been stabbed in the stomach before being stabbed in the neck, then how could a jury be sure that the fatal stabbing to the stomach had occurred after the stabbing in the neck, and therefore how could they be sure that the fatal stabbing had been done by the appellant near the speakers?” 33. Additionally, Mr D’Souza obtained leave to argue that there was a irredeemable procedural irregularity because, once the judge had received the transcripts of Mr Blair's evidence, he did not then reconsider his ruling on the submission of no case to answer. In the light of the exchange, it is arguable that the judge was not specifically asked to do so but, whether that is so or not, on reflection, Mr D’Souza accepted that this argument did not provide a free standing ground of appeal. Given that this court has all the relevant transcripts and would be bound to follow the evidence disclosed by those transcripts in preference to any inaccurate summary contained within the judge’s ruling, the question which must be addressed is whether there is, in fact, a case to answer. If based on the entirety of the evidence, this court concludes that there is, this ground of appeal will fail, whether or not the judge should have re-visited the issue. If, on the other hand, there is no case to answer, the judge’s decision cannot be saved by his analysis of the evidence. 34. As to the primary ground of appeal, the traditional approach identified by Lord Lane CJ in R v. Galbraith [1981] 1 WLR 1039 (if a reasonable jury properly directed could not on the evidence find the charge proved beyond reasonable doubt) concerned the weight to be attached to evidence implicating the defendant upon which the Crown relied. The application of that principle to cases of circumstantial evidence, however, has been the subject of further debate, primarily in a number of unreported decisions which were considered accurately to reflect the common law by the Judicial Committee of the Privy Council in DPP v. Varlack [2008] UKPC 56 which concerned an appeal from the Court of Appeal of the British Virgin Islands. 35. Thus, in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, in the Supreme Court of South Australia, King CJ summarised the appropriate approach in these terms: “[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.” 36. This was the conclusion reached in this court in R v. Bokkum (7 March 2000, unreported), where Tuckey LJ rejected, as contrary to Galbraith , the proposition that in a case dependent on circumstantial evidence, the judge would be required to withdraw the case if some inference other than guilt could reasonably be drawn from the facts proved: he should only withdraw it if he considered it unsafe for the jury to conclude that the defendant was guilty on the totality of the evidence. This approach was approved in R v. Edwards [2004] EWCA Crim 2102 (paras 83-5) and adopted in R v. Jabber [2006] EWCA Crim 2694 in which Moses LJ said (at para 21): “The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.” 37. We add only this. It has long been a principle that, absent good reason (such as the witness being unworthy of belief), the prosecution is obliged to call all witnesses who give direct evidence of the primary facts and which the prosecution, when serving statements, consider to be material, even if there are inconsistencies between one witness and another: see R v. Russell-Jones [1995] 1 Cr. App. R. 538. Further, although taking the prosecution at its highest does not mean “picking out all the plums and leaving the duff behind” (see per Turner J in R v Shippey [1988] Crim. L.R. 767), it is necessary to make an assessment of the evidence as a whole and not simply consider the credibility of individual witnesses or evidential inconsistencies between witnesses. It is for the jury to decide what evidence to accept and what evidence to reject and the fact that a witness called by the Crown gives evidence in some respects inconsistent with the inferential case being advanced by the Crown cannot, by itself, be determinative of a submission of no case to answer: it is obviously, however, a factor to be taken into account. 38. Applying those principles, we return to the facts of this case. Mr D’Souza challenged the judge’s analysis of various parts of the evidence of Lewis Blair (as to the place where Blair saw the deceased clutching his stomach, the implications of the three stabbing motions after the deceased emerged from the speaker area and the identity of that person). Further, he did not accept that the appellant had a half gold tooth but rather a gold stripe on a tooth. He also took issue with the relevance of that fact given other differences in description. As for the evidence of Mr Laws that the appellant had a knife, Mr D’Souza contends that it is contradicted by other evidence and does not explain the eye witness accounts that no knife was seen at Incident 3. In relation to the point that the CCTV did not reveal the deceased holding his stomach before Incident 3, he argues that the eye witnesses indicated that he was and that not all CCTV was shown or revealed the deceased; neither was it possible clearly to see the right arm of the deceased. 39. On behalf of the Crown, Miss Wright submits that evidence firmly pointed away from the conclusion that the deceased might have been fatally stabbed in the stomach at some stage before Incident 3. First, the CCTV analysis showed the deceased entering the club at 2.29.14; he walked to the dance floor at 2.30.31 and towards the back of the club. At 2.31.22, Hockenhull was seen to attack him. No witness suggested that there was an altercation before this incident and no disturbance was shown on the CCTV before Incident 1. Natalja Gordon spoke of the deceased greeting her and then moving away and being attacked by Hockenhull; this was also consistent with the evidence of Melissa Ramsey. Further, the appellant himself said that while on the dance floor, he saw no trouble until the incident between the deceased and Hockenhull. 40. As for the submission of no case, Miss Wright argues that the assessment of the evidence of the witnesses was for the jury and the judge was entitled to reach the conclusions that he did. Further, the size and layout of the club were such that anyone walking along the corridor away from the upper dance floor would not have been seen until emerging at the seating area by the large speaker where Incident 3 took place so that phrases such as “emerging from the dance floor” and “speaker area” were open to interpretation. She also pointed to the fact that the witnesses had marked various plans in a way that did not coincide with their oral evidence. These plans are not available to us (notwithstanding a search in the court files) but the point is clearly well taken because, in summing up, the judge said: “The defence invites you to prefer the witnesses’ answers to questions about this to the locations they marked on plans to illustrate what they were saying to you. They say that you can see from Mr McKenzie that people can be muddled by plans.” 41. Having reviewed the transcripts, it is clear that Mr Blair gave two different accounts as to where he saw the deceased. In evidence in chief, he said that he saw him walk through the corridor into the seating area and that it was at this point that he saw him clutching his stomach; in cross examination he said that he saw him coming from the crowd “by the stairs to the upper dance floor” and it was then that he was clutching his stomach. In re-examination, he reverts to his first account but makes it clear that the deceased was clutching his stomach before the encounter with the appellant. The judge’s summary in his ruling reflects the first account but fails to take account of the modification introduced in cross examination; it further fails to acknowledge the account of the witness that he saw the deceased holding his stomach in the corridor before the encounter. In the circumstances, we consider there to be some force in the submission that the judge proceeded on an erroneous understanding of the full potential import of the evidence of this witness. We further recognise that the account given by Messrs Holmes and Derbyshire of seeing the deceased with his stomach covered in blood is consistent with a prior stomach wound although it is not inconsistent with a wound bleeding from the neck (particularly as the witnesses spoke of visible blood from the top of his chest). 42. This analysis does not deal further with this ground of appeal because, as Mr D’Souza recognised, the question for this court is whether, in the light of the evidence which we have seen in detail and the approach identified by the authorities to which we have referred, in relation to either or both of these counts, there was, in fact, a case to answer. Suffice to say that we have no doubt that there was. 43. In relation to possession of an offensive weapon, there was (as Mr Laws observed) incontrovertible evidence that the appellant had something clasped in his right hand which he was holding up in a gesture of some sort. Mr Laws considered that there was very strong support for the proposition that it was a knife. That Warren Holmes gave evidence that he did not see anything in the appellant’s hand does not alter the fact and the statement of Simeon Jones used by Mr D’Souza to cross examine Mr Laws is simply not evidence of anything. Mr Laws spoke only from the CCTV, but the jury were able to use their own judgment to assess the expert opinion with which they were provided and decide whether what was being held up might have been a mobile telephone or a fob of keys or Rizla paper. In our judgment, the proposition that there was no case to answer in relation to this allegation is simply unarguable. 44. In our judgment, the case in relation to the allegation of murder has to be seen in the context of the earlier events from which we have no doubt that the jury were entitled to draw a number of conclusions. The first was that there was an animosity between Hockenhull and the deceased and also between the appellant and the deceased. Second, the conversations prior to the visit to the club (as recounted by Charlene Ramsey and Natalja Gordon) arguably revealed a foreknowledge of potential trouble also in circumstances of some animosity. 45. Against that background came the events in the club. The first point to make is that there was no evidence either from the CCTV (which partially tracked his path) or the eye witnesses of an altercation between the deceased and anyone else prior to Incident 1. That incident, captured on CCTV, was of Hockenhull (who similarly had revealed animosity to the deceased) raising his right arm and using a stabbing or jabbing movement in the vicinity of his neck. The pair was then split up. It was 2.31.22. 46. Within 6 seconds, different cameras pick up Incident 2 involving the appellant. The interpretation put on the CCTV by Mr Laws in relation to that incident is that the appellant has a confrontation with the man now identified as Simeon Jones who attempts to impede his progress such that a third man (Warren Holmes) tries to separate them. The reaction from the appellant (after three seconds) is to hold up what we have concluded the jury was entitled to find was a knife towards the face of the person who was impeding him. The object was in his right hand and he then drops his arm but continues holding the object in that hand. He then moves off the upper dance floor in the direction of the exit, in fact taking a parallel path to (but separate from) the deceased. 47. Contrary to the evidence of the doormen, the CCTV evidence does not reveal that the deceased was in fact escorted from the upper dance floor to the point at which Incident 3 occurred. Further, as Beatson J observed in his ruling, the deceased was not shown by the CCTV to be holding his stomach before Incident 3 (although Lewis Blair’s evidence was to the contrary). Mr D’Souza argues that it is sufficient that eye witnesses say that they saw it but that is to elevate the eye witnesses above the other evidence in the case: it was for the jury to determine what they made of the evidence of the doormen in the context of what they could see on the CCTV aided, where appropriate, by Mr Laws. In that regard, the point made by Mr Laws as to the fallibility of witnesses (as opposed to the incontrovertible record of the CCTV) was equally for the jury to consider. Suffice to say that there was material from which the jury could conclude, contrary to the evidence of Mr Blair, that the deceased was not escorted or injured to his stomach when he made his way from the upper dance floor to the vicinity of Incident 3. 48. As to Incident 3 itself, again, the judge was right to note that 11 seconds beforehand, the appellant was holding in his right hand an object which the jury were entitled to conclude was a knife. He had left the earlier incident with the object by his side and when he confronted the deceased, it was open to the jury to conclude that the CCTV evidence revealed a forward thrust with his right hand in the direction of the deceased’s abdomen with sufficient force to cause his body to arch slightly backwards. Given that this was the hand in which what Mr Laws concluded was a knife was held and that the deceased did in fact suffer a fatal injury to that part of his abdomen, there was material from which the jury could conclude that the deceased struck that fatal blow. 49. None of this is to disregard the evidence of Mr Blair, the other doormen or, indeed, the other evidence in the case. Although the CCTV reveals images which are, in themselves, unchallengeable, the interpretation of those images and the factual evidence which each of the witnesses gave had to be weighed by the jury who were entitled to ask themselves whether (in the light of what they could determine from the CCTV) the witnesses were accurately remembering what they had seen and when, in a confusing and difficult series of incidents, they had seen it. We have no doubt that the evidence to which we have referred, if accepted, was capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and was equally capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable: the other evidence to which Mr D’Souza refers does not either individually or collectively undermine that conclusion. In the circumstances, there was a case to answer in relation to the count of murder and we reject this primary ground of appeal. The Summing Up 50. Although no criticism is made of the directions of law that Beatson J gave to the jury, Mr D’Souza does challenge the way in which the judge dealt with the evidence of Mr Laws and that of the doormen, particularly in the context of Incidents 2 and 3. 51. As for Mr Laws, the judge gave a perfectly proper direction as to the difference between direct and circumstantial evidence: he correctly identified the clear images as direct evidence and the different approach to those that required interpretation. He also gave an entirely accurate direction as to expert evidence and as to the way in which the jury should deal with opinions expressed by Mr Laws. He explained the difference, as evidenced by Mr Laws, between 100% certainty (that is to say matters which were self evident from the CCTV) and issues which required the application of expertise to form an opinion: in particular, he recognised that the statement that the object that the appellant was holding had a strong appearance of a knife was an opinion. Further, when dealing with one aspect of Mr Laws’ evidence, he identified those conclusions which were opinion and reminded the jury that he had provided them with a direction on expert evidence. Finally, when reminding the jury of the competing submissions by the Crown and the defence, although he repeated that the prosecution argued that the CCTV evidence was direct evidence, the judge then went on specifically to remind the jury that he had given them a direction on direct and circumstantial evidence. He then repeated to the jury the defence contentions in respect of this evidence. Whereas the judge could have referred to further aspects of this evidence, there is no part of this summary that we believe is open to legitimate criticism, let alone is a failure to amplify these defence points sufficient to render unsafe the verdicts of the jury. 52. Mr D’Souza also criticises the failure of the judge to mention a small number of specific details from the evidence of the doormen. It is unnecessary to go into the precise approach of the judge because when summarising the defence case, it is beyond doubt that he placed the issues fairly and fully before the jury. Thus, he dealt in terms with the account given by Lewis Blair in cross examination that he saw the deceased coming from the crowd from the stairs to the upper dance floor, clutching his stomach and injured. He mentioned the point that this account was corroborated by Mr Holmes and that the accounts given by Blair and Holmes were consistent with the evidence of Mr Derbyshire that he saw the deceased emerge from the dance floor injured. 53. The judge had previously dealt with the prosecution submission that the jury should reject the suggestion that the deceased was injured in the stomach before the encounter with the appellant and, referring to the evidence of all four doormen, he specifically raised the issue of whether the deceased was or might have been injured in the stomach before the encounter with the appellant in Incident 3. There could be no doubt that the jury would have been well aware of the significance of all this evidence in that context. We reject the criticisms of the summing up. Conclusion 54. We have come to the clear conclusion that there was, indeed, a case for the appellant to answer in relation to the allegations of both murder and possession of an offensive weapon and that the criticisms of the summing up are not made out. The competing arguments were doubtless advanced with great force both by the Crown and by Mr D’Souza for the appellant and the judge provided proper directions of law and a balanced account of the evidence for the jury to consider. Having unanimously convicted the appellant of involvement in a later fight, verdicts involving different majorities were returned in respect of the remaining counts demonstrating that the jury were more than able to distinguish the issues involved. The case was eminently one for a jury to resolve and they did so. This appeal is dismissed. 55. We add one further comment. The appeal was originally listed for half a day and arrangements were not made for the court to view the CCTV which has played such a central part in the case. The time estimate was, on any showing, woefully inadequate and a further day had to be set aside which (because of the different commitments of the constitution of the court) could only be arranged after a lapse of over two months. The listing office will always do its best to allocate sufficient time for appeals but the parties are in the best position to know what is involved in an appeal and if, as became increasingly obvious to the members of the court once the argument was underway, insufficient time had been allowed, representations should be made to correct the estimate. In the event of disagreement, the matter can be put before a presiding Lord Justice for a decision to be made.	[ "LORD JUSTICE LEVESON", "MR JUSTICE LLOYD JONES" ]	2011_01_13-2594.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2	1,041
8a92b9203c2cee73c81721e79238d370c0dc273bbe8fc08ac1406014cedc7836	[2023] EWCA Crim 531	EWCA_Crim_531	2023-05-17	crown_court	Neutral Citation Number: [2023] EWCA Crim 531 Case Nos: 202202967 B2/ 202200803 B2 / 202200163 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM GRIMSBY CROWN COURT(202200163 B2 and 202200803 B2) His Honour Judge G Robinson T20107052 IN THE COURT OF APPEAL (CRIMINAL DIVISON) ON APPEAL FROM SHEFFIELD CROWN COURT (202202967 B2) His Honour Judge Goose QC T20107052 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/05/2023 Before : LADY JUSTICE THIRWALL MRS JUSTICE STACEY and MR JU	Neutral Citation Number: [2023] EWCA Crim 531 Case Nos: 202202967 B2/ 202200803 B2 / 202200163 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM GRIMSBY CROWN COURT(202200163 B2 and 202200803 B2) His Honour Judge G Robinson T20107052 IN THE COURT OF APPEAL (CRIMINAL DIVISON) ON APPEAL FROM SHEFFIELD CROWN COURT (202202967 B2) His Honour Judge Goose QC T20107052 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/05/2023 Before : LADY JUSTICE THIRWALL MRS JUSTICE STACEY and MR JUSTICE BENNATHAN - - - - - - - - - - - - - - - - - - - - - Between : DEAN BARTON Applicant/ Appellant - and - REX Respondent REPORTING RESTRICITONS APPLY: SEXUAL OFFENCES (AMENDMENT) ACT 1992 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr William Goss appeared on behalf of the Applicant/Appellant Miss Abigail Husbands appeared on behalf of the Respondent Hearing date : 27.04.2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 11 am on Wednesday 17 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: Reporting restrictions apply to this judgment as stated in paragraphs 1 and 2. Mrs Justice Stacey : 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this appeal. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. 2. An order under s.45A of the Youth Justice and Criminal Evidence Act 1999 is in force that no matter relating to the individual subject to the order shall be published that would be likely to identify them to the public as being concerned in these proceedings. This order lasts for her lifetime. 3. We announced at the end of the hearing on 27th April that in appeal 202202967 B2 we grant leave to appeal the imposition of a Sexual Harm Prevention Order (SHPO) in 2015 (“the 2015 SHPO”), an extension of time in which to bring the appeal and we quash the 2015 SHPO and the subsequent amendments made to it. In appeals 202200163 B2 and 202200803 B2 leave to appeal both conviction and sentence is refused, together with all applications. These are our reasons for those decisions. 4. There are 3 matters before the court concerning 2 sets of proceedings. The applicant seeks leave to appeal his conviction on 23 August 2010 in the crown court at Grimsby for a number of sexual offences (appeal 202200163 B2) and seeks leave to appeal the sentence imposed on 20 September 2010 in respect of those offences (appeal 202200803 B2). He applies for an extension of time in which to appeal: 4,133 days (over 11 years) in respect of conviction and 4,165 days in respect of sentence. Permission to appeal both conviction and sentence was refused by the single judge. He also requires, and applies for, an extension of time in which to renew his application for leave to appeal both matters, seeking 15 days in respect of conviction and 12 days in respect of sentence. 5. The third matter concerns the lawfulness of a Sexual Harm Prevention Order (“SHPO”) made on 4 December 2015 that was imposed for breach of a Sexual Offence Prevention Order (“SOPO”) that had been made following the sexual offences conviction in 2010 (appeal 202202967 B2). The registrar has referred the application for leave to appeal and for an extension of time of 2,264 days to the full court. Background facts 6. After pleading guilty on the first day of trial on 23 August 2010 the applicant (age 20) was convicted of 6 sexual offences (1 count of rape, 2 counts of indecent exposure, 2 counts of sexual assault and 1 count of assault by penetration) committed when he was a teenager between 2005-2008. The rape, assault by penetration and sexual assault were committed against a cousin who was some months younger than him and the offences of exposure were committed against two much younger cousins. He was automatically subject to the notification requirements under Part 2 Sexual Offences Act 2003 (“SOA 2003”) having been convicted of a number of offences listed in Schedule 3 of the Act. He was sentenced on 20 September 2010 to a term of 5 ½ years imprisonment for the rape and to concurrent sentences of 18 months for the sexual assault by penetration, 6 months for the 2 counts of sexual assault and 2 months for each of the indecent exposure counts. He was also made subject to an indefinite Sexual Offences Prevention Order (‘SOPO’). The terms of the SOPO were varied on 29 August 2012 and the amended order contains the following schedule of prohibitions: “The defendant is prohibited from: 1. Living or staying, being or remaining in any dwelling house or any semi-permanent residual structure (such as, for example, a tent, caravan, mobile home or boat) when any child who is, or reasonably appears to be, under the age of 16 years is also present in the same dwelling house or structure unless: i) The child is related to him and the child is at all times in the presence of one or more of its parents or legal guardians who is aware of this order; an[d] ii) He has written permission of any Social Services Department; or iii) He is permitted by the terms of an Order of a Court in England or Wales 2. Having any contact with any child who is, or reasonably appears to be, under the age of 16 years unless; i) The child is related to him and the child is at all times in the presence of one or more of its parents or legal guardians who is aware of this order; an[d] ii) He has written permission of any Social Services Department; or iii) He is permitted by the terms of an Order of a Court in England or Wales 3. Inviting any child who is, or reasonably appears to be, under the age of 16 years to enter or to remain in any building where he is intended to be unless: i) The child is related to him and the child is at all times in the presence of one or more of its parents or legal guardians who is aware of this order; an[d] ii) He has written permission of any Social Services Department; or iii) He is permitted by the terms of an Order of a Court in England or Wales 4. Contacting or attempting to contact any child who is, or reasonably appears to be, under the age of 16 years directly or indirectly by voice, letter, text message, telephone, email or by any other means unless: i) The child is related to him and the child is at all times in the presence of one or more of its parents or legal guardians who is aware of this order; an[d] ii) He has written permission of any Social Services Department; or iii) He is permitted by the terms of an Order of a Court in England or Wales 5. Refusing entry to his home when police protection officers attend for the purposes of monitoring visits and enforcing this order under the Sexual Offences Act 2003. 6. Contacting or attempting to contact directly or indirectly [named individuals].” 7. On 5 March 2014 the applicant was convicted at North Lincolnshire Magistrates Court for breach of the Part 2 notification requirements by failing to notify the Police of a change of address and to provide bank details. He received a 28 day term of imprisonment and was recalled on licence. In September 2015 the applicant was prosecuted for breach of the SOPO contrary to section 113(1)(a) and (2) of the SOA 2003, for making contact via Facebook, with a younger half-sister. He pleaded guilty in the Magistrates Court and was committed for sentence pursuant to s.3 Powers of Criminal Courts (Sentencing) Act 2000. On 4 December 2015, before the Crown Court at Sheffield (His Honour Judge Goose QC as he then was), the Judge concluded that although the custody threshold had been crossed, the sentence could be suspended. The applicant was sentenced to a term of imprisonment of 4 months, suspended for a period of 12 months, with an Unpaid Work requirement of 100 hours and a Rehabilitation Activity Requirement of up to 50 days. It was accepted that the contact was non-sexual and that it was the applicant who had brought the fact of the contact to the attention of social services but the breach of the SOPO was aggravated by the applicant’s earlier breach of the notification requirements. 8. At the sentencing hearing the prosecution sought more onerous terms to the civil order to prevent the risk of future sexual harm to the public from the applicant in relation to use of devices accessing the internet. The Judge was informed by prosecuting counsel that the only thing he could do was to impose a Sexual Harm Prevention Order, as since 8 March 2015, SOPOs had been replaced by SHPOs, the power to make a SOPO contained in ss.104 to 129 SOA 2003 had been repealed and there was no power to vary an existing SOPO or any of its provisions. There was no objection in principle from the applicant’s then counsel to the making of a SHPO, although submissions were made on the precise terms. The Judge considered that the risk threshold identified in the statute had been met and imposed an SHPO with the following schedule of prohibitions: “1. Using any device capable of accessing the Internet unless; a) It has the capacity to retain and display the history of the Internet use and b) He makes the device available on request for inspection by a Police Officer or Police Sex Offender manager. 2. Permanently deleting any Internet history from a device capable of accessing the INTERNET. 3. Possessing or using any software which is designed or can be used for the permanent destruction of permanent deletion of any devices Internet use history or activity or which is designed to encrypt data held on such a device.” (“the 2015 SHPO”) 10. In imposing the 2015 SHPO the Judge stated: “You are the subject also of an additional order. You know that you are the subject of the sexual offences prevention order. That is the one that has been in place since 2010. I am imposing now a sexual harm prevention order. It is almost the same, a similar order, but it's in the terms of some additional paragraphs that you now know so that you can use devices but they must only be on condition they apply with this order.” 5C – 5D 11. The applicant was thus subject to both the SOPO and the 2015 SHPO which ran in tandem and concurrently to each other. 12. Neither counsel drew the Judge’s attention to the provisions of s.103A(2)(i) that the court may only make a SHPO where a defendant has been convicted of an offence listed in Schedule 3 or 5 of SOA 2003 and that the offence of breach of a SOPO is not contained within either of those schedules. The Crown Court therefore had no power to make a SHPO and the respondent now concedes that that the 2015 SHPO is unlawful and should be quashed. 13. In 2016 the Police sought a variation of the 2015 SHPO. From the statement in support of the application the police appeared to be under the impression that the 2015 SHPO had replaced the SOPO, with the consequence that there were no provisions limiting face to face contact with children and the Police now wished to remedy the supposed lacuna. On the Police’s unopposed application at a hearing before HHJ Dixon on 6 December 2016 the 2015 SHPO was amended to include a new paragraph in the schedule of prohibitions at 4 as follows: “4. Having any unsupervised contact of any kind with any child under the age of 16, other than; a) Such as is inadvertent and not reasonably avoidable in the course of lawful daily life; or b) With the consent of the Child’s parent or guardian who has knowledge of his convictions and with the written permission of Social Services.” 14. The Court duly granted the application and purported to amend the 2015 SHPO (“the 2016 Amended SHPO”). 15. In 2021 the applicant and his partner became parents to their son. He applied to the court to vary the order to avoid his son being encompassed by the prohibition in the 2016 Amended SHPO so that he, his partner and their child could live a normal family life together. There was no objection from the Police to the variation proposed and at a hearing before HHJ Harrison on 7 December 2021 a further sub clause (c) was added to paragraph 4 of the schedule of prohibitions of the 2015 SHPO so that it now read: “4. Having any unsupervised contact of any kind with any child under the age of 16, other than; a) such as is inadvertent and not reasonably avoidable in the course of lawful daily life; or b) with the consent of the child’s parent or guardian who has knowledge of his convictions and with the written permission of Social Services or c) contact with his child in accordance with an order made by the Family Court.” (“the 2021 Amended SHPO”) 16. On 11 February 2022 the matter came before the Crown Court at Sheffield once again, before HHJ Kelson QC (as he then was), on the applicant’s application to discharge the 2021 Amended SHPO on the basis that it was no longer necessary and there was no longer a risk that required prohibitive preventative measures. At that stage everyone appears to have been under the impression that the SOPO had not been in force since 2015 and only the 2021 Amended SHPO restricted the applicant’s lawful activities. The Judge considered that the application was premature and it was refused. The Judge offered hope that with good behaviour and continued co-operation with the Police there may come a time when an application would be successful. Discussion and conclusions: 2010 conviction and sentence. 17. The applicant had leave to address the Court as a litigant in person and we thank him for his articulate, clear and succinct submissions. He explained that he had not lodged grounds of appeal sooner as he had not seen all the case papers from the 2010 criminal proceedings until the Family Court proceedings following the birth of his son in 2021. Having now gone through them in detail he sees inconsistencies and errors which he was unaware of at the time that he submits were fatal to the prosecution case. He pleaded guilty on legal advice having been told that the evidence against him was overwhelming and that he risked an indeterminate sentence if he did not plead guilty. He now considers the advice to have been wrong and that he was foolish to accept it, but as a 20 year old with no previous convictions, he was reliant on his legal advice. He also states that no account was taken of his dyslexia and dyspraxia. 18. Following his waiver of privilege, detailed notes of the pre-hearing conference with counsel on the day of trial were kept by the applicant’s solicitors and have been supplied to the court. His then counsel, Mr Butters, advised that the case against him was strong and gave him realistic advice as to likely sentence in the event of either guilty verdicts or guilty pleas. He was told that it was unlikely, but possible, that he could receive an indeterminate sentence if he was found guilty, but it was much less likely if he pleaded guilty. Mr Butters did not put his client under any pressure and explained it was entirely up to him how he chose to plead and he would represent him whichever course he chose. He emphasised that if he pleaded guilty it would mean that he was guilty and he would not be able to change his plea later. The applicant was given time to think about what he wanted to do and after 45 minutes he advised his legal team that whilst he maintained his innocence he had decided to plead guilty. He endorsed counsel’s brief to that effect. The case was adjourned for sentence and the preparation of a pre-sentence report. In his interview for the pre-sentence report the applicant told the probation service that he was not guilty and wished to change his pleas. His solicitors were contacted and it was explained to him that it was now too late and the sentence hearing proceeded on 10 September 2010. 19. By his unambiguous plea of guilty to all counts on the indictment the applicant admitted the facts constituting the offences. The grounds of appeal do not identify shortcomings by his then representatives so as to lead to arguable grounds that the conviction was unsafe. The applicant’s instructions were clear. The prosecution case was strong: there was cogent evidence from each of the applicant’s cousins and a family friend who had witnessed inappropriate behaviour consistent with some of the allegations. There was supporting evidence from GP notes and the older cousin’s disclosure to other family members. The applicant had also made an admission to his uncle. 20. It cannot be said that he was deprived of a good defence in law by his guilty pleas that were given after legal advice that does not appear to be tainted by legal error or to have been wrong or that the pleas were offered after duress. He had time to think about what he wanted to do and counsel told him that he would represent him both if it was to be an effective trial or a re-arraignment for guilty pleas and then sentence. 21. It is not apparent that dyslexia and dyspraxia would affect his ability to understand what he was being told and nor was it relevant to conviction. 22. As to the prosecution evidence relied on the single judge noted: “It is unrealistic to point to issues that could be taken with the prosecution evidence whilst failing to consider its likely overall effect. There is often no physical evidence in “historic” sexual offences cases; just the evidence of a number of witnesses who describe the offences. Inconsistencies occur and juries are warned how to approach them. Often witnesses may not have identical or wholly correct recollections; this is not unsurprising given the trauma and passage of time. Complaints although hearsay can be admissible to rebut recent fabrication. The question is whether the evidence (and it must be borne in mind that there were three complainants) is likely to be accepted as broadly true and correct. To now say that witnesses were lying is not enough to provide a valid basis for an appeal.” 23. There is no realistic argument that the conviction was unsafe. 24. It is far too late now to seek to challenge the conviction. The receipt of the full set of case papers from the prosecution in 2021 is not sufficient explanation for the delay in bringing the appeal. He regretted his decision to plead guilty when he was still in time to have lodged an appeal but did not follow through after raising it with the probation service and his solicitors before he was sentenced in September 2010. But in any event, as the single judge noted: “As the appeal has no merit it would be pointless to extend time.” 25. As to the appeal against sentence, the custodial sentence for the lead offence of rape, although on the high side, was within the guidelines applicable at the time, given the offences committed, the period of offending and the age and vulnerability of the 3 complainants. An appropriate discount for the day of trial guilty plea was also given. The court was entitled to conclude that the SOPO was necessary to protect the public or any members of the public from serious sexual harm and that the terms were proportionate. The notification requirements under SOA 2003 applied automatically as a consequence of some of the offences for which he was convicted. 26. The applicant focussed his argument on the onerous provisions of the SOPO and their indefinite term. He was a teenager with good character when the offences occurred and only 20 at the time of sentence. The consequence of the SOPO is that now that he and his partner have their own child it is preventing normal family life. Even though the police and the Family Court have agreed that the applicant’s contact with his son is exempt from the restrictions in the prevention orders, he is unable to take his son swimming or to playgrounds because of the SOPO. 27. An order must be necessary and proportionate and is to be judged at the time that it was made. An order should not be made for an indeterminate period without careful consideration and only when the court is satisfied that there is a need to do so, and not as a mere default option (see Ali (Shahan) [2018] EWCA Crim 1941; [2018] 2 Cr. App R. (S.) 52 and Sokolowski [2017] EWCA Crim 1903). In light of the offences for which the applicant was convicted, looked at from the date of sentence in 2010, to impose an indefinite SOPO was harsh given the applicant’s age, but was not arguably manifestly excessive. The applicant waited for a period of time and after his circumstances had changed with the birth of his son, he applied for the order to be discharged. However HHJ Kelson KC of 11 February 2022 refused the application to discharge the order and there has been no appeal under s.353 of the Act from the order, which would have been the proper course to challenge that decision. The time limit for such an appeal has now long expired. 28. Leave to appeal and all applications relating to the 2010 conviction and sentence are therefore refused. Discussion and conclusion: 2015 SHPO and subsequent amendments 29. It is acknowledged that the appeal has been lodged many years outside the 28 day time limit. The delay is explained by the mistaken belief of both counsel and the Court that the court had power to impose a SHPO in 2015. The error did not come to light until after it was noticed by the Court of Appeal Office whom we commend for their diligence in bringing this matter to light and referring it to the full Court. The merits of the appeal are overwhelming. We extend time and grant leave to appeal. 30. Both sides agree that the 2015 SHPO is unlawful since the Court had no power to impose a SHPO for a breach of a SOPO for the reasons we have given. It is also common ground that all the subsequent purported amendments to the 2015 SHPO are invalid and unlawful and cannot stand. We therefore quash the 2015 SHPO, the 2016 Amended SHPO and the 2021 Amended SHPO. 31. It was made clear by HHJ Goose QC in his sentencing remarks in 2015 that the SOPO made in 2010 and amended in 2012 remained in force alongside the 2015 SHPO. 32. The SOPO that both parties had wrongly believed had been superseded by the 2015 SHPO, remains in place. It may present an urgent difficulty for the appellant since it is potentially wider than the 2021 Amended SHPO which expressly allowed his contact with his child in accordance with an order made by the Family Court. We say potentially since the scope of clause 4(iii) of the SOPO is unclear as to the extent that it restricts the appellant’s contact with his son. The Family Court order was not before this court and on any application before the Crown Court must be included with the papers. The respondent acknowledges that it is neither necessary nor proportionate for the appellant’s contact with his son to be restricted beyond the terms of the order made by the Family Court as per clause 4(c) of the schedule of prohibitions in the 2021 Amended SHPO. 33. The power to discharge or vary a SOPO is now contained in s.350 of the Sentencing Act 2020 (which although referring to SHPOs, is applicable to SOPOs by virtue of the transitional arrangements in s.114 of the Anti-social Behaviour Crime and Policing Act 2014 which was the Act which replaced SOPOs with SHPOs with effect from 8 March 2015). An application under s.350 can be made by an offender (such as the appellant) or a chief officer of police and the parties are urged to work together to seek a hearing at the earliest opportunity in the Crown Court at Sheffield to vary the SOPO to reflect clause 4(c) of the 2021 Amended SHPO. That hearing may be the time for other variations to be considered but such matters are not for this court.	[ "LADY JUSTICE THIRWALL", "MR JUSTICE BENNATHAN" ]	2023_05_17-5678.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/531/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/531	1,042
da7e0c488b4701c6b650faf5e67001b91fd7af98a0892f22d4b02a7d521e6783	[2019] EWCA Crim 867	EWCA_Crim_867	2019-05-09	crown_court	Neutral Citation Number: [2019] EWCA Crim 867 No: 2018 05106 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 9th May 2019 B e f o r e : LORD JUSTICE GREEN MR JUSTICE SPENCER MR JUSTICE MORRIS R E G I N A v LEE ROBERT WALKER Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This tran	Neutral Citation Number: [2019] EWCA Crim 867 No: 2018 05106 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 9th May 2019 B e f o r e : LORD JUSTICE GREEN MR JUSTICE SPENCER MR JUSTICE MORRIS R E G I N A v LEE ROBERT WALKER Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr Andrew D Smith appeared on behalf of the Appellant J U D G M E N T (Approved) 1. MR JUSTICE SPENCER : On 15th November 2018, in the Crown Court at Sheffield, the appellant (now 31 years of age) was sentenced by His Honour Judge Robert Moore to a total of five-and-a-half years' imprisonment. The appellant had been convicted after a trial of robbery in a dwelling (count 1). The sentence on that count was four-and-a-half years. On the day of trial he had pleaded guilty to burglary of that dwelling (count 2), for which there was a concurrent sentence of four years. At an earlier hearing he had pleaded guilty to theft of a vehicle which had been parked outside the house in question using keys stolen in the robbery (count 3). On that count there was a consecutive sentence of ten months' imprisonment after full credit for plea. For driving whilst disqualified, to which he also pleaded guilty (count 4), there was a further consecutive sentence of two months with full credit for plea. No separate penalty was imposed for using a vehicle without insurance. The total sentence was therefore five-and-a-half years. The appeal is brought by leave of the Single Judge. 2. The principal ground of appeal is that the sentence for theft of the vehicle should have been made concurrent with, rather than consecutive to, the sentence for the robbery. It is also submitted that, although the appellant was a “three-strikes” burglar for whom a minimum sentence of three years was mandatory, the level of sentence for the robbery and the burglary was too high, rendering the whole sentence manifestly excessive. 3. The offences were committed at a house in Worsbrough, Barnsley, on 2nd June 2018. It was the home of Louise Evans and her partner. They lived there with their son, but he was away at the time. They had a Volkswagen Caddymaxi van which was parked on the main road outside the house. At about 6.30 that Saturday morning Louise Evans' partner left the house to go and play golf. Some fifteen minutes later there was a knock at the front door. Miss Evans got up and went downstairs to answer the door, wrapped only in a towel. She assumed it must be the postman. In fact it was the appellant. He lived nearby, it would seem. From what he told the jury in his evidence at the trial, he had noticed this van parked outside the house when he passed every day and had decided that he was going to take the van and sell it. 4. Ms Evans opened the door cautiously, and, as she did so, the appellant pushed the door open. She asked what he was doing. He pushed her backwards and demanded the keys, in foul and aggressive terms, speaking right into her face. She managed to stay on her feet. She was very frightened. She was vulnerable because she was wearing only a towel and was alone in the house. She knew that if she shouted for help no one would hear. 5. The keys for the van were attached to a much larger bunch of keys, one of which was in the lock of the front door. There were about twenty keys on the bunch for the homes of customers of her dog walking business. The appellant reached round and pulled the whole bunch of keys out of the front door. Ms Evans had her hand on them but he wrested the keys from her grasp. The appellant then calmly walked away from the house, got into the van and drove off. Ms Evans immediately phoned her partner to tell him what had happened and called the police. 6. The vehicle was valued at approximately £8,000. The appellant admitted that he had sold it soon afterwards for £1,200. The vehicle was subsequently recovered. 7. As a result of the episode Ms Evans was understandably left feeling nervous and lacking in confidence when alone in the house. 8. The appellant had a very bad record indeed, with 24 previous court appearances for a total of 95 offences between 2003 and 2017, including robbery, domestic and other burglaries, aggravated burglary and assault. Most of his offending was for dishonesty, much of it vehicle related. In 2003, as a juvenile, he was sentenced to six months' detention for robbery and assault. There were several further custodial sentences for vehicle-related theft and driving offences in his teens. Then in December 2006, aged 19, he was sentenced to two years’ detention for burglary of a dwelling. That was the first of the three-strikes burglaries. In October 2006 he was sentenced to 18 weeks consecutive for assault occasioning actual bodily harm. In February 2009 for aggravated burglary of a dwelling he was sentenced to four-and-a-half years' imprisonment on a guilty plea. He was also sentenced to 12 months consecutive for a separate domestic burglary where the householder was subjected to violence or the fear of violence. We note from his record that he has served custodial sentences nearly every year. His most recent sentence prior to this offending was 11 months' imprisonment imposed at Sheffield Crown Court on 4th October 2017 for escape, criminal damage and two offences of assaulting prison security officers. The present offences were therefore committed only a matter of a few months after his release, although it is unclear whether he was actually still on licence. 9. There was no pre-sentence report, nor was any report required. It was inevitable that there would be a substantial sentence of immediate custody. 10. The judge took the view that the offence of robbery fell into category 2C of the Sentencing Council guideline for robbery in a dwelling, for which the starting point under the guideline is three years’ custody and the range up to five years. He observed that on the verdict of the jury the appellant had decided that he was going to get the keys for this van regardless of whether someone was at home or not. The sentence for the robbery was four-and-a-half years. 11. The judge took the view that the burglary fell within the upper half of category 1 in the Sentencing Council guideline for domestic burglary, but he allowed modest credit for the late guilty plea. The sentence for the burglary was four years concurrent. 12. The judge afforded full credit for the pleas of guilty to theft and driving whilst disqualified, and said in terms that he needed to watch the overall total. In respect of the theft of the vehicle he noted that the appellant had sold it for £1,200 within two days. The sentence was ten months consecutive; and for driving whilst disqualified two months consecutive. 13. On behalf of the appellant, Mr Smith, in his most able and succinct submissions, says first that the judge erred in principle in imposing a consecutive sentence for theft because the value of the vehicle which was stolen had been taken into account in determining the level of sentence for the robbery. In his written argument Mr Smith said that the Crown had submitted that this was category 2 harm because of the high value of the vehicle stolen, and although the robbery was of the keys alone, the defence had agreed that the value of the car stolen two minutes later was the appropriate valuation for the purpose of the guideline. Mr Smith also said in his written argument: "It is of note that the learned judge used the fact that the property stolen was a valuable car in coming to his conclusion on the appropriate sentencing guideline ..." 14. We have examined the transcripts carefully. We do not think that submission is borne out by the transcript. In the course of the prosecution opening the judge invited the Crown's submissions on where the offences fell in the guideline. Prosecuting counsel suggested that the robbery was category 2: "... because clearly the value of the goods which were taken were significant to the victim - not only the vehicle keys, but also the keys from clients in her business." The judge agreed. In other words, the prosecution were not suggesting that the value of the vehicle should be taken into account in identifying the correct category for the robbery. It was the keys alone. 15. Prosecuting counsel went on to identify as aggravating factors of the robbery the vulnerability of the victim at the time of the offence - a lady on her own in her own home with only a towel wrapped around her; the fact that the offence took place early in the morning when there was no one around to whom she could shout for help; the fact that the offence was committed under the influence of alcohol; and finally, the appellant's very bad record. 16. In his oral submissions this morning Mr Smith very fairly and properly confirmed, when we enquired, that there had been no subsequent exchange between himself and the judge during the course of mitigation in which the question of the category had been considered further. There is no suggestion that the judge ever said in terms during the course of exchanges with counsel that he was taking into account the value of the car in putting the robbery into category 2. 17. Regrettably, the judge's sentencing remarks were excessively brief. Although he clearly identified the categories in which he placed the offences of robbery and burglary, he did not set out the reasoning by which he arrived at those conclusions. In fairness, it may be that as there was no dispute that the robbery was category 2C he felt it unnecessary to do so. Nor, however, did he spell out that he treated the theft as separate and distinct offending from the robbery and the burglary, thereby meriting a consecutive sentence. 18. As to the robbery, Mr Smith submits that as a robbery of the keys alone this was a category 3C offence, not category 2C, with the result that the starting point would have been 18 months and the range only up to three years. He submits that it could not be category 2 because that covers (to quote the guideline) "other cases where characteristics of category 1 or 3 are not present". He submitted in writing that characteristics for category 3 were present here because there was no or only minimal physical or psychological harm caused to the victim; the offence targeted and obtained low value goods, if confined to the keys; and there was limited damage or disturbance to property. 19. He further submits that the judge was wrong to put the burglary into category 1 of the guideline. Although there was greater harm because the occupier was at home, he submits there was no higher culpability factor made out: there was no weapon used and there was no significant degree of planning or organisation. He submits that the offence was committed on impulse, with limited intrusion into property, which would indicate lower culpability. 20. Mr Smith has not taken issue as such with the sentence of 10 months' imprisonment for the theft of the vehicle, representing a sentence of 15 months before full credit for plea. He simply submits that the sentence should have been made concurrent because the ultimate goal of the robbery and the burglary was theft of the vehicle, and this was reflected in the level of sentence for those offences. 21. We have considered these submissions very carefully. As we have said, it is regrettable that the judge did not spell out his reasoning more clearly. In the end, however, the sole question we have to answer is whether the total sentence of five-and-a-half years was manifestly excessive for the overall criminality represented by all the offences, having regard in particular to the appellant's record. 22. It is helpful, we think, to test the proposition in this way: for the burglary alone, even if there had been no element of force to make it robbery and even if nothing at all had actually been stolen, the appellant was bound to receive at the very least a minimum sentence of three years, with 10% credit for his very late plea, because he was a three-strikes burglar. The consecutive sentence of two months whilst driving was disqualified (as to which there is no dispute) would bring that back to around the three-year mark. On top of that three years, the appellant received in effect an additional 18 months for the fact that the offence was robbery. That cannot in itself be regarded as excessive. It was a nasty offence. In addition, the appellant received ten months for the theft of the vehicle, which again cannot be regarded as excessive in itself. Putting it another way, if nothing had been stolen in the burglary, because the keys could not be found for example, and instead the appellant had broken into and jump started the vehicle to steal it, there could have been no complaint at a consecutive sentence for the theft. 23. Tested in this way, we are far from persuaded that the overall sentence of five-and-a-half years was manifestly excessive. We should say that the example we have just given was put to Mr Smith during the course of argument and he maintained that even on those facts there would still have had to be a concurrent sentence for the theft because it was all part and parcel of the attempted robbery or burglary. 24. In any event, however, we think the judge was entitled to put the robbery of the keys alone into category 2C. It cannot be said that there was only minimal psychological harm caused to the victim. It cannot be said that low value goods or sums were targeted: the keys and what they represented were valuable to the victim as part of her business. Nor can it be said that there was only limited disturbance to property: he forced open the door and stole the keys. On this basis it was a category 2C offence, with a starting point of three years' custody. The aggravating factors were the vulnerability of the victim, the timing of the offence and the fact that he committed the offence under the influence of alcohol. The most serious aggravating factor of all, however, was his previous record, which included not only domestic burglary but aggravated domestic burglary and robbery. All these factors amply justified increasing the sentence for the robbery to four-and-a-half years. 25. As to the burglary offence, the judge had heard the trial. It was plain that the appellant had not simply decided on the spur of the moment to steal the vehicle and burgle the house in order to obtain the keys; there was a significant degree of forethought and planning. 26. Analysing the robbery and the burglary in this way, the stealing of the vehicle was properly to be regarded as separate criminality meriting a consecutive sentence, subject to the principle of totality, which the judge specifically had in mind, as is clear from his sentencing remarks. Standing back, we are therefore quite unable to say that the appellant's total sentence of five-and-a-half years' imprisonment was other than just and proportionate to reflect the totality of this serious offending against the background of such a bad record for similar offences. The sentence was severe, but properly and appropriately severe. 27. Accordingly, and despite Mr Smith's attractive and well-argued submissions, the appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE GREEN", "MR JUSTICE SPENCER", "MR JUSTICE MORRIS" ]	2019_05_09-4587.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/867/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/867	1,043
bd8b92b0df9ea5817ce819308f5986594ef2f9331316c300bb6bc15275993352	[2008] EWCA Crim 1698	EWCA_Crim_1698	2008-07-03	crown_court	Neutral Citation Number: [2008] EWCA Crim 1698 No. 2007/00601/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 3 July 2008 B e f o r e: LORD JUSTICE HOOPER MRS JUSTICE COX DBE and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - KENNETH TOM MACKRETH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 F	Neutral Citation Number: [2008] EWCA Crim 1698 No. 2007/00601/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 3 July 2008 B e f o r e: LORD JUSTICE HOOPER MRS JUSTICE COX DBE and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - KENNETH TOM MACKRETH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Barlow appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE HOOPER: Mr Barlow, we will grant you leave to appeal. But this appeal cannot go forward unless there is a waiver of privilege. So the first thing is that there must be a waiver of privilege within fourteen days. Absent a waiver of privilege, the appeal falls because you need such a long extension of time and the court is entitled to know what was happening at that time. If there are any case management issues, the Vice-President will appoint a Lord Justice to case manage the case so that you have someone to come back to. I will ask Sir Christopher Holland to give a short judgment. SIR CHRISTOPHER HOLLAND: 1. On 5 July 2000, in the Crown Court at Liverpool, the applicant, Kenneth Tom Mackreth, was convicted on 23 counts of indecent assault and ten counts of rape. He was sentenced to a total of five years' imprisonment. He was then aged 86. He has since died at the age of 92 on 22 June 2006. With the approval of this court the appeal which he had initiated by notice of appeal of 15 June 2006 is being conducted by his daughter Mrs Bateman. 2. The matter has been before the single judge who refused an extension of time and leave to appeal. The application has been renewed this morning with the aid of both written and oral submissions by Mr Barlow. The upshot is that we propose to refer the whole matter to the full court in these circumstances. First, in relation to the application for the extension of time, we direct that that matter can only be pursued if, within the next fourteen days, there is a waiver of privilege so as to permit enquiries to be made with defence counsel at trial as to the circumstances relating to advice (if any) on appeal. With that material, this court will be in a position to make a decision as to whether the extensive extension can and should be granted. 3. The further matter relates to the merits of the appeal. That in its turn centres almost entirely upon the ruling made by the trial judge that there were no grounds to stay the proceedings as an abuse of process. We are concerned about the merits of that decision. Our concerns relate almost entirely to the sequence of events that gave rise to the offences. It will be observed that the offences covered the period 1973 to 1977. During that period of time the ten victims were respectively resident in Derwent House Care Home. The trial was conducted without any reference to the precise history of those years. It was also conducted without there being available any documentation contemporaneous to those years which related to the events in Derwent House. That documentation had disappeared during the intervening period. In those circumstances the jury were not told about the precise history which featured allegations of sexual abuse made against the applicant. Those allegations were investigated by the police in that period twice (and possibly three times). It further resulted in the suspension of the applicant in April 1976 and his prosecution at Liverpool Crown Court in March 1977 with respect to allegations made by six young persons presumably resident at Derwent House. What we know from the press reports (but from no other source) is that only three of those allegations were in the event pursued and that the applicant was acquitted. Thereafter he was re-instated and remained in that employment until about 1978. We further gather that in that latter year there were further allegations made against him. These were referred to the Director of Public Prosecutions, but no action was taken on them. 4. Thus it is that there was a very involved history during the period contemporaneous with the current allegations. That history was not adduced before the jury. Even if it had been adduced before the jury, there would be no basis for cross-checking it with contemporaneous documentation. In the result, the issues in the trial turned purely upon the unaided recollection of the complainants, coupled with that of a very elderly defendant (the current applicant). Our concern is whether there could have been a fair trial of these issues absent the availability of evidence as to the full events of the 1970s, which evidence could be cross-checked with reliable contemporaneous documentation. 5. We point out that there are anomalies that are apparent to the reader of the papers but which would not have been apparent to the jury, namely that one of the current complainants (admittedly not called to give evidence), SM, gave evidence in 1977 for the applicant. Another anomaly is that a Mrs McAllister, who is currently identified as an accomplice to a very serious sexual assault, gave evidence in 1977 against the applicant. There is also the curious feature of what appears to be a 1977 document which is a petition for the re-instatement of the applicant signed by many residents of Derwent House. That document was never adduced before the court, nor could it in the circumstances that arose in 2000, having regard to the history and the lack of the contemporaneous documentation. 6. In the view of this court there is material here which invites careful consideration, notwithstanding the care with which the trial judge plainly devoted to his ruling. 7. We add this. It would plainly assist the full court if the Crown renew its efforts to identify the documentation (if any) that related to any of the matters that we have identified. 8. LORD JUSTICE HOOPER: How long should the appeal be listed for? A day or just short of a day? 9. MR BARLOW: I would say one day, my Lord. 10. LORD JUSTICE HOOPER: We will say a day for the estimated length of the hearing. That is to be revisited nearer the time of the hearing. You do not have to do anything more for the moment because you have done everything. As the next stage we need a skeleton argument from the respondent within 28 days, with liberty to apply. 11. MR BARLOW: My Lord, so far as a representation order is concerned, I seek one in relation to myself but I also seek one for my instructing solicitors in relation to the work which will have to be done in relation to the waiver of privilege and also communications. 12. LORD JUSTICE HOOPER: I think we would need convincing that we have the power to make a representation order when the applicant has died. Can we leave it this way? If you have such an application, it should be made to the Registrar, no doubt pointing out to him the appropriate law on the topic. 13. MR BARLOW: Yes. 14. LORD JUSTICE HOOPER: If the Registrar refuses it, my recollection is you have a right to come to a full court. But again I am only speculating. Thank you very much, Mr Barlow, for your help. _________________________________	[ "LORD JUSTICE HOOPER", "MRS JUSTICE COX DBE", "SIR CHRISTOPHER HOLLAND" ]	2008_07_03-1569.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1698/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1698	1,044
77f18c0b67b8396084d5b5a80645d875c825950257b8a3f95e8f346e1481e519	[2017] EWCA Crim 373	EWCA_Crim_373	2017-02-22	crown_court	Neutral Citation Number: [2017] EWCA Crim 373 Case No: 201603234 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 22 February 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE HOLROYDE MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - R E G I N A v SUNIL RAJIV LAL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Stree	Neutral Citation Number: [2017] EWCA Crim 373 Case No: 201603234 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 22 February 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE HOLROYDE MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - R E G I N A v SUNIL RAJIV LAL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE HOLROYDE: On 27 April 2016 in the Crown Court at Harrow, Mr Sunil Lal was convicted after a lengthy trial of an offence of conspiracy to defraud. On 8 June 2016 he was sentenced by the trial judge, His Honour Judge Greenwood, to 4 years' imprisonment. 2. His application for leave to appeal against that sentence was refused by the single judge. He now renews it to the full court. 3. The relevant facts can be very briefly stated. In 2013 the Applicant was employed by a bank. It appears that he had fallen into personal financial difficulties. It may have been for that reason that he was persuaded by a co-accused, Hardeep Bharya, to play an essential role as the "inside man" in a very well-planned and carefully executed fraud on the bank. 4. In bare outline, the conspirators identified a genuine customer of the bank, a Mr Parkinson, as having substantial funds standing to his credit. On 28 August 2012 the Applicant, in breach of his position of trust, assisted in opening a joint account in the names of Mr Parkinson and a Mr Javed, that being a false name used by a co-conspirator who was equipped with documents for the purpose. £99,561 was then transferred from Mr Parkinson's account to the account in joint names. Two days later, most of the money was transferred from the joint account to an account in the name of Javed alone. Later that day, the money was dissipated by transfers to a number of companies which had been set up for the purposes of the fraud. Thus by 31 August 2012, nearly all of the money had gone. 5. On that same date, 31 August, the Applicant assisted in a similar fraud involving a different genuine customer. On this occasion, a total of £99,700 was transferred and dissipated in the space of four days. 6. The evidence suggested that the Applicant was to receive £10,000 for his assistance, though to his expressed annoyance, he in fact received less than £3,000. The Applicant was arrested on 9 January 2013. He said he had agreed to join the fraud because he was under pressure. 7. Mr Bharya meanwhile went on to commit a similar fraud with the assistance of a different dishonest employee of a different bank. 8. The learned judge addressed the Sentencing Council's definitive guideline on sentencing in fraud, bribery and money laundering offences. He found, in our view entirely properly, that this was a case of high culpability for at least two of the reasons listed on page 6 of the guideline, namely "abuse of position of power or trust or responsibility" and "sophisticated nature of offence/significant planning". It seems to us that he might with equal propriety also have identified a third of those criteria, namely "a leading role where offending is part of a group activity". 9. Having regard to the amount obtained by the fraud, the learned judge placed the offence into category 2, which covers a loss of between £100,000 and £500,000. That gave a starting point of 5 years' imprisonment with a range between 3 and 6 years. The guideline's starting point is based on a loss of £300,000. The learned judge reduced the starting point accordingly to 4 years to reflect the fact that the loss here was of the order of £200,000. 10. So far as matters of mitigation were concerned, the judge accepted that the Applicant was effectively of good character. The judge also accepted that there had been some delay in sentencing, though it is difficult to think that that point can have carried much weight when the Applicant had contested a hopeless trial. The learned judge concluded that the appropriate sentence was 4 years' imprisonment. 11. Two grounds of appeal have been advanced. The first is that the judge placed the sentence too high in the range set by the guidelines. In our view, that point cannot realistically be argued. As we have said, this was a case of high culpability for at least two reasons, not just one. The effective good character of the Applicant was at least balanced out, if not indeed outweighed, by the Applicant's attempts at trial to place the blame for his wrongdoing on others. 12. The second ground contends that there is unjust disparity as between the sentence on this Applicant and the sentence on Mr Bharya. Bharya, who had pleaded guilty, was sentenced on the basis that the starting point before giving credit for his guilty pleas would have been 5 years. 13. In his case, he had been involved in further offending after this Applicant had been arrested. In addition, Bharya had relevant previous convictions. As against that, although we do not have full details, it does appear that Bharya gave evidence for the prosecution, which was clearly helpful in identifying how the fraud had been operated. 14. It does not seem to us that there is any arguable ground of disparity here. Even if it could be said that Bharya had been somewhat fortunate in the sentence which he received, it would not follow that the sentence on this Applicant was either wrong in principle or manifestly excessive. In our judgment, it was neither. 15. This court, therefore, agrees with the view of the single judge that there is no arguable ground of appeal against this sentence. The renewed application accordingly fails and is dismissed.	[ "LORD JUSTICE SIMON", "MR JUSTICE HOLROYDE", "MR JUSTICE SOOLE" ]	2017_02_22-3926.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/373/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/373	1,045
2874deba8a88ce344d228879d587951e0fb836325995ffdeade7ccee3e3049bd	[2020] EWCA Crim 290	EWCA_Crim_290	2020-02-25	crown_court	NCN: [2020] EWCA (Crim) 290 No: 202000173 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 25 February 2020 B e f o r e : LORD JUSTICE SIMON MR JUSTICE EDIS MR JUSTICE CHAMBERLAIN REFERENCE BY THE ATTORNEY GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v JOSHUA SHAWN DALGARNO Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Emai	NCN: [2020] EWCA (Crim) 290 No: 202000173 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 25 February 2020 B e f o r e : LORD JUSTICE SIMON MR JUSTICE EDIS MR JUSTICE CHAMBERLAIN REFERENCE BY THE ATTORNEY GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v JOSHUA SHAWN DALGARNO Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. The Solicitor General, Mr Michael Ellis QC MP, and Mr Joel Smith appeared on behalf of the Applicant Mr Derek Perry appeared on behalf of the Offender/Respondent J U D G M E N T LORD JUSTICE SIMON : 1. Her Majesty's Solicitor General applies for leave to refer a sentence passed on the offender at the Crown Court at Taunton on 19 December 2019 under section 36 of the Criminal Justice Act 1988 as unduly lenient. We grant leave. 2. The sentence was passed by His Honour Judge Ticehurst and the offender was Joshua Dalgarno, now aged 25. He faced a four-count indictment. Count 1 was a charge of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76 of the Serious Crime Act 2005; count 2 was a charge of burglary, contrary to section 9(1) (b) of the Theft Act 1968 ; count 3, taking a conveyance without authority, contrary to section 12(1) of the Theft Act; and count 4, damaging property, contrary to section 1(1) of the Criminal Damage Act 1971 . 3. At a Plea and Trial Preparation Hearing on 25 October the offender entered guilty pleas to counts 1, 3 and 4. His plea of not guilty on count 2 was acceptable to the prosecution. Sentencing was adjourned for the preparation of a pre-sentence report and the offender was remanded in custody. 4. On 9 December the offender was produced via video link for the sentencing hearing. During the opening of the facts by the prosecution, the offender became angry and left the video link booth. He later returned and, through his counsel, invited the judge to proceed to sentence. The judge declined to do so, and the hearing was relisted for 16 December. 5. On that day the offender was sentenced to a 24-month community order in relation to each count, with a rehabilitation requirement for up to 30 days, participation in the Building Better Relationships Programme and a condition of residence in approved premises. In addition, he was made the subject of an indefinite restraining order preventing contact with the victim or her sister or from attending the victim's home address. 6. The indictment reflected offending in the form of domestic abuse against his former partner 'F' from June to September 2019 comprising of a number of incidents of violence, obsessive and controlling contact by phone, controlling of the contact that the victim had with her sister, other family members and friends, monitoring of her phone and social media contacts, and taking and driving her car without permission. This conduct continued after his arrest in August. Having been arrested again in September and released on bail, he threatened F and her sister on a further occasion, taking her car (count 3) and attempting to break down her sister's door (count 4). The offender had a history of violent offending against partners. 7. F was aged 25 and was described by her sister as someone who was vulnerable, having found it difficult at times to live independently. She had met the offender through an online dating site in June 2019 and he soon moved into her flat. 8. On Sunday 18 July, F told the offender that her brother would be staying as he was visiting from abroad and that he (the offender) could not stay. He responded with a barrage of phone communications attempting to pressurise her into allowing him to stay and accusing her of using cocaine and of being unfaithful. He continued to call her throughout the night, repeating the accusations. 9. The next day she took her brother to hospital with a chest complaint. The offender did not believe that she had gone to hospital. When he saw her later that day, he demanded that she hand over her phone so that he could check for messages from other men. 10. Subsequently, on a trip to Longleat, he told her what she should wear and accused her of looking at other men. 11. He also took to demanding that she hand over her phone on her return from work so that he could monitor her contact with other men and her family. He would take photographs or screenshots of her messages and call logs, and keep them. He monitored who she was in contact with via Facebook and would forbid her from taking her phone to work, or take her phone from her so as to prevent her from using it. 12. Around this time, she became aware that the offender had a cocaine habit and was spending all his money on that drug. 13. On an occasion when he had taken her phone from her, he 'blocked' her twin sister from contacting her, without her knowledge, and deleted her number from F's phone. He also contacted male friends and previous boyfriends of F and asked to know when they had last seen her, and whether they had been in contact with her since June 2019. 14. Between July and September, he was violent towards her and towards property. F described him throwing cups of tea and coffee at the wall or floor, trying to set fire to a light, breaking property including a fan when in a rage, and assaulting her. These assaults took the form of striking her knees and legs, and twisting her arms and wrists, causing substantial bruising to her legs and arms. On one occasion he stabbed her with a penknife. He punched her and, whilst doing so, accused her in graphic terms of having sexual relations with other men. He also pinched her breasts, causing bruising. Most of the violence towards F took place in September 2019, when the offender knew that she was pregnant. She has since lost the baby. 15. On 1 August 2019, F reported his behaviour to the police, and he was arrested on 4 August. He was released on bail with a condition not to contact her. On 26 August, she provided a statement in which she said that she did not support a prosecution of the offender and that, whilst she knew he was violent and controlling, she would be taking steps to protect herself from him. She said that she would not attend court if the Crown Prosecution Service pursued a "victimless prosecution". For this reason, on 26 August the investigation of the offender ceased and the condition of non-contact fell away. F would later tell the police that she was still seeing the offender throughout August and felt under pressure to withdraw her allegation. 16. In early September F was admitted to hospital with a kidney infection. When visiting her in hospital, the offender accused her of fabricating the infection, saying that it was "all for attention". He threatened to pull her drip out. The next day he returned, threw juice over her bed and threatened to pull a cannula out of her hand if she did not leave. Staff at the hospital noted his behaviour and warned her against staying in a relationship with him. 17. Shortly after her release from hospital, the couple took a trip to Devon. The offender accused her of having been unfaithful with one of the nurses at the hospital and prevented her from having access to her phone. While in Devon, the offender began drinking and insisted on returning home to pick up more cocaine. 18. They returned to Devon the next day. He challenged her as to why she was talking to her sister. He obtained her telephone back-up files and went through her movements in July and August, and her deleted messages and photographs. When she told him that he was being ridiculous and that she had not been unfaithful, he snapped her phone in two. Throughout the journey home he continued to accuse her of looking at other cars or at men in other cars. When they reached home, the offender shouted and became aggressive. 19. After this trip to Devon, when he was not with her he would call her up to 60 or 70 times a day, demanding to know who she was with, whether she had spoken to family members or men, and insisting that she put the camera of her phone on to show him there were no other men with her. 20. On 11 September neighbours called the police after hearing the offender shouting at F and her response, "you've already hit me twice". F told the police that everything was all right but would later say she was scared of the offender even when four police officers were present in her home. 21. The offender lost his job because of his continual phone calls to F during work hours. He encouraged her to leave her job as he did not want her meeting people there. 22. On 14 September the couple took a second trip to Devon. By this time, the offender would ordinarily drive F's car even though he did not have a licence. She did not feel she could object as she "did not know what he was capable of". By now, she had taken to shutting her eyes when they were in the car together so that the offender could not accuse her of looking at other men. 23. During the second trip, the offender continued to accuse her of being unfaithful. After they arrived, he became very drunk, and angry when the landlord and F advised him against driving. She left him for five minutes. He followed her and furiously accused her, in explicit terms, of having sexual relations with other men. He pulled her hair and punched her bruising her arms. He then demanded, notwithstanding his drunken state, that she allow him to drive her car. 24. Having obtained the keys, he insisted that they leave together, threatening to leave her stranded. He then crashed the car, damaging the wing mirror and two tyres. During the ensuing argument, he grabbed her head, smashing it against the windscreen. He also threatened to kill her father and rape members of her family and friends. F started to drive the offender back to their hotel, where he again attacked her, punching her on the arm and face and causing a black eye, while continuing to accuse her of being unfaithful and telling her he knew people in prison who would destroy her life. He also struck the windscreen of her car, cracking it. Back at the hotel he called her a prostitute. The next day, 15 September, neighbours noticed a green-coloured bruise around her left eye. She told them that she "need[ed] to get him out". 25. On 16 September she was due to go to work. The offender told her to tell her colleagues that she had been bruised in an accident with a surfboard. Her boss had arranged a meeting with her as she had been taking large amounts of unauthorised leave. During this meeting, he and other colleagues noticed the bruising to her eye. She told him that the offender had been assaulting her and had smashed her telephone, meaning that she could not phone into work about her absences. She showed her boss her upper forearms, which were both heavily bruised. He reported the matter to the police. 26. The offender continued the physical abuse of F in late September: punches to the arms, and a punch to the face which she described as making her "see stars". The offender's own mother noticed bruising to F and told him that he would have to stop. On a trip to a local beach the offender had formed the view that she was looking at some man whilst swimming in the sea. He ducked her head under the water and then shouted to others present, describing her in graphically sexual terms and shouting that she had a cocaine habit, even though she was pregnant. 27. On 18 September, the offender followed an ex-boyfriend in a car, accusing her of having been unfaithful. He then used a penknife which had been used in place of the indicator stick to stab her in the leg, causing a mark and bleeding. Having caught up with her ex-boyfriend, the offender swore at him and smashed his windscreen with a wheel brace. When driving away, he punched her again. 28. She was to describe numerous other examples of controlling and aggressive behaviour. He had frequently broken property and had followed other cars containing men he accused her of having relationships with. He also asked her to obtain a contract for a mobile phone in her name, which he used. He continued to prevent or limit her access to friends and family, including preventing her seeing her grandmother at her birthday celebrations. She stopped talking to her mother and to her sister. The offender smashed the replacement telephone that she obtained after he had snapped her telephone in two in Devon. 29. As is not uncommon in cases of domestic abuse, the violence and controlling behaviour was punctuated by apologies. 30. A download from F's telephone showed messages between the offender and her between 25 June and 4 August 2019. They did not cover the period of August and September when the offender's behaviour was at its worst. The messages showed the offender regularly contacting her, accusing her of having affairs and of engaging in sexual activity with other men (including friends, colleagues and taxi drivers), demanding passwords to her phone and social media accounts, and controlling her in the manner described by her to the police. He also used the geolocation feature of her telephone to monitor her whereabouts. 31. On 20 September the offender was arrested. He was interviewed and provided an untruthful statement saying that the injuries to F were as a result of a surfing accident and the damage to her property was accidental. He denied any criminal activity. 32. He was released from police custody on 21 September subject to bail conditions not to contact F. He went straight to her address. At the time she was staying at her sister's house as she did not feel safe in her own home. He broke into her home, took her car keys and used them to take her car without her permission. He then drove around looking for her. This gave rise to the charge under count 3 on the indictment -- taking a conveyance without consent. 33. At 11.15 that night he went to F's sister's home. He banged on the front door violently with his fists, kicked the door, and shouted, "Where is my girlfriend? Get her out here now." F's sister's boyfriend, who was there, ran to the front door to hold it shut. During this time the offender was swearing, and threatened to "smash his head in". F, her sister and the boyfriend then fled, driving away in F's sister's car. The offender stood in the way of the car, looking "completely out of control" and throwing an object at it as they drove past. During this incident, F's sister was so scared that she was sick. The offender cracked the door when kicking it. This crime was reflected in count 4 on the indictment. Counts 3 and 4 were committed the day that the offender had been released on bail, in relation to offending against F, and in breach of a condition not to contact her. 34. He was arrested again on 25 September; and gave ‘no comment’ answers to questions in interview. 35. In September 2019 F provided two statements in which she expressed her fear of the offender after he had come to her sister's house. She said that she had to find somewhere else to stay as she did not feel safe either at her sister's house nor her own home. In her police interview she described the offending as making her feel "little" and "like a piece of dirt". Her sister told police that she could not return to her flat until she knew that the offender was in custody. 36. The offender's mother provided a statement to the police in which she described the paranoid behaviour that she had witnessed on the part of the offender towards F and other girlfriends. When his mother challenged him, he said that he was his "father's son". The offender's mother had called the police about the offender's behaviour in the past and told the police that he scared her. 37. One of the most striking features of this Reference is that this offending was not out of character. 38. Although he was only 25, he had a very bad record for this type of violent and oppressive behaviour, often in the context of a domestic relationship. It is unfortunate that many of the details of this antecedent history were not before the sentencing judge. 39. In September 2009, he was made the subject of a referral order for battery. These facts were not before the judge. He had punched the victim several times to the head during an altercation in the streets. 40. In November 2010, he was sentenced to a youth rehabilitation order for possession of a bladed article, criminal damage and battery. The facts of this offence, which were not before the judge, were that he was involved in an altercation with a friend, which was broken up by his sister. After this, he returned home and became verbally and physically confrontational towards his sister and his mother, causing his mother to fear for her daughter's safety. The offender damaged a kitchen chair and table, and the bathroom door, and left the property carrying a kitchen knife. He was arrested on the street in possession of the knife. 41. In June 2012, he was sentenced to a community order, with supervision and an unpaid work requirement, for two offences of battery and one of common assault. The facts of this offending, which were not before the judge, all concerned domestic violence against a domestic partner. The convictions reflected three occasions on which he slapped the victim to the face and stood on her hand, spat in her face and grabbed her hair, pushed her face into a bed, pinched her stomach and breasts, and kicked her legs. He also snapped her phone and placed it in water, threw a drink and an egg at her, and twisted her forearm. 42. In May 2013, he was sentenced to a community order, subsequently varied in January 2014 to 2 weeks' detention in a young offenders' institution, for offences of criminal damage, using threatening words and behaviour, and common assault. The facts of this offending, which were not before the judge, were that the offender had drunkenly shouted at passers-by, spat in the face of a man and run away from police into a nearby garden, where he damaged fencing. 43. In June 2013, he was sentenced to a community order, subsequently varied to 4 weeks' detention in a young offenders' institution, for two offences of battery. The facts of these offences, which were not before the judge, were that he assaulted a domestic partner whom he believed was being unfaithful. He grabbed her, causing her mobile phone to drop and smash, and then grabbed her throat and pushed leaves into her mouth, smashed a picture frame and held it to her throat, saying that he wanted to kill her, elbowed her in the stomach, hit her in the eye causing a black eye, grabbed her arm causing bruising, and punched her torso repeatedly. 44. In September 2013, he was fined for two offences of failing to comply with a community order and sentenced to a further community order, also subsequently varied to 2 weeks' detention in a young offenders' institution, for criminal damage. 45. In January 2014, he was sentenced to 2 weeks' detention in a young offenders' institution for criminal damage and using disorderly or threatening or abusive words or behaviour. The three community orders he was subject to at the time were revoked and the offender was made subject to the further periods of detention we have already described. The facts of this offending, which were not before the judge, were that the offender went to his sister's house and swore, demanded his phone and a cigarette, and threw a plant pot at his neighbour's door causing damage. 46. In March 2014, he was sentenced to 4 months' imprisonment, suspended for 24 months, for offences of criminal damage and battery, was required to complete a programme and made the subject to a restraining order. The facts of this offence were that the offender attended the address of a domestic partner who was 30 weeks pregnant with his child at 2 am. He demanded to know where a man was that he wrongly believed to be there. He entered the property through a window, grabbed his partner, causing bruising. Whilst at the property he smashed a mobile phone, a lamp and mirror, and broke a bedframe and electric socket. 47. In October 2014, he was sentenced to 12 months' detention in a young offenders' institution for an offence of assault occasioning actual bodily harm which had been committed while on bail. The facts of the offending were that on 7th March 2013 the offender, while he was in drink, punched a friend of his six times, headbutted him and kicked him to the face. The victim suffered a bloodied face, a swollen jaw and an observable footmark to the face. 48. In December 2014, he was sentenced to 3 months' detention in a young offenders' institution for offences of battery and criminal damage, also committed while on bail. In September 2014 the offender argued with a domestic partner and put her in a "sleeper hold", pinning her throat and body to the bed for 10 to 20 seconds. On 24 October 2014 he returned to her address. Despite being told not to come in, he entered through a window and looked around as if searching for another man. An argument ensued and the offender punched a hole in a wall. 49. In April 2016, he was sentenced to a community order with a rehabilitation activity requirement and a programme requirement for being drunk and disorderly and breaching a restraining order. The facts of the breach offence, which were not before the judge, were that the offender sent three text messages to a domestic partner in respect of whom there was a restraining order in place. He also tried to goad the victim's new boyfriend into fighting him. 50. In October 2016, he was sentenced to a community order, with an unpaid work requirement, for breaching a non-molestation order imposed in the Family Court. The facts of this offending, which were not before the judge, were that a former partner of the offender, in respect of whom the non-molestation order was in place, said that the offender had hit her over the head with a domestic appliance, causing concussion. She was unwilling to support a prosecution and the offender was convicted of breach of the non-molestation order. 51. In April 2017, he was sentenced to 10 months' imprisonment and made the subject of a restraining order for an offence of assault occasioning actual bodily harm. The facts of that offence were that on 29 October 2016 the offender, who had been taking drugs and was in drink, became involved in an argument with a domestic partner. He removed his jumper and T-shirt and challenged passersby to a fight. During the argument the offender punched his victim to the face, knocking her to the floor and causing a fracture to the right eye socket, a fractured nose and a cut below her eye. 52. In July 2018 the offender was sentenced to 20 weeks' imprisonment for offences of criminal damage and sending a communication conveying a threatening message. The facts of this offending were that on 30th June 2018 he awoke his then domestic partner and accosted her about a male friend on social media. The next morning, when she had asked him what was wrong, he had punched the dashboard of her car and said he was still angry about her contacting a man on social media. He then left the car and entered her flat through an open kitchen window. When she entered the flat, he shouted and swore at her and accused her of being unfaithful. He had been taking cocaine. She was pregnant, but he grabbed her by the waist and shoved her against the kitchen doorframe, causing a bruise to her forearm. He then smashed her television set, telling her, "You ain't watching shit now". After the police arrived, she developed stomach pains and was taken to hospital. He then sent text messages to her threatening to "smash [her father's] head in" and to damage her car. 53. There were two reports before the sentencing judge. The first was a pre-sentence report. The offender told the author of this report that he had stopped taking his anti-depressant medication shortly before the relationship with F began. He accepted checking her telephone on numerous occasions. 54. The offending was assessed as having a significant impact on F; and the report described his behaviour as "another incidence of domestic violence, triggered again by sexual jealousy and underlying trust issues". The offender had taken "some responsibility" for his actions but minimised his behaviour. He made excuses and failed to recognise the impact of his behaviour. He was assessed as being at high risk of reoffending. He posed a high risk of serious harm to intimate partners. 55. The author of the report noted that the offender "has an extensive list of violent offences" and had failed to engage in rehabilitative programmes to address his “problems”. The report concluded that, although his previous attitude to rehabilitative sentences had been "problematic" and resulted in numerous breach proceedings, he needed to complete a "Building Better Relationships Programme". This programme was not available after release on licence unless the licence period was 18 months or more. The report therefore recommended a 24-month community order. 56. The second was a psychiatric report from Dr Ahmed. The offender told the psychiatrist that he had been self-harming. He said he had been "taken advantage" of by F and coerced into obtaining payday loans of £4,000 which were partly used to fund F's ex-boyfriend's drug habit. He told the psychiatrist that it was F who had been controlling towards him, preventing him from going where he wanted, and insisting he stay with her. He accused her of having a termination without his consent. He denied any violence or any assault. He denied coercing or restricting her activities. He said that they were hardly ever together as she was working all the time. He accused her of being "disloyal" and of talking about men she had previously met on dating websites. He maintained his belief that she had been unfaithful. He described her version of events as "inaccurate" and stated he had been taken advantage of. In short, he denied the offences and blamed the victim. He said that he had only pleaded guilty because he had been advised to. The psychiatrist summarised his approach as: He is not accepting the evidence put forward by F and, in fact, is blaming her for all the events that have occurred. Although pleading guilty, he is showing no remorse. 57. The psychiatrist concluded that the offender suffered from dissocial personality disorder, characterised by a life-long tendency to be rebellious, impulsive, to infringe rules and get in trouble with the law. It was not a "major mental illness". He was assessed as not learning from his mistakes, becoming quickly angered and not taking responsibility for his behaviour. 58. The judge's sentencing remarks were short: What I am going to do, giving you credit for your pleas of guilty, taking into account the Sentencing Guidelines is to see whether or not this cycle of abuse of women and of violence towards them can be broken, but you should be in no doubt that if you mess up, if you fail to comply with the various requirements or if you commit any further offences, you will be back in front of me. The sentence I have in mind for you is one of 4 years in prison. Do you understand that? 59. The offender replied: Yes, judge. 60. The judge warned the offender that he could end up killing someone due to his loss of temper and lack of control: You really are at a turning point in your life, Joshua Dalgarno. Either you take this opportunity with both hands, work with the Probation Service and keep out of trouble or you can see where your future is going to be. 61. He then imposed the 2-year community order with conditions. 62. The Solicitor General submits that, by reference to the Sentencing Council guidelines for offences contrary to section 76 of the Serious Crimes Act 2015 , the crime charged as count 1 fell into category 1A. There were a number of greater harm and higher culpability factors. Category 1A has a starting point of 2-and-a-half years and a range of 1-4 years. In addition, he submits there were a number of aggravating factors. He had four previous convictions for assaulting women with whom he had been in a relationship; two of these were assaults on pregnant women. In addition, he had failed to respond to previous community orders, and paid no regard to restraining and non-molestation orders. In these circumstances the sentencing process was flawed, and the passing of another community sentence was unduly lenient. The Solicitor General also notes that in departing from the guidelines the judge had given no reasons for doing so, and had not explained why it would have been contrary to the interests of justice (see section 125 of the Criminal Justice Act 2003 ). 63. For the offender, Mr Perry, in measured and realistic submissions, accepts that the offending could have justified a custodial sentence of significant length, particularly in the light of his previous convictions. But he repeated the submissions that he made before the judge that a reduction in the risk of future offending would be better achieved by rehabilitation and therapeutic intervention in the community rather than a custodial sentence. As he put it, "Prison simply had not worked". There was, he pointed out, support for this in the pre-sentence report. The reality was that in view of the time on remand, the release from custody would occur relatively soon in the context of the life of this young man. The judge had indicated the length of sentence that he would impose if he were breached and had exercised a reasoned sentencing approach that was open to him in the circumstances. 64. We have also seen a supplementary probation report prepared for this court dated 23 January 2020. This is not wholly favourable. He is residing at Weston Approved Premises, as envisaged by the judge's order, but he has tested positive for cocaine while there. 65. We have considered the submissions made on behalf of the Solicitor General and the offender. 66. This was grave and protracted criminality which fell very clearly within the definition of domestic abuse set out in the guidelines, Part 5 "Overarching Principles: Domestic Abuse". It was a pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse directed at an intimate partner, encompassing psychological and physical abuse. 67. By reference to the Sentencing Guidelines for offences contrary to section 76 of the Serious Crimes Act 2015 it was category 1A offending. 68. There were a number of culpability factors present which took the offending into category A: the persistence of the offending from June to September; the multiple methods of controlling the victim, including monitoring her phone and social media use; obtaining her archived phone records, which also indicated a degree of sophistication in the offending; verbal threats, physical violence and isolating, preventing or limiting her access to her family and friends. The repeated and graphic sexual allegations, and conduct intended to humiliate and degrade her were also factors that took the offending into category A. This was, as the Solicitor General submitted, pernicious behaviour, calculated to demean. 69. So far as harm was concerned, not only was the victim in fear of violence - a category 1 factor - she was frequently assaulted and she had to leave her own home. It was very plainly within category 1A of the guidelines, with a starting point of 30 months and a range of 1-4 years, as the judge, with his reference to a term of 4 years, recognised. 70. There were, in addition, a number of aggravating features that were relevant to the sentence: the number and nature of previous convictions for incidents of domestic violence - certainly not less than 4, including violence against pregnant women; the fact that the victim was pregnant at the time she was subjected to violence; counts 3 and 4 were offences committed while on bail and on the day that he was released from custody; some of the offending was committed while the offender was under the influence of alcohol and drugs; and steps were taken to prevent the reporting of the offending. The only mitigation was the plea of guilty. 71. It is clear from the sentencing remarks that the judge considered the offences merited a substantial custodial sentence. He decided to pass the sentence that he did to see whether the cycle of abuse of women and of violence towards them could be broken. There was nothing wrong with passing a merciful and constructive sentence, but the judge was bound to consider the wider picture of an offender who had been given very many chances to change his conduct and who had failed to avail himself of these opportunities. The sentence that should have been passed was one that appropriately reflected his criminally oppressive conduct to women with whom he continued to form abusive domestic relations. That was the sentence indicated by the application of the guidelines and not yet another chance . 72. In our view the sentence that should have been passed before credit for the pleas was a term of 4 years' imprisonment. With 25% credit for the plea, there should have been an immediate term of imprisonment of 3 years. The sentence that was passed on count 1 was unduly lenient. We therefore substitute a term of 3 years on count 1 and sentences of 3 months concurrent on each of counts 3 and 4. The restraining order will remain in place. We will direct that time 81 days spent on remand will count towards the sentence of imprisonment. 73. Mr Perry, is your client available to surrender to custody? 74. MR PERRY: My Lord, yes. We discussed that between us today and I have spoken to my solicitors. He is at the approved premises in Weymouth. So, it will be Weymouth Police Station he will need to surrender to. 75. LORD JUSTICE SIMON: We will direct that he must surrender to Weymouth Police Station by 3 o'clock this afternoon. 76. MR PERRY: Thank you very much.	[ "LORD JUSTICE SIMON", "MR JUSTICE EDIS", "MR JUSTICE CHAMBERLAIN" ]	2020_02_25-4843.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/290/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/290	1,046
64c4deb9b4afc09e1d1fa7894bc640a7ae8ef8b7a24239fb08de7d8fbb6c2e37	[2013] EWCA Crim 359	EWCA_Crim_359	2013-03-26	crown_court	Neutral Citation Number: [2013] EWCA Crim 359 Case No: 201205328 C1/201205583 C1/201205581 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT His Honour Judge Durham Hall QC T20110797 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/03/2013 Before : LADY JUSTICE RAFFERTY DBE MR JUSTICE WILKIE and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - Between : (1) Richard John POLLETT (2) John Neil HIRST (3) Linda Christine HIRST Appellants - and - R	Neutral Citation Number: [2013] EWCA Crim 359 Case No: 201205328 C1/201205583 C1/201205581 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT His Honour Judge Durham Hall QC T20110797 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/03/2013 Before : LADY JUSTICE RAFFERTY DBE MR JUSTICE WILKIE and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - Between : (1) Richard John POLLETT (2) John Neil HIRST (3) Linda Christine HIRST Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Isabelle Gillard (instructed by Edward Hayes LLP ) for Appellant (1) Charles Bott QC and Mark Harries (instructed by Opus Law ) for Appellant (2) Nigel Sangster QC and Hannah Hinton (instructed by Quinn Melville Solicitors ) for Appellant (3) Rachael Barnes (instructed by Serious Fraud Office ) for the Respondent Hearing date: 22 nd February 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty : 1. On 19 th June 2012 in the Crown Court at Bradford John Hirst on re-arraignment pleaded guilty to count 1 conspiracy to defraud, count 9 money laundering, contrary to s327(1) Proceeds of Crime Act 2002 (“ POCA 2002.”) and count 11 money laundering, contrary to s328(1) POCA 2002. On 9 th – 10 th August 2012 Linda Hirst was convicted of count 5 money laundering, contrary to s329(1) POCA 2002, count 7 money laundering, contrary to s327(1) POCA 2002, count 8 evasion of a liability by deception, contrary to s 2(1)(a) Theft Act 1978 and count 13 money laundering, contrary to s 327(1) POCA 2002. On 13 th August 2012 Richard Pollett was convicted of counts 1 and 2, making misleading statements, contrary to s397(2) Financial Services & Markets Act 2000. 2. On 31 st August 2012 they were sentenced as follows: John Hirst on Count 1 to 9 years imprisonment, on Count 9 to 18 months imprisonment, and on Count 11 to 3 years imprisonment the terms concurrent. Count 2 was ordered to lie on the file on the usual terms: Richard Pollett on Count 1 to 6 years 6 months imprisonment and on Count 2 no separate penalty was imposed: Linda Hirst on Count 8 to 6 months imprisonment, on Count 5 to 2 years imprisonment, on Count 7 to 18 months imprisonment and on Count 13 to 30 months imprisonment, the terms concurrent. 3. Daniel Hirst was acquitted of counts 10-12 and Zoe Waite of count 13. 4. Pollett appeals against conviction and sentence and Linda Hirst appeals against sentence by leave of the Single Judge. Hirst renews his application for leave to appeal against sentence following refusal by the Single Judge. Counts 1 & 2 as alternatives 5. The Crown’s case was that Hirst was the prime mover in a “Ponzi” scheme in which about 120 investors, mainly from the British expatriate community in Mallorca, were duped into parting with large amounts on the promise of investment in the Dow Jones futures market, a high rate of interest and a guaranteed return of capital. Pollett was said to be Hirst’s loyal partner. Many investors were elderly and / or inexperienced in financial matters. The money was paid into accounts controlled by Hirst. Some investors received some payments, but from capital already paid over, not as a result of investment. Between 2001 and 2009 some £10 million was invested. Just over £4.6 million was returned to the investors, leaving losses of more than £5 million. 6. Hirst gave every appearance of a successful man of business. The reality was that whilst a salesman at Allied Dunbar he had in the 1990s run a very similar fraud, defrauding ex-miners of their redundancy payments – a total of about £500,000 – using the lie of a secure off-shore investment. He had eventually pleaded guilty to obtaining by deception and been sentenced to 30 months imprisonment. No money was recovered, it had all been spent extravagantly and on private education for his sons. 7. Following his release in 1993, Hirst set up other businesses but none was successful. In 1995 after he met Linda Waite they lived and went into business together, again unsuccessfully. Three companies were left in receivership and the couple were so in debt that Linda Waite had to come to an agreement with her creditors. 8. Later, still in modest circumstances, they moved to Mallorca to look after her elderly parents and Hirst met Pollett, who lived there. Pollett described himself as a chartered accountant and financial consultant, and was well-known and trusted amongst the British expatriates. The Polletts were also in financial difficulties. 9. By 2001 Hirst and Pollett were persuading people to invest in Hirst’s scheme. Initially, payments were to Hirst personally or to a Latvian bank. Hirst then set up a more detailed corporate and banking structure which through complex offshore companies concealed his involvement, These included a series of companies named Gilher, in one incarnation incorporated in Panama, and then in the Seychelles. Companies named Templegate (for Linda Waite) and Lytham Management (for Pollett) were set up. 10. From 2001 onwards Hirst and Pollett persuaded many to invest in the scheme. Hirst had a plausible account for the high interest rates, investors assured their money was secure. Pollett had gravitas and was trusted. In the early stages the scheme appeared to work, investors apparently receiving the guaranteed rate of return. Everyone received contracts, regular monthly statements and some received “information sheets” and marketing literature. 11. John Hirst and Linda Waite in Mallorca in 2006 celebrated their wedding in the most lavish style, a number of the investors guests. In 2005 Hirst had acquired and luxuriously renovated a large villa as their home, and they enjoyed an extravagant lifestyle, both domestically and on holiday. 12. The scheme ran into difficulties. In 2008-2009 Pollett reassured investors that all was well, or explained on Hirst’s behalf and sometimes urged alternative “investments”. At a November 2009 meeting of very unhappy investors in Mallorca Pollett was challenged as having been involved. He denied it, and said that like everyone else he was a loser. Hirst 13. Counts 9 & 11 These money-laundering counts reflected some of Hirst’s dispersal of the proceeds of the fraud from his Gilher account: £33,000 to his son’s account (count 9) and £428,000 to a legitimate company, Last Second Tickets (count 11.) Linda Hirst 14. Count 8. On 31 st October 2000 Linda Waite entered into an individual voluntary arrangement (“IVA”) with her creditors, which ran to February 2004, staved off her bankruptcy and should have resulted in a higher dividend to her creditors. She should have accounted for any windfall sums she received. Instead, she failed to declare the monies she received from Hirst, Gilher and Templegate. They should have gone to her existing creditors. 15. Under the IVA Linda Waite had agreed to repay over five years £24, 325 of a total debt of £96,647.78, about 25p in the pound. In fact, as from 8 th October 2001 Hirst re-negotiated her monthly amount down to £266 on the basis of a supposed reduction in income. In December 2003 the outstanding balance (£18,195) was paid by lump sum transfer from a Bank of Cyprus Gilher account. During the lifetime of the IVA Linda Waite had received enough to discharge in full the original liabilities. 16. Counts 5,7 & 13. These money-laundering counts reflect her role from 2006-2008 in the dispersal of Hirst’s proceeds of the fraud, the transfer of approximately £170,000 to her account from a Bank of Cyprus Gilher account, ten withdrawals covering £17,300 from a Templegate account and the purchase for £552,553 using monies from a Gilher sterling account of a house in Surrey. 17. Interviewed in December 2009 Hirst made no comment. Pollett interviewed in May 2010 said he had never thought the scheme fraudulent, he only had reason to doubt it from October 2009. At the start, he had asked some investors if the scheme worked, and it appeared to, and he had made one enquiry of a bank employee as to whether it were possible to have such a high rate of return. He had been paid commission for introducing 78 people, some of whom he had never met. Though he had earned £2,190,000 commission £821,000 was unpaid so he received a net £1.369 million. Linda Hirst interviewed in January 2011 handed in a prepared statement in which she claimed she had had no idea her husband was involved in any criminal activity. She had trusted him and given him her own money to invest. Gilher monies were returns on her investments. 18. The Crown’s case was that Pollett and Hirst were dishonest partners in the conspiracy to defraud to which Hirst had pleaded guilty (count 1), or, in the alternative, that Hirst knowingly or recklessly made misleading or false statements to induce people to invest (count 2.) Pollett’s evidence echoed his interview. He conceded he should have made more checks before he introduced clients, but had not been dishonest. He had no inkling it was a fraud, he too had been fooled by Hirst. He called his brother Simon who had also invested, and character evidence. Ruling on taking of verdicts on counts 1 & 2 19. The judge directed the jury that counts 1 & 2 were in the alternative, and that it need consider count 2 only if unsure Pollett was guilty of count 1. The jury in a note asked whether failure to achieve unanimity on count 1 meant Pollett should be acquitted of that count, and that it should then consider count 2 only. It was told that this was wrong, and redirected on unanimity. Later, before the direction on majority verdicts, the clerk asked if the jury had reached any unanimous verdicts and the foreman indicated, inter alia, that it had an unanimous verdict on count 2 but not on count 1. The judge directed that as counts 1 & 2 were alternatives, it was not appropriate to take a verdict on count 2 at that point, and gave the majority direction in relation to count 1 and all other outstanding counts. The jury later convicted Pollett of count 1. The defence suggested no verdict be taken on count 2 arguing that to do so would lead to inconsistent verdicts. The judge ruled that the verdict should be taken. The counts were not in law alternatives, count 2 was a catch-all or longstop, and it was procedurally tidier and appropriate to take a verdict. 20. Pollett’s grounds of appeal are that the Judge erred in law in directing the jury to deliver its verdict on count 2 once it had convicted on count 1. The alternative nature of the charges could not have been made clearer both by counsel for the Crown and in the summing-up. As a result of this procedural error Pollett has two convictions recorded against him, both of which arise from the same facts. The verdict on count 2 is accordingly unsafe and should be set aside. 21. The counts were drafted as follows: “Count 1 STATEMENT OF OFFENCE CONSPIRACY TO DEFRAUD, contrary to common law PARTICULARS OF OFFENCE RICHARD JOHN POLLETT between 1 st December 2001 and the 31 st December 2009 conspired together with John Neil Hirst to defraud such individuals as might be prepared to hand over monies to them for investment purposes by dishonestly: representing to such individuals that all monies handed over to them, whether directly or through any bank account held in their name, or either of them, or in the name of any company controlled and/or managed by them, or either of them, or any agent acting on their behalf, would be invested on behalf of those individuals or any other person nominated by those individuals; representing to those individuals that any monies to be handed over: would be invested on their behalf; would be invested on the Dow Jones Index futures market; would be, at all times, guaranteed and secured; would be returned immediately upon fourteen days notice and after a minimum period of three months; would achieve a minimum return of 1.5% per month, equating to 18% per annum, with a 2% bonus if invested for a year; failing to invest any or all of such monies whether as so represented or at all. COUNT 2 STATEMENT OF OFFENCE MAKING MISLEADING STATEMENTS, contrary to section 397(2) of the Financial Services and Markets Act 2000 PARTICULARS OF OFFENCE RICHARD JOHN POLLETT between 1 st December 2001 and the 31 st December 2009 together with John Neil Hirst engaged in a course of conduct of (i) knowing or recklessly (dishonestly or otherwise) making statements, promises or forecasts which were misleading, false or deceptive in a material particular and (ii) dishonestly concealing material facts for the purpose of inducing or being reckless as to whether it may induce another to enter into John Hirst’s investment scheme, including: representing to such individuals that all monies handed over to them, whether directly or though any bank account held in their name, or either of them, or in the name of any company controlled and/or managed by them, or either of them, or any agent acting on their behalf, would be invested on behalf of those individuals or any other person nominated by those individuals; representing to those individuals that any monies to be handed over: would be invested on their behalf; would be invested on the Dow Jones Index futures market; would be, at all times, guaranteed and secured; would be returned immediately upon fourteen days notice and after a minimum period of three months; would achieve a minimum return of 1.5% per month, equating to 18% per annum, with a 2% bonus if invested for a year; failing to disclose that such monies as were handed over were not invested whether as so represented or at all; and failing to disclose that Richard Pollett received monies from the Bank of Cyprus bank accounts of Gilher Inc. as “commission” on funds handed over by investors.” 22. Miss Gillard for Pollett conceded and concedes that Count 2 is not in law a strict alternative. We agree. However she submits that the drafting shows it was intended to operate as such, and so said counsel for the Crown in his opening. 23. The summing-up includes: “Counts 1 and 2 only, alternatives. That means you will not be asked, as it were, to conclude on both counts…..The prosecution say Mr Pollett is guilty on count 1, of the dishonest conspiracy to defraud. If having considered all the evidence…you find Richard Pollett guilty on count 1 you will not need to consider further, or return any verdict on count 2, do you understand? It is an alternative. It is, in the context of the case, the lesser alternative, some may argue. It follows that if you are not sure about Richard Pollett on count 1, then and only then would you need to move on to consider the alternative… You can start wherever you want, but it would be daft not to, as far as Richard Pollett is concerned, look at count 1 first and then, only then, after you have concluded your deliberations, consider if necessary, count 2 ….’ … at the core of count 1 is an agreement, dishonesty, and that is why the alternative, insofar as it uses dishonesty, really at heart is about the alternative scenario. If you are not sure that Mr. Pollett was a dishonest team member….was he at the very least reckless, making dishonest statements and so on. …This alternative proposition involves the offence, 1, to make a statement or promise knowing it to be misleading or false, and that it is an offence, or 2 dishonestly concealing a material fact in connection with any statement or promise, that is an offence under this act, or 3, to recklessly make a statement or promise which is misleading or false or deceptive; that too is an offence, ….the prosecution nail their colours to the mast, they say count 1, but …… they are entitled to put the alternative on for your consideration, because you are in charge……… …If Mr. Pollett dishonestly … working with Hirst to con investors by making himself very useful or adopting Hirst’s mumbo jumbo and lies…then you have to consider count 1. Count 2’s aim is the possible alternative scenario. If you are not sure Mr. Pollett was in it to some degree with Hirst as a dishonest collaborator, are you sure he was reckless?...The prosecution must prove whether it was foolish dishonesty, corrupted dishonesty that the elements of count 1 are made out……Count 2 you immediately see is different. It is the state of mind. Count 2, not sure dishonest, was he reckless in what he was saying to his clients or those he introduced … ? Count 2 you note specifically can be committed without dishonesty if the relevant acts and statements are dishonesty.’ (sic. Counsel’s note reads ‘… statements are made recklessly.’) ….So, the question, in looking at counts 1 and 2, for you to determine whether Mr. Pollett was dishonest in the terms and ingredients required in count 1, or reckless in terms of the ingredients and requirements requiring a proof in count 2 ….” 24. It was agreed before us that the jury was entitled to ignore the route to verdict suggested by the Judge. It plainly did not follow his advice. Nothing turns on that aspect. 25. The jury retired on Monday 6 th August 2012. The following day a note read: “Question: clarification on two points please. Some jurors are under the impression that if we can’t agree on count 1 that we find him not guilty and move to count 2. Can you please give clarity that we need to make a unanimous decision on count 1. The jurors were directed: You are asked to reach unanimous verdicts on these, on each defendant on each count, working through the indictment as you see fit. You are only – unanimous verdicts are acceptable, whatever they are, and any impression that if you can’t agree on count 1 at this stage you must find the defendant not guilty is wrong. Failure to reach a unanimous verdict at this stage is simply a failure to reach a unanimous verdict at this stage. “Can I give clarity that you need to make a unanimous decision to count 1?” Yes. You need to make that decision, either way, before moving to count 2. …… Yes, you do need to make a unanimous decision to count 1.” 26. On 9 th August the jury was asked if it had any verdicts. It was unable to agree on count 1. It was, in error, then asked if it had reached a verdict on count 2. The reply was ‘Yes’. No verdict was taken, Counsel for the Crown saying; ‘I think as they are in the alternative ……..’ and the judge adding ‘ I cannot take a verdict in relation to count 2’. The majority direction was given. 27. On Friday 10 th August the jury had not reached agreement in relation to count 1. Later it sent a note saying ‘We have deliberated intensely but are failing to reach verdicts on the remaining four counts….” but welcomed further time. 28. On Monday 13 th August a note read ‘We have reached verdicts on those we can decide upon following extensive and detailed deliberations.’ In its absence count 2 was briefly debated. Counsel for the Crown and for Pollett agreed that stalemate on count 1 allowed the judge a discretion to ask if there were a verdict on count 2. The judge now indicated that counts 1 and 2 were not alternatives and asked counsel for the Crown if it were his intention to seek a verdict on count 2 before discharge of the jury on count 1. Matters were left unresolved until the jury had returned its verdicts. 29. After the guilty verdict on count 1 and in the absence of the jury the Judge took the view that count 2 was subsumed within count 1 and there would be no separate penalty. Counsel for the Crown agreed and asked that a verdict be taken on count 2 as a safeguard in the event that count 1 were in jeopardy. Counsel for Pollett agreed that strictly speaking the counts were not alternatives but submitted that a separate verdict should not be taken since the ingredients were so distinct that there were inherent inconsistencies between the counts. The Judge felt that point technical. 30. The jury returned a guilty verdict on count 2. The judge then told the jury: “Count 2, in truth, was not a strict alternative, although the Crown had it as a ……….. longstop …….” Discussion 31. In R v McEvilly [2008] EWCA Crim 1162 ; [2008] Crim. L.R. 968 the appellant pleaded guilty to count 3, unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861 . He was tried on counts 1 and 2, attempted murder and wounding with intent. All three were in the alternative. 32. After a majority direction the jury, asked to deliver its verdict, was unable to agree on attempted murder, count 1 and was asked if it had agreed in relation to count 2, S18. It returned an unanimous guilty verdict. It confirmed that more time would assist in relation to count 1, and in due course returned an unanimous guilty verdict on it. 33. The appellant submitted that the procedural error in taking the verdict on count 2 before reaching finality in relation to count 1 rendered the conviction on count 1 unsafe. The court, whilst not agreeing that the conviction on count 1 was unsafe found there had been a procedural error: “Where there are two charges in the alternative on the indictment arising from the same facts, and with one more serious than the other, the judge should not take a verdict on the less serious count until finality has been reached on the more serious charge. Such finality may take the form of a not guilty verdict, or a decision to discharge the jury on that count because there is no realistic prospect of agreement on a verdict. If this course is not followed, then there is a serious risk of the very situation arising which arose here, with charges in the alternative leading to a multiplicity of convictions. That as this court pointed out in the case of R v Harris [1969] 1 WLR 745 cannot be right. It is not right.” 34. Pollett as time has gone by has adopted different positions. At trial he first appeared to accept that Counts 1 and 2 were in the alternative but later contended that count 2 was not strictly an alternative to count 1 but inconsistent with it. His argument was that he was either dishonest (count 1) or if not dishonest, reckless (count 2) but could not at the same time be both. Putting the submission another way, his contention must have been that dishonesty precludes recklessness. 35. Before us Miss Gillard submitted that the convictions could not in strict law be alternatives since the requisite intent for each differs. Count 1 requires proof of dishonest representations and of dishonest failures to act. Count 2 requires proof of knowledge or of recklessness but also of dishonest failure or of dishonest concealment. Consequently necessary ingredients of Count 2 are both a failure to act and a dishonest concealment, whereas in Count 1 dishonest concealment is not a necessary ingredient. She readily accepted that the two counts were treated as alternatives for practical and entirely unexceptionable reasons. 36. The outcome however is that Pollett has two convictions against his name for what he contends is in reality the same offence. By whatever labelling process, the same founding facts sustain each count. Miss Gillard argues that this must be procedurally wrong and amounts to the prejudice she must establish before Count 2 can be quashed. 37. Miss Barnes for the Crown below and here argues that the approach taken was similar to the situation in which a defendant earlier pleaded guilty to a lesser charge and was then convicted of a more serious. The plea of guilty stands and the count remains on the file but the Judge should not sentence in respect of it. R v Cole [1965] 2 QB 388, 49 Cr App R 199 (CCA); R v Bebbington, 67 Cr App R 285 , CA; R v Hodgson [2001] EWCA Crim 2697 . 38. Her argument is there is no inherent injustice in a defendant being convicted of two offences arising from the same facts where there is no substantive sentence in respect of the lesser: R (CPS) v Blaydon Youth Court [2004] EWHC 2296 (Admin) , R v Cole [1965] 2 QB 388, 49 Cr App R. 199 (CCA); R v Bebbington , 67 Cr App R. 285 (CA), R v Branchflower [2004] EWCA Crim 2042 , [2005] 1 Cr App R 10 39. Reliance on McEvilly she submits is misplaced. First, the principle in McEvilly is that where there are alternative counts, the jury must reach finality in respect of the more serious before returning a verdict in respect of the less. The potential prejudice to be avoided is of a jury feeling under pressure to reach a verdict on the more serious by having first been asked to return a verdict on the lesser. 40. In Pollett’s case on the other hand the Judge was aware of McEvilly and scrupulous to avoid asking the jury to return a verdict on Count 2 until it had reached a final position on Count 1. In any event McEvilly considered counts alternative in law. Here, on the other hand, the offence reflected in Count 2 is not as a matter of law necessarily a lesser offence of the conspiracy to defraud pleaded in Count 1. 41. Miss Barnes submitted that neither are the counts inconsistent. The bones of Count 1 are that Pollett conspired with Hirst to defraud by dishonestly representing that all monies handed over would be invested. The bones of Count 2 plead knowing or reckless misleading promises and (we emphasise the conjunctive) dishonest concealment of facts, so as to induce investment or (we emphasise the disjunctive) being reckless as to whether it may induce investment. Dishonesty is evidently an essential ingredient of the necessary concealment of facts. The disjunctive alternative of recklessness goes only to the element of inducement, a point the jury could only reach if it had found dishonest concealment. 42. It follows that dishonesty was an essential ingredient of Count 1 and of Count 2 and that inconsistency is not made out. 43. Were parties correct in their eventual conclusions that the two were not in law alternatives? As we have explained, necessary ingredients of Count 2 are both a failure to act and a dishonest concealment, whereas in Count 1 dishonest concealment is not a necessary ingredient. Consequently the route followed by the Judge in taking a verdict was technically correct, the counts not being strict alternatives, and it was one with which this court would normally be slow to interfere. 44. The question as yet unanswered is whether Pollett be prejudiced by the taking of a verdict on Count 2, upon which the Judge imposed no separate penalty. We can see how, in the shifting dynamic of this case, the Crown’s position altered or at the very least was modified. When all parties knew there was a verdict on Count 2. Pollett was still suggesting that Counts 1 and 2 were inconsistent. It was in that context that the Crown submitted that the sensible course, after a conviction on Count 1, was for the court to take the verdict known to exist on Count 2, but impose no penalty. It is clear from the summing-up that a common approach had been that the counts were alternative and that a review of that stance was only triggered by the change of tack by Pollett, suggesting inconsistency. All of this we understand and none of it do we criticise. 45. However, we are persuaded that Pollett should not have on his record a conviction for two offences which for all practical purposes reflect the same criminality. It is unnecessary to say more than that Count 2, on these facts, is otiose. To that limited extent Pollett endures some prejudice and we therefore quash the conviction on Count 2. Sentence 46. The Judge said that this fraud involved very large sums. Most had gone to Hirst and his associated companies, Pollett had received about £850,000 and Linda Hirst had laundered about £750,000. Hirst had enlarged the criminal scheme to which he pleaded guilty in 1992, his protestations of remorse at the time were hollow. He had caused Linda Waite to enter into an IVA to cover his debts so he could sell up and go to Mallorca to defraud as many people as possible. It had been dishonest from the outset. There was the greatest possible contrast between the victims and Hirst and Pollett, who, their veneer of respectability stripped away, were corrupt common criminals. Both had targeted and beguiled their victims, dazzling them with a meticulously executed fraud, conducted with lies, persistence and determination over a very long period. They knew what dreadful damage they were causing. Hirst during the opening had pleaded guilty to the overall conspiracy, and to laundering £33,000 and £428,000. It was an aggravating feature that he had brought his son and his own firm to the edge of ruin. He had seduced his wife from her former honesty to serious dishonesty, though she in turn had used her daughter in pursuit of her own interests. He had a previous conviction and it was a further aggravating feature that during the trial he had created a false document designed to bolster his wife’s lying defence. Notwithstanding his pleas this showed contempt for the court. 47. Pollett was 70 and of good character. He had for seven years lent himself with enthusiasm to the scheme defrauding his brother, friends and clients. He had been convicted of count 1 and unanimously of count 2, the practical alternative – though culpability for that was subsumed within count 1. Although not the senior partner his role as the respectable, trusted chartered accountant had been instrumental. His betrayal of the profession was an aggravating feature. He had lied in interview and sought to walk away from his involvement through a long trial. The case involved a wholly fictitious fund and numerous foreign bank accounts and companies, money-laundering on a grand scale and – a further aggravating feature - the funding of a sickeningly lavish lifestyle. 48. There were no guidelines, but authorities, including R v Paulssen AG Ref 48-51of 2002 (2003) Cr App R (S) 36, R v Asil Nadir and others dealing with theft by employees held parallels. A series of thefts over an extended period meant consecutive sentences which might together exceed the statutory maximum, subject to totality. Poor health was a matter for the prison authorities. This was a worse case than Paulssen , in which the starting point was seven years. More had been invested, the conspiracy was longer and small investors had been targeted. Following Hibberd, the appropriate discount for a plea as late as Hirst’s was 10%. Maximum sentences were not reserved for the worst possible case imaginable, but for cases of utmost gravity as this was. Also evident was the absence of anything which might have helped avoid a huge investigation and trial. Hirst was suffering leukemia but was in remission and further treatment was unlikely. In any event prison authorities were used to dealing with such. His only mitigation was his very late plea, followed by lies to the court. His plea had saved some witnesses coming to court and with reluctance he would get 10% credit. Pollett was entitled to no credit. He was a desperately greedy man, dazzled by Hirst’s lifestyle. The starting-point was seven years. In relation to 380 days [approximately twelve months] in Spanish custody before the service of the European Arrest Warrant, “as a matter of discretion and principle” the Judge would allow [only] six months. 49. Linda Hirst had been acquitted of the earlier part of her alleged involvement. However she had lived a profligate lifestyle funded by a criminal. Unlike Maxine Valentine (qv) she had gone beyond this to the specific laundering of about £750,000. Immediate imprisonment was inevitable. She had no credit for a plea and her good character and all other matters were reflected in concurrent sentences. Grounds of appeal 50. Pollett complains that the Judge erred in reducing the sentence by only six months to reflect time in custody in Mallorca before extradition proceedings. The Judge emphasised that it was a matter for his discretion in a case where the offender chooses to offend against the expatriate community. He gave no further explanation. He erred too in giving insufficient weight to other matters of mitigation – age, good character, the effect on his family life. Pollett born on 5 th February 1942 told the author of his pre-sentence report that he had resigned himself to a custodial sentence, though he maintained his innocence. There were no concerns about his ability to cope in an English prison despite poor health. He was principally concerned about his aged mother and his wife. 51. We are not persuaded that the Judge gave insufficient weight to matters of general mitigation. That ground is rejected. We are however persuaded that there was no discernible justification for withholding from Pollett credit for the entire time he had spent without his liberty in Spain. Had it been open to him to influence matters so as earlier than he did to return to this jurisdiction we might have taken a different view but no-one suggests that it was. We see no reason why he should endure prejudice consequent on no more than territorial boundaries. We thus quash the sentence of six years six months and for it substitute one of six years. To that limited extent his appeal succeeds. 52. Hirst, born on 11 th March 1951, had four convictions for obtaining property by deception, for which in 1992 he was sentenced to 30 months imprisonment. His Grounds are that he was diagnosed with chronic myeloid leukaemia (“CML”) in August 2009. He was stable with a good prognosis, but needed to be monitored three-monthly. If his CML progressed, he might need fortnightly treatment but this would be possible in custody. If, however, oral therapy failed he might require a transplant which would be impossible in a custodial setting. The risk of this was low. 53. The sentence imposed on count 1 is criticised as excessive. In particular, the judge wrongly concluded the maximum sentence justified after a trial, overstated the aggravating features, wrongly distinguished Paulssen and Hibberd (2009) EWCA Crim 652 , wrongly concluded that Hirst had influenced the defence of Linda Hirst in a way regarded as an aggravating feature, wrongly concluded that criminality was enhanced by responsibility for the prosecution of his son, and wrongly allowed personal opinion that the maximum sentence was inadequate to influence his approach. Even though he did not pass consecutive sentences for counts 9 and 11 he wrongly allowed his opinion that such would have been justified to influence his approach to sentence. He should have made allowance for the applicant’s serious illness and other personal mitigation. 54. The facts of Paulssen are argued as bearing significant resemblance to Hirst’s case. The four offenders were convicted of one count of conspiracy to defraud, namely an investment fraud which operated from late 1995 to mid 1996. During that relatively short period $9.8 million was gathered in and only some $2.1 million was recovered. The fraud was a simple one and dishonest from the outset. Investors, many of whom were small investors who lost all of most of their savings, put their money into a company in reliance on promises of high rates of return and what turned out to be a worthless undertaking that the investments were protected by insurance. The money paid over by the investors was in very large measure not invested and used to benefit the offenders and others. Sentences (only one defendant pleading guilty) ranged from 18 months to 4 years imprisonment. 55. In Hibberd Hooper LJ said that absent guidelines a starting point of seven years was ‘about right for that kind of fraud’. Paulssen was a more sophisticated fraud. A number of participants were professionals, some had a history of investment fraud or relevant convictions. The sums involved were similar but a higher proportion diverted to the fraudsters. 56. This case is said to be by no means the worst of its type. There are more sophisticated frauds - cases where the main players understand how authentic investment works and create a complex camouflage which deceives seasoned professionals and distorts markets. There are cases where the fraudsters steal every penny invested and divert it beyond the reach of the victims and the authorities. The starting point in this case should have been of the level identified in Paulssen and Hibberd . Hirst should have received tangible credit for his plea. Although very late, it was not preceded by the creation of an elaborate factual defence which the Crown had to refute. Hirst suffers a very serious illness. Only modern medication keeps alive. The court should in its discretion take this into account for a man of his age. 57. Refusing Hirst leave, the single judge said: “Although emphasis is placed by the applicant on AG Ref 48-51 of 2002 [2003] 2 Cr. App. Rep.(S) 36, none of the three considerations identified in paragraph 28 of the judgment of Kennedy LJ so as to drive the court to a sentence below the statutory maximum applies here (with regard to the first consideration, in view of the time which the scheme was operated). There were additional aggravating considerations in the applicant’s case, not least his previous comparable offending and his involvement of others, including his wife and his innocent son. The Judge’s sentencing observations were wide-ranging but, as I read them, he weighted the relevant considerations and was not influenced by irrelevant matters. Although the sentence that he passed was severe, it was not so long that the Court of Appeal should reduce it.” 58. We agree. Hirst does no more than renew his application and we reject it. 59. Linda Hirst submits that two and a half years was manifestly excessive. The Judge erred in not suspending it or imposing a shorter term and gave insufficient weight to her previous good character and that, but for her marriage she would not have committed the offences. Her lifestyle was modest and her personal expenditure from the proceeds of crime was principally on care homes for her elderly parents or treatments for her alcoholic daughter. The judge erred in distinguishing R v Valentine [2011] EWCA Crim 1463 (or [2012] 1 Cr App R (S) 42 in which a 12 month sentence was imposed. Linda Hirst contested 6 charges of money laundering maintaining that she believed the monies paid into her account were legitimate proceeds of Hirst’s business. She was acquitted of counts 3, 4 and 6. Mr Sangster QC submits that the jury rejected the Crown’s case that she knew or at least suspected that monies paid into her account from 2001 to 2006 were the proceeds of crime. Indeed the Judge remarked that Hirst’s decision to go to Mallorca and run his Ponzi scheme caused Linda Hirst to enter into an IVA [Count 8] to cover his debts so as to defraud as many people as he could. Linda Hirst was unaware of his previous conviction. Her conviction on counts 5, 7 and 13 suggest that after her 2006 marriage she at least suspected that monies used to fund their lifestyle were proceeds of crime. The monies and the purchase price of the property bought in her name on the counts for which she was convicted amounted to approximately £750,000. Born on 24 th October 1949 she is 62 and was of positive good character. She had always worked and supported herself. Prior to meeting Hirst she owned her own home. In the UK her home was a mobile caravan bought for £55,000. Any expenditure on extravagant weddings, holidays and jewellery was largely at Hirst’s behest. Any property she holds will be subject to confiscation proceedings. She is divorcing Hirst and is not in the best of health. She is likely to have problems adapting to the prison environment. She was suitable for a community order or a suspended sentence with conditions. She maintained that she was not guilty but expressed remorse. 60. As to the reliance on Valentine , Maxine Valentine was the wife of a successful robber who had stolen in excess of £1 million. Mrs Valentine had enjoyed a lavish lifestyle for some three years. She pleaded guilty to money laundering on the basis that her husband was the dominant partner and that although aware he was involved in crime she did not know the details. The Court of Appeal found the Judge entitled to the view that it would be an affront to the victims were he to suspend the term of twelve months imprisonment (as to which there was no complaint) and it upheld the sentence. 61. Linda Hirst’s position is readily distinguishable. The scale of her offending was markedly higher. The Crown proved specific acts of laundering on top of a lavish lifestyle. She knew many of the investors and knew their vulnerability. She had advanced a carefully constructed lying defence. That pointed to closer involvement than was consistent with the role of a passive albeit knowing participant in the proceeds. We see nothing impugnable in the sentence imposed and her appeal is dismissed.	[ "LADY JUSTICE RAFFERTY DBE", "MR JUSTICE MACDUFF" ]	2013_03_26-3144.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/359/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/359	1,047
dec9f983998916c3ce636eac9dbe1f89500a35c5e8ea96138ae3b573fb1c3698	[2008] EWCA Crim 2560	EWCA_Crim_2560	2008-11-14	supreme_court	Neutral Citation Number: [2008] EWCA Crim 2560 Case No: 200803810 A2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE RIVLIN T20080220 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/11/2008 Before : LADY JUSTICE HALLETT MR JUSTICE FOSKETT and HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - (1) Peter Whittle (2) Bryan Allison (3) Dav	Neutral Citation Number: [2008] EWCA Crim 2560 Case No: 200803810 A2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE RIVLIN T20080220 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/11/2008 Before : LADY JUSTICE HALLETT MR JUSTICE FOSKETT and HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - (1) Peter Whittle (2) Bryan Allison (3) David Brammar - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Kane appeared on behalf of the Offender Whittle instructed by Hallinan, Blackburn, Gittings & Nott A Cameron QC and A Darbishire on behalf of the Offender Brammer instructed by Peters & Peters Mr Ellison QC and J Ledward on behalf of the Offender Allison instructed by Peters & Peters M Lucraft QC appeared for the Prosecution Hearing date: Wednesday 29th October 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Hallett : This is the judgment of the court. Introduction 1. Section 188 of the Enterprise Act 2002 came into force on 20 June 2003 and made it a criminal offence for an individual dishonestly to agree with one or more other persons to make or implement, or to cause to be made or implemented, arrangements between at least two undertakings that are anti-competitive within the UK in one of a number of ways. The arrangement can relate to price-fixing of a product or service, limiting or preventing the supply of a product or service, limiting or preventing the production of a product, dividing between two undertakings the supply of a product or service to a customer or customers, dividing between two undertakings customers for the supply of a product or service, or it may constitute bid-rigging. An offence of this nature is termed a “cartel offence” and the activities set out in the statute are, we understand, frequently called “hard core activities.” 2. The essence of the offence is the personal responsibility of an individual in arrangements that have been part of the national and international commercial framework for many years: see, eg., Ramage, The Criminal Lawyer , 2008, 5-6. See also Norris v. United States [2008] 2 WLR 673 , HL. 3. The prosecution in this case was the first prosecution to be brought under the 2002 Act . Against that background and given the nature of the issue that we have been required to address, we invited the Crown to assist us with some background to the legislation and certain wider issues. We are grateful to Mr Mark Lucraft QC for producing a note about this at short notice. We have drawn on it for the purposes of some parts of this judgment. Background to the Enterprise Act 4. The Enterprise Act was the result of a consultative White Paper, published in July 2001, entitled “A World Class Competition Regime”. The White Paper followed on from a joint Treasury and Department of Trade and Industry investigation into the effectiveness of existing competition legislation. It acknowledged that the Competition Act 1998 had made changes that deterred anti-competitive behaviour, but argued that there was a strong case for the introduction of criminal penalties. 5. The ‘executive summary’ of the White Paper highlighted a number of features of the proposed criminal sanctions: • the new criminal offence would need to catch price-fixing, market-sharing, and bid-rigging cartels; • it should target individuals who set up and maintained cartels and senior executives or directors who either condoned or encouraged the arrangement; • the Government intended that the Office of Fair Trading (‘OFT’) should be able to pursue a criminal case against an individual whenever a cartel is implemented or intended to be implemented in the UK and this would include cases where a case against the undertaking with which the individual is associated is pursued by the European Commission. 6. A formal review of the proposed criminalisation of cartel activity was initiated by the Director General of Fair Trading. The review was undertaken by Sir Anthony Hammond QC and Roy Penrose OBE QPM. Their report was published in November 2001 and recommended that the maximum penalty for individuals convicted of a cartel offence should be five years’ imprisonment and/or unlimited fines. They considered a number of factors to be of relevance to this recommendation: • The level of maximum sentences for comparable offences, for example ‘insider dealing’ and ‘obtaining property by deception’; • Comparable offences in Canada and Japan carry a maximum sentence of five years and the Republic of Ireland [was] proposing to increase the maximum for its cartel offence from two to five years; • The need to have available the powers associated with an arrestable offence as defined in PACE, which requires a maximum sentence of at least five years; and • The desirability of sending a strong signal to the courts that hard core cartels are very serious offences, which can have important and deleterious economic consequences. 7. An expression that occurs frequently in this context is ‘bid-rigging’. Bid-rigging is, in a nutshell, an agreement or arrangement between two or more undertakings that would generally be seen to be in competition with each other as to which of their number bidding for a contract will win the bid. This will be done by fixing between them the prices to be quoted in the bidding process. It is not difficult to see the anti-competitive nature of such an agreement or arrangement. The penalty provided for by the Enterprise Act and elsewhere 8. Parliament implemented the recommendation of the Hammond/Penrose report and section 190(1) of the Act provides that a person guilty of an offence under section 188 is liable— a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both; b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both. 9. We have been told that number of European states also provide for individual criminal liability for cartel behaviour with potential penalties of between 3 and 6 years imprisonment and/or financial penalties. 10. It is also of relevance to note the penalty for such an offence in the USA. The US Sherman Antitrust Act offence carries a maximum penalty of ten years’ imprisonment and certain financial penalties. This case and its context 11. The three applicants in this case were the first three individuals to be convicted of offences under the Act and in respect of whom the UK Courts have been required to pass sentence. Each was of previous good character and each pleaded guilty at the first opportunity. Indeed their co-operation with the authorities, particularly in Whittle’s case, has gone much further than a mere acknowledgement of guilt. 12. It is against that background that the Registrar has referred their applications for leave to appeal against sentence direct to the Full Court. 13. In certain of the Skeleton Arguments submitted in support of these applications, it was suggested that the Court might take the opportunity to offer some general guidance on sentencing levels in cases of this nature. That would have been difficult in any event because the Court would have had little, if any, knowledge of where to place this case in the scale of seriousness: no sufficient body of cases exists as yet to be able to make that assessment. However, there is another significant factor in this case that prevents us from doing so to which we will refer later. The facts 14. On 10 June 2008 at Southwark Crown Court the applicants pleaded guilty to a cartel offence under section 188 and the following day were sentenced by His Honour Judge Geoffrey Rivlin QC, Honorary Recorder of Westminster, to terms of imprisonment of, in the cases of Whittle and Allison, 3 years and, in the case of Brammar, 30 months. Whittle and Allison were each disqualified under s.2 Company Directors Disqualification Act 1986 from acting as a director of a limited company for 7 years and Brammar was similarly disqualified for 5 years. They each seek to challenge the terms of imprisonment, though not the periods of disqualification. 15. The relevant particulars of the count to which they each pleaded guilty were as follows: Between 20 June 2003 and 2 May 2007 they dishonestly agreed together and with others to implement arrangements relating to at least two undertakings, including Dunlop (Oil and Marine) Limited and other named companies worldwide, which: i) directly or indirectly fixed the price for the supply by Dunlop (Oil and Marine) Limited in the United Kingdom of marine hose and ancillary equipment to others including the Ministry of Defence and the Azzawiya Oil Refining Company; and ii) were bid-rigging arrangements. 16. There were four other counts on the indictment relating to particular agreements embraced within that overall allegation and they have remained on the file on the usual terms. 17. It is necessary to say a little more about the background to the offence of which the three applicants have been convicted. It will be appreciated from the particulars to which we have referred that the industry that lies behind the cartel in this case is the industry that manufactures and supplies marine hose and ancillary equipment. Marine hose is a rubber-based product used in the oil industry to facilitate the movement of oil between various offshore and onshore installations and, of course, is used in connection with the movement of oil to and from oil tankers. It is a commodity that is used worldwide. 18. Dunlop (Oil and Marine) is a company based in Grimsby and a specialist manufacturer of marine hose. Each applicant has had a close association with that company. Whittle joined the company in 1976 and was employed by it until in 1998 he established his own consultancy. The consultancy effectively involved his being the co-ordinator of the cartel for which he was paid an annual fee of $50,000 by each participating company. Brammar joined Dunlop in 1987 and in July 1993 he was promoted to sales and marketing manager. He held that position until his employment was terminated as a result of the matters that underlie this case. He was Whittle’s main point of contact within the company. Allison joined Dunlop in 1977 and moved through various positions until in February 2001 he became Managing Director. He was Brammar’s supervisor at material times. 19. The company for very many years prior to the implementation of the Enterprise Act had been part of an international cartel that operated within that specialised marine hose market. The cartel consisted of all the principal manufacturers of marine hose worldwide which, in addition to the company, consisted of two Japanese companies, two Italian companies and a French company each of which were party to a long-standing agreement or understanding to share the market for marine hose supply between them. This involved price-fixing and bid-rigging. The cartel members met from time to time and communicated regularly by telephone, fax and e-mail, doubtless in as secretive a fashion as the circumstances demanded. By its very nature the objective of the cartel was to ensure that market shares and prices were maintained. Bids for contracts were co-ordinated in order to ensure that the available business was distributed according to the agreed market share and at prices acceptable to the cartel. 20. Whatever position may have obtained prior to the coming in to force of section 188 , the position thereafter for any individual engaged in activities encompassed by that section, on behalf of the companies for whom they acted, would require such activities to be carried out clandestinely. The cartel continued to operate until 1 May 2007, when United States authorities covertly recorded a meeting of members of the cartel during the annual Offshore Technology Conference in Houston, Texas and arrested those present. The applicants were included amongst those who were present and arrested. That the meeting was intended to be clandestine is evidenced by the comment of one of those present just before the meeting commenced when he asked whether anyone had checked for listening devices. The covert recording indicated that there was agreement that the cartel should continue so that prices were maintained internationally. The participants left the meeting in ones and twos so as not to draw attention to the meeting. 21. It is said that the worldwide market in marine hose and ancillary equipment is worth in the region of £60 million. In order to put the criminal activities of the three applicants into its proper context it should be noted that the total value of UK contracts affected during the period from June 2003 to May 2007 was in the order of £17.5 million. It should further be noted that over that period the activities of the cartel caused an uplift of about 15% over what would otherwise have been the market price under fair and open competition – in other words, an additional profit of up to £2.5 million was made for the company over that period. That money did not, of course, go directly into the pockets of any of the applicants. Their involvement meant that the viability of the company was sustained and as a result those who were working for it benefited indirectly and Whittle, who received fees as a consultant, also benefited indirectly. 22. As we have indicated, the applicants were arrested in the USA. What they did was an offence against the US anti-competition laws and they faced prosecution there. They made full and detailed admissions on their arrest and agreed to give full co-operation to the US Department of Justice from shortly after their arrests. They volunteered the full detail of their confessions to the OFT before an investigation began and indicated that they would, if prosecuted, plead guilty to a UK cartel offence. In July 2007, representatives of the OFT travelled to the United States and confirmed with the applicants their detailed admissions in formal interviews. 23. Each applicant entered into a formal plea agreement with the US authorities, which included their agreement to plead guilty in the US and to a cartel offence in the UK in the event that they were prosecuted here. We will return to those agreements below. 24. Having spent short periods in custody in Texas, the applicants were then required to remain in the United States for seven and a half months under strict curfew conditions (including tagging) until they entered guilty pleas. They were then allowed to return to the UK to face prosecution here. On their return they were seen immediately by OFT officials, charged and in due course brought before the Southwark Crown Court. The plea agreements 25. We have referred to the plea agreements entered into by each applicant with the US authorities. Each was a detailed document running to many pages and, as we understand it, approved by the relevant District Court. In essence what each applicant did, doubtless on the advice of his legal advisers, was to agree jointly with the US authorities to recommend to the US court a disposition of the case against him which included a term of imprisonment. That term would be reduced “by one day for each day of the total term of the sentence of imprisonment imposed upon [him] following his conviction for the UK cartel offence”. Part of the agreement was that each applicant would plead guilty to such an offence and further that he would not “seek from the UK court a sentence of imprisonment less than that” provided for in the agreement. The agreements, it should be noted, incorporated a concession by each applicant that the relevant course of criminal conduct in the USA was “from at least as early as 1999 and continuing until as late as May 2007”. In the UK, of course, the criminal behaviour could only begin after 20 June 2003. 26. The sentences provided for in the respective agreements were 2½ years for Whittle, 2 years for Allison and 20 months for Brammar. 27. The net effect of these agreements was that provided each was sentenced in the UK to not less than the terms we have indicated, they would not be expected to return to the USA to serve any period in custody there. (For the avoidance of doubt, the early release provisions of the UK are disregarded: the periods referred to in the agreements are the periods actually imposed by the UK court.) As UK nationals with families here, the incentive not to be returned for any period of incarceration in the USA can be well understood. This has resulted in the submissions to us in these applications being constrained by the terms of the agreements reached. Whilst each applicant through Counsel has invited us to reduce the terms imposed by the judge, none has invited us to reduce the terms below the period specified in the agreement into which he entered. 28. It follows that this court has not had the benefit of the kind of argument from counsel to which it is accustomed; we emphasise this is through no fault of theirs. They were acting upon their instructions and their instructions were imposed upon them by the terms of the plea agreements. We have our doubts as to the propriety of a US prosecutor seeking to inhibit the way in which counsel represent their clients in a UK court, but having heard no argument on the subject we shall express no concluded view. The mitigation for each applicant 29. Because of the way we feel obliged to dispose of the applications, we do not think that there is much purpose to be served by detailing the personal mitigation of each applicant other than in a fairly general way. As we have already indicated, each was of good character, each admitted his involvement readily, each has offered to assist the authorities further (and in Whittle’s case he has gone to the USA to give evidence in proceedings arising from these matters), each has pleaded guilty at the first opportunity, each has lost a livelihood and there will be significant financial consequences for him and his family. On any view, whatever starting point was adopted had there been a trial, there would have been significant discounts from that sentence to reflect the matters to which we have referred. 30. We were much pressed with the argument that this case could not conceivably be one of the worst cases of its kind. Yet, in Whittle and Allison’s cases (where each was sentenced to 3 years imprisonment), the judge must have taken the starting point as at or near the statutory maximum given the significant discounts that ought to have been applied. Brammar’s case was not far behind on this analysis. Given the normal and well-established principle that the maximum sentence for an offence is to be reserved for the most serious offence of that kind to come before the courts, it was submitted that the judge adopted too high a starting point. 31. As we have already indicated, we are not in a position to judge the full strength of that argument and its consequences in this case because of the way the submissions have been constrained by the considerations to which we have referred. All we can say is that had the submissions not been so constrained, we may well have been persuaded to reduce the sentences further than we have been invited to do. 32. We have considerable misgivings about disposing of these applications in the way we intend, but, if we are to avoid injustice, we feel we have no alternative. We consider it appropriate, on the facts of this case, to give leave to appeal in each case and substitute for the sentences imposed by the judge sentences equivalent to those reflected in each agreement namely 2½ years for Whittle, 2 years for Allison and 20 months for Brammar. Guidance for the future 33. As we have already made clear, we do not intend to lay down any guidance in this case for the disposal of other cases because of the way we have felt obliged to deal with the case. The sentences passed by the judge and those substituted by us are not to be treated as guideline sentences. 34. By way of general guidance, we have noted the terms of the Hammond/Penrose report which suggested the following factors as being relevant to any sentence passed: • the gravity and nature of the offence; • the duration of the offence; • the degree of culpability of the defendant in implementing the cartel agreement; • the degree of culpability of the defendant in enforcing the cartel agreement; • whether the defendant’s conduct was contrary to guidelines laid down in a company compliance manual; • mitigating factors e.g. any co-operation the defendant may have provided in respect of the enquiry; whether or not the defendant was compelled to participate in the cartel under duress; whether the offence was a first offence; and any personal circumstances of the defendant which the courts may regard as a factor suggesting leniency. 35. Whilst we would not suggest that those factors are exhaustive, they are each plainly relevant.	[ "LADY JUSTICE HALLETT", "HIS HONOUR JUDGE MORRIS QC" ]	2008_11_14-1720.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2560/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2560	1,048
b0f25ef0667913bde82b0c9a6e0df8b249907066de5f8f97b762646aa9bd154c	[2012] EWCA Crim 2725	EWCA_Crim_2725	2012-12-14	crown_court	Neutral Citation Number: [2012] EWCA Crim 2725 Case No: 201105930 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Derby Crown Court His Honour Judge Burgess, the Honorary Recorder of Derby, on 25 July 2011 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/12/2012 Before : LORD JUSTICE PITCHFORD MRS JUSTICE DOBBS DBE and HIS HONOUR JUDGE GILBERT QC - - - - - - - - - - - - - - - - - - - - - Between : MH Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - -	Neutral Citation Number: [2012] EWCA Crim 2725 Case No: 201105930 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Derby Crown Court His Honour Judge Burgess, the Honorary Recorder of Derby, on 25 July 2011 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/12/2012 Before : LORD JUSTICE PITCHFORD MRS JUSTICE DOBBS DBE and HIS HONOUR JUDGE GILBERT QC - - - - - - - - - - - - - - - - - - - - - Between : MH Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jonathan Goldberg QC (instructed by Waller Pollins - Solicitors ) for the Appellant David Herbert (instructed by CPS ) for the Respondent Hearing date: 4 December 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : The trial and grounds of appeal 1. At Derby Crown Court before His Honour Judge Burgess, the Honorary Recorder of Derby, on 25 July 2011 the applicant was tried upon an indictment containing 17 counts as follows: Count 1 : between 1 September 2009 and 30 April 2010, rape of a child under 13 years by penetration of the child’s mouth with his penis, contrary to section 5(1) Sexual Offences Act 2003 ; Count 2 : between the same dates, sexual activity with a child under 13 years by placing the child’s penis in his mouth, contrary to section 9(1) Sexual Offences Act 2003 ; Count 3 : between 3 September 2005 and 1 May 2010, had in his possession, on the external hard drive of a computer SPW/5, 42 indecent images and movies of children, contrary to section 160(1) Criminal Justice Act 1988 ; Count 4 : between 10 January 2010 and 1 May 2010, had in his possession, on a SD memory card JEM/2, 14 indecent images of children; Count 5 : between 14 February 2010 and 1 May 2010, had in his possession, on a computer hard drive SPW/1, 37 indecent images/movies of children; Count 6 : on 26 January 2006, made an indecent photograph of a child, a category 3 image, on a computer hard drive SPW/1, contrary to section 1(1)(A) and 6 Protection of Children Act 1978 ; Count 7 : on 1 February 2006, made an indecent photograph of a child, a category 4 image, on a computer hard drive SPW/1; Count 8 : on 21 March 2006, made an indecent photograph of a child, a category 2 image, on a computer hard drive SPW/1; Count 9 : on 22 April 2006, made an indecent photograph of a child, a category 4 image, on an external hard drive SPW/5; Count 10 : on 15 February 2010, made an indecent photograph of a child, a category 1 image, on a computer hard drive SPW/1; Count 11 : on 15 February 2010, made an indecent photograph of a child, a category 1 image, on a computer hard drive SPW/1; Count 12 : on 15 February 2010 made an indecent photograph of a child, a category 3 image, on a computer hard drive SPW/1; Count 13 : on 15 February 2010 made an indecent photograph of a child, a category 4 image, on a computer hard drive SPW/1; Count 14 : on 11 January 2010 made an indecent photograph of a child, a category 1 image, on an SD memory card JEM/2; Count 15 : on 11 January 2010 made an indecent photograph of a child, a category 2 image, on an SD memory card JEM/2; Count 16 : on 11 January 2010 made an indecent photograph of a child, a category 3 image, on an SD memory card JEM/2; Count 17 : on 11 January 2010 made an indecent photograph of a child, a category 4 image, on an SD memory card JEM/2. 2. The victim in counts 1 and 2 was the applicant’s three year old son who is entitled to his anonymity pursuant to the Sexual Offences (Amendment) Act 1992 . Further, we make an order under section 39 Children and Young Persons Act 1933 that the name, address, school or other details of the complainant shall not be published. The title to this judgment shall be ‘MH’ and by reason of the family connection we shall refer to the complainant and his mother as ‘T’ and ‘CF’ respectively. 3. The prosecution case was, in count 1, that the applicant inserted his penis into T’s mouth and required him to suck it; in count 2, that the applicant sucked T’s penis. Following the applicant’s arrest police officers seized from his ‘office’, a shed in the garden of the former family home, a tower computer, a remote hard drive and an SD memory card on which indecent images of children were found. Expert examination revealed that the images had been downloaded or copied from an external source. On the tower computer the expert found 42 indecent images of children; on the external hard drive were found 37 indecent images of children; on the memory card there were 14 indecent images of children. The images on the tower computer SPW/1 had been created by copying from another source on 15 and 16 February 2010, possibly SPW/5, and deleted on or after 16 February 2010. The deleted folders included those entitled “Both delete first”, “Boys delete first” and “Girls delete first”. They were recovered using specialist software. The images on the external hard drive SPW/5 had been created between 3 September 2005 and 19 June 2006 and deleted on some unknown date. They included the “both”, “boys” and “girls delete first” folders. The SD memory card contained images which had been created on 11 January 2010, the date of last access. Of 252 images, 14 were indecent images of children and 192 contained file names which indicated paedophilic content. 4. The complaint, which concerned counts 1 and 2, was made by the child’s mother, CF, to the police on 20 April 2010. T was ABE interviewed by DC Kerry Pope and a social worker, Ms Phillips, on 23 April 2010. The interview formed T’s evidence in chief. T was cross examined via the video link. CF gave evidence of the complaints made to her by her son. DC Pope gave evidence that when T was shown his ABE interview on 15 July 2011 in preparation for trial, he made further unsolicited and relevant remarks which were given in evidence. Technical evidence of the discovery of images on the applicant’s computer equipment was given by admission. The applicant gave evidence that no impropriety had taken place between himself and T. He admitted that he had downloaded indecent images of children to his computer and that he had subsequently copied them. He denied, however, that he had done this knowingly. 5. On 28 July 2011 the jury returned unanimous verdicts of guilty upon each count in the indictment. On 23 September 2011 the applicant was sentenced by the trial judge to terms of 15 years imprisonment upon count 1, 5 years imprisonment upon count 2, and 9 months imprisonment upon each of the remaining counts, each sentence to run concurrently with the other. The judge made a Sexual Offences Prevention Order under sections 104 and 106 Sexual Offences Act 2003 , a Disqualification Order under section 28 Criminal Justice and Court Services Act 2000 and a Forfeiture Order under section 143 Powers of Criminal Courts (Sentencing) Act 2000 . 6. The single judge, Foskett J, has referred to the full court the applications for leave to appeal against conviction and sentence. In short, the grounds of appeal against conviction are as follows: (i) The judge misdirected the jury upon the legitimate effect of the evidence of T’s complaints; (ii) The judge failed to emphasise the caution to be exercised before acting upon the evidence of a child of such tender years; (iii) The judge failed to instruct the jury upon the disadvantage to the applicant of delay; (iv) The judge failed adequately warn the jury against prejudice arising from the appellant’s admitted interest in adult pornography; (v) The judge failed to warn the jury against drawing an inference adverse to the applicant from his demeanour when CF drew his attention to T’s ‘complaint’; (vi) The trial of counts 3-17 should have been severed from the trial of counts 1 and 2 in order to avoid prejudice to the applicant; alternatively, a strict warning should have been given to the jury that they should not allow prejudice arising from the ‘image’ counts to infect their judgement upon counts 1 and 2; (vii) The judge failed to give to the jury a Lucas direction concerning the possible impact of a finding of guilt of counts 3-17 upon the jury’s consideration of counts 1 and 2; (viii) Counsel for the applicant, Ms Dorrell, failed adequately to represent the interests of the applicant at his trial. The appellant contended that if the appeal against conviction upon counts 1 and 2 succeeded, that rendered the verdicts upon counts 3-17 also unsafe. Before the full court, the appellant raised a “supplementary” ground of appeal that the ABE interview should not have been admitted in evidence. We shall grant leave to appeal against conviction and henceforward shall refer to the ‘appellant’. The evidence at trial 7. The appellant and CF met in 1998 and were married in 2000 when CF was a serving police constable. They had three children of whom T was the middle child. CF ceased work as a police constable to become a full time mother. T was born on 21 February 2007. The family lived in Matlock, Derbyshire, save for a period in 2008 when they moved to Cornwall where the appellant had been offered lucrative employment. The appellant lost his employment in Cornwall and in early 2009 the family returned to live at their former home in Derbyshire. By this stage the relationship was failing. CF left the matrimonial home with the children for about six weeks in the summer of 2009, but returned in late August with a view to reconciliation with the appellant. 8. CF was preparing T for bed, she thought in early December 2009. T was then aged 2 years 9 months. She placed a nappy on him for the night and put him into his bed. T said, “Mummy, suck my winky”; then, “Daddy sucks my winky”; then, “Mummy, suck my ear”. CF explained that T was asking her to suck his winky, meaning his penis, and to suck his ear, and was telling her that Daddy sucked his penis. She said that she replied with words to the effect, “We don’t do things like that”. The appellant was, as he often was, in the shed in the garden which he used as his office. Using a telephone handset she made contact with the appellant and asked him to come into the house. She met the appellant on the landing and they went into their bedroom. She told the appellant what T had said to her and asked why he should have said something like that. She continued: “…he looked very nervous. He couldn’t look me in the eye and he kept swallowing and he was shaky, very shaky and said words to the effect of, “I don’t know why he would say that. I want to go and have a word with him”.” The appellant went into T’s bedroom and CF remained immediately outside. CF could recall the appellant asking T what it was all about and suggesting to him other words which rhymed with, but were not, “suck”. She could not recall what they were. She recalled the appellant saying to T, “We don’t do things like that”. CF thought that T might have repeated to the appellant, “Daddy sucked my winky” but was “a bit hazy” about that. The appellant emerged from the room and said that T must have been mistaken in his use of words, or had been saying something else. The appellant went back to the shed. 9. The appellant, in evidence, accepted that this incident occurred but thought it was a few weeks earlier, in September or October 2009. The appellant said, as he had in interview, that to encourage T to prepare for bed he would play a game with him. On one occasion T had an erection when he was putting his nappy on him. The next morning T had wet the bed and his mother was not pleased. Following that incident, the appellant would say to T that Daddy would “tuck your winky” into the nappy or ask whether T wanted Daddy to tuck his winky. This went on for up to four weeks. The appellant gave evidence that he had been in the shed when CF asked him to come to the house. She told him that T had said, “Daddy sucks my winky”. The appellant agreed that he was shocked and shaken by what he heard. He was sure there had been a misunderstanding. He went into T’s bedroom, lay on the bed, and asked T what he had said to Mummy. T did not reply. He was very shy and coy and turned his head into the pillow. The appellant said he asked whether anyone in his play school had done anything to him or whether his older brother had said anything to him. He asked T whether he had said “tuck”. He did not receive any response. As far as the appellant was concerned “that was the end of it”. CF also said in evidence that she “decided to leave it there”. The appellant was not suggesting that he had explained to his wife the circumstances in which T may have misunderstood the word “tuck”. 10. Relations between husband and wife did not improve and on 4 January 2010, by agreement, she left with the children permanently. She and the children stayed in a flat provided by her parents. CF said that a few days later, perhaps on 10 January, she was in the lounge area of the flat putting on T’s nappy, ready for bed. T again asked her to suck his winky and to suck his ear. She said she would not and T responded, “Daddy sucks my winky”. CF phoned her friend in Scotland for advice. The advice offered was that CF should make sure T understood what was meant by the word “suck”. The following day CF gave T a glass of juice and a straw and asked him to suck it. He did. She asked him what he was doing with the straw and T said, “I’m sucking it”. Still, CF did not take the matter further and did not raise it with the appellant. She permitted the children to spend the weekend with their father on about five occasions between January and mid-April 2010. This would suggest that CF was herself still not persuaded that she should take further action. 11. The appellant had the children at the former matrimonial home on the weekend of Saturday, 18 April. On the evening of Sunday, 19 April CF was in T’s bedroom preparing him for bed. T asked his mother to suck his winky and his ear and he repeated, as before, “Daddy sucks my winky”. This time she responded, “Does he?” and T replied, “Yes”. She asked, “Do you do anything to Daddy?” and T replied, “I suck Daddy’s winky with my mouth” and pointed to his mouth. She asked whether he did anything else. He replied, “I pull it up and down”. She asked him to show her on Teddy. T placed his hand in Teddy’s groin area and demonstrated the movement of manual masturbation. CF again asked T to explain what he meant by “suck” and he sucked on two of his fingers deep into his mouth. 12. This time CF made handwritten notes of the sequence of incidents involving T, the appellant and herself. The notes were timed at 19.40 and she referred to them in her evidence. CF recorded that on 19 April T had also told her that Daddy said, “I like it” when T pulled his winky. She asked T where his winky was. T was by this time wearing his nappy and began “scrabbling at the top of his nappy and he couldn’t get to it”. She said, “OK, [T], what comes out of your winky?” T replied, “Wee, and milk comes out of Daddy’s winky”, and he pointed towards his penis. CF asked T whether anyone else touched his winky. He told her that his 5 year old cousin had touched it. She asked whether Mummy ever touched it. He replied, “No”. She asked whether T’s brother had touched it. T again replied, “No, just Daddy”. She asked how many times Daddy had touched it. He replied, “Two, twenty hundred”. She asked, “Or just once?” He replied, “Two hundred, he sucks it”. Asked when he had last done it, T replied, “A long time ago and now”. CF telephoned her friend and then the NSPCC. She was advised to report the matter. She took further advice from a police officer before contacting the local police on 20 April. She texted the appellant to say that the children would be unable to be with him during the approaching weekend. 13. The ABE interview commenced at 2.09 pm on 23 April. Following the preliminary familiarisation process, the officer attempted to introduce the subject for interview by asking T to show her what he had shown his Mummy on his teddy. The attempt produced no relevant response. The social worker asked what he did at Daddy’s house. He replied, “I sleeped”. He was asked what happened at Daddy’s house, “Can you remember what you told Mummy?” T replied, “I slept very well”. The following passage then took place between the social worker and T: “SW: Did you? T: Yeah SW: Can you remember what happened to your winky? T: Daddy sucked it SW: Okay. And then what happened can you remember? What happened to your winky when he sucked it? T: Daddy didn’t do anything, but daddy only sucked it SW: Okay. Did, did you do anything to Daddy’s winky? T: Yes SW: What did you do? T: Suck it in my mouth SW: And then what happened? What happened to Daddy’s winky when you sucked it? T: When I sucked? SW: Yeah, what happened to Daddy’s winky when you sucked it? Did anything happen? T: No SW: No T: I just didn’t (inaudible) SW: What comes out of your winky? T: No (inaudible). Daddy winky, milk comes out of Daddy’s winky. SW: Okay. What comes out of your winky? T: No. No milk comes out of my winky” The social worker made an unsuccessful attempt to discover from T what happened to the milk which came out of Daddy’s winky and the interview was brought to a close. 14. It was suggested to CF in cross examination by Ms Dorrell that T had never told her that Daddy sucked his winky; she had put the words in his mouth. She denied the allegation. She agreed that when T made his complaint in January 2010 she thought of involving the police but at that stage did not do so; neither did she raise it with the appellant. The appellant continued to see the children at his home over the weekend. It was put to her that T had never demonstrated to her with his fingers what he meant by sucking. In re-examination CF was asked whether she had, following the complaint to the police, discussed the subject with T. She replied that T had said other things but she had never discussed the subject with him. Asked what else T had said, CF replied that during the weeks, and possibly months, after the ABE interview T had said to her that Daddy’s winky got bigger and bigger until he made a “Chh, Chh” sound. There were two daddies, one naked and the other with clothes on. He preferred the daddy with clothes on. 15. DC Kerry Pope gave evidence that on 15 July 2011, while T was watching the recording of his interview, and the recording came to the point at which T was asked what happened to the milk, T looked at the officer and said, “It went all over his body”. He pointed his finger and said, “Once. Milk came out once but he sucked mine loads [or lots] of times”. It happened “in the spare bed that’s mine”. T also told DC Perry that his father had a bit of sunburn on his back. Mr Goldberg tells us that in fact the appellant has a prominent birth mark on his back. DC Pope said that she had made a note of T’s intervention shortly after the completion of the viewing exercise. 16. Ms Dorrell asked questions of T in cross examination with the assistance of the intermediary. He said he liked it when he visited his daddy’s house. When asked whether Daddy did anything to his winky, he replied, “Yes, he sucked it”. He was asked where he was. He replied, “On the bed”. He was asked, “Did you do anything to Daddy’s winky?” He replied, “Yes, I sucked it and the (inaudible) when milk came out of it”. Ms Dorrell asked whether it was “a fib” and he replied, “Yes”. He was asked whether Mummy was making him say these things. He said, “Yes”. Ms Dorrell asked, “Is Mummy making you say these things about Daddy that aren’t true?” He said, “Yes. They are actually true”. 17. When the appellant was arrested at his home on 30 April 2010 he said, “She’s gone too far this time”. In interview he explained that CF would get it into her head that something had been said and get very emotional about it. She was an obsessional person when it came to her children. The appellant said that his own relationship with his children was loving and tactile. He was regularly involved in the physical care of the children. He claimed that T was a very deceitful boy. He knew how to wind up his older brother. He gave an account of the occasion when CF raised with him T’s reference to sucking his penis. He said he thought that T had, when he spoke to him in the bedroom, said or repeated the word “tuck”. When he was asked whether the children saw him naked, he replied that they may have done when he showered. Later, during the fourth interview tape, the appellant was asked whether the children had been exposed to anything sexual. He replied that in the early morning of Sunday, 19 April he heard his daughter cry out. He went to investigate and the children were all asleep. He returned to his own bed, became aroused and masturbated himself to ejaculation. When he had finished he saw T in the doorway of his bedroom. T asked why milk was coming out of Daddy. He told T to return to his bedroom and later told him not to tell Mummy about it. This account was repeated in evidence during cross examination. The prosecution suggested that the appellant’s account of this incident was inconsistent with the physical layout of his bedroom and the position of the doorway through which the appellant claimed T had watched him masturbating. Mr Herbert submitted to the jury that this was a disclosure made only to meet and avoid the prosecution case that T had seen him ejaculate in different circumstances. 18. The appellant said in evidence that he was a self-taught IT consultant. He had built the shed in the garden to be his office. He spent his working hours there and also his evenings. He said he was horrified to realise that there were indecent images of children on his computer. He owned the computer SPW/1. He had used a software programme in 2001 or 2002 to search for adult images on a web site. He had paid US $1.99 for three days access and had left the search programme running to download everything he could. He had later copied the images across to his new external hard drive SPW/5 as part of the process of copying everything, not just pornography. There had been no selection. He had forgotten that child images were cached on his computer. When he had come across them he would place them in special folders which he labelled “Boys Delete First”, “Girls Delete First” and “Both Delete First” with the intention of deleting, later, the whole contents of the folder. The explanation for the contents of the SD memory card was that the appellant had purchased an electronic photograph frame on which he could view photographs. He selected some adult pornography for viewing and copied it on to the SD card which could be inserted into the frame to create a slide show. He had not realised that the SD card contained images of children. When he attempted to play the frame he received an error message. The appellant accepted that the eight letter file description against each thumbnail image would in many cases have revealed the nature of the image, such as “Paedo”, “14YO”, “4YO”. Asked by Mr Herbert why he had gone to the trouble of moving images into three separate folders when he could have deleted them as he came across them, the appellant replied that he was a “techy”. He agreed that he had similarly placed his adult pornography images into separate folder categories, but he denied that his purpose was to categorise child images for viewing. The judge asked the appellant how he knew into which folder an image of a child should be placed. He replied, “As it happens some of these titles obviously gave it away, but this is going back to 2005/2006. They would go straight in to the deleted folder straight away, but sometimes if I was viewing them and a picture popped up, that would be when I would select it to the deletion folder”. The appellant said he had viewed about 12 indecent images of children altogether. He denied that they gave him any sexual pleasure. 19. The appellant maintained in evidence that CF had coached T to give the evidence he had. Her purpose, he suggested, was to stop the appellant seeing his children. He acknowledged, however, that CF had actively encouraged him to see the children after the agreed incident when she raised with the appellant T’s claim that “Daddy sucks my winky”. He suggested that CF was also motivated by the financial dispute between them following their separation in January 2010. He accepted, however, that disagreements about financial arrangements also arose after CF had first raised T’s claim. Ms Dorrell adduced the evidence of six character witnesses who spoke of his loving, honest and honourable character. 20. The jury returned with their verdicts of guilty at 12.32 pm on 28 July after a retirement of about an hour and 20 minutes. During the interval between conviction and sentence Mr Jonathan Goldberg QC was instructed to represent the appellant at the sentence hearing and, thereafter, to give advice on appeal. Mr Goldberg has provided us with full written submissions in which he has covered every significant aspect of the trial. We are grateful for his forthright but measured oral and written submissions. 21. The judge was provided with the report of an intermediary, Judy Clegg. T was at the time of trial aged 4 years and 4 months. His communication skills were consistent with his chronological age. There were no development problems and he was able to respond normally to a variety of questions. Questions needed to be phrased simply and straightforwardly. Complexity was to be avoided. T had limited understanding of the concept of time. He could speak of yesterday and tomorrow but could not handle days or dates, past or future. If a question was not understood by T he would not say so but would answer affirmatively so as to agree with the questioner. He was easily distracted. Ms Clegg attended court to be with T when he gave evidence. She assisted the judge and counsel with the phrasing of questions. The judge was satisfied at the outset that T was a competent witness but he indicated his intention to keep the matter under review. He decided not to engage T in the concepts of truth and falsehood. Grounds of Appeal Ground 1: Evidence of complaints 22. Mr Goldberg identifies the evidence of ‘complaints’ by T to his mother, and subsequently to DC Pope, as important in the context of the trial. We agree. In summary, the hearsay evidence from CF and DC Pope comprised: (i) The complaint of about December 2009 when T, for the first time, asked his mother to suck his winky, and CF drew T’s words to the attention of the appellant (paragraphs 8 and 9 above); (ii) The complaint of January 2010 when T, for the second time, asked his mother to suck his winky, shortly after CF had left the matrimonial home with the children (paragraph 10 above); (iii) The complaint of 19 April 2010 when, for the third time, T asked his mother to suck his winky and CF made notes of all three conversations with T (paragraphs 11 and 12 above); (iv) The unsolicited remarks which CF said were made by T in the weeks or months following his ABE interview (paragraph 14 above); (v) The complaint of 15 July 2011 made to DC Pope while the ABE interview was played to T following which DC Pope made notes of T’s remarks (paragraph 15 above). The evidence was admitted without objection from Ms Dorrell. In a passing reference before the jury was selected the judge referred to evidence of T’s “complaints”. There was, however, no discussion between the Bar and the Bench as to the justification for adducing this evidence. As the following paragraphs of our judgment demonstrate, the judge should have been asked to rule upon the admissibility of the evidence and the proper grounds for admission identified. 23. In his directions to the jury as to the significance of the hearsay evidence the judge said (Summing up, transcript 28 July page 14-15): “If you accept her evidence [T] told his mother that Daddy had sucked his winky and he had sucked Daddy’s winky. Now, that much was the same as on the video. You also heard [CF] tell you what [T] had said to her so that the prosecution could deal with the suggestion that [T] had made this up, and for the same reason you heard from DC Pope of what [T] said to her whilst he was watching his DVD. Now, you will appreciate that [CF] and DC Pope cannot give direct evidence of what, if anything, happened between [T] and his father; they are just telling you what they say [T] told them, and the principal purpose of their evidence is to help you decide whether [T] is telling the truth, but it can also be considered by you as evidence of what happened between [T] and his father. I mention this because, if their evidence is right, that is DC Pope and [CF], [T] said more to them and gave more detail than he did on the DVD. For example, to DC Pope he said that the milk went all over his father’s body, and that that happened once, but his father had sucked his winky loads of times – he did not go into that kind of detail on the DVD – and [CF] said that he told her, among other things, that he used to pull his Daddy’s up and down. Now, you are entitled to consider what [T] said to them as evidence of what happened, but bear this in mind. You have not had the opportunity yourselves of hearing and seeing [T] say those things, and it may be more difficult for you to gauge his reliability about what he said and, in the circumstances of this case, it would have been very difficult for Ms Dorrell to cross-examine [T] about what he may have said to others. So you have not seen that evidence tested by cross-examination and, as I say, bear those things in mind when you are considering what [T] may have told others.” 24. Mr Goldberg argues that the judge misdirected the jury in the following respects: (1) the defence did not suggest that T had made up his evidence - the defence was that the alleged activity did not take place, and (2) T’s complaints were inadmissible either as evidence of the matters stated by T to CF and DC Pope respectively, or to bolster the credibility of T’s evidence. 25. Under the common law, as it was applied immediately before the commencement of the Criminal Justice Act 2003 , “recent complaints” were not admissible to establish the truth of the matters stated by way of complaint. They were admissible if they were made at the first reasonable opportunity and might support the consistency of the complainant’s account. If the complaint was made spontaneously, the complainant’s accompanying distress could, subject to a warning as to dissembling or the possible existence of another cause of the distress, support the credibility of the complainant’s evidence. The admissibility of previous consistent statements (including complaints) as evidence of the matter stated is now governed by section 120 of the Criminal Justice Act 2003 . We shall recite in full the relevant terms of section 120 : “ Principal categories of admissibility 120 Other previous statements of witnesses (1) This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (3) A statement made by the witness in a document— (a) which is used by him to refresh his memory while giving evidence, (b) on which he is cross-examined, and (c) which as a consequence is received in evidence in the proceedings, is admissible as evidence of any matter stated of which oral evidence by him would be admissible. (4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if— (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief that he made the statement, and that to the best of his belief it states the truth. (5) The first condition is that the statement identifies or describes a person, object or place. (6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them well enough to give oral evidence of them in the proceedings. (7) The third condition is that- (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, [...] (e) the complaint was not made as a result of a threat or promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter. (8) For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.” 26. There are, accordingly, under section 120 , five circumstances in which a previous consistent statement may be admitted as evidence of the matter stated in it: (1) when the statement is admitted to rebut an allegation of fabrication; (2) when the statement was made in a document which has been used to refresh memory and, as a result, the witness has been cross examined upon it and the evidence of the making of the statement admitted; (3) when the witness gives evidence that the previous statement was made and that to the best of his belief it is true and either (1) the statement identifies or describes a person, object or place, or (2) the witness has used the statement to refresh his memory and the witness could not otherwise reasonably be expected to remember the details, or (3) the statement is one of complaint of the conduct which forms the offence or part of the offence charged. 27. Mr Goldberg rightly points out that the evidence of CF and DC Pope, to the effect that T described and elaborated to them relevant conduct by the appellant towards T, was not admissible under section 120(4) and (7) of the Act, since T was never asked in evidence to confirm that he had described such conduct to CF and DC Pope, and to confirm that his description was true. For this reason the condition for admissibility of a previous complaint provided by section 120(4)(b) was not fulfilled (see AA [2007] EWCA Crim 1779 at paragraphs 13 and 14). Despite the court’s warning in AA (and see Athwal below) it would appear that “complaints” continue to be admitted as though the former common law applied. 28. As to the application of section 120(2) , Mr Goldberg suggested in writing that it was not the appellant’s case that T’s account in his ABE interview was fabricated. It was simply that the allegations made were untrue. We cannot agree with this assertion and Mr Goldberg was bound to make an appropriate concession in oral argument. In the defence statement it was alleged that: “...the mother of the complainant, his former wife, has encouraged his son to claim that sexual activity took place. Her motives for doing so are that the couple are in the process of an acrimonious divorce where custody/residence of the child will be sought by each side. The matters in issue are whether or not the acts occurred and the reasons for taking issue are that the mother of the complainant has a motive for making false allegations, namely to prevent the defendant from seeing his children”. It was explicitly suggested to T and CF in cross examination both that T’s account was untrue and that he had been put up to it by his mother. The appellant maintained in his own evidence that CF had specific motives for using T to make false allegations against him. 29. It seems to us that, had the evidence of previous disclosures by T not been led in chief by Mr Herbert, it is arguable that it would have been admissible in re-examination of CF for two possible reasons: first, because it tended to disprove the accusation of coaching and, second, because it tended to disprove fabrication by CF and/or T. It is important to consider the implications of this analysis. In the former case it is the fact that the disclosure was made in the circumstances contended which tends to disprove the accusation of coaching. It is not, however, admissible as hearsay evidence but because the fact of disclosure was relevant evidence (see Subramaniam v Public Prosecutor [1956] 1 WLR 965 at page 969 (PC)). That fact would not, without more, make T’s statement admissible in proof of its content. It establishes only the spontaneity of the disclosure. If, however, the statement was properly admitted to rebut an accusation of fabrication by T, with or without the encouragement of his mother, it is admissible in proof of its content under section 120(2) . In our view, the history of T’s revelations was plainly relevant to the accusations both of fabrication and coaching of the child. Indeed, Mr Goldberg, in opening the application to us, described the evidence as “powerful” support for the reliability of T’s evidence. It must be acknowledged that, since the driving force for the falsehoods was alleged to be the complainant’s mother, the degree to which the history was capable of rebutting the allegation depended on the jury’s judgement of CF’s evidence. We therefore turn, secondly, to the question whether CF’s evidence of previous disclosures was admissible to rebut an accusation of fabrication. 30. As we have said, the mere fact that consistent statements have been made by the witness in the past is not sufficient to justify a decision to admit the statements in evidence. In his work Hearsay Evidence in Criminal Proceedings [2008] at page 181, Professor JR Spencer summarised the common law as follows: “12.1 At common law a rule, closely related to the hearsay rule, provided that a witness giving evidence may not make use of his previous out-of-court statements either to supplement or to support his oral testimony; nor may evidence about them be given to this end by other people. This rule goes by at least three different names. In this book it is called ‘the rule against narrative’, but it is also known as ‘the rule against previous consistent statements’ and ‘the rule against self-corroboration’.” Professor Spencer, at page 185, paragraph 12.10, described the changes made by chapter 2 of the Criminal Justice Act 2003 . The rule against narrative has been retained but the rules about memory refreshment are relaxed; the common law exceptions are put into statutory form ( section 120 ), and when, exceptionally, the court hears the previous statement of a witness (whether consistent ( section 120 ) or inconsistent (section 119)) the legal standing of the statement has been raised; whereas in most cases the previous statement formerly went only to the credibility of the witness’ evidence in court, the previous statement now counts as evidence of any matter stated in it. 31. In Athwal and Others [2009] EWCA Crim 789 , [2009] 1 WLR 2430 (Maurice Kay LJ, Mackay and Stadlen JJ), the Court considered the impact of section 120(2) upon the former common law relating to “recent fabrication”. The Court noted that in T [2008] EWCA Crim 484 David Clarke J, giving the judgment of the court, said obiter at paragraph 18: “… section 120(2) is not itself a provision governing admissibility … what the sub-section does is to regulate the use to which such evidence, once admitted, may be put. It is then admissible as evidence of the truth of its contents, not merely as evidence going to the issue of consistency.” Maurice Kay LJ posed the question, at paragraph 45 of his judgment in Athwal , whether previous statements were, since the 2003 Act, admitted as hearsay evidence pursuant to section 114(1) or only pursuant to the common law as to “recent fabrication”. 32. Section 114(1) provides that in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of the matter stated if, but only if (a) any provision in chapter 2 or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. Notwithstanding the obiter view of the Court in T the Court in Athwal concluded upon this issue: “53. What, then, is the effect of these provisions so far as “recent fabrication” is concerned? Once a previous statement is admitted to rebut a suggestion of fabrication, section 120(2) is clear. The statement “is admissible as evidence of any matter stated”. That is the same language as is used in section 114(1). The basic provision for the admissibility of hearsay evidence is that “a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated” subject to certain conditions. In our judgment, all this leads inexorably to the conclusion that a previous statement which is admitted to rebut a suggestion of fabrication is admitted as admissible hearsay under the regime of the 2003 Act. It is admissible as evidence of any matter stated because section 114(1)(a) provides that it is so admissible “if … any provision of this chapter … makes it admissible” and section 120(2) makes it admissible for that purpose. That does not mean that it must always be admitted. Section 114(3) continues to permit its exclusion on other grounds – for example, pursuant to section 78 of the Police and Criminal Evidence Act 1984 , in so far as the evidence is sought to be relied upon by the prosecution.” We respectfully concur with this view. However, as we have said at paragraph 29 above, there may be (rare) occasions when evidence of the fact that a previous statement was made is admissible as relevant to an issue in the case, quite apart from any capacity it may have to rebut an allegation of fabrication. In the event that the previous statement is admitted only on the ground of relevance of the evidence, and not because it passes through a section 120 gateway, it will not be admissible in proof of the matter stated. If, however, the ground for admission of the evidence is its capacity to rebut an allegation of fabrication, then section 120(2) provides that the evidence is admissible in proof of the matter stated. 33. It is thus for the trial judge to decide whether the previous statement is admissible to rebut an assertion that the witness’s oral evidence is fabricated. In Athwal the Court then turned to the question whether the absence of the word “recent” in section 120(2) was significant. At paragraph 58 Maurice Kay LJ said: “58. We add this observation. It is noticeable that section 120(2) refers to fabrication but without the temporal qualification “recent”. Again, this replicates the recommendation of the Law Commission. The omission of the qualification may be a welcome simplification. However, it is clear that the Commission did not recommend a wholesale departure from the previous approach. Indeed, it concluded that “the circumstances in which this minor exception can be used are best left alone” ( Report , paragraph 10.45). On the other hand, we do not consider that the common law label of recent fabrication is to be confined within a temporal straitjacket. This case, and others before it, demonstrate that “recent” is an elastic description, the purpose of which is to assist in the identification of circumstances in which the traditional rule against self-corroboration, sometimes referred to as the rule against narrative, should not extend to the exclusion of a previous consistent statement where there is a rational and potentially cogent basis for its use as a tool for deciding where the truth lies. The mere fact that the witness has said substantially the same thing on a previous occasion will not generally be a sufficient basis to adduce the previous statement when the truthfulness of his evidence is put in issue. There must be something more – for example, the absence on the earlier occasion of a factor, say personal dislike, which is being advanced as a possible explanation for the falsity of his evidence in court. However, when circumstances have changed in such a way, it may not matter that they changed last week, last month or last year, provided that there is a qualitative difference in circumstances, but substantial similarity between the two accounts. There is no margin in the length of time. The touchstone is whether the evidence may fairly assist the jury in ascertaining where the truth lies. It is for the trial judge to preserve the balance of fairness and to ensure that unjustified excursions into self-corroboration are not permitted, whether the witness was called by the prosecution or the defence .” [emphasis added] 34. CF gave evidence that at a time when she and the appellant were living in the same household and attempting to save their marriage, T made the first disclosure to her (paragraph 22(i) above). If CF’s evidence was accepted by the jury, it was a previous statement by T which pre-dated the breakdown of the marriage. It was, furthermore, a disclosure which CF then and there drew to the appellant’s attention. Depending upon the jury’s view of the evidence of CF and the appellant respectively, they were entitled to treat the evidence as rebutting the allegation of fabrication. In argument Mr Goldberg accepted this proposition. 35. The same cannot be said for the further disclosures made by T (paragraph 22(ii)-(v) above) because they were made at a time following the final breakdown of the marriage and the departure of CF and the children from the matrimonial home. They did not tend to disprove the allegation that T had been coached by his mother because, by then, it could not be said that the motive had not arisen. However, at the time when T made his further disclosures to CF on or about 10 January 2010, she was admittedly encouraging the appellant to look after the children unsupervised at weekends. It was indeed immediately following such a weekend visit on 18 and 19 April that the third disclosure was allegedly made to CF. The further disclosures of January 2010 were also inconsistent with the appellant’s case that one of CF’s purposes in coaching her son to false allegations was to prevent the appellant seeing his children. Once again, depending upon the jury’s view of the evidence, the timing of the further disclosures was capable of undermining the appellant’s accusation of fabrication. However, we accept Mr Goldberg’s submission that this further reasoning cannot apply to the disclosures made to CF on and after 19 April 2010 (paragraph 22(iii) and (iv) above). From that moment on the children did not see, and by implication would not have been permitted to see, their father; and it is common ground CF and the appellant were in a financial dispute. In our view, therefore, the disclosures to CF in or about December 2009 and January 2010 were admissible to rebut the accusation of fabrication within the meaning of section 120(2) and, for that reason, were admissible in proof of the matters stated by T. To use Maurice Kay LJ’s words, the evidence of previous consistent statements would “fairly assist the jury in ascertaining where the truth lies”. However, the disclosures made to CF in and after April 2010 were not admissible under section 120(2) . 36. The judgement whether such evidence should be admitted is to be exercised with care. In Athwal the court cited with approval the guidance of Dixon J in Nominal Defendants v Clements [1961] 104 CLR 476 (High Court of Australia) at page 479: “… In as much as the rule [i.e. rebuttal of recent fabrication] forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that the foundation for such an attack has been laid- but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.” The importance of this authority in its modern context is its insistence that grounds for admissibility must be carefully established. It is not permissible to assume that changes in the law of hearsay evidence made by the 2003 Act have somehow resulted in a permissive attitude towards the admission of hearsay. Care is, perhaps, even more important in the present context because, if the evidence is admissible to rebut fabrication, it is now also evidence in proof of the matter stated when formerly it was not. 37. For the reasons we have given, we conclude that had the judge been asked to rule upon the admissibility of the evidence described at paragraph 22(i) and (ii) above under section 120(2) , he would have been justified in ruling, and would have ruled, it admissible. 38. The same cannot apply, in our view, to the disclosures made by T to his mother on and after 19 April 2010 (paragraph 22(iii) and (iv) above), for the reasons we have given at paragraph 34; neither does it apply to the disclosure made to DC Pope on 15 July 2011 (paragraph 21(v) above). The disclosure to DC Pope was made, it is true, before T was subjected to cross examination in his oral evidence at trial and, for that reason, may have qualified as a previous statement (notwithstanding the ABE interview had already taken place), but by 15 July the appellant had been charged, there was no question of the appellant enjoying access to T, and the financial dispute between CF and the appellant was yet to be resolved. We are prepared to accept that a disclosure made on 15 July to a third person was not, on the facts of this case, capable of rebutting the allegation of fabrication, either by the mother or by T himself, unless the circumstances unequivocally tended to exclude the risk of coaching. 39. Nonetheless, Mr Herbert submits that all of T’s disclosures were, in the alternative, admissible in the interests of justice under section 114(1)(d) of the 2003 Act. It is to be noted that the test for admissibility of the evidence under section 114(1)(d) is different. In the case of section 120(2) the test is whether the evidence tends to rebut fabrication; if it does, and is admitted for that purpose, the evidence becomes, by the operation of section 120(2) , admissible in proof of the matter stated. Under section 114(1)(d), however, the test is whether the evidence should be admitted, in the interests of justice, for any purpose, including proof of the matter stated. Mr Herbert relied upon Maurice Kay LJ’s reference to the prohibition against “self-corroboration”. He submits that there is a material difference between an adult, or an older child, making repeated allegations of sexual misconduct (with the risk that mere repetition may provide spurious self-support) and a child aged three years who does not possess the sophistication required to manipulate such opportunities to his own advantage, consciously or sub-consciously. The child’s repeated and unsolicited references, in an unchallenging domestic context, to the appellant’s conduct towards him provided, Mr Herbert submits, cogent evidence of T’s truthfulness and reliability. It was in the interests of justice for such evidence to be considered by the jury both for its capacity to demonstrate the truth of the witness’ evidence and, on account of its inherent reliability, as evidence of the appellant’s conduct. 40. In SJ [2009] EWCA Crim 1869 (Hooper LJ, Rafferty and Cranston JJ) this court had to consider a situation with some (but, we agree, limited) similarities to the present. The victim of a serious sexual assault was a child aged 30 months. She was not competent to give an ABE interview. She had suffered serious internal injuries from penetration of the vagina by a penis or similar object. She had been alone in a room when someone entered and committed the act. Self infliction could be excluded. In response to questions asked by her mother, and on one occasion by a social worker, during the following month, the child said both that she had hurt herself and that she had been hurt by the appellant, her stepfather. The issue for the Court was whether the evidence should have been admitted under section 114(1)(d). The Court noted that there was a strong circumstantial case against the appellant and continued at paragraph 33: “33. It is accepted that the evidence that she was giving was important in the context of the case as a whole. In our view, its importance is this. The issue that the jury had to resolve was whether or not they were sure that the appellant had committed this dreadful crime. In reality that meant they had to be sure that the crime had not been committed by a third party intruder into the room. 34. As to whether or not it was an intruder, or the appellant, it seems to us that this evidence was highly relevant. She was not saying that someone else had caused the injuries. To the extent that she was saying that anyone other than herself had caused the injuries, it was this appellant. 35. We accept, of course, that there was difficulty in challenging the statement, but that does not mean that the evidence was not admissible. 36 We have no doubt that the judge was right to rule the evidence in...” We derive from SJ the proposition that, while care must be exercised, there may be circumstances in which the interests of justice demand the admission of the hearsay evidence, even if it is of critical importance to the main issue in the case. 41. The matters to be considered upon an application to admit evidence in the interests of justice, which cannot enter through one of the specific gateways provided by chapter 2 of the Act, are set out at section 114(2). They are (a) the probative value of the evidence in relation to a matter in issue in the proceedings, or how valuable the evidence is for understanding other evidence in the case, (b) what other evidence has been, or can be, given on the matter, (c) how important the matter is in the context of the case as a whole, (d) the circumstances in which the statement was made, (e) how reliable the maker of the statement appears to be, (f) how reliable the evidence of the making of the statement appears to be, (g) whether oral evidence of the matter stated can be given and, if not, why not, (h) the amount of difficulty in challenging the statement, and (i) the extent to which that difficulty would be likely to prejudice the party facing it. 42. We recognise immediately that the trial judge was never asked to exercise his discretion to admit the evidence under section 114(1)(d) and he did not, therefore, address these issues. Its admissibility was not challenged. We cannot now be sure on what basis Ms Dorrell concluded that there was no prospect of successfully resisting the prosecution’s wish to adduce it. The circumstances were, however, overwhelmingly in favour of the admission of the hearsay evidence in the interests of justice, whether or not it was also capable of admission under section 120(2) . 43. At the time when T gave his ABE interview he was aged 3 years 2 months. It was a borderline decision whether to subject him to the process of interview at all. The police officer and the social worker did their best to elicit evidence from T but in view of T’s tender years they were unable to obtain much more than a bare description, to the effect that Daddy sucked T’s winky, that he, T, sucked Daddy’s winky, and that milk came out of Daddy’s winky. We have seen the DVD recording of the interview. T’s description is straightforward and unhesitating. However, the boy’s father was alleging that his mother was behind the allegations. The acts alleged were of so gross a nature that evidence which went to eliminate misunderstanding, to explain the child’s level of comprehension or to establish that he was describing events which actually occurred was important in the context of the case as a whole. Ordinarily, this would be explored with the witness in the ABE interview. That was hardly possible with a child aged three years. It seems to us inherently improbable that T would, of his own volition, invent the subject matter of the complaint. The defence case was that such activity never occurred - T had been coached into saying something which was untrue. The only other, and just about realistic, alternative was that T was describing something which he thought had occurred when it had not. Evidence of the manner and circumstances in which T made his disclosures had, it seems to us, an important bearing upon the reliability of T’s account of sexual misconduct by the appellant. 44. A concluded view upon T’s reliability (section 114(2)(e)) was unlikely to be possible without knowing the background circumstances. On the face of it, however, the circumstantial context of the disclosures was compelling. As to the reliability of the evidence of the making of the statements, CF had, on 19 April, made a note of the progression of events and, specifically, a detailed note of the conversation with her son on 19 April. Inconsistent with the appellant’s defence that CF was motivated by malice is the fact CF recorded both clear and unclear disclosures by T. DC Pope made a note once the viewing of the DVD on 15 July had been completed. This evidence could not otherwise be received by the court by reason of the tender years of the witness, who could not be expected to remember the occasions when he had made the disclosures to others. Had he been able to remember the complaints and to confirm their truth, they would have been admissible under section 120(4) and (7). It was in the interests of justice that the jury should not be deprived of evidence which, but for the age of the witness, they would likely have received through a specific gateway. 45. We accept that the appellant had difficulty in challenging the statements. They were made on occasions when he was admittedly not present. However, T himself did give evidence and Ms Dorrell was able to obtain intelligible responses both to the question whether Mummy had told him to say what he did, and whether what he said was true. Both CF and DC Pope gave oral evidence and were available for cross examination upon their motivation and reliability. For tactical reasons, which we shall consider below, Ms Dorrell elected not to mount an attack on the integrity of DC Pope, and did not explore with CF her alleged motivation for coaching her son to tell a false story. Finally, the appellant had been consulted soon after the first alleged disclosure and was able to give in evidence the explanation that T may have misused the word “suck” when he meant “tuck”. 46. While, therefore, the trial judge was not asked to exercise his discretion to admit the evidence under section 114(1)(d), we are satisfied that there was a strong case for so doing, and the evidence was rightly placed before the jury. We do not accept Mr Goldberg’s argument that the appellant was deprived of a “sporting chance” of persuading the judge that it should not be admitted. The judge clearly considered the disclosure evidence to be relevant and probative upon an important issue in the trial and we have no doubt that, if asked to exercise his judgement, he would have permitted the evidence to be given in the interests of justice. We do not accept that the admission of the evidence created unfair prejudice. It was, as Mr Goldberg acknowledged, powerful evidence in support of the reliability of T, if it was accepted, and, for the same reason, we observe that it was powerful evidence that T was describing events of which he had personal experience. But that did not render admission of the evidence unfair. The target of the appellant’s case was the child’s mother; both T and his mother were available for cross examination. The judge properly directed the jury that they should approach the evidence with caution because they had not heard from T himself the full extent of the disclosures made and they should bear in mind that Ms Dorrell was limited in the extent of cross examination of T which she could reasonably conduct. In our view, the balance was properly struck between the interests of the prosecution and the defence. 47. Mr Goldberg criticises the decision of DC Pope not to record contemporaneously the viewing of T’s ABE interview on 15 July. That way, any spontaneous response by T would have been recorded and there would have been no room for challenge. We agree that a further DVD recording would have been the preferred option. However, the Ministry of Justice guidance Achieving Best Evidence in Criminal Proceedings does not treat recording as mandatory. What is required (4.51) is a record of anything said at the viewing. DC Pope did make a handwritten note of T’s responses as soon as the viewing was completed and T had left the viewing suite. We do not consider that a failure to record the viewing should have led to the exclusion of DC Pope’s evidence. As we have noted, counsel did not challenge that DC Pope had properly recorded T’s disclosure. 48. We conclude that the judge was right to direct the jury that they could consider the circumstances of T’s further disclosures when deciding whether T was a reliable witness and when deciding whether the appellant committed the offences charged in counts 1 and 2. Ground 2: Directions upon the evidence of a child 49. At page 5C of the transcript of his summing up the judge instructed the jury of the issue which arose in respect of counts 1 and 2: “Can we rely on what [T] has said about what the defendant did?” At page 11E he continued: “I want to talk about [T] now. Before I embark on the evidence and remind you of what [T] has had to say, I want to say a few words about him. There is nothing in the law that says you have to be a certain age before you can give evidence, but it is a fact that [T] is very young, and that has certain consequences to this trial. It must have been obvious to you that he cannot be treated in court in the same way as an adult witness, or even an older child. We needed the services of an intermediary to help us ask him appropriate questions and, if necessary, to help him. You saw how the intermediary helped with the phrasing of questions. Ms Dorrell was very careful to ask questions in such a way that [T] would understand. Of course, she could not cross-examine him in the way she would have done if he had been older, and no doubt you will bear that in mind when you consider [T’s] evidence. With the benefit of hindsight it would have been far better if this trial had taken place as soon after [T’s] interview as possible, and it seems that the time taken to examine the defendant’s computers has held things up considerably. Be that as it may, there has been a long 15 month gap between that DVD being made and this trial, and you will want to consider whether that delay has made any difference to the reliability of what [T] has had to say. Does he now have recall of what he said happened between his father and him?” In considering that question you will no doubt have in mind the evidence of the officer in the case who accompanied him when he watched his DVD a fortnight ago in preparation of him coming to court. She said that during his watching of that video, that DVD, he volunteered some extra detail, something that he had not said on the DVD in April 2010. You will also no doubt have in mind what he said to Ms Dorell when she was asking him questions. You may also wish to consider how he came to say what he did in that DVD. You will remember that the interviewer had been trying to ask [T] what he had said to his mother. I will remind you of what he said. “What happened when you slept at Daddy’s house, can you remember what you told Mummy?”, and he said, “I slept very well”. “Did you?” “Yeah.” And then he was prompted by saying, “Can you remember what happened to your winky?”, and he said, “Daddy sucked it.” Now, you will want to consider whether that is a leading question in the sense that it went some way to providing [T] with the answer. It is a matter for you whether it did that. It is right that what [T] said about his father in that interview was not spontaneous and unprompted. However, you will want to consider whether the question that prompted his reply really does go as far as putting words in his mouth. If you accept what his mother said in evidence you will be satisfied that this was something that [T] had said unprompted on three previous occasions, and that the defendant himself was aware some time in 2009 that [T] was saying something like this. I suppose if I am going to summarise my remarks about the way you should approach [T’s] evidence I would say, “Be fair about it and acknowledge the limitations under which Ms Dorrell on behalf of the defendant has to work.” 50. Mr Goldberg has argued that this was an inadequate warning of the dangers inherent in relying upon the evidence of a three year old child. The judge should have embarked upon an explanation that children may imagine or fantasise or misunderstand a situation; that they may be easily coached, or say what they think the mother wants to hear, or that they may merely repeat by rote that which has been said on a previous occasion. The judge should have warned the jury not to be beguiled by the attractiveness of [T] as a child and to bear in mind his extreme youth. Mr Goldberg says that the judge should have tailored such directions to the specific facts of the present case. He dealt, however, in bland generalisations. 51. We do accept the submission that a judge should give relevant directions of law appropriate to the factual context of the case. We consider that this is what the judge did. It would have been quite wrong for the judge to have engaged in generalisations remote from the facts of the case. The jury had observed in the DVD a bright young boy who could not easily be brought to the point. When asked the direct question he did not hesitate to give a clear answer. The risk was that the answer was prompted by the terms of the question. The judge told the jury to be wary of that risk. On the other hand, there was evidence that T had previously made spontaneous disclosures to his mother. Although the judge did not in this context refer to the circumstances of those disclosures, they were compelling. T wanted his mother to play the same games with him as did his father. He was in other words asking his mother to suck his winky because his daddy did. On the face of it this form of disclosure was inconsistent with anything other than T’s description of personal experience. If the jury accepted the mother’s evidence of the circumstances, they could exclude any notion that T had made up allegations against the appellant or that he had been tutored to make them. The judge chose not to remind the jury of details at this point in his summing up, no doubt so as to avoid deflecting them from his chief direction which was to exercise caution and to be fair to the appellant. Far from giving a disadvantageous direction about T’s evidence it seems to us that the judge was being scrupulously fair to the appellant. 52. There had been an extended delay between the ABE interview and the trial and an essential question was whether the child could be expected to give any meaningful evidence from his recollection. Delay was a subject upon which the judge was bound to direct the jury. Upon this issue the judge had no alternative than to draw to the jury’s attention the fact that T had made a spontaneous remark to DC Pope which demonstrated the existence of a current recollection. If the jury accepted the evidence of DC Pope the risk that T could not give meaningful evidence in cross examination was excluded. What is more, T did give comprehensible answers to Ms Dorrell in cross examination. There was, in our view, no obligation on the judge to make generalised remarks about the risk of fantasising or coaching. We are reinforced in this view by the observations of Lord Judge CJ in B [2010] EWCA Crim 4 at paragraph 40 (see paragraph 54 below). The jury had to deal with the evidence that they had heard. In so doing they knew perfectly well that the appellant could not be convicted if it may be that T was fantasising or merely repeating that which he had been coached to say by his mother. As to the risk that the jury may reach a verdict based upon sympathy for the child or revulsion for the offence, we have extracted the judge’s direction at paragraph 59 below. Ground 3: Direction as to delay 53. We have quoted at paragraph 45 above the judge’s direction on delay. In Powell [2006] EWCA Crim 003 (Scott Baker LJ, Ramsey J and the Recorder of Cardiff), the complainant, aged 3 years 6 months, was not interviewed until nine weeks after the sexual assault of which she had complained to her mother. The trial did not take place until seven months had passed since the ABE interview. The Court regarded the delay as “completely unacceptable”. The appeal was allowed on the ground that the complainant was not a competent witness, although she might have been proved to be a competent witness had she been interviewed sooner and had she, when cross examined, been able to provide intelligible answers. In Malicki [2009] EWCA Crim 365 (Richards LJ, Christopher Clarke J and Sir Peter Cresswell) the trial did not take place until 14 months after the alleged sexual assault. The reason was that an expert (as here) was examining the appellant’s computer which was found to contain a large number of indecent images. Nevertheless, when the complainant, aged 5, was cross examined she was firm that the sexual assault had been committed. The Court allowed the appeal on the ground that the delay before trial was excessive. Richards LJ, giving the judgment of the Court, said at paragraph 18: “18.... The video interview in the present case was prompt, but the overall delay until trial was much greater. The problem in such a case as it seems to us is twofold: first, the risk that a child so young does not have any accurate recollection of events fourteen months previously (that is almost a quarter of her life ago); secondly, the even greater risk that if she is shown the video of her interview just before the trial and during the trial, as she must be, all she is actually recollecting is what was said on the video, and that she is incapable of distinguishing between what was said on the video and the underlying events themselves. It seems to us to be a near impossible task to undertake an effective cross-examination in those circumstances when the cross-examination must depend for its effectiveness on probing what actually happened in the course of the incident itself and immediately after it, not just going over what the complainant said in her interview. These problems go beyond the normal difficulties of recollection with an adult witness or an older child. 19. It is plain that this case did not receive the expedition it could and should have had. For the purposes of the appeal it does not matter where the fault lay. The result was to create the same unfairness for the appellant as was referred to in such strong terms in Powell .” 54. We recognise and confirm that in the case of an infant complainant significant delay between the alleged sexual assault and the trial may render the witness incompetent (or more accurately, unable) to give evidence about it, for the reasons given by the court in Powell and Malicki. That is not, however, merely because time has passed but because the passage of time has affected the competence of the child to give intelligible answers to questions about the incident. In B [2010] EWCA Crim 4 (Lord Judge CJ, Hallett LJ and Macur J) the Lord Chief Justice made important observations about changes in our understanding of the ability of children to give an account of events which have affected them personally. At paragraph 40 the Court dispelled some old thinking about the evidence of children: “40. We emphasise that in our collective experience the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness. In trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.” 55. At paragraph 42 the Court explained the importance of the trial process both in the search for truth and the maintenance of fairness to the defendant of the proceedings: “42 The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes very young, and it should not take very lengthy cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or reciting a well rehearsed untruthful script, learned by rote, or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension, and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence.” 56. The Court emphasised the need to keep the issue of competency under review. At paragraph 50, on the subject of delay, the Lord Chief Justice said: “50 Both Powell and Malicki underlined the importance to the trial and investigative process of keeping any delay in a case involving a child complainant to an irreducible minimum. Unsurprisingly, we agree, although we draw attention to the circumstances which did not appear to arise in either Powell or Malicki , that the complaint itself, for a variety of understandable reasons, in the case of a child or other vulnerable witness may itself be delayed pending “removal” to a safe environment. The trial of this particular issue was delayed because of the trial arising from the death of Baby P. With hindsight it can now be suggested that perhaps the better course, given the age of X, would have been to try her allegation first. Be that as it may, in our judgment the decisions in Powell and Malicki should not be understood to establish as a matter of principle that where the complainant is a young child, delay which does not constitute an abuse of process within well understood principles, can give rise to some special form of defence, or that, if it does not, a submission based on “unfairness” within the ambit of section 78 of the 1984 Act is bound to succeed, or that there is some kind of unspecified limitation period. There will naturally and inevitably be case specific occasions when undue delay may render a trial unfair, and may lead to the exclusion of the evidence of the child on competency grounds. Powell , for example, was a case in which after the evidence was concluded it was clear that the child did not satisfy the competency test, and if the child in Malicki was indeed “incapable of distinguishing between what she had said on the video and the underlying events themselves” it is at least doubtful that the competency requirement was satisfied. However, in cases involving very young children delay on its own does not automatically require the court to prevent or stop the evidence of the child from being considered by the jury. That would represent a significant and unjustified gloss on the statute. In the present case, of course, we have reflected, as no doubt the jury did, on the fact of delay, and the relevant timetable. Making all allowances for these considerations, we are satisfied, as the judge was, that this particular child continued to satisfy the competency requirement. 57. Mr Goldberg contends that the trial judge should, in the present case, have directed the jury to consider the disadvantage to the defendant of the delay which had taken place before trial. We consider that this is what the judge did. He pointed out the inherent difficulty for defence counsel in carrying out the conventional cross examination which she would have done in the case of an adult witness or an older child. The jury was well aware that their assessment of the reliability of T depended in large measure upon their assessment of the evidence of CF. As we have said, the judge was bound to point out that if the jury accepted the evidence of DC Pope there was little doubt that in July 2011 T did in fact have a recollection of an incident which had taken place shortly before his ABE interview. The judge’s responsibility was to leave the issue to the jury in a balanced and fair manner. This is what he did. Ground 4: Direction on prejudice 58. Mr Goldberg argues that the judge should have warned the jury against the risk of convicting on prejudice alone. There were two subjects that had the capacity to cause prejudice in the minds of the jury: the appellant’s admitted interest in adult pornography and his possession of indecent images of children on his computer, external hard drive and memory card. 59. The judge instructed the jury at page 4G of the transcript of his summing up to try the case according to evidence. He pointed out that: “this sort of case is bound to generate emotions, possibly of sympathy, possibly of revulsion, and the reason I mention that is to tell you that you should be aware of the possibility of being influenced by your emotions, and you should remember that your duty is to try this case on a dispassionate assessment of the evidence. So be aware of emotions but do not be swayed by them.” 60. At page 9A the judge reminded the jury of the relevance to count 1 and 2 of the discovery of indecent images of children on his computer. At page 9G the judge also pointed out that it did not necessarily follow that because the appellant had an interest in indecent images of children he committed the offences in counts 1 and 2, or, if he committed the offences in counts 1 and 2, that the indecent images were knowingly in his possession. The jury was reminded of the appellant’s good character and the two ways in which that character could count to his advantage (S/U page 10G). The judge qualified his direction only to the following extent at page 11D: “How much weight you give to it is a matter for you, and it is for you to say whether anything you have heard in the course of this trial tempers what his witnesses have said about him.” 61. In our judgment there was no risk that the jury would convict because they were unfairly prejudiced against the appellant. The judge told them of the limited relevance of the indecent images of children and instructed them to beware of being influenced by sympathy or revulsion. There was no risk that the jury would be prejudiced against him simply because he viewed adult pornography. It is clear to us that both parties treated that interest as entirely outside the legitimate consideration of counts 1 – 17. The jury was left to make its own judgment about the weight to be given to the appellant’s character and it is true that his character included his interest in adult pornography, a trait which does not appear to have been known to the character witnesses who were asked about it. However, we do not consider that the judge’s direction on good character had any tendency to invite or permit a conviction on the ground of prejudice. They had been instructed to adopt a hard-headed approach to the evidence in respect of each count separately. The judge was, in our view, justified in expressing his qualification to the good character direction in general terms because to have descended to detail may have had the effect of diminishing its value to the appellant. Ground 5: Direction as to the appellant’s demeanour 62. We have summarised at paragraphs 8 and 9 above the evidence from CF and the appellant respectively of his shock at hearing CF relate T’s words to him in September-December 2009. It is submitted that the judge should have directed the jury not to attach weight to the evidence since, whether the appellant was guilty or innocent, his reaction was likely to have been one of shock. We do not accept that any such direction was necessary. The appellant accepted that CF’s revelation shocked and shook him. He explained the reason why. The jury did not need an explanation from the judge as to the significance they might or might not attach to it depending upon the evidence they accepted; nor should the judge have removed the issue from the jury. Ground 6: Severance and cross admissibility 63. Mr Goldberg accepts that evidence of the possession of relevant articles may be admissible in evidence of the commission of the defendant of a sexual offence, since it may establish a relevant sexual interest (see D, P and U [2011] EWCA Crim 1474 at paragraph 7, per Hughes LJ, Vice President). He submits, however, that this is a case in which the evidence should have been excluded and, therefore, the indecent images counts (3-17) should have been severed from the trial. The effect of the evidence was to “swamp” a weak prosecution case. 64. We do not accept these submissions. The counts were properly joined. T’s evidence, together with the admissible hearsay of his earlier disclosures, created, in our view, a strong prosecution case. The evidence tended to disprove the accusation of coaching. Proof of a sexual interest in children, particularly boys under the age of puberty, was relevant to the probability that he had committed gross offences against his son. The judge explained in ordinary language the relevance of the evidence but made it clear that the jury should not jump to conclusions. Ground 7: Lies direction 65. Mr Goldberg argues that the judge should have directed the jury that any lies told by the appellant about his knowing possession of indecent images of children may have been “innocent” because they were told to avoid the risk that the jury would assume he must be guilty of counts 1 and 2. In his summing up the judge dealt with the appellant’s account for the presence of the indecent images on his computer, hard drive and memory card solely in the context of counts 3-17. That account was at the heart of the defence to counts 3-17 and we accept Mr Herbert’s submission that no Lucas direction was required in respect of those counts. We also accept that the judge might, justifiably, have given a Lucas direction focused upon the possible motivation for lying to bolster a true defence to counts 1 and 2. However, the judge dealt with this issue by informing the jury that even if they were satisfied that the appellant was, contrary to his denial, guilty of possession of and making indecent images of children, it did not necessarily follow that he was guilty of the more serious counts. In our opinion, that was sufficient to ensure fairness to the appellant. The jury well knew that they could not convict the appellant upon counts 1 and 2 unless they were sure that T was a reliable witness. Ground 8: Inadequate representation by counsel 66. The appellant claims that he was inadequately represented by Ms Dorrell. At the heart of the appellant’s criticism is Ms Dorrell’s failure adequately to advance in cross examination the appellant’s theory that CF’s motivation for coaching T to make false allegations against his father was the marriage breakdown, and that DC Pope had deliberately falsified her note of 15 July to assist CF to advance her false allegations. We have Ms Dorrell’s written response to the grounds of appeal following the appellant’s waiver of privilege. As to the note of 15 July, the appellant wished Ms Dorrell to make an application to stay the proceedings on the ground of abuse of the court process, generated by an agreement (or an “ esprit de corps ”) between CF and DC Pope. There was in fact no evidence that the two women were known to one another before 20 April 2010 and they have since confirmed that they were not. Ms Dorrell declined to make the application or to advance the conspiracy theory on the ground that the judge “would not have it”. 67. There was no prospect that counsel would persuade the judge to stay the proceedings on the ground of abuse. There was no evidential basis on which to make the accusation of conspiracy. If, as the appellant wished to assert, CF had persuaded DC Pope to assist her to pervert the course of justice, the appropriate forum for the making of the allegation was the trial itself. Furthermore, there was no evidential basis upon which to challenge the honesty of DC Pope’s note and it was unlikely that, if honestly made, the note was significantly inaccurate. On the other hand, it was not essential to mount an attack on DC Pope’s honesty and reliability, since, even if the note was accurate, it would be open to the appellant to allege, as he did, that T’s further revelations were the result of coaching and not independent recollection. 68. As to cross examination Ms Dorrell was in a difficult position. First, it was inherently unlikely that both the mother and a police officer had decided falsely to bolster T’s evidence. Secondly, there was no evidence upon which a conspiracy theory could have been advanced. Ms Dorrell was aware that the investigating officers had found in the appellant’s “office” material which, if admitted in evidence, would have had a catastrophic effect upon the credibility of his defence. Unknown to CF, the appellant had filmed himself drinking urine, wearing CF’s underwear and urinating or masturbating into it. He had drafted and retained an internet profile in which he expressed his interest in “any kind of water sports, girls, boys, kissing, pissing on people, mouths or cocks, you name it, it really turns me on...I’ve always liked pussy and now I’ve started to like cock...” He had concealed a camera in the downstairs toilet of his home and had filmed a female using the toilet. The prosecution made an application to admit this evidence but it was refused on the grounds of the prejudice against the appellant which it would invite. There was, however, a risk that an additional and unjustified attack on the character of CF and DC Pope would result in the admission of that evidence, either as evidence of sexual interest in the male penis or as evidence of bad character. Nonetheless, Ms Dorrell did put to T and CF in cross examination the appellant’s case that she had coached T to make false allegations. Ms Dorrell was reasonably confident that if she went no further the judge would not permit the prosecution to adduce the further evidence. In this, her judgement was correct. 69. In his own evidence, however, the appellant made it abundantly clear what was his view about CF’s motivation. As we have observed there was a serious weakness in the appellant’s argument. 70. We have considered the other criticisms of Ms Dorrell’s conduct of the trial. We have found nothing of substance in them. It seems to us that Ms Dorrell’s advice to the appellant and her conduct of his defence cannot reasonably be criticised. She trod a fine line in the protection of the appellant’s own interests. The weakness in the appellant’s case lay not in her inadequate representation of him but in the unlikelihood of his theory. Even if there had been some justification for Mr Goldberg’s criticism of counsel we would have concluded that it had no significant impact upon the outcome of the trial because the appellant was given every opportunity, which he took, to advance his defence when he gave evidence. On the important matters he was not believed. Supplementary Ground: ABE interview guidance 71. Mr Goldberg submits that in three respects the interview conducted by DC Pope and Ms Phillips failed to adopt the standards recommended by the Ministry of Justice guidance Achieving Best Evidence in Criminal Proceedings and, for that reason, should have been excluded . There was no attempt to establish that T knew the difference between truth and lies; the critical evidence was elicited by a leading question; and T was praised at the closure stage of the interview. 72. T was aged 3 years 2 months at the time when he was interviewed. The guidance, at paragraph 3.18, recommends that, while there is no legal requirement to do so, it is helpful to the court to know that the child was made aware of the importance of telling the truth. Conventionally, this is done by asking the child to respond to examples of telling the truth and telling a lie and emphasising the importance of telling the truth. 73. At paragraphs 3.61-3.64 the guidance advises that a witness’ response to a leading question may result in the question and answer being ruled inadmissible. The answer may be unreliable because the answer is implied by the question and may “significantly distort the witness’ memory in the direction implied by the leading question”. Such questions should not be asked except as a last resort, when all other methods have failed to elicit any kind of response. The guidance recognises that a leading question may prompt a spontaneous response which provides information significantly beyond the scope of the leading question and, for that reason, it may be acceptable. 74. At paragraph 3.85 the guidance advises that regardless of the outcome of the interview, every effort should be made to ensure that the witness is not distressed. On the other hand, praise or congratulation for providing information should not be given. 75. In view of T’s tender age, it was not essential, in our judgment, for T to be confronted with the concepts of truth and lies. It would almost certainly have confused him and would not have had the effect which the procedure was designed to achieve. We note that the intermediary had advised the judge that T’s attention span would not exceed 15-20 minutes and that simple questions were essential. The judge himself considered it inappropriate to engage T in a discussion of truth and falsehood. 76. The critical question, asked after several attempts had been made to engage T’s attention, was “Can you remember what happened to your winky?” This was undoubtedly a leading question but it was not so closed a question that it suggested what T’s response should be. It suggested only that something had happened to his winky. On the appellant’s case, the answer might have been, “Daddy tucked my winky”. The response, which we have seen to be immediate, unguarded, direct and clear, was “Daddy sucked it”. When he was asked whether he did anything to Daddy’s winky he replied, “Yes”. When asked what he did, he replied, “Suck it in my mouth”. He was asked what came out of his winky. He replied, “Milk comes out of Daddy’s winky”. In our judgment, this was evidence which the jury was entitled to receive. Both the response and the manner of its delivery had evidential value. We recognise that, in the absence of circumstantial detail in T’s evidence, the evidence of the mother as to the circumstances in which this account first emerged was of prime importance to a decision upon its reliability. 77. We do not regard the consoling words spoken to T at the end of the interview as significant to a judgment of T’s oral evidence at trial. He had been asked to show Ms Phillips on his teddy where Daddy’s milk went. T crawled with a box of crayons and toys behind a chair in the interview room and DC Pope observed that he had become “a bit sad”. He was told that he was a very good boy. We do not regard the compliment as significant. 78. The ABE interview was properly received in evidence. The judge pointed out to the jury the significance of the leading question and emphasised the importance of the issue of reliability. Conclusion 79. We have found no grounds, either singly or cumulatively, for doubting the safety of the jury’s verdicts upon counts 1 and 2. There is no appeal on separate grounds against the convictions upon counts 3-17. Mr Goldberg’s argument was that if the convictions upon counts 1 and 2 were unsafe the safety of the other verdicts was also in doubt in consequence of the judge’s cross admissibility direction. Since we do not doubt the safety of the verdicts upon counts 1 and 2, the appeal against conviction upon all counts is dismissed. Appeal against sentence 80. It is submitted that a sentence of 15 years imprisonment was excessive. Mr Goldberg invites the Court to hold that oral penetration of a child aged three years is a less serious offence than anal or vaginal rape. At page 19, the sentencing guideline on the Sexual Offences Act 2003 identifies the extreme youth of the victim and a substantial age gap between the ages of the victim and offender respectively as factors aggravating the seriousness of the offence. At page 20, paragraph 2.11, of the guideline it is noted that the maximum penalty for the offence of rape, or assault by penetration, of a child under the age of 13 years is life imprisonment. At page 23, paragraph 2A.2, the guideline says, “It is impossible to say that any one form of non-consensual penetration is inherently a more serious violation of the victim’s sexual autonomy than another”. There is no distinction in the starting points for the penetration of the vagina, anus or mouth. 81. The starting point for an offence of rape of a child under the age of 13 years, when the offence is accompanied by abuse of trust, is 13 years custody; the range advised is 11-17 years custody. The judge sentenced upon the basis that counts 1 and 2 charged single and not specimen offences. He declined to treat ejaculation as an aggravating factor. Mr Goldberg points out that the appellant could have been charged under section 9 of the Act (sexual activity with a child), in which case the starting point would have been significantly lower (4 years). However, the guideline identifies the section 9 offence as one which is accompanied by ostensible consent. In our view, it would have been inappropriate to charge such an offence when the age of the victim was three years and no question of ostensible consent could arise. We recognise that there may be an overlap between the section 5 and section 9 offences when the victim is under the age of consent. However, in the present case section 5 was the appropriate charge and the judge was required to pass a sentence which reflected the appellant’s actual criminality. 82. The judge recognised that T’s young age may in years to come save him from intrusive memories of the abuse. We have our doubts about this because T was required to give evidence but we propose to be faithful to the judge’s basis for sentencing. Furthermore, while we accept that, in the case of a victim with comprehension, there is no reason why the penetration of the mouth should be treated as inherently less serious a violation than penetration of the anus or vagina, we think that for a child of tender years there may well be, and is here, a proper distinction to be made in the assessment of likely harm arising from it. Nevertheless, the judge had to sentence for two separate offences each of which was serious. While it was hoped that harm might be limited, the disparity in ages between victim and offender, and the gross abuse of trust of a father towards his infant son, rendered the appellant’s culpability particularly high. The judge expressly did not, as he could, impose consecutive sentences for the indecent image counts. Conclusion 83. We have to consider whether, for the nature and range of offending which took place, a sentence of 15 years imprisonment in total was manifestly excessive. We accept the submission that these offences did not reach the seriousness of multiple offences of rape (the guideline starting point for which is 15 years). In our judgment, a sentence of 13 years imprisonment would have been adequate to reflect the seriousness of the appellant’s offending. We shall achieve that result by granting leave to appeal against sentence, and substituting for 15 years imprisonment on count 1 a sentence of 13 years imprisonment. The judge’s other orders will remain. To that extent the appeal against sentence will be allowed.	[ "LORD JUSTICE PITCHFORD", "HIS HONOUR JUDGE GILBERT QC" ]	2012_12_14-3091.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2725/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2725	1,049
46047ba19dfe8ccd0fbaf0009c6e0dbc6c7a371a4d09803b339d595f93501a07	[2022] EWCA Crim 1003	EWCA_Crim_1003	2022-07-07	crown_court	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 pers	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 202200796/A3 [2022] EWCA Crim 1003 Royal Courts of Justice Strand London WC2A 2LL Thursday 7 July 2022 Before: LADY JUSTICE CARR DBE MR JUSTICE FRASER THE RECORDER OF WESTMINSTER HER HONOUR JUDGE DEBORAH TAYLOR (Sitting as a Judge of the CACD) REGINA V PETER O __________ 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 REPORTING RESTRICTIONS AND ANONYMISATION APPLY: Section 1 of the Sexual Offences (Amendment) Act 1992 applies in this case. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed. Reporting restrictions therefore apply in this case. MR JUSTICE FRASER: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act and reporting restrictions therefore apply in this case. For this reason we refer to the different complainants in this case by the initials C and a number. No disrespect is intended by that to them, and this is a device adopted solely to help ensure their anonymity. 2. This is a renewed application for permission to appeal against sentence following refusal by the single judge. The applicant is a 78-year-old man who was recently convicted of offences of a type which are now termed historic sexual abuse and which occurred many years ago. 3. On 17 December 2021 in the Crown Court at Aylesbury before His Honour Judge Payne, the applicant was convicted of the offences to which we will now refer. He was discharged in relation to count 1, indecent assault on a child under 14, and count 9, cruelty to a person under 16. Another count, count 12, indecent assault on a child under 14, was ordered to lie on the file against him in the usual terms. No evidence was offered against him on counts 4, 6, 7 and 8 and not guilty verdicts were entered on those counts. 4. The counts of which he was convicted are as follows. The numbering of the offences is not sequential due to the fact that we retain the numbering of the original counts on the trial indictment. He was convicted of the following. Count 2, indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960, the sentence which was passed on that count being one of six months' imprisonment. Count 3, indecency with a child, again contrary to section 1(1) of the 1960 Act, the sentence for that being two years' imprisonment concurrent. Count 5, cruelty to a person under 16, contrary to section 1(1) of the Children and Young Persons Act 1933, the sentence for that being one year's imprisonment consecutive. Count 10, indecent assault on a female person, contrary to section 14(1) of the Sexual Offences Act 1956, for which he received what is called a special custodial sentence of five years ordered to run consecutively. We will explain that sentence in more detail in a moment. Count 11, cruelty to a person under 16, contrary to section 1(1) again of the 1933 Act, the sentence on that count being one year's imprisonment consecutive. Count 13, indecent assault on a female person contrary to section 14(1) of the Sexual Offences Act 1956, the sentence on that count being nine months’ imprisonment ordered to be served consecutively. Count 14, indecent assault on a female person, again contrary to section 14 of the 1956 Act, the sentence on that being three years' imprisonment. That was ordered to be served consecutively. Count 15, taking an indecent photograph of a child, contrary to section 1(1) of the Protection of Children Act 1978, the sentence on that being 18 months' imprisonment ordered to be served concurrently. 5. These offences were committed against four different children and the applicant was sentenced on 18 February. The overall sentence therefore was one of a determinate term of seven years and nine months with a consecutive sentence of five years under section 278 of the Sentencing Act 2020 for an offender of particular concern, namely the sentence passed on count 10. That five-year term was itself made up of a four-year custodial term with an extended licence of one year. The overall sentence in aggregate therefore is a custodial term of 11 years and nine months, together with a one-year extended licence, giving an overall sentence period of 12 years and nine months. Additionally, having been convicted of an offence listed in schedule 3 of the Sexual Offences Act 2003 the applicant was required to comply with the notification provisions for an indefinite period. 6. The facts of the offending are in brief as follows. The applicant married a woman in 1978 who had three children from a previous relationship. Soon after that, the applicant and his wife had two daughters together. The applicant badly mistreated one of his stepdaughters (to whom we shall refer as C1) and also his stepson (to whom we shall refer as C2) by meting out violent punishments for the most insignificant behaviour. The applicant would exert power over the children, frequently pulling their underwear down and smacking them on the bottom, humiliating them and even making them fight each other for his entertainment. This would be done by arranging the chairs as though they were in a boxing ring, with the intention being that the children would draw blood when fighting against each other. The youngest child was less than 10 years old when this was done. The applicant would often punch C2 on the head and generally ruled the house through violence and fear. C2 was so terrified of the applicant and the frequent threat of beatings that he developed a stammer. As well as punching him the applicant would kick him, generally demean him and insist that he called him "Sir". This mistreatment went on for many years. 7. In addition to this physical abuse, C1 and C2 suffered sexual abuse at the hands of the applicant. Between the ages of six and 12, C2 was made to watch the applicant masturbate in the bath on a number of occasions. This comprised count 2 and occurred between the years of 1977 and 1983. On at least five occasions the applicant asked C2 to masturbate him in the bath and this was count 3 between the years of 1977 and 1980. The applicant would reward C2 with money for sweets after this had been done. 8. Count 5 was for physical cruelty to C2, again between the years of 1977 and 1980. C2 had not made a complaint about what he had suffered at the hands of the applicant until 2018 when he was spoken to by the police whilst attempting to jump in front of a train at Aylesbury Station. It was as a result of that discussion that the offending finally came to light. Previous complaints had been made against the applicant in earlier years but regrettably these had not been investigated properly or at all. 9. Turning to the offending against C1, the stepdaughter, she was 11 years old when she was left alone in the house one night with the applicant. She had fallen asleep and woke up to find the applicant inserting his fingers into her vagina, licking them and inserting them again. After she woke up the applicant stopped and asked her if she wanted to go and sleep in her mother's bed. She refused. Count 10 represented this behaviour and was between the years 1979 and 1980. 10. Count 11 was cruelty to C1 and this was between the years 1979 and 1984. This consisted of him taking down her underwear in front of other people, including boys of her own age, and beating her on her naked buttocks. 11. The marriage between the applicant and his wife ended in the early 1990s and by 1991 the applicant was living in a one-bedroomed flat by himself. It was at this flat that the complainant C3, then aged 14 and a friend of the applicant's niece, attended one day and was given alcohol by the applicant. She recalled being in the bathroom with the applicant and them kissing together passionately. The kiss was witnessed by the applicant's daughter who challenged the applicant about it. He told his daughter that C3 had kissed him and he did not want to reject her. Those facts underpin count 13 and was committed in January 1989. 12. Counts 14 and 15 both concern a fourth young person, a girl of 13 years old. In 1992 the applicant forged a friendship with her. We will refer to her as C4. She was a vulnerable young person and was befriended by the applicant and together with her older sister she would often visit the applicant's address, staying late where they would be given alcohol and be allowed if not encouraged to drink freely. C4 would sometimes stay overnight and on one occasion when she was asleep she felt the applicant between her legs licking her vagina. She pulled away and the applicant stopped. Despite that incident C4 continued to go to the flat. On another occasion she wore a teddy suit and the applicant took a photograph of her with her nipple exposed, having said to her: "Come on show us your boobs." Counts 14 and 15 relate to each of these offences and were committed between March 1991 and March 1992. 13. Eventually, as we have explained, proper investigations into this offending were performed and the applicant was charged. The offending on the indictment therefore runs from the earliest date of 1977 running through to 1992, a period of some 15 years. We have read the victim personal statements of each of the complainants. They are very moving. The effect that the offending had on each of them has been very profound. We are just going to quote from one of them, the statement of C1, who explained as follows: 14. Her statement reads in party: "Every single day I lived in fear. I never knew if I was going to get hit, whether he would be nice or nasty. Although I am really close with my brothers and sisters now, when we were little it was like a battle of survival. He set us all against each other. I think if he had not been in our lives we would all be very different people." 15. She also explained that because of her severe asthma, even though the family had a car the applicant would insist that she was taken on a crowded bus to her hospital appointments and her asthma became worse over the years. It came to a sudden end the very day that he left the house and her asthma attacks instantly stopped. This demonstrates the enormous and detrimental impact that the applicant had upon her when she was a child. As she explained in her victim personal statement, he called her stupid the entire time she was growing up, and even now that she has grown up she has considerably low self-esteem. Although she has now found that she was dyslexic she explained that being told every day that you are stupid has, over a period of time, simply made her feel "thick", as she explained it. 16. Due to the dates when these offences were committed some had to be charged under the statute that was in force at the time, namely the Sexual Offences Act 1956, and sentenced taking due notice of the different maximum sentences available at the time, and in accordance with the approach that has been explained in a number of authorities. This the sentencing judge did. He expressly stated at 2G in his sentencing remarks: "When dealing with cases under the old law I must start with what the sentence would have been, for an equivalent offence, under the current law, but recognise I'm confined to the maximum sentence for the offence of which you've been convicted back then and limit the sentences in that way." 17. He then proceeded in extremely thorough and carefully-structured sentencing remarks to sentence each of the offences and fully explained the basis for his sentencing on each of them. 18. The grounds of the appeal are as follows: 1. The judge failed to have sufficient regard to the principle of totality. 2. The sentence imposed on count 13 was manifestly excessive as the conduct involved, as it is expressed in the grounds, was only a passionate kiss on the lips and no more than that. 3. The sentence imposed on count 11 which was ordered to run consecutively to count 10 was too high and offended the principle of totality. 4. The judge failed to take into account the applicant's personal mitigation, namely his ill-health, his senior years and the considerable delay in reporting and the matter coming to court. 19. We are surprised that delay should be advanced as a separate ground of appeal and that it can be said to be in the applicant's favour. The delay occurred because there was a delay in reporting. The reason that delay is not a sound basis for challenging the sentencing is for at least two reasons. First, a historic sex abuser is not entitled to benefit from the dreadful effects of their abuse, which very often does lead to victims keeping the history of their abuse secret to themselves, because they feel unable to tell anyone. Child victims of abuse may not be able to bring themselves to report what has happened to them as they are trapped in situations which cause confusion, extreme distress, a feeling of shame and fear in a domestic setting. Some victims bottle up the effects of their abuse, and others simply try to shut it out. This is well known in society and the effects of abuse can last for decades, and some victims may never be able to tell anyone what happened to them when they were children. The abuser is not entitled to credit for delay when convicted of offences of this dreadful type, which destroys the childhoods of the victims. This has been stated in numerous judgments of this court on many occasions before today. 20. Secondly, maximum sentences for such offending have increased over time. The law requires that the maximum available at the time is the limit that applies to each sentence, not the maximum at the date of conviction. An applicant such as this one has benefited in that sense by the delay caused by the fact that his different victims either did not or could not report the offending at the time. He has also benefitted in the sense that he has led his life without being convicted, whilst his victims struggle through, dealing with the effect of his criminality. 21. But in any event these grounds have been carefully considered and refused by the single judge in his detailed reasons. These appear at the Criminal Appeal Office summary between pages 6 and 8 and are to taken as though they are reproduced verbatim here. We cannot improve upon them and we entirely agree. We commend the sentencing judge for his sentencing remarks which are well-structured and comprehensive. It is not reasonably arguable that any of the individual sentences are manifestly excessive nor is it reasonably arguable that the resulting overall sentence is manifestly excessive or infringes the principle of totality. 22. In these circumstances it is not reasonably arguable that the resulting sentences are manifestly excessive and we 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]	[ "LADY JUSTICE CARR DBE", "MR JUSTICE FRASER" ]	2022_07_07-5374.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1003/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1003	1,050
d0e9792a578306917a964201d28c6f5c5243bd8f30175ee886028811a62b2fe7	[2004] EWCA Crim 1756	EWCA_Crim_1756	2004-06-11	crown_court	No: 200305141 B2 Neutral Citation Number: [2004] EWCA Crim 1756 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 11th June 2004 B E F O R E: LORD JUSTICE KAY MR JUSTICE CURTIS MR JUSTICE HEDLEY - - - - - - - R E G I N A -v- AARON BACCHUS - - - - - - - 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) -	No: 200305141 B2 Neutral Citation Number: [2004] EWCA Crim 1756 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 11th June 2004 B E F O R E: LORD JUSTICE KAY MR JUSTICE CURTIS MR JUSTICE HEDLEY - - - - - - - R E G I N A -v- AARON BACCHUS - - - - - - - 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 SMITH appeared on behalf of the APPELLANT MR M AUTY appeared on behalf of the CROWN - - - - - - - J U D G M E N T Friday, 11th June 2004 1. LORD JUSTICE KAY: On 27th September 2000 in the Crown Court at Nottingham, before His Honour Judge Pitchers and a jury, the appellant was convicted by a majority of 10 to 2 of an offence of robbery. He was sentenced to four years' detention in a young offenders institution, consecutive to sentences for further offences of robbery and deception which had been tried in the June. The total sentence was one of eight years' detention in a young offender institution. He now appeals against the matter, the case having been referred to this court by the Criminal Cases Review Commission. We can take the matter relatively briefly because of the position of the Crown. 2. The offence in question was a relatively straightforward one. On 5th April 1999 a young woman was alone in her flat when a group of men entered through a window and stole her watch. She had seen them arrive in a red motorcar. She fled from her flat and sought help from a neighbour. When she returned she saw the men leaving in the red car and she wrote down the registration number, as did Mr Hepden. At a subsequent identification parade she did not identify the appellant or one of his co-accused, although the co-accused's fingerprints were found on the window frame of her flat and in his interviews he, the co-accused, accepted presence at the scene but not participation in any offence. The appellant in his interview made no comment, except to say in a general way that he was not guilty. 3. There was CCTV evidence showing the arrival of the five men in the car near the flat, but it did not show which of them went in. It was the prosecution case that the appellant was one of the robbers, and in order to establish that fact they relied upon expert evidence from a Mr Harrow. He compared the video of the five men arriving at the scene in a car with CCTV footage from other robberies at approximate times at which it was accepted that the appellant was present. Mr Harrow also used for the purpose of his comparison items of clothing from the appellant at the time of his arrest. 4. It is accepted on behalf of the prosecution that if the evidence of Mr Harrow was not available there would have been no sufficient case to go before a jury. 5. The stance of the Crown is dictated by their knowledge of Mr Harrow. The simple fact is that they, as a result of consideration of a number of cases, have come to the conclusion that Mr Harrow's methods are not such that they can be confident of the reliability of his evidence. This has resulted in the Crown Prosecution Service ceasing to instruct him. Indeed, he was suspended from his employment at a bureau as a result. He has now returned. 6. The Crown, therefore, say that the evidence upon which they relied is not evidence that they can invite the court to say can form the safe basis for a conviction. 7. In those circumstances, with commendable reality, the Crown have come to the conclusion that this appeal has to be allowed. We obviously agree. Unless one can be sure that the jury could safely act on Mr Harrow's evidence, any conviction has to be viewed as unsafe. The Crown are now in a position where they no longer contend a jury can place that sort of reliance on his evidence and consequently the resulting conviction has to be seen to be unsafe. For those reasons, we allow this appeal.	[ "LORD JUSTICE KAY", "MR JUSTICE CURTIS", "MR JUSTICE HEDLEY" ]	2004_06_11-258.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1756/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1756	1,051
b556ffbaf3cb92d0c2f3744bf24cd427c61d12315c528ed50f3750147143703e	[2019] EWCA Crim 1961	EWCA_Crim_1961	2019-07-30	crown_court	[2019] EWCA Crim 1961 No: 2019 00584/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 30 July 2019 B e f o r e : LORD JUSTICE HADDON-CAVE MRS JUSTICE FARBEY DBE HER HONOUR JUDGE MOLYNEUX R E G I N A v HOULEMATOU TOURE Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript i	[2019] EWCA Crim 1961 No: 2019 00584/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 30 July 2019 B e f o r e : LORD JUSTICE HADDON-CAVE MRS JUSTICE FARBEY DBE HER HONOUR JUDGE MOLYNEUX R E G I N A v HOULEMATOU TOURE Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Ms Martine Snowdon appeared on behalf of the Appellant Ms Claire Jones appeared on behalf of the Crown J U D G M E N T (Approved) 1. LORD JUSTICE HADDON-CAVE : On 15th January 2019 in the Crown Court at Liverpool before His Honour Judge Wright (sitting as a deputy circuit judge) the appellant, Houlematou Toure (now aged 39) was convicted of five counts: counts 1, possession of an indecent assault image of a child, contrary to section 160 of the Criminal Justice Act 1988 ; count 2, attempting to distribute an indecent image of a child, contrary to section 1 of the Criminal Attempts Act 1981 ; and counts 3, 4 and 5, distributing an indecent image of a child, contrary to section 1(1)(b) of the Protection of Children Act 1978 . 2. On 18th January 2019 the appellant was sentenced by His Honour Judge Wright to a conditional discharge for 12 months on each of those counts to run concurrently, together with the statutory surcharge. Having been convicted of an offence under Schedule 3 of the Sexual Offences Act 2003 , the appellant was required to comply with the provisions of Part 2 of the Act (notification to police) for 12 months. 3. She appeals against conviction by leave of the single judge, who granted a representation order. We have been assisted today by the helpful and succinct submissions of Ms Snowden on behalf of the appellant and Ms Jones on behalf of the respondent Crown. 4. As the learned associate has said, the provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence and the usual reporting restrictions apply. 5. The facts The facts were essentially not in dispute. On 4th November 2016, at 10.40 am, an indecent image of a child was sent to the appellant's phone via the Whatsapp messaging service. The image was a video lasting 3 minutes 16 seconds and depicted a Caucasian child, aged between 1 to 3 years, being sexually abused by an adult Caucasian male. The appellant told a friend on that day that she had deleted the image. 6. On 16th December 2017 (just over 12 months later) the appellant found the image on her phone and attempted to send the video to a person called Dio via Facebook Messenger. Her attempt was however blocked by Facebook, who eventually notified the police. 7. On 17th December 2017 the appellant successfully sent the video to someone with the name La Souer Fanta at 14:34 hours and to somebody called Queenta at 19.30 hours. 8. On 26th January 2018, at 13:20 hours, the appellant sent the video to somebody called Doss. 9. The appellant was arrested on 14th February 2018 and interviewed under caution in the presence of a solicitor. She handed in a prepared statement and made no comment thereafter. 10. The prosecution case was as follows. The prosecution did not accept the account given in the prepared statement by the appellant or in her defence case statement. In the prepared statement she admitted sending the video only to her friend Dio and not to anyone else. In fact, she sent the video to three separate people and did not include any message explaining that it was being sent as a warning by a concerned parent. She failed to provide contact details of the person who sent her the video. She failed to report receipt of the video to the police. 11. The defence case was that the appellant did not solicit or request the video and she mistakenly believed she had deleted it on the day that she received it, namely 4th November 2016, and when she later found it on her phone and distributed it to her friends, she had a legitimate reason for doing so. 12. The issues for the jury were as follows. On count 1, the questions were: (1) were they satisfied that it was more likely than not that the video was sent to the appellant without any request being made by her or on her behalf? If so, (2) was it more likely than not that she did not keep the video for an unreasonable period of time? If so, the verdict was not guilty. If on (1) they were not satisfied, then (3) were they satisfied that it was more likely than not that she had a legitimate reason for having possession of the video, ie (a) was her reason a genuine one and (b) if so, was that a legitimate reason? If so, she was not guilty. 13. On count 2 there was no dispute that she attempted to distribute the video on 16th December. The issue was whether it was more likely than not that she had a legitimate reason for doing so. 14. On counts 3, 4 and 5 it was not in dispute that she distributed the video twice on 17th December 2017 and once on 26th January 2018. The issue was whether it was more likely than not that she had a legitimate reason for doing so. 15. Detective Constable Tosney was the investigating officer. The appellant was arrested and interviewed only in relation to the attempted blocked sending via Facebook. Afterwards her phone was analysed, and the other distributions were found but it was not considered necessary to reinterview the appellant before charge. The officer, DC Tosney, was unable to trace the three addressees, La Souer Fanta or Queenta or Doss, but was able to trace Dio. 16. In cross-examination, it was put to DC Tosney that the full download from the appellant's phone revealed that there was in fact a context to her distribution of the video which supported the defence case. When she sent the video to Queenta she was socialising with her; the sending to La Souer Fanta appeared to be "bookended" by telephone conversations between them; it was accepted that Doss was a campaigner against child porn and he sent a message to the appellant a couple of hours after the video was sent to him saying "No, he is sick". Dio was somebody called Amdadou Diallo, whom the appellant had attempted to send the video to via Facebook. He had met her in Liverpool, and they had got talking because they were both from Guinea. They would chat whenever they would happen to bump into each other. He described her as a kind and caring person with whom he discussed what was going on back home, including politics and people being mistreated. He did not remember ever having a conversation with her about child abuse. 17. The appellant gave evidence that she had come to the United Kingdom from Guinea as a asylum seeker, having suffered physical and sexual abuse there and was now a British Citizen. She was a single mother and was active in campaigning against human rights abuses in Guinea. She was of good character. She was friendly with a West African lady called Rokia and it was Rokia who sent her this video in November 2016 after they had been discussing the sexual abuse of children and how horrible it was. The appellant opened the video, sent it to her friend Natine (who was not the subject of any count) and then deleted it, or so she thought. Over a year later, she said in December 2017, she was talking to her friend La Souer Fanta about child abuse being prevalent in this country and not just in Africa, but her friend did not believe her. So she decided to go through her phone to see if she could find the video. She did find it and sent it to her friend and telephoned her afterwards and they continued their discussion about the issue. Later that day she sent it to her friend Queenta (a single mother) to make her aware that children were being abused in this country. She was with Queenta at the Albert Dock at the time she sent it. She did not know that what she was doing was against the law. She just wanted to make people aware of what was going on. She also sent it to her friend Doss because he was active in the community working to protect children and raise awareness about human rights abuses. They had a conversation after she had sent it. 18. In cross-examination, she was asked whether, when Facebook blocked her attempt to send the video to Dio thirteen months after she received it, that set off alarm bells? She said no; Facebook did not say why it was blocked so she just used Whatsapp instead. She was asked why she sent it to Dio instead of straight to Doss, who was the most obvious person to show it to. She said that Dio was her friend and had children and so she wanted to warn him and other Guinea friends of the dangers of abuse in the West. 19. The appellant's friend, Mamadou Bah, gave evidence. He was active in the Guinea community in this country and campaigned against civil rights abuses. He confirmed that the appellant was also involved, and he knew her to be a kind, caring mother and a good person. He agreed that knowledge of this video was helpful in raising awareness of this sort of thing and this sort of thing goes on in this country. 20. The appellant's friend La Souer Fanta gave evidence. She was a single mother. She confirmed that she and the appellant had discussed their concerns about children being sexually abused and about the need to be careful about who you left your children with. She could not believe that it would happen in this country, so the appellant said that she was going to check her phone to see if she still had this video. The witness La Souer Fanta then received the video on her phone. It was disgusting, she said. The appellant phoned her and said it was proof this goes on everywhere. Ms La Souer Fanta confirmed that she was happy to leave her children alone with the appellant. 21. The appellant also called a character witness, Deborah Mulvaney. 22. Grounds of appeal Ms Snowden on behalf of the appellant submits that the learned judge erred when directing the jury as to the defence when he said that the genuineness of the appellant's belief that she had a legitimate reason was irrelevant to whether the statutory defence of legitimate reason was established. Ms Snowden drew the judge's attention, as she did to ours, to the case of DPP v Atkins [2000] 2 Cr App R 248 at paragraph 10. She invited the judge to replace the words "the genuineness of her belief is irrelevant" (which appear in the judge's route to verdict) with the words, "The genuineness of her belief is not determinative [of whether she had a legitimate reason]". The judge refused to do so. The jury subsequently sent a question on this issue during their deliberations, which the judge dealt with by repeating his earlier direction. Ms Snowden submitted that both the judge's summing-up in relation to this issue and the way he dealt with the jury question was wrong in law. 23. Ms Jones on behalf of the Crown submitted that neither statutory defence was made out. Regarding the defence of legitimate reason, she submitted the judge correctly ruled, prior to summing up, that the test was not subjective but an objective test for the jury, and even if a person holds a belief that is genuinely held, that does not make it an objectively legitimate reason in law. She submitted that the jury were correctly directed by the judge in his summing-up and that the judge dealt with the jury question correctly. 24. The issue before us is whether the judge's direction and his subsequent repetition of it to the jury were correct in law. 25. The appellant was convicted, as we have said, of offences under section 160 of the Criminal Justice Act 1988 and offences of distribution under section 1(1)(b) of the Protection of Children Act 1978 . Both Acts contain the same or similar defences. 26. Section 1(4) of the Protection of Children Act 1978 provides as follows: i. "Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove-- (b) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession ..." 27. Section 160 of the Criminal Justice Act 1998 provides as follows: i. "(1) It is an offence for a person to have an indecent photograph or pseudo-photograph of a child in his possession. ii. (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 that he did not keep it for an unreasonable time." 28. The appellant raised two defences at the trial. The first was the defence in relation to possession under section 160(2)(c) , namely that the photograph was sent to her without any prior request and that she did not keep it for an unreasonable time. The second defence raised by the appellant at the trial in relation to both the counts of possession (count 1) and the counts of distribution (counts 3, 4 and 5) was the defence set out in section 1(4)(a) of the Protection of Children Act 1978 , which is replicated in section 160(2)(a) of the Criminal Justice Act 1988 , namely that she had a "legitimate reason" for possessing and/or distributing the video. 29. Ms Snowden takes no issue with the judge's summing-up as regards the defence under section 160(2)(c) but criticises the judge in respect of his direction to the jury in relation to "the legitimate reason" defence under section 1(4)(a) of the 1978 Act and section 160(2)(a) of the 1988 Act . In admirably succinct and clear submissions, Ms Snowden submitted that the judge was wrong, as she put it, to direct the jury that "the genuineness of the defendant's belief that she had a legitimate reason was irrelevant to whether the statutory defence was established". 30. The problem, in our judgment, with Ms Snowden's submission is that she has mischaracterised or misunderstood what the judge in fact said to the jury. In the course of the summing-up, having dealt with the first defence under subsection (c) of the 1988 Act , the judge then turned to the second defence, namely "the legitimate reason" defence and said this: i. "And so how do you approach this second defence that you only need to come to if you are not satisfied that she has established the first defence, and you need to ask yourselves two questions. First of all, was the reason she gave to you, to the police and to you about keeping this, was that genuine? Because of course sometimes people come up with stories or a reason that they put forward, so you have to ask yourself was it genuine? If you reject her account, you do not think this was the genuine reason, it was not genuinely so that she could prove to other people. It may be a pure interest, a sort of, 'Oh, look at this sort of thing going on. It's horrible, isn't it?' If you reject her account, then of course she has not put forward a genuine reason, has she, for her possession of this video and you convict her, but if you are satisfied on the evidence that you have heard from her and the other witnesses that she was genuine when I said, 'I kept it for this reason', then you will need to ask yourselves a second question, and that is this: 'Was that legitimate?', and you answer that question. It is not a matter for the defendant whether she thinks that was a legitimate reason within the Act. You set the standards for society. You twelve determine whether it was legitimate, and you can imagine many different cases where you might say yes. For instance, someone doing a PhD in child abuse may have images because it is part of their thesis on which they are doing. If they say that, you accept that is the reason, genuine research into this area, 'Well, we think that is legitimate', that may be a conclusion you come to. You may find someone else says, 'Oh, well, I was researching child abuse and so I kept it', and the evidence in say that sort of scenario is, 'Well, I just had an interest. No, I was not a university, I was not doing any course, I was just sort of interested in that', well, you might think, hearing that, 'We do not accept that you were doing this genuinely to your own research.' So you can see how the reason, genuineness in one aspect, but if someone is genuine, you need to consider whether you consider it is legitimate, because some people may feel what they are doing is legitimate, but you take the view looking on behalf of society, setting the appropriate standard, 'We take the view that reason, genuine though it is, is not legitimate'. So two questions: did she genuinely have that reason? If she did not, then you will convict her, having got to this stage. If you accept, 'Yes, we think she has established it is more likely than not that she did genuinely have that reason, was that legitimate?', and you set the standards in deciding whether the reason that she held this material and would have continued to hold it, that is the reason to be able to show people, whether you regard that as being legitimate." 31. Thus, it is clear that the judge directed the jury that there were two separate questions. The first, was the reason put forward by the appellant for holding and then distributing this image of a small child being sexually abused by an adult male, namely that she was showing friends what sort of child abuse went on, a genuine truthful reason? Secondly, if so, was that reason "legitimate"? 32. The judge gave to the jury, as is standard practice when summing up, a route to verdict, which set out the steps and questions that the jury had to consider in sequence when arriving at their verdict. 33. In the course of the jury's deliberations the jury sent a note to the judge raising a question about this issue. After a discussion with counsel, the judge referred to his route to verdict which read as follows (in relation to the second defence): i. "Therefore ask yourselves, was this the genuine reason she kept the video? ii. If you reject her account, then she has not established any reason for keeping the video and you should convict her. iii. If she does establish that she genuinely kept the video for this reason, we need to go on to determine whether you consider that that is a legitimate reason. iv. The genuineness of her belief is irrelevant to that consideration." 34. When the jury were recalled for the judge to direct them in relation to the note which they had sent, the judge effectively repeated what was in the route to verdict and the direction that he had already given. He said this to them: i. "First of all, and I am really echoing what I said on pages 3 and 4 of my legal directions, the reason that she has given to you, the first question that you have got to ask ourselves is, 'Is that genuine?' because some people may have other reasons and then think 'I am on trial, oh I am going to say something else'. So the first question is, 'Is the reason she gives genuine?' And if you reject that, you say 'Oh, we think she is talking a load of nonsense, we do not accept that', then there is no reason put forward and you convict her. But if you say, 'Well, we are satisfied that it is more likely than not that she had that reason', what is the effect of that? Now her case is, 'That is my reason'. It is not, 'I believed I had a reason', because you will remember she did not know what the law is; no-one does. The law does not say you have to have that belief. What she is saying is 'This is why I had it' [ie why I possessed the video image]. Right, and in determining whether that amounts to a legitimate reason, you have to say, 'Well, the reason given, was that genuine? Was she genuinely giving that reason?' And if you determine - it is a matter for you - yes it was, the second step is, looking at the reason, is that a legitimate reason? And now her belief is irrelevant to that aspect." 35. We have quoted extensively from the judge's summing-up and his remarks to the jury following the jury's note in order to set out the full reach of what the judge told the jury about this defence. In our view, the judge's analysis and summing up of the section 1(4)(a) defence of 1978 Act and the equivalent section 160(2)(a) defence under the 1998 Act was entirely orthodox and correct. 36. There are two questions to be asked and answered, as the judge pointed out to the jury and included in his route to verdict, namely: (a) is the defendant telling the truth about the reason that he or she put forward for possessing or distributing the material? If the answer to that question is no, then, as the judge told the jury, they must convict. If the answer is yes, then the jury are to go on to consider the second separate question, namely (b) whether or not that reason was a legitimate reason. 37. The judge, in our view, was entirely right to make it clear that the genuineness of the appellant's belief was irrelevant to the second question. Whilst the first question (namely, whether the appellant was telling the truth and genuinely believed the reason that she put forward) was a necessarily subjective question, the second question was, as the judge rightly emphasised, an objective question for the jury. As the judge elegantly pointed out to the jury, it was for the jury to set the standards for society as to whether a reason put forward (on this hypothesis, a reason genuinely held) was legitimate. As Ms Jones succinctly put it in her submissions: this was a "safeguarding" provision. 38. Ms Snowden relied on the case of Atkins , to which we have referred. Atkins was a case involving an academic who was found to have indecent images of children cached on his hard drive. The reason that he put forward for having such images was that he was engaged in legitimate academic research. He therefore raised the defence under section 160(2)(a) of the 1988 Act . Lord Justice Simon Brown, giving the judgment of the court, said this: i. " Legitimate reason ii. As already indicated, however this question falls to be answered, the answer cannot avail Dr Atkins because the Magistrate found that in any event he was not conducting 'honest and straightforward research into child pornography'. We are nevertheless invited to consider the question so that courts may have some guidance on the point. The answer seems to me plain. The question of what constitutes 'a legitimate reason (for the purposes of both section 160(2)(d) of the CJA and section 1(4)(a) of the PCA [1978]) is a pure question of fact (for the Magistrate or jury) in each case. The central question where the defence is legitimate research will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs in the pretence of undertaking research, or by contrast a genuine researcher with no alternative but to have this sort of unpleasant material in his possession. In other cases there will be other categories of 'legitimate reason' advanced. They will each have to be considered on their own facts. Courts are plainly entitled to bring a measure of scepticism to bear upon such an enquiry: they should not too readily conclude that the defence has been made out." 39. Ms Snowden relied on that passage in Simon Brown LJ's judgment to submit that the judge had failed properly to direct the jury. She submitted that the genuineness of her belief was a relevant factor to be considered as to whether the reason put forward was "a legitimate reason". 40. In our view, Ms Snowden is wrong about that and her reliance on the case of Atkins is misplaced. As Simon Brown LJ was at pains to point out, the central question "where the defence is legitimate search" will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs in the pretence of undertaking research, or by contrast is a genuine researcher. The facts of Atkins were entirely different and the context in which Simon Brown LJ was giving guidance were directed to the facts of that case, which are no doubt much more common. The essential issue in Atkins was regarding the first question, namely the genuineness of the defendant in that case's reason put forward, namely that he was engaging in academic research. Simon Brown LJ pointed out that courts are plainly entitled to bring a measure of scepticism to bear on such defences. 41. The facts in this case are markedly different to Atkins . In particular, both questions arose here distinctly, namely whether the appellant was telling the truth about the reason that she put forward for possessing and distributing this video, and secondly, whether the jury regarded the reason that she put forward, namely that she was a campaigner about child abuse or wanted to warn others, was a legitimate reason for possessing and distributing the video. In summary, the judge's directions were entirely correct, and the case of Atkins is distinguishable. 42. For all those reasons, whilst we understand why the appeal has been brought, this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE HADDON-CAVE", "MRS JUSTICE FARBEY DBE" ]	2019_07_30-4686.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1961/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1961	1,052
3e70b87ad7ca2e31a7989e278399568d18375964b84a862ea16f7cdf53ec318a	[2018] EWCA Crim 509	EWCA_Crim_509	2018-03-06	crown_court	No: 201703877/A2 Neutral Citation Number: [2018] EWCA Crim 509 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 6 March 2018 B e f o r e : LORD JUSTICE SINGH MRS JUSTICE LAING DBE SIR PETER OPENSHAW - - - - - - - - - - - - - - - R E G I N A v JAMIL HUSSAIN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831	No: 201703877/A2 Neutral Citation Number: [2018] EWCA Crim 509 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 6 March 2018 B e f o r e : LORD JUSTICE SINGH MRS JUSTICE LAING DBE SIR PETER OPENSHAW - - - - - - - - - - - - - - - R E G I N A v JAMIL HUSSAIN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr S Csoka QC appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. MRS JUSTICE LANG: The appellant appeals against the sentence passed in the Crown Court at Stafford on 26th July 2017 with the leave of the single judge. 2. He pleaded guilty to the offence of conspiracy to supply a Class A controlled drug, contrary to section 1(1) of the Criminal Law Act with two named co-defendants, Rahouff and Riva, who also pleaded guilty. The appellant was sentenced to 6 years 3 months' imprisonment, Rahouff was sentenced to 5 years' imprisonment and Riva 19 months. 3. The facts may be briefly stated. On 13th August 2015 police officers observed the appellant driving Riva to a public house in Tutbury where Rahouff was waiting in a taxi. Riva took a bag of cocaine to the taxi and she and Rahouff drove off in the taxi with the appellant following in his car. Soon afterwards Riva exited the taxi and was picked up by the appellant. When police stopped the taxi soon afterwards Rahouff was in possession of a black plastic bag holding large blocks of compressed powder, later identified as 284 grams of cocaine, with a purity of 72%. Once cut down for street use its value would be approximately £20,000. 4. The appellant's fingerprints were found on the inside of the black bag. The appellant's name and number was stored on Rahouff's mobile telephone and there were records of contact between Rahouff and the appellant as they were travelling towards the meeting point on 13th August. 5. Later the same day police attended Rahouff's home in Burton where they found drug paraphernalia, a box containing 11 milligrams of cocaine, a plastic bag containing 175 grams of cocaine and a mixing agent and a spoon with 95 milligrams of cocaine and a mixing agent on it. 6. The appellant and Riva were arrested on 21st September 2015. Grounds of Appeal 7. The grounds of appeal are: (1) that the judge erred in deciding the purity of the cocaine (72%) was an aggravating feature. (2) The judge ought not to have increased his sentence because of the appellant's previous convictions and breach of licence and (3) The sentence was manifestly excessive. Conclusions 8. The agreed sentencing guideline for the appellant was that he played a significant role and the harm was in category 3. Under category 3, the starting point for the indicative amount of 150 grams of cocaine is 4 years 6 months custody with a range of 3 years 6 months to 7 years custody. A greater or lesser quantity may increase or decrease the starting point. The guidelines explain that purity is not taken into account in identifying the offence category. However, "high purity" is listed in the guidelines as an aggravating factor. 9. In his sentencing remarks the judge said: "Cocaine because of its production process can never be pure but purity as high as this, over 70 per cent, puts Jamil Hussain close to the original supply and that, as I understand it, is why high purity is set out in the guidelines as an aggravating factor." 10. Counsel submitted that the judge was out of date and ought not to have decided that cocaine of 077% amounted to high purity without evidence. He said that street purity levels of over 70% were routine in some segments of the market. He referred us to a report from the Advisory Council for the Misuse of Drugs Act which stated at paragraph 33: "The Home Affairs Committee inquiry into the cocaine trade noted the emergence of a two-tier market, whereby the majority of street-level seizures in 2008/09 were of 10% purity or less, but with some containing as little as 5%, with lower-quality cocaine having become available to a new market of consumers previously unable to afford the drug (Home Affairs Committee, 2010). As noted above, this is highly likely to be a consequence of and a contributory factor to the observed increase in the prevalence of use and the changed demographic profile of users. As shown in Figure 6, the existence of a two-tier market is supported by more recent analysis of cocaine powder seized within the ‘middle market’ which found that the purity level for most seizures was either at or above 70% or below 30%, with levels around 15–20% being the most common and as many as one in ten being lower than 10% purity (NCA, 2014 – see Figure 6)." 11. Counsel made a similar submission to the sentencing judge but the judge disagreed, referring to the Court of Appeal decision in R v Shezad and Vogli [2014] EWCA Crim 1637 , in which the court upheld his significant increase in the starting point, on the basis that the purity levels of the cocaine were between 73% and 81%, which in the judge's experience were exceptionally high. Rafferty LJ referred to his wide experience at paragraph 28 and said his approach was not open to criticism in any way. 12. The guidelines do not provide any guidance as to what amounts to high purity and in those circumstances the sentencing judge must make his own assessment whether or not there is evidence available to him. The judge is entitled to rely on his expertise and knowledge acquired from trying drugs cases especially in his region. Regional variation was a point made by the Crown in this case. 13. In this case the judge's assessment that 72% was high purity cannot be criticised as unreasonable. The evidence from the Advisory Council acknowledged that purity levels around 15% - 20% were most common in seizures. Here there was evidence from the raid at Rahouff's home that the cocaine was being mixed with cutting agents such as Levamisole, thus reducing its purity before sale. In opening, the Crown invited the judge to proceed on the basis that the cocaine found in the taxi would be adulterated and cut down for the street. In our view, the judge was entitled to conclude that the appellant was selling high purity blocks of cocaine at 72% and thus it could be inferred he was close to the source. 14. In our judgment, the appellant's previous conviction was a significant aggravating factor. On 5th August 2009 he was sentenced to a total of 14 years and 4 months' imprisonment comprising 100 months, (that is a little over 8 years) for conspiracy to supply cocaine and 72 months for causing grievous bodily harm with intent. He was a principal dealer of cocaine in South Staffordshire for several years and used systematically violence with weapons to ensure compliance from his henchmen. 15. The appellant was released from prison in April 2015 on licence until 2022. The judge found the commission of this offence so soon after his release was a seriously aggravating factor. We agree. 16. Following his arrest on 22nd September 2015 the appellant was remanded in custody for this offence, but because he was recalled on licence for the earlier offence the 22 months between arrest and trial did not count towards his sentence unless the court so ordered. 17. In R v Kerrigan [2014] EWCA Crim 2348 , the Court of Appeal held that a trial judge should only exercise his discretion to permit time to count where there were exceptional reasons to do so, for example, excessive delay. 18. In this case the judge analysed the reasons for the delay in detail at 4H - 6G of the transcript. His conclusion was that the appellant was responsible for the delay by failure to file his defence statement, by seeking adjournments of trial dates, raising abuse of process arguments and by only entering a plea of guilty on 24th July 2017, the date of the re-fixed trial. Rahouff and Riva had pleaded guilty in December 2017 and another co-defendant had been tried and acquitted in January 2017. 19. In the light of this history counsel concedes that the judge cannot be criticised for declining to exercise his discretion to allow time spent on remand to count towards his sentence. However, counsel now seeks to achieve the same result by a different route by submitting that the judge was not entitled to increase his sentence to reflect the aggravating factors of his previous conviction and defending whilst on licence, as well as refusing to allow his time on remand to count towards his sentence because this amounts to double jeopardy. In our judgment, this submission is misconceived. 20. The appellant was sentenced to 14 years and 4 months in August 2009, 544 days spent in custody were ordered to count towards that sentence. On our calculation the term expires in mid-2022. He was released in 2015 on condition that he would be subject to recall if he re-offended. After his arrest for this offence in September 2015 he was recalled on licence for the 2009 offence. He was serving a sentence imposed in 2009 throughout the period from his arrest to his conviction for this offence. 21. In our judgment, there is no double jeopardy. The sentences for the 2009 offence and the 2017 offence are separate and he is liable to serve both. He benefits from the fact that the 2017 sentence runs at the same time as the licence recall for the 2009 offence. 22. In assessing the seriousness of the 2017 offence the judge was required to treat the conviction for an identical offence in 2009 as an aggravating factor, by virtue of section 143(2) of the Criminal Justice Act 2003. This statutory provision is expressly incorporated into the Sentencing Guideline on drug offences as a statutory aggravating factor which increases seriousness. Other non-statutory aggravating factors in the sentencing guideline include offences committed on licence. The Sentencing Guideline Overarching Principles: Seriousness explains at paragraph 1.20 that an offence committed on licence is one of a number of aggravating factors which indicates a higher than usual level of culpability on the part of the offender. Thus the judge was entitled, and indeed required, to have regard to the 2009 offence and the breach of licence when assessing seriousness and culpability for the purpose of sentencing the appellant for the 2017 offence. 23. The judge found that the sentence would have been 7 years after a trial which was at the top of the guideline. In our judgment, the judge was entitled to increase the sentence from the starting point of 4 years 6 months to reflect the (i) the quantity of cocaine (248 grams) which was in excess of the indicative quantity of 150 grams (ii) the aggravating factor of high purity cocaine placing the appellant close to the original supply (iii) the aggravating factor of the serious previous conviction for an identical offence (iv) the aggravating factor of committing the offence after being released from prison on licence 4 months earlier. The 10% discount which was given for his late plea of guilty was the most that could be awarded. 24. Taking all these factors into account we do not consider that the sentence of 6 years 3 months imprisonment was manifestly excessive. For these reasons we dismiss the appeal. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400	[ "LORD JUSTICE SINGH", "MRS JUSTICE LAING DBE", "SIR PETER OPENSHAW" ]	2018_03_06-4193.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/509/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/509	1,053
dac10e52e777028b922cba2b93fd40bbaf180b9acd838dfd6883f5cdb41caf79	[2014] EWCA Crim 1337	EWCA_Crim_1337	2014-07-04	crown_court	Case No: 201201739 C1 Neutral Citation Number: [2014] EWCA Crim 1337 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT (His Honour Judge Orme) Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE TURNER and MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - - Between : CONRAD STEVEN JONES Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 201201739 C1 Neutral Citation Number: [2014] EWCA Crim 1337 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT (His Honour Judge Orme) Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE TURNER and MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - - Between : CONRAD STEVEN JONES Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - J Bennathan QC , Danielle Cooper and Anthony Harrison (instructed by Hadgkiss, Hughes and Beale - Solicitors ) for the Appellant T Raggatt QC (instructed by CPS ) for the Respondent Hearing dates: 18 and 19 June 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : Introduction 1. This is an application for an extension of time of 27 days for the renewal of an application for a further extension of time of 4 years and 6 months within which to apply for leave to appeal against conviction. For reasons that will appear below we grant the extensions of time required, give leave to appeal and allow the appeal. 2. On 23 August 2007, following a trial before His Honour Judge (“HHJ”) Orme at Birmingham Crown Court, the jury found the appellant guilty of doing acts tending and intended to pervert the course of public justice, contrary to common law. He was sentenced to a term of 12 years imprisonment; four hundred and thirty days were ordered to count towards the custodial term under section 240 of the Criminal Justice Act 2003. The prosecution case depended mainly upon the evidence of Maria Vervoort, who said that the appellant had, by threats and inducement, attempted to persuade her to absent herself as a witness from the trial of five defendants for murder and to make a false statement to a solicitor. 3. The appellant was represented at his trial by Mr Benson QC and Ms Mahmood, and the prosecution was represented by Mr Raggatt QC and Miss Hancox. On 7 February 2008 this court (Sir Igor Judge PQBD, Davis and David Clark JJ) dismissed the appellant’s appeal against sentence ( [2008] EWCA Crim 348 ). The appellant first submitted his notice and grounds of appeal against conviction, drafted by Mr Bennathan QC, on 21 March 2012. The grounds concerned the reliability of the evidence of the complainant, Maria Vervoort, which had been explored comprehensively at the trial. Leave to appeal was, for that reason, refused by the single judge, Eder J. 4. Mr Bennathan QC renewed the application for leave to appeal, out of time. The application was listed before the full court with the appeal to follow should leave be granted. The appellant relies partly on the grounds placed before the single judge and partly on new material that emerged only after his refusal of leave, which, it is submitted, demonstrates that the jury’s reliance upon the evidence of Maria Vervoort was misplaced and, therefore, the verdict is unsafe. The emphasis of Mr Bennathan’s oral submissions was, in our view rightly, on the new material. Maria Vervoort’s evidence as a witness in the trial for murder 5. Maria Vervoort gave evidence in the trial at Birmingham Crown Court of five men charged with the murder of Clinton Bailey (“Bailey”): Gary Higgins (“Higgins”), Luke Turner (“Turner”), Craig and Liam Dooley and James Dunn (“Dunn”). By 4 April 2005 Maria Vervoort had been in a relationship with Gary Higgins for a period of about 12 months. Higgins was a drug dealer, described by Ms Vervoort as a violent man. She said that she stayed in the relationship only because she was terrified of him. They lived at her address at 78 Somerset Road, Coventry with her infant son. On 3 and 4 April, as a break from routine, Higgins and Ms Vervoort were staying at the Merrick Lodge Hotel in Coventry, while her son was in the care of his father. That afternoon they went for a meal in the Binley Park Inn. Ms Vervoort gave evidence that, at Higgins’ request, James Dunn arrived with a bag of cocaine. At the table Higgins and Dunn discussed a dispute that had developed between Clinton Bailey, Ronnie Murray, Liam Dooley and Craig Dooley. Ms Vervoort and Gary Higgins were driven back to the Merrick Lodge Hotel by James Dunn. Another man was sitting in the front passenger seat of the car. Higgins said that he would phone Bailey and ask him what he had to say. He switched his phone to loudspeaker mode. Ms Vervoort did not understand the whole of the conversation, but the upshot was that Higgins was going to meet Bailey at The Three Horseshoes public house because Bailey trusted Higgins. Ms Vervoort understood that some harm was to come to Bailey as a result of this meeting. Ms Vervoort was dropped at the Merrick Lodge Hotel and Higgins went off with Dunn. Later, as she was getting ready to go out, she received a call from Higgins telling her to go to The Three Horseshoes to meet someone. She was reluctant because she thought that Bailey was going to be beaten up. Higgins insisted and she ordered a taxi. On her arrival Higgins had difficulty persuading her to leave the car but eventually she agreed to sit at the bar while the men played pool. The taxi driver confirmed Ms Vervoort’s reluctance to leave the car. Higgins told her that she would be his witness “if anything happened”. The time came when Bailey left the bar with Higgins. Higgins returned alone, told Ms Vervoort to call a taxi and started to wipe the glasses on the bar. In the meantime Clinton Bailey had been approached by a group of men in the car park outside the pub and was shot several times. After Ms Vervoort had telephoned for a taxi Higgins told her they did not need one. They were getting a lift from an Irishman. This turned out to be Michael McDonagh. Back at the Merrick Lodge Hotel Higgins was in a bad mood. He was saying that ‘Dooley’ had frozen; that people had messed up because, although Clinton Bailey had been shot, he was able to jump over a wall. In fact Bailey was taken to hospital where he died on 16 April 2005. It became apparent to Ms Vervoort that Higgins’ role had been to lure Clinton Bailey to his death. 6. Ms Vervoort said that on their return to the hotel she overheard a mobile phone conversation between Higgins and Conrad Jones, the appellant. Higgins went downstairs and both men returned with drinks from the bar. They drank, took cocaine and spoke about the “stupid fucking idiots” who had messed up the shooting. Conrad Jones said that he was going to the Three Horseshoes to check out what was happening and to make sure that no one talked. The following day she and Higgins went to the hospital where Clinton Bailey was being treated. She remained outside while Higgins went inside to visit Bailey. 7. On 22 June 2005 Ms Vervoort was attacked in her home by two men. She gave evidence that she was dissuaded from pursuing a complaint to the police by Higgins and Conrad Jones, who told her that they would “sort it out”. She was housed in a flat that she thought belonged to Jones. Later, she returned to her own home. On 12 September 2005 she telephoned the incident room from which the murder of Clinton Bailey was being investigated. By this time she and Higgins had separated. At 1.30 pm Ms Vervoort met DS Slevin and WDC Watson and produced documents she claimed to have received through her door at 78 Somerset Road on the day before the meeting. They appeared to be threats. A note read (as written): “justice will be FORE CLINTON”. Fearing that she was being targeted by Clinton Bailey’s associates she began to give an account of what she knew of the events surrounding the death of Clinton Bailey. 8. On 14 September 2005 Maria Vervoort was interviewed as a “significant witness” and in consequence she was taken into the witness protection programme. However, Ms Vervoort failed to act in the interests of her own safety. She received four warnings about her conduct and was eventually rejected by the programme. The allegation of witness intimidation 9. On 13 October 2005 Ms Vervoort telephoned DS Slevin to inform him of an intimidatory approach made to her by two men. She was again interviewed as a significant witness on 17 October 2005. She gave an account that shortly after she had arrived in Bridlington on or about 12 October, she met by chance a friend, Pat Gough. They went out together that evening. The following morning, having visited a launderette, she was returning to her apartment when she saw a white van parked a short distance away. Two men got out. They told her that Conrad knew where she was and things needed sorting out. She recognised the older man as someone she had seen with Higgins in the past. The younger man made a call and it was apparent that he was talking to Conrad Jones. She was told that the message from Jones was that he and Jamie Dunn should be left out of any statements she made to the police. Ms Vervoort pretended that she had not mentioned them. It was suggested that she obtain a copy of her account to the police from Higgins’ solicitor. The two men implied that her brother, who was in prison, could come to harm; if, however, she did what she was told she would be safe to return to Coventry. 10. Following the interview, police officers spoke to Pat Gough and discovered that she and Ms Vervoort had met in Bridlington by arrangement, not by chance. This was put to Ms Vervoort and she admitted it, making a witness statement to that effect on 17 October 2005. On 27 October 2005 the witness at first refused to confirm that her recent complaints had anything to do with Conrad Jones, but later confirmed that, in this respect, she had told the truth. 11. DC Robert Williams was a family liaison officer who, on 13 April 2006, was assigned to monitor the welfare of the witness. On 29 April 2006 Ms Vervoort told DC Williams that she was under pressure from her mother and half sister, Rachel Nally, to attend a firm of solicitors in Derbyshire for the purpose of making a further statement. She was to say that she had been instructed by Paul Kettell (“Splodge”) to blame Higgins for the murder. Higgins had a previous conviction for the manslaughter of Paul Kettell’s father. The inference the police were intended to draw was that Splodge had a motive falsely to accuse Higgins. Ms Vervoort told DC Williams that she believed Conrad Jones was the organiser of the planned change of story. She said that Rachel Nally’s partner, John Power, was a close associate of Conrad Jones and Rachel was acting as an intermediary. Ms Vervoort did not attend the solicitor’s office and attempted, unsuccessfully, to record her mother and sister acknowledging the falsity of the new story she was being asked to adopt. 12. On 6 June 2006 DC Williams contacted Ms Vervoort’s mobile phone. She confirmed that she would give evidence and had experienced no further problems. On 8 and 9 June DC Williams attempted to make further contact but failed. He visited Ms Vervoort’s last known address in Burton–upon-Trent and the property appeared to have been abandoned. 13. The trial of Higgins, Dunn, Turner, Craig Dooley and Liam Dooley for the murder of Clinton Bailey commenced at Birmingham Crown Court before Underhill J on 7 June 2006. Ms Vervoort did not appear. She was in Newcastle-upon-Tyne. At 12.40 pm on 10 June DC Williams received a missed call from Ms Vervoort and he made a return call. Ms Vervoort told him that ‘last Sunday’ (4 June) two men and a woman had come to her home and told her that she had 20 minutes to pack. She had been taken to a place 200 miles away. She declined to say where she was or to name the people who had removed her from Burton-on-Trent. At 3.30 pm Ms Vervoort rang again. She explained to DC Williams that she was in Newcastle with two men and a woman whom she again refused to name. She was to remain there for four weeks. DC Williams’ impression from her manner was that she was being kept against her will. Ms Vervoort said that she was outside a public house, which she named, being watched from the window. She had to return to the bar to avoid detection. The call was terminated. DC Williams was instructed by his senior officer to go to Newcastle and retrieve the witness, if possible. On Sunday, 11 June 2006, at about 9.00 am, Ms Vervoort again called DC Williams saying that she had been able to leave the house without being noticed. She was in a taxi that conveyed her to DC Williams and his colleague, DC Rawson. The officers took Ms Vervoort to a place of safety. 14. On 12 June 2005 Ms Vervoort was interviewed at a hotel as a significant witness by officers who had not before had contact with her. The interview was again recorded. She told the officers that her sister Rachel had been making offers of money to persuade her not to attend trial. Rachel said the offers came from Conrad Jones. Conrad Jones was Gary Higgins’ friend and the other four, Craig and Liam Dooley, Luke Turner and Jamie Dunn, worked for Jones. Ms Vervoort repeated the account of earlier conversations with her mother and sister that she had given to DC Williams on 29 April 2006. She said that in May, Rachel had contacted her again, asking her to meet her at Nottingham railway station. Rachel was on her way to Skegness to spend a holiday with John Power accompanied by Power’s daughter and niece. They had to change trains at Nottingham. She met Rachel who gave her £200. The arrangement was that when Rachel returned from Skegness she would again meet Ms Vervoort. She met Rachel at Nottingham on her return journey. Rachel led her from the station to a side street and there she saw Conrad Jones sitting in a car with another man. Ms Vervoort was told by Conrad Jones that this was her chance: if she went to court she was dead; if she stayed away she would be paid £15,000. Later, her sister phoned to tell her that Conrad said they had to leave immediately. Ms Vervoort responded that she could not go that day. Instead, they met in Burton-on-Trent on Saturday 3 June, booked into the Queens Hotel for the night and left for Newcastle on Sunday, 4 June. There, they booked into the Premier Inn and on the following day they were approached by two cockney men who said they were associates of Conrad Jones. Ms Vervoort was to stay away for at least four weeks and during that time she must not leave her sister’s sight. The following week the men were going to give Ms Vervoort £15,000. In return she was to purchase a video camera with which to record a statement to the effect that pressure had been exerted on her by the police and by Splodge to provide a false account. Ms Vervoort did in fact purchase a video camera from a pawn shop for £50 but she made no recording. She was given a new phone and told to dispose of the old one. In fact she placed it in the lining of her suitcase and used it to phone DC Williams on 10 June. Both phones were handed to the police on Ms Vervoort’s return. While in Newcastle the two women met a taxi driver whom they called Gee. He let them stay in his house in Wallsend until Ms Vervoort made her escape. Ms Vervoort agreed that she was not kept a prisoner but she was afraid of the consequences of leaving Newcastle until, on Sunday morning when her sister was still in bed, she was able to leave the house without being noticed. 15. On 16 June 2006 the appellant was arrested and detained in custody on suspicion of attempting to pervert the course of justice. On 26 June 2006 Ms Vervoort gave evidence before Underhill J and the jury in the trial for murder. She said that she thought the day she had first travelled to Nottingham to meet Rachel was 29 May 2006 and that the meeting with Rachel and Conrad Jones took place on Friday 2 June 2006. 16. On 25 July 2006, five days after the defendants had been convicted of murder, Maria Vervoort was again interviewed as a significant witness on the subject of her meeting with Conrad Jones and her journey to Newcastle. She confirmed that on Monday 29 May or Tuesday 30 May she made her first train journey to Nottingham to meet Rachel. She caught the train at Burton-on-Trent and arrived at between 12 noon and 1.00 pm. The journey took about 45 minutes each way. As a result of their meeting Rachel missed the next train to Skegness and had to wait for another. During that week Rachel phoned her again and said that they had to meet straight away. The second meeting took place on Thursday, 1 June or Friday, 2 June. Ms Vervoort took the train to Nottingham at about 1 pm. Having met Rachel she was taken outside the station to meet Conrad Jones, who was sitting in a silver coloured Mercedes car. She was offered £15,000. She arrived home in Burton-on-Trent between 3 pm and 4 pm on the same day. Rachel then phoned on Saturday, 3 June and on that day arrived in Burton-on-Trent. On Sunday 4 June they went to Newcastle together. Maria Vervoort as a witness in the appellant’s trial 17. The appellant’s trial for perverting the course of justice commenced before HHJ Ross on 2 June 2007 but was halted on 9 January when defence counsel withdrew representation following a breakdown of his relationship with the appellant. The trial recommenced on 30 January but the jury were discharged on 21 February when they were unable to reach a verdict. The third trial commenced on 3 August 2007 before HHJ Orme. 18. The prosecution relied upon Maria Vervoort’s evidence to establish the following case against the appellant: i) On or about 12 October 2005 the appellant sent two men to Bridlington to issue threats to the witness as to the consequences of implicating him and James Dunn in the events surrounding the murder of Clinton Bailey; ii) In April and May 2006 the appellant used Rachel Nally to convey to Maria Vervoort his message that she must change her account so as to place the blame for the murder of Clinton Bailey on Paul Kettell (Splodge); iii) The appellant organised the meeting on 29 May 2006 between Rachel Nally and Maria Vervoort during which she was told she would be paid to stay away from the murder trial due to commence on 7 June; iv) In May or early June the appellant himself spoke to Maria Vervoort by telephone to reinforce his threats and inducements; v) The appellant organised the further meeting on Thursday, 1 June or Friday, 2 June 2006 between Rachel Nally and Maria Vervoort at Nottingham railway station. In a street nearby the appellant personally re-iterated his threats and inducements to persuade her not to attend the trial; vi) The appellant organised Maria Vervoort’s flight from Burton-on-Trent to Newcastle, supplying Rachel Nally with money and arranging for the threats and inducements to be repeated to the witness in Newcastle. Other evidence in the trial 19. The appellant denied that he visited Gary Higgins at the Merrick Lodge Hotel on 4 April 2005 and that he had any involvement in the aftermath of Clinton Bailey’s murder. He denied that he was responsible for any threat or inducement to Maria Vervoort and, in particular, that he spoke to her on the telephone or spoke to her face to face in Nottingham. 20. Michael McDonagh gave evidence that on 4 April 2005, having driven Gary Higgins and Maria Vervoort to the vicinity of the Merrick Lodge Hotel, he returned to the Three Horseshoes public house. Later, Conrad Jones arrived; he walked around the pub and then left. McDonagh said that since making his witness statement he had been approached on two occasions by the appellant’s son, Truman, and asked to speak to the appellant by phone. He told the appellant untruthfully that he had not mentioned his name in his statement. McDonagh felt threatened. 21. The prosecution sought to attribute a mobile phone number 694 to the appellant. The handset itself was never recovered. However, the call information created a strong inference that the appellant was the user of the phone. Cell site evidence was consistent with the use of the 694 phone at or near the appellant’s home, 747 Sewell Highway, between 8.29 am and 5.53 pm on 4 April 2005. Calls made between 8.21 pm and 10.42 pm (including calls to James Dunn and Gary Higgins) captured cell sites that were consistent with the appellant’s movement to the vicinity of The Three Horseshoes public house, the Merrick Lodge Hotel and then back to The Three Horseshoes. No calls were made by the 694 phone after 20 April 2005. If the jury accepted this evidence it tended to support Maria Vervoort’s evidence of the appellant’s movements on the night of the murder. 22. Two mobile telephones were recovered from the appellant’s home, numbers 844 and 505. They were used to make contact with the defendants, James Dunn and Gary Higgins, who had been remanded in custody pending their trial for murder. 23. Rachel Nally gave evidence in the defence case. She knew Gary Higgins through her former partner, John Power. She said that as far as she could tell Higgins and Ms Vervoort had a good relationship until Higgins started seeing another woman in June or July 2005. She said that she met Maria at Nottingham station on 29 May 2006. There was no second occasion. On 1 June she returned alone from Skegness to Coventry. She said that she spoke with Maria by telephone on 2 June. Maria had decided that she was going away to avoid giving evidence; the volition was her own. They met in Burton on 3 June and attended a birthday party for Maria’s friend, Amanda. Ms Nally said that Maria’s first intention was to go to Blackpool but she was unable to make the arrangements so they went to Newcastle instead. They used false names to book into a hotel. They then met Gee and stayed at his home. She denied that their stay in Newcastle was anything to do with Conrad Jones and denied that there were two men shadowing their movements. She said that was complete rubbish. On Sunday morning Maria had gone. Rachel Nally said that it was Maria who told her that Splodge was behind the killing of Clinton Bailey. She had not been asked to put that story to Maria. Cross-examination of Maria Vervoort 24. Mr Benson QC had access to call and cell site data relating to Maria Vervoort’s phone (991) and Rachel Nally’s phone (679) for 29 May, 1 June and 2 June 2006. The cell site data demonstrated the movement of Maria Vervoort’s phone from Burton-on-Trent to Nottingham and back again between 12.40 pm and 4.30 pm on 29 May. Rachel Nally’s phone travelled from Coventry to Nottingham on 29 May at some time between about midday and 2.20 pm. 25. However, there was no such cell site confirmation for a meeting on 1 or 2 June 2006. The evidence suggested that Rachel Nally travelled from Skegness to Coventry on 1 June and remained in Coventry on 2 June. Maria Vervoort’s phone used cell sites exclusively in Burton-on-Trent on both 1 and 2 June. Ms Vervoort agreed that she received a call from DC Williams at 1.26 pm on 1 June (at a time when she must have been in Burton-on-Trent) but during their conversation she mentioned nothing about the proposition put to her by Rachel on Conrad Jones’ behalf on 29 May, three days before. Ms Vervoort confirmed that her second meeting with Rachel took place either on Thursday, 1 June or Friday, 2 June. Asked by Mr Benson QC to explain how her mobile phone was being used exclusively in Burton-on-Trent on both days, she replied that she must have left her 991 phone behind. Asked to explain contact (calls and texts) made by that phone from Burton-on-Trent to Ms Vervoort’s friends, she said that a woman called Paula Clarke was staying with her in her apartment in Burton-on-Trent. It would have been Paula who was using the 991 phone. It was not, she said, a surprise that Paula was calling and texting Maria’s friends because Paula had introduced her to most of her friends, so they were her friends too. 26. When Mr Benson QC pointed out that there was a gap in time in the use of the 991 phone on 2 June 2006 between 1.30 pm and 3.00 pm, Ms Vervoort accepted his suggestion that this interval would have been insufficient for her to catch a train from Burton-on-Trent to Nottingham, attend her meeting with Rachel Nally and Conrad Jones, and catch a return train arriving in Burton at 3.00 pm. Ms Vervoort’s own estimate of the journey time had been 45 minutes each way but that left no margin for the period when the meeting must, on her account, have taken place, and assumed that the return train was immediately available. Mr Raggatt QC, for the prosecution, made it clear to HHJ Orme that, while Ms Vervoort had made the concession, this was not a proposition that the prosecution accepted. However, the prosecution advanced no further evidence to contradict Ms Vervoort’s own concession as to timing. In the light of disclosure subsequently made by the prosecution (paragraph 31 below) Mr Raggat’s observation to the judge should have been but, to our knowledge, was never withdrawn. 27. Mr Benson QC reminded the witness that on 28 February 2008, at the previous trial, when asked questions by Mr Raggatt QC, she had said that the only person to whom she had lent her phone in Burton was a person called Les with whom she was in a relationship. When asked why she had not mentioned her flatmate Paula, who, she was now saying, regularly used Maria’s phone because her own was out of credit, she replied that she did not want to get Paula Clarke involved. However, she agreed that the only phone she had taken with her to Newcastle was 991 and she never went out without one. Ms Vervoort was handed a list of contacts retrieved from the memory of her 991 phone. She was asked which of those contacts, if any, was Paula Clarke, her flatmate. She said that Paula Clarke was listed by her nickname, ‘Peaches’, against the number 178. In re-examination Mr Raggatt QC returned to the subject of Peaches. Ms Vervoort confirmed that the number listed for Peaches was 178. Mr Raggatt asked the witness to examine the 991 call record for 2 June. The 991 phone was not used to make a call (or send a text) to or to receive a call (or text) from the number 178 on that day. Ms Vervoort accepted Mr Raggatt’s suggested explanation that since, as she said, Peaches Clarke was in possession of both the 991 and the 178 phones, there would not have been any communication between them. This evidence, if honest, provided the prosecution with the explanation for the absence of call site evidence confirming Maria Vervoort’s journey to Nottingham on 2 June 2006. Post-trial disclosure by the prosecution 28. There the evidence concerning the alleged face-to-face meeting with the appellant remained until 19 June 2009. On that day, following an order from the Registrar in the course of James Dunn’s appeal against conviction, the service provider O 2 disclosed that the subscriber for the number 07743 297178 between 27 October 2003 and 27 October 2008 was Mark Peel, who gave an address in Birmingham. It would appear that in the appeal of James Dunn, Mr Bennathan QC argued that Maria Vervoort’s evidence about the use of her 991 phone on 2 June was demonstrably false. Although Ms Vervoort claimed that Paula Clarke was a close friend, there was never any contact made between the 991 and 178 numbers. It is unclear whether the significance of the identity of the 178 subscriber was fully appreciated. While acknowledging the force of Mr Bennathan’s argument, the Court (Goldring LJ, Burton J and the Recorder of Kingston-on-Hull: [2009] EWCA Crim 1371 ) concluded that this aspect of Maria Vervoort’s evidence did not undermine the credibility of the account she had given of events surrounding the murder of Clinton Bailey. Arrest of the appellant and further disclosure 29. In June 2012 the appellant was released from prison on licence. On 6 November 2012 he was arrested with his then solicitor for a further suspected offence of attempting to pervert the course of justice. A probe had been fitted in the solicitor’s car because he was under investigation for other matters. In October 2012 the appellant and his solicitor drove to the home address of Marc Albert Peel. The purpose of their visit was to find out whether Mr Peel had a nickname. He confirmed that his nickname was ‘Peach’. As a result of this visit and the contents of the probe recording, the appellant was prosecuted and tried before HHJ Inman QC at Birmingham Crown Court. The appellant’s case was that no improper pressure had been placed upon or inducement made to Mr Peel; he and his solicitor were merely investigating the truthfulness of Maria Vervoort’s evidence in his 2007 trial. The appellant maintained his innocence of both allegations of perverting the course of justice. The jury returned a verdict of not guilty. 30. Shortly before his trial, and for the first time, on 25 June 2013, the prosecution disclosed that there was entered in the Police National Computer in respect of Marc Peel a nickname, ‘Peachy’. The court has not been informed of the date when the prosecution and the police were first made aware of Peach’s identity. 31. The 2013 prosecution was handled by the Serious Organised Crime Agency (“SOCA”). It was recognised that the police may be in possession of material from the 2007 trial that should be disclosed to the defence. The SOCA needed to consult with Miss Hancox, junior counsel at the 2007 trials, and the disclosure officer in the case. Neither of them was made available; they were said to be on long-term sick leave. A consultation took place with Mr Raggatt QC at his chambers on 19 June 2013. Mr Raggatt required sight of further material. On 25 June the defence sought specific disclosure. Mr Raggatt’s view was that there had been no breach of the prosecution’s disclosure obligations. On 27 June the prosecution made a PII application to HHJ Inman QC. Having considered the material, comprising an undisclosed form of surveillance (which Pitchford LJ has also examined during interlocutory proceedings), the judge ordered the prosecution to make a formal admission in the following terms: “As far as the meeting at Nottingham railway station is concerned, the Crown accepts that Conrad Jones did not go to Nottingham on 1 June 2006. On the 2 June 2006, Conrad Jones is known to have been in Coventry until 14.25 where he was driving a blue BMW. He is known to have been in Coventry at 18.00 when he was driving a blue BMW. His whereabouts between those times is not known.” 32. Nottingham is some 53 miles from Coventry. The appellant could hardly have travelled from Coventry to Nottingham by car in less than an hour. We sought from Mr Raggatt QC an explanation as to the reason why it had taken six years for the appropriate admission to be made. We were informed that Mr Raggatt was aware of the surveillance material in late 2006 as a result of a consultation with junior counsel and the disclosure officer. He cannot now recall the extent of the detail known to him. He took the view that since the witness was imprecise in her recollection of the date and time of the meeting between herself, Rachel Nally and the appellant the surveillance material was not relevant. We disagree profoundly. Following the trial for murder, in which Mr Raggatt QC and Miss Hancox were counsel for the prosecution, on 25 July 2006 Maria Vervoort took part in a recorded significant witness interview from which it is clear the purpose was to explore with her, among other things, the dates and times of her meetings with Rachel Nally (see paragraph 16 above). On 10 August 2006 she signed a witness statement based upon her answers in interview. If there had been any earlier doubt, there was none by 25 July 2006 that the meeting to which Ms Vervoort referred must have occurred, if it took place at all, on Thursday 1 June or Friday 2 June 2006. We fail to understand how the prosecution could have distributed a Note of Opening for the 2007 trial in which it was suggested that the precise date and time of the second meeting with Rachel “may well not matter”. It was said: “Rachel Nally had set the meeting up on his [Conrad Jones’] behalf but what matters is that it took place and what was said between them, not exactly when, which of course Maria Vervoort did not note or keep records about.” 33. The prosecution was in possession of sensitive material the effect of which was altogether to exclude 1 June 2006 as the date of the second meeting and to cast considerable doubt upon 2 June 2006 as the alternative if, as Maria Vervoort maintained, she met Rachel and Conrad Jones early that afternoon. Furthermore, the prosecution knew that the defendant was putting forward an alibi for both days supported by other witnesses. Doing the best we can to avoid the temptation of hindsight we can only regard the failure to make the disclosure in early 2007 that was subsequently made in June 2013 as a lamentable failure of the prosecutor’s obligations (see R v H and Others [2004] UKHL 3 , [2004] 2 AC 134 at paragraphs 14, 18 and 36). Had it not been for the appellant’s arrest on 16 November 2012 and his subsequent prosecution these matters may never have come to light. In the course of his judgment on behalf of the court in Dunn , Goldring LJ observed that the Court must assume that the prosecution had performed its duty to make appropriate disclosure of relevant material. That, of course, is the case unless the court has reason to doubt the proper performance of the prosecutor’s obligations. Unhappily it was an assumption that proved to be inaccurate. Discussion and conclusion 34. Mr Bennathan QC now submits that had the jury in 2007 been aware of the new (2013) material when examining the credibility of Maria Vervoort’s account of her face-to-face meeting with Conrad Jones, they would have been likely to conclude that she had not told the truth. The admission made by the prosecution so narrows the period within which the alleged meeting could have occurred that a meeting on 2 June was highly improbable. The cell site evidence for Rachel Nally’s 679 number was inconsistent with the alleged meeting. Maria Vervoort’s explanation at trial for the inconsistent cell site evidence relating to her own 991 number was demonstrably false. Peaches was not a person called Paula Clarke, sharing an apartment with Maria Vervoort in Burton-on-Trent, but a man who lived in Birmingham with whom there had been no telephone contact at all. It is beyond belief, it is submitted, that Maria Vervoort should have known a man and a woman both with the nickname Peaches or Peachy but mistakenly attributed the number 178 to the wrong person. This evidence casts considerable doubt upon the existence of a person called Paula Clarke sharing Maria Vervoort’s accommodation in Burton-on-Trent. When DC Williams visited the property on 8 June it appeared to him to have been abandoned. Of lesser importance, but notable nonetheless, was Maria Vervoort’s insistence that on 1 or 2 June Conrad Jones was sitting in the driver’s seat of a silver Mercedes, which she identified by means of its characteristic badge, when the surveillance evidence for 2 June showed him to be driving a blue BMW. It is submitted that the room for honest mistake was vanishingly small. There is at least a real possibility, it is submitted, that the jury would have concluded that Ms Vervoort invented the face-to-face meeting with Conrad Jones. Conclusion 35. We accept these submissions. Mr Raggatt QC argued that the issue of the face-to-face meeting with Conrad Jones formed such a small part of the case against him that this Court should conclude that the verdict was nonetheless safe. We are conscious of the Court’s judgment in Dunn that the safety of the verdicts of murder was not affected by Maria Vervoort’s unsatisfactory evidence of personal intimidation by the appellant. However, in that appeal the Court concluded that her underlying account of the circumstances of the murder had been consistent. Indeed, as we have noted, her evidence was supported by Michael McDonagh and the 694 telephone evidence. In the present case, however, the appellant was charged with perverting the course of justice. The only occasion when Ms Vervoort claimed to have been threatened face-to-face by the appellant was at a meeting on 1 or 2 June 2006. We do not accept that this was a peripheral issue in the context of the case against this appellant. On the contrary, it was central both to the witness’s credibility on the issue of intimidation by the appellant and to the particulars of activity by the appellant on which the prosecution relied against him. If the jury had concluded that no such meeting had taken place, the impact upon Ms Vervoort’s account of several other alleged events for which she claimed the appellant was responsible must, we conclude, have been significant. It is possible, if not probable, that the other evidence would have been sufficient to convict the appellant but we cannot conclude that would have been the conclusion of the jury. There were several other inconsistencies in Maria Vervoort’s evidence that the jury would have had to confront. None of them was sufficient to persuade the single judge to grant leave and, respectfully, we agree. However, we cannot conclude that the issue we have identified could be segregated from an assessment of Ms Vervoort’s credibility in general. In our judgment the verdict is unsafe and the conviction must be quashed. 36. When reserving judgment we invited counsel to make submissions as to whether, if the appeal was allowed, a re-trial should be ordered. We are grateful to counsel for their timely written submissions. Having considered (i) the seriousness of the alleged offence, (ii) the history of the proceedings set out in this judgment and (iii) the release of the appellant from the custodial portion of his sentence in June 2012, we have concluded that it is not in the public interest to order a re-trial. 37. Further to an application made on 17 June 2014 in writing, we grant a representation order in favour of Hadgkiss, Hughes and Beale, solicitors, to cover work reasonably done in support of the applications since 13 January 2013, but the appropriate sum of costs will be the subject of detailed assessment at the direction of the Registrar.	[ "LORD JUSTICE PITCHFORD", "MR JUSTICE TURNER", "MRS JUSTICE CARR DBE" ]	2014_07_04-3440.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1337/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1337	1,054
ead67251b1ee0cfa25cd75693cae4916f699bf95be8028fd38e71b66976922d3	[2014] EWCA Crim 2683	EWCA_Crim_2683	2014-12-18	crown_court	Case No: 2013/03847/C1 Neutral Citation Number: [2014] EWCA Crim 2683 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARLISLE His Honour Judge Peter Hughes QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/12/2014 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE OPENSHAW and MRS JUSTICE LANG - - - - - - - - - - - - - - - - - - - - - Between: Regina (Natural England) Respondent - and - Philip Edward Day Appellant - - - - - - - - - - - - - - - -	Case No: 2013/03847/C1 Neutral Citation Number: [2014] EWCA Crim 2683 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARLISLE His Honour Judge Peter Hughes QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/12/2014 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE OPENSHAW and MRS JUSTICE LANG - - - - - - - - - - - - - - - - - - - - - Between: Regina (Natural England) Respondent - and - Philip Edward Day Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Matthews QC and Jonas Milner (who did not appear in the Crown Court) for the Appellant Rex Tedd QC and Bernard Thorogood for the Respondent Hearing date: 4 December 2014 - - - - - - - - - - - - - - - - - - - - - Judgment LORD THOMAS OF CWMGIEDD, CJ: 1. In October 2010 the appellant, Philip Day, a man of enormous wealth and who employs 10,000 people through the companies controlled by him, acquired with his wife the Hayton Estate near Brampton, Carlisle, Cumbria. The estate comprises about 500 acres, mainly of woodland. Part of the estate is bounded by the River Gelt, which runs along the easterly borders of the estate in a north westerly direction and eventually flows into the River Eden. The Gelt at this point has carved a channel through the red sandstone to form a meandering gorge. 2. The environmental and ecological importance of an area in the gorge within the Hayton Estate was recognised in 1969 when it was designated as a Site of Special Scientific Interest (SSSI); that designation was intended to protect it. 3. In November 2010 operations were carried out within the area of the SSSI without the authorisation of Natural England, the body which, under the Wildlife and Countryside Act 1981 (the 1981 Act), has authority to allow such operations. The operations resulted in the felling of 43 trees, the construction of a track wide enough to take vehicles and the construction of bunds/banks to support the track. Large areas were stripped of trees and flora exposing large areas of soil and rock. The local residents, despite actions intended by the appellant to obstruct them, brought the matters to the attention of Natural England. 4. As a result, the appellant was charged with offences under s.28E(1) and s.28P(1) of the 1981 Act. It provides as follows: “28E(1) The owner or occupier of any land including in a Site of Special Scientific Interest shall not … carry out or cause or permit to be carried out, on that land any operation … unless (a) One of them has … given Natural England notice of a proposal to carry out the operation specifying its nature and the land on which it is proposed to carry it out.” “S.28P(1) A person who, without reasonable excuse contravenes s.28E(1) is guilty of an offence …” (4) For the purpose of sub-sections (1), (2) and (3), it is a reasonable excuse in any event for a person to carry out an operation (or to fail to comply with a requirement to send a notice about it) if … (b) the operation in question was an emergency operation particulars of which (including details of the emergency) were notified to Natural England as soon as practicable after the commencement of the operation.” 5. The appellant was summoned before the Magistrates’ Court, but pleaded not guilty. He elected trial. He was committed for trial at the Crown Court at Carlisle on an indictment containing three counts relating to the operations we have described, each charging an offence under s.28E and 28P of the 1981 Act. 6. The appellant sought a preliminary hearing. He then asked the judge to rule before any evidence was heard on a question of law. That hearing took place on 18 and 19 April 2013 before HH Judge Peter Hughes QC. The judge made a ruling which was challenged on this appeal. 7. After that ruling the appellant pleaded guilty to Counts 1 and 2. He submitted a document entitled, “Basis of plea and points for mitigation”. Despite the prosecution pointing out in writing before the hearing that it did not accept that basis of plea, the appellant did not apply to vacate the plea. 8. The judge then held a Newton hearing, making his findings on 31 July 2013. In the result the judge fined the appellant £450,000 and costs in the sum of £457,317.74. A default sentence was fixed at four years. Count 3 was ordered to lie on the file on the usual terms. No part of the fine had been paid at the time of the hearing, but the fine and the costs were paid on 5 December 2014. 9. The appellant appeals by leave of the Single Judge against conviction and sentence. He was represented by Mr Richard Matthews QC who did not appear below. He conducted the appeal with his customary skill and learning. THE APPEAL AGAINST CONVICTION (a) The ruling made by the judge 10. As we have set out at paragraph 6 above the appellant through his then legal team raised a number of legal issues. On 18 and 19 April 2013 two of those points were heard, namely (1) whether the offences under s.28E and s.28P of the 1981 Act with which the appellant was charged were offences of strict liability and (2) whether the matters relied on by the prosecution could in law amount to the appellant causing the prohibited operations that resulted in the damage to the SSSI which we have described. 11. It is important to point out at the outset that it is not disputed on this appeal that the offences were ones of strict liability. However we could not understand why the point in relation to causation had been argued before the evidence was heard. Mr Richard Matthews QC could not help us with an explanation, save to say that the appellant had acted on the advice of his then legal advisers. It was submitted by Mr Tedd QC on behalf of the prosecution that the appellant’s purpose had been to take every step, consistent with the conduct that he had engaged in with the local residents to which we refer at paragraph ix) to xii) below, of using his wealth to try and obstruct his prosecution. 12. The case of the prosecution on causation at that stage was relatively simple. As set out at paragraph 46 of the ruling of the judge, it was: “In this case the Prosecution has identified the act on which it relies as causing the prohibited operations in the following terms:- (a) that he instructed or authorised his land agents to draw up and implement a scheme that involved substantial physical works on his land; (b) that the works involved the hire and use of heavy equipment, the purchase of roadstone and pheasant pens, and stocking with game birds; and (c) that he instructed or authorised entry on to the land to carry out the works.” 13. It was argued on behalf of the appellant that the approach to causation set out in Environment Agency v Empress Car Co (Abertillery) Ltd [1992] AC 22 as applicable to the Water Resources Act 1991 should not apply to an offence under s.28E and 28P of the 1981 Act. It was contended that what the prosecution had to prove under the 1981 Act was that the appellant had done something that possessed a certain quality which might lead to or result in causing the prohibited operations; that what the prosecution was alleging was insufficient to meet that requirement. 14. After holding the offence was one of strict liability, which as we have stated is not challenged on this appeal, the judge held: “44. The Prosecution must still identify what it is alleged the Defendant did that caused to be carried out the particular operation specified in the counts on the indictment, and prove that it did cause that operation to be carried out. This was considered by Lord Hoffmann in his five propositions in Empress Car . 45. Whether the act was capable of causing the operation, it appears to me is a question of law, but whether it did so cause it, is a question of fact for the jury on the whole of the evidence.” 15. After setting out the prosecution case at paragraph 46 which we have set out at paragraph 12 above, the judge continued: “47. It contends that the Defendant’s intentions and the terms of his instructions are matters that are particularly within his own knowledge, and that – although it may allege that this was the true position – it does not have to prove that he deliberately caused the operations to take place within the SSSI or that he knew of the existence of the SSSI; only that he caused the prohibited operations. 48. It will be for the jury to decide whether the act alleged is proved and whether it caused the operation in question to be carried on. If the Defendant puts forward a “reasonable excuse” it will be for the jury to decide whether there was an excuse, and whether, if so, it was a reasonable one.” 16. It was the submission of Mr Matthews QC to us that in the ruling made by the judge, the judge was applying the principles set out in Empress Car and should have applied the much narrower test which was subsequently set out by the Supreme Court in R v Hughes [2013] UKSC 56 where at paragraph 32 the Supreme Court said, in respect of offences of causing death by driving in circumstances defined in s.3ZB of the Road Traffic Act 1988, that: “It is not necessary for the Crown to prove careless or inconsiderate driving, but that there must be something open to a proper criticism of the driving of the defendant, beyond the mere presence of the vehicle on the road which contributed in some more than minimal way to the death.” It was submitted that for an offence under s.28E and s.28P of the 1981 Act it was necessary for the prosecution to prove that something the appellant had done was something that could properly be criticised. 17. At the point of time at which the ruling was sought the prosecution had called no evidence. As appears from the defence statement served on the appellant’s behalf, it had been the appellant’s case that the earthworks were carried out by a Mr Howard and the tree cutting works by a Mr Fearn on the direction of Marc Gardner; it was said that Marc Gardner was not an employee of the appellant but a self-employed gamekeeper who, “had agreed to carry out routine maintenance on the estate in return for the right to conduct occasional shooting parties on the estate but not otherwise for payment”. Both Mr Howard and Mr Fearn had been called in by Mr Gardner. It was also the defence case that the appellant had not instructed Mr Gardner to carry out the works. Mr Gardner had decided of his own initiative that the work should be carried out in response to what he honestly and reasonably considered to be: “An emergency situation, namely the partial collapse and imminent further collapse of the banks of the river, potentially endangering those using the public footpath on the opposite side of the river. At the request of Mr Gardner on 15 November Mr Howard widened part of an existing track and created a new linking section; Mr Fearn had on 16 November at the request of Mr Gardner removed dead, dying or dangerous trees, including the limbs of trees that had been broken in the bank collapse.” 18. It can thus be seen that, as the matter appeared at this very early stage of the proceedings at the Crown Court, it was the defence case that the appellant had played no part in giving any instructions for the work, that he ran several successful businesses and spent most of his time travelling and away from his home. He had not been consulted in relation to the work done on the estate and he denied he knew that the works would or might be done or there was any likelihood that the works would or might be done. He had therefore not caused the prohibited operations to be carried out 19. We were told by Mr Tedd QC on behalf of the prosecution that it was its case that Mr Gardner had a business card bearing his name and the coat of arms of the estate and describing him as the estate manager of the appellant. £5,000 had been paid for the hire of the machinery which was used to make the tracks and bunds/banks; that sum had not been paid by Mr Gardner. It was to be the prosecution’s case, as set out in paragraph 46 of the judge’s judgment, that the appellant’s instructions to his agent, Mr Gardner, had caused the prohibited operations to be carried out. There would be inferences that the prosecution would seek to draw as to the detail of the instructions given by the appellant when the evidence was called; all that the prosecution was doing at this stage was setting out its general case. It was self evident, it seems to us, that in the course of the evidence that was to be called by the prosecution there might be numerous points of criticism, on the basis of that case, of the conduct of the appellant and that the case might be developed to show the appellant’s actions had the “quality” which it was argued by the appellant they had to have. On the other hand, the evidence might not have developed in this way. 20. However, at the time the ruling was made, no evidence had been called. There had been no development of the case and the nature and quality of the instructions had not been gone into. As the judge correctly held, the matters as broadly outlined in the prosecution’s case were capable of causing the prohibited operations, but whether they had or not was for the jury to determine when the evidence had been heard. 21. No doubt, if a submission had been made at the conclusion of the evidence or when the directions to the jury were to be discussed, there could properly have been an argument either as to the sufficiency of the evidence on causation or as to the proper directions to the jury which would have raised in a more precise form what was required for causation. However at the time the point was taken that could not be done. The judge was entitled to rule as he did. 22. We cannot therefore see how any criticism can possibly attach to the ruling. As we set out below the appellant pleaded guilty, even though the prosecution pointed out what this entailed. It therefore became unnecessary for the judge to determine whether there was evidence that the actions of the appellant could in law amount to causing the operation on the SSSI or the proper directions to be given to the jury. 23. We cannot therefore, in this appeal, determine whether the contention made by Mr Matthews QC that something more than the five matters set out in the judgment in Empress Car is required and that what was decided in Hughes should by parity of reasoning be applied to offences under s.28E and 28P of the 1981 Act. We will express no view, save to say that we see strong arguments for following the approach in Empress Car in relation to the 1981 Act, if the issue ever arises on the facts of any properly developed case. (b) The basis of plea 24. After the ruling had been handed down, the appellant changed his plea to a plea of guilty to Counts 1 and 2. As we have mentioned, he submitted a document dated 24 June 2013 entitled “basis of plea and points for mitigation”. In it he stated that he entered a plea on the basis that to prove the appellant had caused the operations at the SSSI, “it was not necessary to prove that he had authorised them, expressly or impliedly or that he had any intention or particular state of mind”. The document went on to say that the appellant had appointed Edwin Thompson, described as “a highly reputable firm of agents” to manage the day-to-day running of the estate and to advise him. He did not know of the intention of Marc Gardner, who was descried as a self-employed gamekeeper on the estate, to carry out or cause Mr Fearn to chop down the trees or Mr Howard to construct the track. The operations were carried out by them in circumstances which ran directly contrary to the scheme which Edwin Thompson as the appellant’s agents had planned. The basis of plea then set out the scheme which Edwin Thompson had planned and the steps that had been taken properly to implement that scheme. It then gave an account of the circumstances in which the track was constructed and the trees felled. 25. That basis of plea was not accepted by the prosecution. In a document entitled, “Prosecution response to the defendant’s basis of plea” served shortly before the hearing before the judge on Friday, 28 June 2013 the prosecution made clear that it construed the appellant’s basis of plea as an acceptance in respect of counts 1 and 2 in the indictment that he had caused the prohibited operations. It made clear that it had identified the elements of the offence which included a causal connection between the appellant’s acts and the prohibited operations that were carried out. It then referred to paragraph 46 of the judgment in which the judge had set out the core elements of the prosecution’s primary case. The document then continued: “It appears implicit in the Defendant’s proposed pleas that:- (a) he accepts acting as set out at paragraph 2(ii)(a)-(c) above (although this appears not to be explicitly stated in the Basis of Plea); and (b) he accepts that there was a causal connection between those acts and the prohibited operations [OLDs] done on his land.” 26. The prosecution document went on to state that it was implicit in the proposed appellant’s plea that he did not seek to discharge the burden of proving the statutory defence, that therefore he had no reasonable excuse for his acts and that the operations concerned were not an emergency operation. 27. In our judgment there can be no doubt that the prosecution was putting the appellant fairly on notice that by his plea he was accepting that he had caused the operations to be carried out. As the judge had quite clearly only dealt with the elements of the prosecution case as had been broadly outlined, it would have been open to the appellant to ask the judge if he could withdraw his plea on the basis that there had been a misunderstanding. The matter could then have proceeded to trial and the arguments in relation to causation and the application of the test in Empress Car taken place at the proper time. 28. He did not do this but accepted that he had caused the operations. If he had chosen to vacate his plea then, after the evidence, it might theoretically have been possible for him at the end of the evidence to have raised the points that Mr Matthews QC has so elegantly sought to raise before us. As we will set out, the evidence which emerged at the Newton hearing precluded any possibility of such an argument being made. Under whatever test was applied, the appellant had on the evidence subsequently heard before the judge plainly caused the operations. 29. As the appellant maintained his plea of guilty in the circumstances we have described, he had accepted in clear and unequivocal terms that he had caused the operations that resulted the damage. The appeal against conviction therefore fails. We turn to consider the appeal against sentence. THE APPEAL AGAINST SENTENCE 30. The appeal against sentence was advanced on the basis of five core contentions: i) The judge was wrong to take into account the conduct of the appellant and those instructed by him after the operations to the SSSI had ceased. This issue primarily relates to the appellant’s conduct towards those local residents who sought to bring him to justice. ii) The fine should have reflected the harm caused and the culpability of the appellant. It did not and was disproportionate. iii) The judge should have taken into account the fact that Natural England was prepared to have the matter tried summarily where the maximum fine would have been £20,000 on each count. iv) The judge had wrongly taken into account the appellant’s wealth in a number of different respects. v) The judge should have considered the effect on the appellant of the opprobrium which the appellant had suffered as a result of his conviction. 31. A Newton hearing was necessary to determine the appellant’s culpability, as the prosecution did not accept his case that his measure of responsibility was so low that the appropriate penalty might be an absolute or conditional discharge. It took place over four days and included a visit by the judge to the SSSI. Although Marc Gardner and Mr Holliday of Edwin Thompson were called to give evidence in support of the appellant’s case, the appellant did not give evidence. (a) The Newton hearing 32. On 31 July 2013 the judge set out his findings: i) The appellant had decided to operate a commercial pheasant shoot on the estate. He had told the Hayton Parish Council on 15 September 2010 that economic pressures dictated that the woods must become commercially viable; shooting on a number of days in the year could achieve this. The judge was sure the appellant was alive to the concerns of the potential for serious ecological damage. ii) Marc Gardner’s description of himself as an estate manager accorded with the appellant’s own instructions. There was a close relationship between the appellant and Marc Gardner based on mutual trust. He acted as the estate manager as the appellant had intended. Marc Gardner had been appointed as the estate manager because the appellant wanted to set up a pheasant shooting estate but had neither the experience nor time to do so. Mr Gardner had the knowledge and experience and had been employed for that purpose. Mr Gardner gave wholly unconvincing evidence; he was prepared to tailor his evidence to what he considered would suit his own purposes and those of the appellant. iii) Mr Holliday of Edwin Thompson had a role which was primarily to prepare applications for felling licences and for a Woodland Improvement Grant; it was anticipated that the appellant would have obtained over £100,000 from public funds. By mid-October 2010 Mr Holliday had completed that exercise. He was naïve and unprofessional in relation to what occurred, particularly in his work directed at obtaining the grant. iv) The appellant and Mr Gardner were working to a timetable to enable them to take advantage of the 2010/2011 shooting season on a commercial basis. Mr Holliday did not understand that timetable; the applications for felling licences and the Woodland Improvement Grant could not be completed within the timetable. v) On 13 October 2011 at a meeting between Mr O’Neill (the Woodland Officer of the Forestry Commission) Mr Holliday, the appellant and Mr Gardner, the appellant indicated his intention to begin operating a shoot on the estate by sometime in November 2010. The existence of the SSSI was discussed; Mr O’Neill was given an assurance by Mr Holliday that felling of the trees would not take place in the SSSI. vi) On 13 October 2010 Natural England was notified by a local resident of the need to investigate what works were taking place. vii) It was clear from the evidence of the local residents that by the end of October/beginning of November extensive works were carried out within the SSSI involving the hiring of mechanical equipment, the felling of trees and the building of the wide tracks with banks/bunds. viii) The judge totally rejected Marc Gardner’s evidence that (1) the work that was carried out after 15 November 2010 and (2) it was done as a result of the collapse of a bank. He found that the building of the track and the felling of the trees were part of an ongoing operation which had started some days before 15 November 2010. It was clear that a track was deliberately cut along the line of an old path; that the trees were felled and pruned as part of a thinning operation and not to clear away fallen or diseased trees. ix) These operations resulted in significant complaints by local residents to Natural England. On 17 November 2010 Natural England informed the appellant by e-mail of Natural England’s concern and requested a meeting. That evening the appellant responded through Mr Dwyer of Cartmell Shepherd (Carlisle solicitors retained by the appellant) and through Mr Holliday, at a meeting of the Parish Council. Mr Dwyer read a statement on behalf of the appellant in which he said that the appellant would prosecute in the High Court in London all trespassers, would sue trespassers in damages. He would take legal action against any individual for the recovery of photographs taken on the appellant’s property and for an injunction preventing individuals from entering the appellant’s property. x) On 22 November 2010 a meeting took place between the appellant, Mr Holliday, representatives of Natural England and Mr O’Neill. The judge found, as Mr O’Neill’s statement set out, that Mr O’Neill was horrified when he saw the track which had been built. He concluded that there had been no land slip, that the trees had been deliberately felled and trees uprooted by mechanical means. xi) On 24 November 2010 Cartmell Shepherd sent letters on the appellant’s behalf to local residents. The letter to Dr Mather-Christensen (who with her husband, a specialist in forest ecology, had a keen interest in Gelt Woods) was in the following terms: “We act for Mr P E Day, the owner of the Woodlands specified above. We understand from our client you have repeatedly trespassed on Mr Day’s private property and have repeatedly taken photographs and/or video or digital capture of images of Mr Day’s private property. Our client requires that you write to us by close of business on Friday 26 November 2010 with your written apology for trespassing together with your written undertaking to refrain from trespassing on Mr Day’s private property or capturing images of it in future. You must enclose with your letter all photographs and/or other images you have taken of Mr Day’s private property. Failure to comply with the above direction may lead to proceedings being issued against you.” Another resident, Rebecca Mellor, a local artist who had posted comments on YouTube and Facebook called “Save Gelt Woods Now”, was written to in the following terms by Cartmell Shepherd and the letter hand delivered. “The YouTube and Facebook sites contain defamatory statements about Mr Day as well as statements which are factually incorrect. Our client requires that you do the following by 5 p.m. on Friday 26 November 2010.” Six demands were set out including the removal of the material from the internet, an unequivocal apology and an undertaking not to photograph or video or otherwise capture images of the appellant’s private property. The letter continued: “You have uploaded an image of Mr Day on the internet. Mr Day owns the intellectual property of that image. You have breached Mr Day’s intellectual property rights by uploading the image to the internet. Mr Day charges £100,000 for the use of the image. You took the image from the Cumberland News, but Cumberland News had Mr Day’s permission to use the image. You did not have Mr Day’s permission to re-use it. When writing to us as directed above, please let us have your cheque for £100,000, made payable to Cartmell Shepherd, in payment for use of Mr Day’s image. Mr Day will donate the £100,000 to a Carlisle children’s charity. Failure to comply with the above requirements by close of business on Friday 26 November 2010 may result in proceedings being issued against you in the High Court. It has come to our attention that you have organised a “walking protest” to take place at Hayton Woods/Gelt Woods on Sunday 28 November 2010. We put you on notice that it is your responsibility to ensure anyone attending the protest keep to the official footpaths. Our client will hold you personally responsible, as organiser and instigator of this “walking protest”, for all and any damage disturbance or nuisance caused or occasioned directly or indirectly from this event.” xii) In addition a notice was posted on a remaining tree on 16 November 2010 which read as follows: “Facts This side of the bank has always been private and has never been held in public hands. The emergency work that had to be carried out on the bank to prevent the path from collapsing due to high rainfall and water ingress has now been completed. The removal of fallen non-native tree species will allow recovery of the area to happen quickly, as the flora that was present in the area is quite vigorous. This also allows for native tree regeneration. No other part of the bank has been affected and Gelt Woods is not under any threat whatsoever.” xiii) The track was built and the trees were felled under the instructions of Marc Gardner. 33. The judge then went on to make findings, after taking into account his previous good character and his considerable achievements, in respect of the appellant’s culpability: i) The conveyancing solicitor knew of the SSSI. The natural and reasonable inference was that he would have explained to the appellant the obligations which that imposed on the landowner. That inference should be drawn as the appellant had not given evidence. ii) The appellant had not been candid about his detailed knowledge of the SSSI. He had had to concede at the meeting of 13 October 2010 that he had been told and this predated the operations on the SSSI. The judge was sure on the criminal standard of proof that the appellant knew of the existence and the importance of the SSSI. iii) It was inconceivable that the notice that was fixed to a tree on 16 November 2010 (as set out at paragraph xii) above) was put there without the appellant’s authorisation. iv) The message that the appellant delivered through the solicitor at the meeting on 17 November 2010 could not have been blunter. His message to the residents was effectively, “Don’t mess with me”. He should have appreciated that the concern of the local residents was genuine. Rather than seeking to explain what had happened and allay their fears, he sought to take away from them photographic evidence in their possession. v) He knew Marc Gardner was creating tracks through the estate under his authority. He took no steps to prevent him from doing so within the SSSI. vi) Mr Gardner was acting independently of Mr Holliday and without reference to him in preparation for the start of the shooting season. He was acting in close consultation with the appellant. The appellant gave Mr Gardner a free hand and exercised little, if any, control over him. vii) The prosecution had not invited the judge to conclude the appellant deliberately caused the operations in the SSSI to take place; the prosecution did not have to make that concession and the appellant was fortunate that they did so. viii) The appellant’s subsequent conduct after the unauthorised operations was deeply unattractive. He sought to minimise his responsibility for what had happened, using his solicitor to threaten the local community and hiding behind Mr Holliday and Mr Gardner. ix) There was no scintilla of an apology or any meaningful acceptance of responsibility. x) The appellant bore a very considerable degree of responsibility for what had happened. (b) The reasons given by the judge for the sentence imposed 34. Having set out the facts as determined by the judge from which Mr Richard Matthews QC rightly accepts there can be no challenge. The judge heard the evidence over a number of days and reached a decision which was open to him on that evidence. 35. We turn to set out the judge’s reasoning for imposing the sentences he did. i) There were no sentencing guidelines. He was guided by the provisions of the Criminal Justice Act 2003, particularly s.143 and s.164. ii) It was accepted that the area affected in the SSSI was relatively small and the vegetation should regenerate naturally. It was nonetheless a particularly sensitive point in the river Gelt and made more conspicuous by the felling of trees. Although the harsh appearance should mellow over time, the line carved out to make the track would not disappear. The contours of the hillside had been permanently changed. It was not possible to calculate how the natural flora and fauna had been affected, as after the event it was too late to assess the habitats that had been lost. One was a site where the rare Killarney Fern had thrived in the past. iii) The fine imposed should reflect the means of the individual or company. In the case of a large company the fine should be substantial, enough to have a real economic impact which, together with the attendant bad publicity resulting from prosecution, would create sufficient pressure on management and shareholders to tighten regulatory compliance and change company policy. iv) Similar considerations should apply in the case of wealthy individuals. The appellant had chosen not to provide information as to his means but the prosecution had provided evidence to show that he was one of the wealthiest men in the United Kingdom with a personal fortune estimated of around £300 million. v) Account had to be taken of the growing public concern for the preservation of the countryside and the much greater awareness of the harm that could be done to the fragile environment and ecology by ill-considered and uncontrolled activities. vi) The appellant had not pleaded guilty at the first opportunity. Although he had pleaded after the ruling, credit for that plea had been dissipated by the appellant’s subsequent conduct of the proceedings and his unsuccessful attempts to avoid all but technical responsibility. A reduction of 10% would be made for his guilty plea. vii) The appellant’s account that he was unaware that the site was one of SSSI was not accepted. The appellant had given Marc Gardner carte blanche to get on and prepare the estate for shooting as he did not wish to miss the 2010/11 season. He exercised no effective control or supervision over Marc Gardner’s work which was to an agenda which had been set in consultation with the appellant. Since then the appellant had joined with him in pretending in the teeth of the evidence that he was not the appointed estate manager but merely a gamekeeper. viii) The appellant did not deliberately set out to flout the terms of the SSSI but had been grossly negligent. What had compounded his offence and seriously aggravated it were the tactics that he had employed after the commission of the offences with the objective of evading his share of the blame and to cast it on others. He had sought to use the power of his wealth to avoid personal responsibility for what had happened. ix) The fine had to mark the seriousness of the offence and the importance that the general public attached to the preservation of rare and sensitive SSSIs. It also had to act as a deterrent. The fine had to be sufficient to bring home the serious view the court took of his behaviour. x) If the sentence had to be passed on the basis that the offences were committed in deliberate violation of the protection afforded by the SSSI the fine would have been in the order of £1 million. Although his actions were not deliberate, he was seriously at fault in failing to exercise control and supervision over Marc Gardner. He had been grossly negligent. The fine overall would be £450,000 based on £500,000 less 10%. (c) Our conclusion on the submissions made by the appellant 36. We have set out at paragraph 30 the core contentions that were made to us. We deal with each in turn. 37. The first contention was that the judge had been wrong to take into account the conduct of the appellant after the operations had ceased. In the Sentencing Council’s Definitive Guideline in respect of Environmental Offences which, though not applicable, are relevant, a non-exhaustive list of factors of increasing or decreasing seriousness is set out at page 11. The aggravating factors include the location of the offence (for example environmentally sensitive sites), ignoring risks identified by employees or others, established evidence of a wider community impact, committing the offence for financial gain and obstruction of justice. Mitigating factors include evidence of steps taken to remedy the problem and remorse. 38. It is clear from the findings made by the judge that what the appellant did after the operations had been carried out (as we have set out in paragraphs ix) to xii), iii), iv) and viii) above) was intended by the appellant to try and obstruct the bringing of the appellant to justice for what had been done. He set out, as the judge found, to use the power of his wealth to intimidate the local community. Attempts by an individual to prevent criminal proceedings being brought by conduct of this kind must be regarded by the courts as seriously aggravating the offence. 39. As to the second contention we accept that the fine should reflect the harm caused and the culpability of the appellant. In our judgment the judge correctly identified the harm caused and his culpability. We consider the issue of proportionality at paragraph 46 below. 40. As to the relevance of the position of Natural England that it had been prepared to have the matter tried summarily, we were told that that was a decision taken by a junior solicitor. Although Natural England could not have resiled from that decision, if the appellant had accepted summary jurisdiction, once he had decided to elect to take the proceedings to the Crown Court, the judge was plainly bound to approach the case on the evidence as it appeared before him and not be influenced in any way by an earlier decision of Natural England. 41. As to the fourth contention, the judge was plainly entitled to take into account the means of the appellant. In paragraph 3 of the judgment in R v Sellafield, R v Network Rail [2014] EWCA Crim 49 , this court set out the principles applicable to all offenders, including companies. The court examined the factors set out in the Criminal Justice Act 2003, including punishment, the reduction in crime by deterrence and the protection of the public. In fixing a fine, this court made clear a court had not only to take into account those purposes but also had to take into account the criteria set out in s.164 of the Criminal Justice Act 2003 which provided: “(1) Before fixing the amount of any fine to be imposed on an offender who is an individual a court must inquire into his financial circumstances. (2) The amount of any fine fixed by a court must be such as, in the opinion of the court, reflects the seriousness of the offence. (3) In fixing the amount of any fine to be imposed on an offender (whether an individual or other person), a court must take into account the circumstances of the case including, among other things, the financial circumstances of the offender so far as they are known, or appear, to the court. (4) Subsection (3) applies whether taking into account the financial circumstances of the offender has the effect of increasing or reducing the amount of the fine.” 42. There can be no doubt, in our view, that the appellant was a man of very substantial wealth. The prosecution had put forward the best information that it had, namely that estimates of his wealth were £300 million. The appellant chose not to dispute that. The judge was entitled to proceed on the basis that his wealth was £300 million. 43. It was the judge’s duty to impose a fine that would not only punish the appellant for what he had done for commercial gain but which would also deter others and protect the public. As the judge rightly identified, the protection of the environment and particularly protection of SSSIs are of great importance. SSSIs represent the common heritage of mankind; they are not subject to the commercial interests of a person who holds the land for the time being. It is also important to take account of the obvious fact that Natural England has significant difficulties in monitoring SSSIs; deterrence is of considerable importance. The fine therefore had to be of such a size that it would achieve each of these objectives. 44. It was urged upon us that a man in the appellant’s position and possessing very substantial wealth would suffer a very considerable loss of reputation and have recorded against him a conviction for a crime. We were told that as a result of the proceedings, not only had the appellant lost his good character but he and his family had had to move from the area. 45. We accept that on the judge’s findings, particularly the rejection of the veracity of the appellant’s explanation, the finding of gross negligence and the condemnation of the tactics adopted to obstruct justice, the appellant should have suffered a considerable loss of reputation and be held in opprobrium by the public. But apart from the evidence of his family moving, no material was put before the judge or before us as to the actual effect on his business, livelihood or reputation. Although we will have regard to the opprobrium in which the appellant should after his conviction be held and take it into account as a factor, it is not a factor for the reasons we have given to which we can attach very great weight. 46. The sentence imposed by the judge was imposed before the decision of this court in R v Sellafield which gave guidance as to the approach to fines to be imposed on companies of very significant size. Applying that same approach to individuals possessing the scale of wealth of the appellant, a fine significantly greater than that imposed by the judge would have been amply justified for his grossly negligent conduct in pursuit of commercial gain, particularly when so seriously aggravated by his conduct in obstructing justice. A fine in seven figures should not therefore be regarded as inappropriate in cases where such a fine was necessary (1) to bring home to a man of enormous wealth the seriousness of his criminality in cases such as this where there was gross negligence in pursuit of commercial gain, (2) to protect the public interest in SSSIs and (3) to deter others. In the case of deliberate conduct in similar circumstances, a fine in relation to a man of similar wealth should be significantly greater, as that would be necessary to reflect the greater culpability. The fine of £450,000 imposed on this appellant cannot therefore be viewed as disproportionate. 47. There was no reason why the appellant should not in the circumstances we have set out have been ordered to pay the costs of the prosecution in full; the amount of those costs, vast though they were, were not challenged. Imposing such an order for costs was not in the circumstances of this case a factor to be taken into account in setting the level of fine. 48. The judge gave, in our view, proper weight to the aggravating and mitigating factors, including the partial restoration and plea. In our judgment there can be no possible grounds for criticising the fine imposed by the judge. Given the objectives of sentencing as set out in the Criminal Justice Act 2003, it was entirely proportionate to the culpability and the harm caused. The appeal is dismissed. 49. We must add three footnotes. (a) Power under s.162 of the Criminal Justice Act 2003 50. S.162 of the Criminal Justice Act 2003 enables the court to make a financial circumstances order requiring a person who is convicted of an offence to make a statement of his financial circumstances. In the present case the court proceeded on the assumption that the appellant had assets of £300m. He did not seek to challenge this. His wealth may have been substantially greater. For the future the courts should in the case of wealthy individuals consider making an order requiring a detailed statement of their assets and their income. It would ordinarily be desirable to require the information to cover a five year period so that the court was able to take an informed view of the actuality of the offender’s assets and income. (b) Time to pay 51. In R v B&Q plc, [2005] EWCA Crim 2297 this Court made clear at paragraphs 47-8 that in the case of a large company a fine should as a matter of course be paid either immediately or in a period to be measured in single figure days, unless cogent evidence was provided that more time was required; such a requirement would bring home to the offender the seriousness of the offending and the impact of the penalty. The same principles are applicable to individuals of enormous wealth. (c) Compliance with orders pending appeal 52. The judge accorded the appellant 56 days to pay the prosecution costs and a further 56 days to pay the fine. The judge set a term of four years imprisonment in default of payment of the fine. 53. It was clear from the transcript that the prosecution objected to the request for a moratorium on payment and made it clear an application should be made to this court. We inquired as to the position at the hearing and were told no part of the fine or costs had been paid. We were told that the appellant had understood that the Magistrates’ Court had suspended the fine. We made it clear that it was for the appellant to be satisfied that the Magistrates’ Court had power to do so. The fine and the costs were paid on 5 December 2014, the day following the hearing. 54. It appears from a helpful note provided to us by Mr Matthews QC on 11 December 2014 that on the application for leave to appeal a request was made to the single judge to suspend the period for the payment of the costs and fine. On an inquiry of the office of this court, the then solicitors of the appellant were told on 28 August 2013 that this court had no power to make such an order; and that any application should be made to the Magistrates’ Court who would enforce the fine. The prosecution were told of the position and expressed the view that the costs should be paid as swiftly as possible. The appellant’s then solicitors then contacted the Carlisle Magistrates’ Court and were informed that the enforcement had been passed to the Kendal Payments Processing Centre who would make a decision. On 4 September 2013, an official at the Kendal Processing Centre, without any apparent reference to the Crown Court or the prosecution, informed the then solicitors that the appellant’s account was suspended pending the outcome of the appeal and no payments were required. On further inquiry on 18 September 2013, the same official at the Kendal Processing Centre stated that the Crown Court did not enforce fines and costs collections and that the whole of the account was suspended pending the outcome of the appeal. In the circumstances, no criticism should attach to the appellant for non-payment of the fine and costs within the time specified by the judge. 55. However, for the future, no such explanation will be acceptable. It is clear that the fact an appeal is pending does not operate to suspend the operation of any sentence or order of the Crown Court, whether it be imprisonment, payment of a fine or a confiscation order. Once made, the order is enforceable in accordance with its terms in the absence of the exercise by a court of any power to the contrary. It is for that reason that an applicant sentenced to imprisonment and who seeks leave to appeal goes at once into custody and has to apply for bail under the statutory powers given to this court and the Crown Court. Similarly an appellant given community service has to carry it out: see R v May [2005] EWCA Crim 367 , West Midlands Probation Board v Sutton Coldfield Magistrates’ Court [2008] EWHC 15 (Admin) 56. There is no statutory or other power given to any court to suspend payment of a fine or costs. Once ordered by a court to pay a fine or costs, that order must be obeyed and the fine paid. If there had been a statutory power, no doubt Parliament would have made provision for matters such as the provision of security for payment and the payment of interest (as would be the case in a judgment of a civil court where a stay of execution can be granted by a court pending appeal). In the present case, no issue of security for the payment would have arisen, but the delay in the payment of the fine after the time allowed by the judge has resulted in HM Treasury not having the benefit of the receipt for about 13 months and for which it will receive no compensation by way of interest as there is no power to order any. 57. It is clear that the Payment Processing Centre at Kendal had no power to suspend the order of the court. There may be occasions for specified reasons applicable to the particular circumstances of a given case or type of case where the Executive Branch of the State may decide not to enforce a fine pending an appeal. However, that decision cannot and does not suspend the order of the court. The decision does not in any way discharge the offender from the obligation to obey the order of the court and pay the fine or costs within the time specified by the court or be at risk of the penalty in default of payment. 58. There are good reasons for strict observance of the obligation to pay a fine notwithstanding the bringing of an appeal. Any suspension of the obligation is generally not in the interests of justice, as it benefits the offender as there is no power to award interest on a fine and as in many cases delay will make it more difficult to enforce the payment.	[ "MR JUSTICE OPENSHAW", "MRS JUSTICE LANG" ]	2014_12_18-3520.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2683/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2683	1,055
4a8ff08025d6e6b0f2a20e352e340aff30238795d1aa988024151f95e46225b4	[2007] EWCA Crim 1558	EWCA_Crim_1558	2007-06-19	crown_court	Case No: 2006/5159/D1 Neutral Citation Number: [2007] EWCA Crim 1558 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 19 June 2007 B E F O R E: LORD JUSTICE LONGMORE MR JUSTICE NELSON MR JUSTICE CALVERT-SMITH - - - - - - - R E G I N A -v- M.M. - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to	Case No: 2006/5159/D1 Neutral Citation Number: [2007] EWCA Crim 1558 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 19 June 2007 B E F O R E: LORD JUSTICE LONGMORE MR JUSTICE NELSON MR JUSTICE CALVERT-SMITH - - - - - - - R E G I N A -v- M.M. - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS R STEVENS appeared on behalf of the APPELLANT MISS L DICKINSON appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE LONGMORE : On 19th September in the Crown Court at Sheffield before His Honour Judge Lawler, this appellant Michael M was convicted of three counts of rape and three counts of indecent assault. He was in due course sentenced to 12 years' imprisonment concurrently on the rape counts and 12 months' imprisonment concurrently on the indecent assault counts. He now appeals against conviction by the leave of the single judge. 2. The short facts are that the appellant was the stepfather of the two complainants, to whom we will refer as K and R. He moved in with the complainants' mother, whom we will call Jill, in 1996 and they married shortly thereafter. It was the prosecution case that between September 1998 and September 2001 the appellant raped K who was born in September 1990, and was thus aged between eight and ten at the relevant times, between 10 to 20 times; and secondly, that between May 1999 and May 2002 the appellant indecently assaulted K's older sister R, born in May 1988, she was thus between the ages of 11 and 13 at the relevant times. 3. It was the defence case that no acts of intercourse took place with K and he never indecently touched R and that both K and R had fabricated the evidence they were putting before the court. 4. Evidence was given by K who said that living with the appellant depended on what mood he was in. He would cuddle her in the usual way but she had sex with him between the ages of about eight to ten. It happened up to nearly 20 times. It happened every couple of months. She described the act as "he put his penis into my vagina." She could not remember the first time it happened. He used to ask or tell her to massage or cuddle him. It always happened in her mother's bedroom. He would tell her to make a cup of tea and bring it up because he was on the computer. R would be either at school or at a friend's house and her mother would always be at work. It used to happen at about 4 pm. 5. She then described what happened and in particular she described his penis as "big and long" but also described it as "pointing down" before he inserted it into her vagina. She said that she did not struggle, she did not see his penis after sex and she said that the appellant told her not to say anything as her mother would blame her. He would tell her to get washed with a sponge and then he dressed her and sent her downstairs. 6. The appellant stopped his activities when K's mother threatened to kick him out of the house for having an affair with another woman. 7. In due course her mother told her that R had made a complaint and her mother asked if the appellant had ever done anything to K. She ended up telling her mother what had happened and felt guilty about doing so. 8. Medical evidence was neutral. 9. R gave evidence to the effect that the appellant would ask her and others to massage his neck. She was about 11 when the physical touching went further. It took place in the living room. She described the physical touching by saying that he told her to go upstairs and get the spare single duvet and lay it on him. He then told her to get under it with him. He undid her jeans button and zip and pulled her trousers down to her knees. He stroked and tickled the inside of her at the top. That went on for about 45 minutes. She did not tell anyone as she was scared. The appellant said it was their little secret. This happened about three to four times a month when she was between the ages of 11 and 14 or 15. She never told K what had happened and she never saw anything happen between K and the appellant. 10. She discussed with her boyfriend at a later stage whether they had any secrets and she then told him about the appellant and he said that she should tell her mother. So she did tell her mother on the evening of 10th November and, after speaking to her natural father, they contacted the police. The reason why she had not said anything when the appellant left the house in 2003 was that she wanted to block it out and forget about it. She had not talked to K about the appellant prior to her video interview. She did not really want to know what had happened to K. 11. The complainants' mother gave evidence and said that R was the more outgoing of the two, but she was the oldest. She said that as teenagers they did not talk about sex or have sex on their minds, but in cross-examination she agreed that they would sometimes refer to what they had learned in sex education classes and talk about what they had read in "girlie" magazines. She explained that the appellant was a pizza delivery driver whose work took him out of the house at and after 4 pm and that she worked as a full time student nurse. She then gave evidence about how it came about that R had told her in 2005. 12. The appellant was interviewed. He denied the offences. He gave evidence at his trial and said that as soon as he moved in he bonded with the complainants. He said that R was particularly cheeky. He said he asked them to massage his neck because he had had an accident to it. He worked as a pizza delivery driver and would set off at about 4 pm on the days that he worked. He said that he spent a lot of time away from the home because he played in a band. He denied that he had ever unbuttoned R's trousers or that he had ever had intercourse with K and said that the children had made the allegations up. 13. There is one ground of appeal supported in four different ways, the one ground of appeal being that the summing-up was unfair and slanted towards the prosecution and against the defence. The main way in which complaint is made of the summing-up is that, as it is said, the judge took it on himself to give evidence to the jury about the reasons why the girls might not report incidents that had happened if they had happened. That is said to be important because the allegation was that they had been made up and of course if incidents of this kind take place one would expect, submitted Miss Stevens, immediate or very quick reporting of the incidents to someone in authority and in the absence of such report the jury should conclude that the allegations were fabricated. 14. It is necessary to set out for this purpose quite a long passage of the summing-up, beginning at page 9: "I turn now to another topic which is the question of delay. These complaints were made in November of 2005, that is some three years plus after the defendant, on the mother's evidence, had left and they had begun six or seven years before. So there has been some delay here and of course there was the period over which the alleged offending was taking place. It is now some years ago. You should be alive to the fact that that delay can cause real difficulties and possible prejudice to a defendant. You should have that in mind when you come to decide whether the prosecution has made you sure of guilt." We pause there to observe that that is a direction in ordinary form saying how delay in bringing a case can be prejudicial to a defendant and to that extent is a direction in the defendant's favour. There then followed the passage of which complaint is substantively made: "You are entitled to consider why these matters did not come to light sooner. The defence say it is because they are not true. The allegations are fabricated. Had they been true, they say, you would have expected a complaint to be made earlier and certainly when he [that is of course the appellant] was out of the way. The prosecution say it is not as simple as that. When children are abused, whether these two girls were abused is what you have to decide, they are often confused about what is happening to them and why it is happening. They are children. That is something you should have in the forefront of your mind when considering this. They might have some inkling that what is going on is wrong. Sometimes children even blame themselves when there is obviously no need for them to do so. A child can be inhibited for a variety of reasons from speaking out. They might be fearful that they may not be believed, a child's word against a mature adult, or they might be scared of the consequences, or fearful of the effect upon relationships which they have come to know. The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent. The child might not like the abuse but there may be aspects of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable and sometimes calamitous. So, if a child or children are abused, they are often subject to very mixed emotions,and that can be the case particularly where there is an imposing adult in the household of whom they are perhaps afraid and who has overborne them and has power over them and sometimes has warned them if they tell. Whether any of that applies here is a matter for you. Equally, there are sometimes in lives, sometimes earlier, sometimes later, sometimes much later, when there is a trigger or the need arises to disclose, speak out. No easy thing to do, you may think, and it takes some courage to do so. Ladies and gentlemen, I make clear to you that I offer these matters to you not by way of direction in law but at things which in common sense and with knowledge of the world you might like to consider in assessing whether you find that there is a reason for the delay here and of course it also affects the honesty and truthfulness of the two girls. You have heard explanations and it is entirely a matter for you but you may think that some of the things which they said on the video and to you, K, 'He told me I would get the blame. It's our secret', R, 'I didn't know whether they would believe me or him', both of them scared to an extent. 'I was worried about what would happen. I was worried about his reaction, what people might say.' It is a matter for you but you may think that some of those reactions, if they are true, mirror some of the matters I have just been speaking about." The judge then returned to the difficulties from the defendant's point of view with regard to the passage of time and emphasised that the jury should make allowances in that respect. 15. It is said by Miss Stevens that the passage which we have read went further than just setting out what the Crown's case about the absence of earlier disclosure was, but gave the judge's own views and effectively the judge's own imprimatur to the Crown's position on that topic. 16. It seems to us that this passage, slightly elaborate as it is, does not go beyond the bounds of permissible comment on the part of a judge. The defence here was fabrication. The jury were of course fully aware of it and the judge reminded them of that in the passage we have read, but in our judgment the jury did need some assistance as to the reasons why it might be that it might take time for girls to make allegations of this nature. The jury would have been very well aware that allegations are of course sometimes made up. They would have been very well aware that that was the decision that they had to make in this case. They might not have been so aware of why it is that early complaint is not made in respect of these allegations and the judge was, in our view, entitled to give the measured comment that he did. 17. Other complaints of a lesser nature are made which we can deal with more shortly but it is said by Miss Stevens that they likewise show a lack of balance in the summing-up. It is said, for example, that while the judge reminded the jury of K's description of the appellant's penis before penetration as being "big and long", he did not remind the jury of the fact that it was "pointing down" according to K in another part of her evidence. We have to say that that seems entirely marginal in the circumstances of the case. There is of course no need for a judge to remind a jury of every item of evidence, particularly in a trial which was as short as this one, all over inside two days. 18. It is then said that there was an incomplete representation of the evidence of the mother in the summing-up because while reminding the jury of her evidence that the girls did not discuss sex with her, he omitted to remind them of what she said in cross-examination about the way they talked about sex with each other after sex education classes and how they discussed what they had read about sex in girlie magazines. Again, it seems to us that that is an entirely peripheral matter. The essence of the mother's evidence was laid properly and fairly in front of the jury. 19. Complaint is also made of the way in which the judge dealt with the possibility of collusion in the case by saying that the jury might well think that if they accepted the evidence of the girls there was no collusion. But that seems to us a perfectly acceptable comment on the part of the judge. 20. Overall, the question for us is whether the judge summed the case up fairly with regard to this appellant and the allegations that the girls made. Looking at the summing-up as a whole, we take the view that this was fair and not a biased summing-up. The learned judge put the issues before the jury fairly and squarely. He recited the defendant's evidence, made it perfectly clear what the defendant's case was and we are satisfied that no complaint can legitimately be made about this summing-up. This appeal will be dismissed.	[ "LORD JUSTICE LONGMORE", "MR JUSTICE NELSON", "MR JUSTICE CALVERT-SMITH" ]	2007_06_19-1139.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1558/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1558	1,056
eba7b3b2a72c226dbd657734feb67790d6b9e4cc6ea1a98cf4a6e17c1c734e2a	[2004] EWCA Crim 816	EWCA_Crim_816	2004-03-19	crown_court	No: 200207144/C4 Neutral Citation Number: [2004] EWCA Crim 816 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 19th March 2004 B E F O R E: LORD JUSTICE MANCE MR JUSTICE FORBES MR JUSTICE RODERICK EVANS - - - - - - - R E G I N A -v- PAUL BARGERY - - - - - - - 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	No: 200207144/C4 Neutral Citation Number: [2004] EWCA Crim 816 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 19th March 2004 B E F O R E: LORD JUSTICE MANCE MR JUSTICE FORBES MR JUSTICE RODERICK EVANS - - - - - - - R E G I N A -v- PAUL BARGERY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR C M GASKELL appeared on behalf of the APPELLANT MR J PHILPOTTS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. Lord Justice Mance: This is a reference from the Criminal Cases Review Commission, dated 9th December 2002, in respect of the appellant's plea of guilty on rearraignment on 8th July 1997 in the Crown Court at Carnaerfon before His Honour Judge Daniel to an offence of using threatening behaviour contrary to section 4 of the Public Order Act 1986 . This was a lesser alternative to the only count on the indictment which was one of affray. The appellant was sentenced to a community service order for 150 hours and ordered to pay £200 towards the costs of the prosecution. There was a co-accused, Charles William Craggs, who was jointly indicted with the appellant on the charge of affray and also pleaded guilty to the lesser offence of threatening behaviour. He received a similar community service order and order for payment of costs. 2. We need not go into the factual background, save to say briefly that it involved an alleged incident in the Butlins Star Coast World Holiday Camp near Pwllheli in North Wales in September 1996. 3. The grounds of appeal are that the guilty plea was not entered freely and/or was equivocal. The facts which have been very clearly and helpfully stated in the Criminal Cases Review Commission's report include certain material coming from counsel who acted for the appellant at the trial, consisting of a virtually contemporaneous advice, written on 22nd July 1997, when, as counsel said in it, his recollection of this recent matter was "perfectly clear". Counsel has more recently, on 19th September 2002, confirmed that he cannot add to that contemporaneous and detailed account, although he goes on to say that his advice would have been intended as an advice against a conviction appeal since he was satisfied that the defendant entered his plea freely. 4. Both sides accept the facts stated in the advice as accurately summarising the position. In short, there were two meetings with the judge attended by counsel for both defendants. In the first counsel for the co-accused sought an indication from the judge on behalf of Craggs as to whether a guilty plea to affray might attract a community sentence. Counsel for this appellant had clear instructions to fight the affray allegation whatever indication might be obtained and so sought no such indication but was simply present. The judge indicated to counsel for Craggs that he could give no such indication. 5. The CPS had from the Magistrates' Court onwards indicated that they would be prepared to accept a plea to section 4 , that is threatening behaviour, and after the first meeting before the judge Crown counsel again sought advice from the CPS as to whether that plea was still available. It was, and counsel for the appellant took further instructions from him. According to the advice: "His instructions were clear: since I could not assure him that a plea to section 4 was guaranteed to attract a community sentence he wished to proceed to trial. I was quite content with these clear instructions, and I told my opponent that I was ready to start the trial since the offer was rejected." 6. However the co-defendant took a different attitude. He was so anxious to accept the offer of a plea to a lesser offence that he decided to plead to it and give evidence against this appellant. In short, to turn Queen's evidence. 7. There therefore followed a second meeting before the judge to tell him of that development. During the course of that meeting the judge indicated to all counsel: "... in terms which we all understood that if the defendants pleaded guilty to section 4 then he would not impose a custodial sentence." 8. Counsel goes on to say in his advice: "Given the gravity of the offence alleged and the injuries to the victims, I found this offer to be unexpected and surprising." 9. Counsel went back to discuss the matter with this appellant, and informed him that there had now been two significant developments. Firstly, in view of the decision of Craggs to turn Queen's evidence this appellant was much less likely now to win a trial on the affray issue and, secondly, counsel could now guarantee that if he pleaded guilty to section 4 he would receive a community sentence, whereas if he stood trial on the charge of affray, involving the kicking and beating of two victims while on the ground, then if convicted a custodial sentence was a virtual certainty. Counsel says in his advice that he felt bound to advise the appellant at this stage that the offer that was on the table looked "extremely tempting". But he says that he made it very clear to the appellant that the choice was his, not counsel's, and that if he wanted to proceed with an affray trial, fully aware of the risks, then he was perfectly entitled to do so, and that his arm was not being pulled to accept this offer. 10. Counsel's advice goes on, and we think significantly, to say: "After some deliberation and discussion with his girlfriend, the defendant decided to accept the offer to plead to the lesser offence and he received an order of CSO with no compensation and 200 costs. At the conclusion of this hearing the defendant appeared to be happy with the outcome." So, we observe, this was not an offer which the appellant immediately accepted. It was one which he considered in the circumstances as they had developed. 11. What is said on behalf of the appellant by Mr Gaskell reflects the basis on which the Commission referred the matter to us, and also regarded the circumstances as sufficiently exceptional to do so, despite the absence of an appeal or an application for an appeal. The application for a review of the conviction was, we should interpose, made over a year after the conviction in the form of letter from the appellant's father of 16th September 1998 which refers to the appellant "reluctantly" accepting counsel's advice. However, we cannot attach weight to that by itself since the appellant's father was not present at the trial. 12. The principles on which Mr Gaskell relies are clear enough. They were not observed in this case. Firstly, the discussions in the judge's chambers were not, so far as appears, recorded in any way. That was wrong. Secondly, it is only in the most exceptional circumstances that plea and sentence should be discussed in chambers, and, insofar as they are discussed in such circumstances, any indication given should never go beyond a communication of intended sentence whatever happens about the accused's plea. Here there was an indication in relation to the affray charge that clearly communicated, as regards the co-accused Craggs, that he was likely to go to prison if he was found guilty of the affray count, even if he pleaded guilty. It might be said that that was not directly relevant to this appellant since his record was considerably less serious than his co-accused's. But we think that it would probably have been understood by this appellant also as a fairly clear indication of the risk of imprisonment in respect of the affray charge, particularly if he fought it. 13. The matter goes further, however, because, when the matter came back before the judge at the second meeting, the judge indicated a contrasting situation which would could only arise on the basis of a plea to a lesser offence. He indicated that if there was such a plea there would be no custodial sentence. From that this appellant was clearly entitled to conclude that he was at risk of a custodial sentence if he fought the case, but that if he accepted the Crown Prosecution Service's offer of a plea to section 4 he was not at risk. That, as counsel says in his advice, must have been a tempting offer. 14. The principles have been further elucidated in the recent case of Nazham and Nazham 2001/06522/3/C2, dated 9th March 2004. In that case the Court, in a judgment given by Kennedy LJ, identified the need for an appellant to show not only that there was an irregularity in the judge's room, but also that the irregularity brought about his subsequent change of plea, that being what was relevant in that case, in such a way as to render the plea a nullity because it could be attributed to improper pressure: see paragraph 19. 15. At paragraph 8 Kennedy LJ gave an example of a situation where there would be no such causative link: "Suppose for example, that a judge were to send for counsel and give a wholly improper indication as to sentence. Counsel would then go to tell his client what had been said, but before he says anything the client informs him that he has now made up his mind firmly to plead guilty. It could not possibly be said that the change of heart was caused by the impropriety, so that the plea of guilty should be treated as a nullity." 16. At paragraph 38, in dealing with the facts of Murtaza Nazham's case, Kennedy LJ said: "When she [that is counsel] reported back she did not say anything about the judge's attitude to the strength of the case, but she did convey the judge's indication as to the sentences which he would impose if Murtaza Nazham were to plead guilty, and Murtaza Nazham was relieved to receive that information. Relief is quite different from oppression, and we are completely satisfied that when Murtaza Nazham changed his plea he exercised, and willingly exercised, a free choice. It was only much later, after his release from prison, that his researches led him to his present ground of appeal ..." 17. The question is not as to the correctness of those principles, which both sides accept before us, but as to their application on the facts of this case. 18. The Criminal Cases Review Commission drew attention to the principal point which arises. Can it be said here that a plea to section 4 on the basis that there would be no custodial sentence was something which this appellant was independently willing to enter, so that after the judge's indication he was effectively doing no more than giving effect to what was, or would have been, anyway his intention, or has he shown sufficiently the contrary? 19. Unlike Nazham this is not a case where we have been invited to hear oral evidence. We have considered whether we should direct that, but we have come to the conclusion that it would not be a proportionate or necessary exercise. Counsel has disclosed that he has no independent recollection beyond his advice. The facts are ancient and we doubt whether it would realistically be possible to carry them beyond the content of the advice. 20. One reading of the passages in the advice which we have summarised might be that this appellant had given clear instructions to counsel even before the second meeting with the judge, to the effect that he would be prepared to plead to section 4 if he could be guaranteed that there would be community sentence. However, we notice that after the second meeting it took some deliberation and discussion with his girlfriend before he decided to accept the offer. He did so, it seems to us therefore, at that stage rather than in advance or independently; and he did so in circumstances where there were on the table facts which did, as Mr Gaskell has submitted, put in front of him a stark choice: fight the affray case, lose and you are going to go to prison, or, accept a plea to section 4 , which the Crown Prosecution Service have been suggesting, and you will avoid prison. 21. That was a choice which, however it came about that it was offered, and as have outlined the circumstances, should not have been one which was put before him. It involved disregard of the numerous authorities in this Court of considerable standing and age. It was a choice which, in our view, must have had some considerable effect in the deliberation and discussion which he had with his girlfriend. In those circumstances, we have come to the conclusion that this verdict is unsafe and should be quashed. 22. We therefore allow the appeal and quash the conviction. No recovery of defence costs order.	[ "LORD JUSTICE MANCE", "MR JUSTICE FORBES", "MR JUSTICE RODERICK EVANS" ]	2004_03_19-210.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/816/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/816	1,057
7e2bbb47f04cedd7ab9932a7b6ed1313852f247449e2242e8f3009a16bee5f68	[2017] EWCA Crim 889	EWCA_Crim_889	2017-06-23	crown_court	No: 2017/02542/A4 Neutral Citation Number: [2017] EWCA Crim 889 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 23 June 2017 B e f o r e : MR JUSTICE EDIS THE RECORDER OF LEEDS HIS HONOUR JUDGE COLLIER QC - - - - - - - - - - - - - - - - - - R E G I N A v WAYNE HERRINGTON - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY	No: 2017/02542/A4 Neutral Citation Number: [2017] EWCA Crim 889 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 23 June 2017 B e f o r e : MR JUSTICE EDIS THE RECORDER OF LEEDS HIS HONOUR JUDGE COLLIER QC - - - - - - - - - - - - - - - - - - R E G I N A v WAYNE HERRINGTON - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - Mr A Semple appeared on behalf of the Appellant Mr M Nassiri appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE EDIS: On 1st March 2017 His Honour Judge Batty QC, the Recorder of York, sent this appellant to prison for a total of 12 months and imposed a restraining order under section 5 of the Protection from Harassment Act 1997 restraining him from contacting Holly Jones, directly or indirectly, for three years. He now appeals against the restraining order only by leave of the single judge. We emphasise that this appeal is limited to the restraining order and the other orders, including the prison sentences imposed, remain entirely unaffected. 2. Despite the limited nature of the appeal, it is necessary to set out the history to an extent. For some years the appellant and Holly Jones have lived together and they have one child who is now three years old. The appellant is a violent and unruly man. Today is his 38th birthday. He has 36 convictions for 97 offences dating back to 1995. His record runs to many pages and includes convictions for offences of violence, arson and possession of weapons. It contains multiple convictions for breaking orders of the court of various kinds. 3. On 24th November 2015 he was sentenced to a total of 11 months' imprisonment for assault occasioning actual bodily harm and criminal damage. The victim was Holly Jones. A suspended sentence of nine months for unrelated offences which had previously been imposed was also ordered to run consecutively. It appears that he was due for release towards the end of January or in early February 2017 and at that time Holly Jones obtained a non-molestation order from the County Court for her protection in anticipation of his release. That order was granted on 1st February 2017. She later explained that she did this because she felt pressured by the social services. The order was to remain in force until 22nd February 2017. It lapsed in due course because she did not seek its renewal. 4. A matter of hours after his release on 6th February 2017 the appellant committed the three offences for which he was sent back to prison by His Honour Judge Batty QC on 1st March. He and Holly Jones were seen to be walking past a kiosk in a bus station by the duty manager. The appellant was swearing at Miss Jones. After walking past Mr Cullen, the manager, she sat on a bench. The appellant crouched in front of her. She was seen to be crying, saying something to him. He then slapped her five or six times, not using great force. He then put his head underneath her chin and pushed it up three times, at the same time shouting at her. Mr Cullen stood up and shouted: "If you carry on I shall have to call the police." This caused the appellant to walk towards Mr Cullen, saying: "Do you want some as well?" He then pushed Mr Cullen in the chest with both hands, causing him to stumble backwards. Mr Cullen then asked the CCTV operators at the bus station to look for the appellant and contact the police, at which point the appellant and Miss Jones left the area. Ten minutes later she came back and apologised to Mr Cullen, saying: "He does this all the time." She also spoke to another young woman who had seen what happened, saying: "You didn't see anything. He didn't hit me. He's my baby's dad and he's just come out of prison for assaulting me." He was found and arrested. Thereafter, as we have said, he was sent to prison for the three offences disclosed by those facts: assault on Holly Jones, assault on Mr Cullen and both those offences being in breach of the non-molestation order which had been made. 5. When the matter came before the judge there was an email in his possession, which does not appear to have been seen by either of the parties, from the probation service. It said this: "Wayne Herrington is due in court tomorrow. It is my assessment that no community sentence would be workable as Mr Herrington shows no willingness to work with probation. One of the offences of assault is against the same victim of his index offence. He is assessed as very high risk to her and even more so as it is believed that they want to be together. There is no non-molestation order in place any more as she got rid of it. He is high risk to staff, public and children. Therefore a custodial sentence would aid in protecting all these groups. He has also just started to work with mental health in custody which may reduce his risk if he continued to do so. If he was to be released he would have no fixed abode and the risk of re-offending would be serious and imminent. Could a restraining order be considered?" The judge draw that to the attention of the parties and raised the question of whether a restraining order should be made. The prosecution said that usually that has to be instigated by the complainant and she had refused to make a statement and was indeed in court supporting the appellant. The judge nevertheless went on and made the order saying: "... the defendant being considered to be a high risk to Probation Staff, to public and children, I am in no doubt that a restraining order will be imposed. That will be for a period of three years, prohibiting the defendant contacting, directly or indirectly, Holly Jones, save and except through the intervention of the probation service." Grounds of appeal 6. The grounds of appeal in a nutshell say that in acting as he did the judge erred in his interpretation of the law. In fairness to the judge, the authorities now relied upon were not drawn to his attention. Those cases are R v Picken [2006] EWCA Crim 2194 and R v Brown [2012] EWCA Crim. 1152 . It is unnecessary to quote extensively from those decisions but in the later case at paragraph 13, Thirlwall J (as she then was)speaking on behalf of the court said this: "This young woman wishes to continue in a relationship with a man who has been repeatedly violent to her. That is a decision that she is entitled to make, however dispiriting it may be. There is no suggestion that she lacks capacity, or that she has been forced to do this, or that she is in fear of the applicant. She genuinely wishes to pursue her relationship. In those circumstances the restraining order should not have been imposed." Discussion 7. This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with. Although any person considering this case would consider that Holly Jones is at serious risk of violence from the appellant, she has the right to live with him if she chooses. It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself. The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained. She told them unambiguously that she wants this order revoked. 8. That degree of autonomy is the case for an adult who has the freedom to make her own decisions. It is right to say that the judge was concerned also in this case by the risk to the child of the couple and by the risk to the probation service whose staff may have to deal with this violent appellant. 9. To deal with the child first. The child may require the protection of the court. We have considered whether the order should remain in force because of the risk to her. But we consider that compelling the parents of a child to live apart and not to communicate with each other for her protection is a decision which the criminal court is not well equipped to take. A determination of the level of the risk to her and of the steps which are required to protect her from that risk and to promote her best interests requires a carefully calibrated decision of a court equipped to receive evidence from social workers with expertise in such matters and also to hear the evidence of the parents. The appropriate forum for the necessary protective steps for the safety of the child is in our judgment the family court. We consider that if the social services are concerned about the risk to the child presented by her father, as they plainly seem to be, then the appropriate course for them to take is to take proceedings in the family court while he remains in prison. They have this opportunity as a result of the prison sentence which he is serving and it is a matter for them how they proceed. 10. So far as the probation service is concerned, if the probation service is concerned for the safety of its staff it can apply for and obtain an order protecting them, whether by means of a restraining order or by means of an order from the County Court. It is a matter for them to consider. What they cannot hope to achieve is an order which protects those staff by the device of keeping the appellant and Holly Jones apart. 11. A transcript of this decision of this court will in due course be drawn up. We will cause it to be sent as soon as we can to the Crown Prosecution Service which should distribute it to the relevant social services department with responsibility for the care of the child and also to the probation service with responsibility for the protection of its staff. 12. For the reasons we have explained, the order which was undoubtedly made by the judge with the best of intentions and firmly based on a well-founded fear of harm in its absence, ought not to have been made and must be quashed. This case demonstrates a concerning level of domestic violence but the ability of this court to address that is unhappily limited. 13. For those reasons this appeal succeeds to the extent that the restraining order is quashed but all other orders remain in place.	[ "MR JUSTICE EDIS", "HIS HONOUR JUDGE COLLIER QC" ]	2017_06_23-4001.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/889/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/889	1,058
01eea886bba683a2a3962dc5bf6e4bdf52dba20952b5d0d913154456e3491c8b	[2012] EWCA Crim 837	EWCA_Crim_837	2012-04-27	crown_court	Case No: 201000292 C1 Neutral Citation Number: [2012] EWCA Crim 837 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT His Honour Judge Cavell T20067312 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/04/2012 Before : LORD JUSTICE AIKENS MR JUSTICE FIELD and HIS HONOUR JUDGE NICHOLAS COOKE QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ibrahim Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 201000292 C1 Neutral Citation Number: [2012] EWCA Crim 837 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT His Honour Judge Cavell T20067312 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/04/2012 Before : LORD JUSTICE AIKENS MR JUSTICE FIELD and HIS HONOUR JUDGE NICHOLAS COOKE QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ibrahim Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - D Cooper (instructed by Julian Young & Co ) for the Appellant A J Jackson (instructed by CPS ) for the Respondent Hearing dates : 23/02/2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : A. The Issue on the appeal and the procedural history 1. This appeal against conviction by Dahir Ibrahim concerns the admissibility of hearsay evidence of a complainant who has died after giving statements to the police but before trial. The principal statutory provisions containing the court’s powers to adduce such evidence in criminal proceedings are now set out in Chapter 2 of Part 11 of the Criminal Justice Act 2003 (“the CJA”). Those provisions and the question of their compatibility with a defendant’ rights to a fair trial under Article 6(1) and Article 6(3)(b) of the European Convention on Human Rights (“ECHR”) have received very extensive scrutiny in the decisions of a five judge division of this court and the Supreme Court in the case of R v Horncastle and others (“Horncastle”). [2010] 2 AC 373 for the report of both decisions. The Supreme Court’s decision in those cases was handed down on 9 December 2009. Both courts examined in great detail the jurisprudence of the European Court of Human Rights (“ECtHR”) on whether the introduction of hearsay evidence which could not be tested by direct questioning in the criminal process was contrary to the rights contained in Articles 6(1) and 6(3)(d) of the ECHR. Subsequently, on 15 December 2011, the Grand Chamber of the ECtHR handed down its decisions in the cases of Al-Khawaja and Tahery v the United Kingdom (“ Al-Khawaja – GC” ). [2011] ECHR 2127 The judgment of the Grand Chamber comments on the Court of Appeal’s and Supreme Court’s analysis and decision in Horncastle. So far as we are aware, the present case is the first in which this court has been asked to consider the English statutory provisions concerning the admission of hearsay evidence of a witness who has died before the trial in the light of the Grand Chamber’s judgment. 2. We have set out the relevant sections of the CJA, ie. sections 114-116, and sections 124, 125 and 126, together with section 78 of the Police and Evidence Act 1984 (“PACE”) and Articles 6(1) and 6(3) of the ECHR in an Appendix to this judgment. 3. The appellant, who is a Somali citizen now aged 26, was convicted of three counts of rape after a trial before HHJ Cavell and a jury in the Crown Court at Birmingham in July and August 2006. At the same trial the appellant was acquitted of 5 other charges of rape, one charge of attempted rape and one of unlawful wounding. The last was the subject of count 2 which is relevant to this appeal. The jury was unable to agree on verdicts in respect of four further charges of rape and one of being in possession of an offensive weapon. 4. On 14 August 2006 the appellant was sentenced to 10 years imprisonment in respect of each of the three counts of rape of which he had been convicted. The sentences were ordered to be served concurrently and time spent on remand was ordered to count towards the sentence. 5. Following his conviction the appellant was given advice by leading and junior counsel that there were no grounds of appeal. But the appellant then became aware of recent decisions in the ECtHR and the English Court of Appeal on the issue of the admissibility of hearsay statements of witnesses who, for one reason or another, did not give or could not give evidence at the trial. The appellant sought advice from new solicitors and new counsel and Grounds of Appeal were lodged on 27 November 2009. On 17 March 2010 the single judge made his order extending time in which to seek leave to appeal and granted leave to appeal the appellant’s conviction on count one on the Indictment. That count alleged that the appellant had raped Enith Walker on 20 March 2003. Enith Walker died in 2006. 6. We understand that the hearing of this appeal was delayed pending the Grand Chamber’s decision. The Grand Chamber deliberated in private on 19 May 2010 and again on 9 November 2011 before delivering its judgment on 15 December 2011. B. The Facts 7. The facts giving rise to counts 1 and 2 on the Indictment are, in outline, as follows: the appellant had come to the UK from Somalia and had obtained asylum. He lived in Smethwick. Between 2003 and late 2005 there was a “campaign of rape and violence” – in the prosecution’s phrase – against prostitutes working in the Edgbaston red light area of Birmingham. The prosecution case was that the appellant was responsible for this campaign. There were 15 counts altogether on the Indictment; 11 were allegations of rape; one of attempted rape; two of unlawful wounding and one of having an offensive weapon. There were eight complainants. The alleged rape of the deceased Enith Walker was the earliest in the series and so formed count 1 on the Indictment. 8. Enith Walker worked as a prostitute in the Edgbaston area in order to fund her addiction to heroin and crack cocaine. The prosecution case was that the appellant had raped Ms Walker in the early hours of 20 March 2003 in the area of Edgbaston reservoir. Ms Walker’s account was contained in three statements dated 7 October 2005, 27 October 2005 and 9 November 2005; that is to say some two and a half years after the alleged offences. All three statements were in the normal form pursuant to section 9 of the Criminal Justice Act 1967 and were signed by Ms Walker. 9. Ms Walker’s statement of 7 October 2005 said she was approached by a black Somali male “ over a year ago ” but she could not remember exactly when. She said that she was standing by phone boxes on Icknield Port Road. It was about 3 am or 4 am in the morning. On her account the man asked her if she was doing “business”, a price was agreed for sex and she took him to the nearby reservoir. She stated that she then told him that she would only perform oral sex and that the price would be £30. She stated that the man did not wish to use a condom and he put a knife to her throat and told her he was going to take his money back. Her statement said that he put his mouth to her throat and forced her to the ground and raped her vaginally before ejaculating over her clothing. Ms Walker’s statement said that he then demanded her clothes and he pulled off her bomber jacket, jumper and T-shirt before she ran off shouting “rape” up Icknield Port Road and onto Summerfield Crescent, when she could hear sirens and helicopters. The statement said that she hid in bushes from the police “ because I have an ASBO”. The statement then said that she ran to Gillott Road where she was stopped by police officers who knew her. However, she did not tell them what had happened and she walked off. 10. The statement of 7 October 2005 then gave a description of the “ black Somalian male ” as about 5ft 5in tall, early thirties, skinny build and with small ringlets of black, curly hair. The statement said that he had been chewing something which stank. There was a description of the knife. The statement indicated that Ms Walker had been with him for 20-25 minutes and he was so near to her that “ I could smell his Bengali breath”. 11. The statement continued by saying that Ms Walker had seen this man many times in the same area since that date. It stated that in the early part of 2004 there was another incident by a phone box in Dudley Road at about 1430 in the morning when Ms Walker was standing with a woman whom we will call Ms SES. Ms Walker recounted that she saw a black male walk past and he said “ business ”. The statement said that Ms SES “ freaked out ” saying that the man had raped her. The man said to Ms Walker “ I know you I’m gonna get you , watch ”. Ms Walker’s statement said that she recognised him as the man who had raped her. A short time later, Ms Walker recounted, she felt a hand across her mouth and a sharp point at her temple and the man said “ I told you I would get you ”. She stated that she stumbled across the road, but he followed her and said to her: “ I’m going to kill you now, you should have let me have the girl in the phonebox ”. Ms Walker managed to escape without further injury. This latter part of the statement formed the basis of Count 2 on the Indictment, which alleged that the appellant had unlawfully wounded Ms Walker between 17 – 20 February 2004, contrary to section 20 of the Offences Against the Person Act 1861. 12. The statement continued by describing the knife used in the assault incident and confirmed that it was the “ same black Somalian and knife from the rape”. The statement ended by saying “ I was scared that I would be arrested for breaching my ASBO so I didn’t want to report it to the police”. 13. It is known that on 19 February 2004 Ms Walker attended a nearby SAFE project where she would get methadone for her heroin addiction and that she made a complaint of an assault to Ms Alison Cook, a worker on the project. She did not mention that the assaulter had previously raped her. Ms Cook recorded a statement of Ms Walker about the assault incident and that was in evidence at the trial. We refer to it further below. 14. Ms Walker gave two further short statements, one dated 27 October 2005 and the other dated 9 November 2005. In the first of those she said that she knew that her attacker was Somali “ by the way he looks and the way that he talks. Somalian’s [sic] have a particular look, that’s how I know”. She also gave further details about the circumstances of the rape. She said that the attacker took her to the wall of a building near the Icknield Road entrance to the reservoir and that there was a light (on the wall of that house we presume) that came on and there was a burnt out car nearby. 15. In her third statement Ms Walker confirmed that she had attended an identification procedure on 9 November 2005 and had identified the appellant. 16. The other two counts of rape of which the appellant was convicted, (counts 13 and 14) concerned the complainant Ms SES. She gave evidence at the trial and was cross-examined. She said that in September 2005 the appellant approached her and asked for sex. They agreed a price and went to a car park where he held what she believed to be a knife to her back. He threatened to cut her. Fearing that she would be stabbed unless she complied, she performed oral sex on him. He then pushed her down and penetrated her vagina from behind. She said she did not scream at the time out of fear of being knifed, but when she ran off she rang 999. The police arrived and found her confused and she had clearly been crying. She was later examined by a doctor who found no evidence supporting or refuting an allegation of sexual assault. No semen was discovered on vaginal swabs or on her clothes. However, DNA from the appellant and from Ms SES was detected on the front inside of the appellant’s shorts. 17. In relation to count 1 the appellant accepted that he had met Ms Walker. He said that they had talked and walked to the reservoir. He said that she wanted him to pay for sex but he refused. Then she started to scream and hit him with a bottle, so he pushed her away and she ran off. 18. In relation to counts 13 and 14 the appellant agreed that Ms SES had performed oral sex on him, but he said that it was against his wishes. He denied raping her or having any vaginal sex with Ms SES. C. The Pre-Trial Review and the course of the trial to the submissions at the close of the prosecution case 19. On 20 June 2006 there was a Pre-Trial Review before HHJ Hindley QC. Counsel for the prosecution indicated that at the trial there would be an application to adduce the three statements of Ms Walker as hearsay evidence. Counsel for the defence accepted that, in principle, they were admissible under section 116 of the CJA and that if there was any argument that they should be excluded it would be that the court should exercise its power to do so under section 78 of PACE. 20. The trial then started and it seems to have been accepted by the defence that the statements of Ms Walker should be adduced as hearsay evidence. There was no submission by defence counsel to the judge, based on section 78 of PACE, that the statements of Ms Walker should not be admitted because they would have such and adverse effect on the fairness of the proceedings that the court ought not to admit them. Her three statements were read to the jury and Judge Cavell told the jury that this was permissible in the circumstances. He added that, because the witness was now dead and could not be cross-examined it meant that the defence had been deprived of a means of testing the evidence in the statements. 21. The defence wished to put before the jury a document which made points about the credibility of Ms Walker, which the defence said would have been put to her had she given oral evidence. It was eventually agreed between counsel that the jury should be given a document headed “Some Agreed Facts relevant to the Credibility of Enith Walker”. These facts are important to the present appeal. They can be summarised as follows: (1) although Ms Walker stated in her witness statement of 7 October 2005 that the reason she hid from the police on 20 March 2003 was she feared she had breached her ASBO, in fact the ASBO was not made until May 2004. (2) A complaint made to the police by Ms Walker on 8 January 2003 that she had been indecently assaulted by a man that day, which was supported by a statement she made to the police, was fabricated. She retracted the allegation the following day saying that it was made up to support an allegation by another woman. (3) Ms Walker’s statement in support of that false complaint was in the usual section 9 Criminal Justice Act 1967 format and she had signed the caption and each page of the document. (4) Ms Walker was not prosecuted for any offence arising out of the false complaint. 22. Members of the jury were each given copies of this document and it was placed in their jury bundle and they retired with their copies when they considered their verdicts. Although the transcript does not say so, it seems to us that this document must have been prepared and admitted pursuant to section 124(1) and (2) of the CJA. 23. The prosecution then called its other evidence. Ms SES gave evidence that on 21 October 2005 she was asked by police about Ms Walker and told them that she did recall seeing her upset with a cut to her eye in late 2004 and that Ms Walker had told her that she (Ms Walker) had been raped by a Somali and he had cut her. But she denied ever being in a phone box with Ms Walker. Ms Anna Toogood gave evidence that during the night of 20 March 2003 she had been asleep in her house in the area of the reservoir and that she had been awoken by a scary scream coming from the direction of the reservoir. She said that she heard a female voice crying “rape” and calling for help. Ms Toogood dialled 999. The tape was played to the jury. 24. PC Poole was one of the officers that attended the scene following the 999 call. He gave evidence that the police began to search and heard footsteps. They called out “stop, Police” and PC Poole caught up with the appellant who was trying to run away. He struggled and was handcuffed. He was searched and no weapon was found. He gave his correct name and stated that he was staying with his sister and gave her correct address. 25. WPC Baldwin also gave evidence. She said that during the police activity that night she had found Ms Walker who was very distressed and was crying. Ms Walker had grabbed WPC Baldwin, who asked her if she had been raped and she said no. Ms Walker told WPC Baldwin that there had been a disagreement about payment. Because no complaint was made no further action was taken. 26. Ms Alison Cook gave evidence that on 19 February 2004 Ms Walker told her that she had been assaulted the night before, but she did not say anything about being raped on any occasion. Ms Cook filled in a form which described the incident as related by Ms Walker in the following terms: “Asked for business earlier on night, I refused, called him a rapist as I was told he had raped two other working girls I know. Also told he carried a knife. Later that night, walking down Link Road, walking towards me, asked me for business, showed me £20, refused. Pulled me in the garden, told me he wanted a Durex. I said I had no Durex and refused to do any business. Then he backhanded me in the face. I was making a lot of noise. Someone looked out of their window and he ran off”. That account, which was signed by Ms Walker, was very different from the account given in Ms Walker’s statement of 7 October 2005, ie. 18 months later. In the later account there was no mention of the man asking for business, or of a Durex or a “backhander”. The words of the appellant that are reported in the later statement are not referred to in the earlier one. 27. Ms Cook also stated that she took photographs of Ms Walker’s eye and took her to hospital. She said that Ms Walker told her that she did not wish to report the matter to the police as she was not supposed to be in that area. Ms Cook also said that in September 2005 she heard from the police that there was a Somali male attacking prostitutes in the area and she remembered what Ms Walker had said and so spoke to her. Her evidence was that Ms Walker was wary of involving the police because she was afraid she would get into trouble for being in the reservoir area as she had an ASBO that stipulated that she was not to go there. D. Submission of No Case on counts 1 and 2 and submission under section 125(1)(b) of the CJA 28. At the close of the prosecution case on 31 July 2006 the defence submitted that the judge should either withdraw counts one and two from the jury or should direct the jury to acquit the defendant on those counts. The first submission was made on the principle of the “second limb” of the well-known case of R v Galbraith, [1981] 1 WLR 1039 viz. that the prosecution evidence on those two counts was too weak or tenuous to enable a jury, properly directed, to convict with safety. Secondly, based on section 125(1)(b) of the CJA, the defence argued that the case against the defendant depended partly on the statements of Ms Walker and they were so unconvincing that, given their importance to the case against the defendant on those counts, the jury should be directed to acquit. 29. The defence emphasised in particular the facts that (1) there was no explanation of why Ms Walker had not reported the rape at the time; (2) she had made a false complaint of indecent assault on an occasion not long before the alleged rape; (3) there had been general talk amongst prostitutes about the rapes that had occurred and a description had been given which potentially fitted the defendant; and (4) there were inconsistencies in the evidence of Ms Walker and Ms SES. On the other hand the Crown emphasised the facts that (1) the defendant had been identified at the scene of the alleged rape; (2) there was evidence from Anne Toogood that she had heard a woman scream “rape” at 2.05 am that morning; (3) there was the evidence of WPC Baldwin; (4) the defendant was apprehended at the scene and there was a struggle and he was handcuffed; (5) the “similar fact” evidence of other prostitutes, eg in relation to the defendant’s breath. 30. The judge decided that, in relation to both counts 1 and 2, these were all matters for the jury to decide and that counts 1 and 2 were connected. Therefore, he rejected both the Galbraith submission and that based on section 125(1)(b) of the CJA, saying: “ these are essentially matters to be considered by the jury and not by the judge at this stage”. Page 4F of Ruling of 31 July 2006. E. The defendant/appellant’s evidence; the summing up and the verdict. 31. The appellant gave evidence. He accepted that he had encountered Ms Walker on the night of 20 March 2003. He said that it was at a petrol station where he was buying cigarettes. He walked with her to the reservoir, but when she asked him for money for sex he realised she was a prostitute. His evidence was that he said he did not want that and she became angry, then screamed at him and hit him with a bottle. He pushed her away and she ran off. He then ran off because he thought that she was going to get someone. At first he thought that it was Ms Walker’s friends that were approaching him but then realised it was the police. He denied struggling and said he had not carried a weapon. The police took him home. He denied seeing Ms Walker at a later date. 32. The judge summed up on 7-8 August 2009. In relation to counts one and two, he explained to the jury that the law permitted a witness statement to be read when a witness had died. Transcript page 16D He pointed out that if Ms Walker had given evidence she would have been cross-examined on the contradiction between her evidence and that of Ms SES about being in the phone box together and of Ms Walker having talked about a Somali man having raped her (both denied by Ms SES) and also on the matters that were in the agreed document concerning Ms Walker’s credibility. Transcript page 16E-G. The judge read to the jury virtually all of Ms Walker’s three statements. Transcript page 17A-19E. He also referred to the agreed facts document and added “ you will bear those matters very much in mind when you come to consider how much weight you give to the credibility and the evidence of Enith Walker”. Transcript page 22H-23A. There was no specific warning to the jury about the fact that Ms Walker’s statements had not been tested in cross-examination. Nor was there a specific warning about the inconsistency in what Ms Walker had told Ms Cook about the 2004 incident and what Ms Walker had said in her statement of 7 October 2005. The judge reminded the jury of the evidence of the other witnesses relevant to counts 1 and 2 that we have already summarised above. 33. The judge also gave directions on the issue of “similar fact” evidence. In respect of counts 3 and 4 (attempted rape and unlawful wounding of Ms MC), 10 and 11 (rapes of Ms VC) and 12 (rape of Ms KG) there was no direct evidence. The prosecution case was that the jury could rely on the direct evidence of the rapes in counts 1 (Ms Walker), counts 5 and 6 (Ms CH), counts 7 and 8 (Ms SES), count 9 (Ms DD) and counts 12 and 14 (Ms SS) to assist them in being sure that the appellant had committed counts 3, 4, 10, 11 and 12 because, it was argued, the circumstances of the offences were so similar. The judge gave a proper direction on whether and when the jury could use their conclusions about the rapes where there was direct evidence to assist them on the counts where there was no direct evidence. He warned the jury about the possibility of contamination as a result of gossip between prostitutes. Transcript pages 5C-7H. He also emphasised that the fundamental rule was that each of the counts had to be considered separately. Transcript page 7H. Despite the submission made at the close of the prosecution case, it was apparently not suggested by the prosecution in its closing speech and, in any case, the judge was careful not to suggest in his summing up that evidence of the other rapes where there was direct evidence could be used to support the prosecution case in relation to count 1 involving Ms Walker. 34. The jury retired on 8 August. On 10 August the jury sent a note asking if they could see Ms Walker’s statement of 7 October 2005. The judge directed them that they could not but he re-read its contents to them. He also reminded the jury of the agreed document about Ms Walker’s credibility which they had in their jury bundle. 35. The jury returned their verdicts later that day. F. The law on the admission of hearsay statements of a deceased witness and the trial process thereafter. (1) The Criminal Justice Act 2003 Part 11 Chapter 2 36. The basic rule of the law of England and Wales in criminal trials is that witnesses giving evidence are to be examined in court at the trial. It has long been recognised as a vital principle and is sometimes called the “right of confrontation”. There have always been common law exceptions to this basic rule and some statutory exceptions also. See in particular Criminal Justice Act 1988 Part II (“the 1988 Act”) Chapter 2 of Part 11 of the CJA enacted (with some modifications) the recommendations of the Law Commission set out in its Report on Evidence in Criminal Proceedings: Hearsay and Related Topics of June 1997. Law Com No 245: Cmn 3670 The provisions in Chapter 2 of Part 11 of the CJA make some far-reaching changes to the common law on the admissibility of hearsay evidence in criminal proceedings. The broad effect of the provisions is that a previous out of court statement of a witness (whether subsequently called to give oral evidence or not at the trial) is hearsay evidence if the aim of adducing the statement in evidence is to prove the “ matters stated ” in it within the meaning of section 114(1) and 115 of the Act. Any statement not made in oral evidence in criminal proceedings is only admissible as evidence of any “ matter stated ” in it (within the meanings of sections 114 and 115 ) if one (or more) of the four conditions set out in section 114(1) is applicable. The first of those conditions is that one of the provisions of Chapter 2 of Part 11 of that Act makes that statement admissible; one of those provisions is section 116. 37. Section 116(1) )(a), (b) and (c) set out three pre-conditions for the admission of a statement note made in oral evidence in the proceedings. The evidence must be such as would be admissible if given orally in the proceedings; the person must be identified to the court’s satisfaction; and one of the conditions set out in section (2)(a)-(e) must be satisfied. It is common ground that those pre- conditions were all satisfied in the case of Ms Walker’s three statements; the last because section 116(2)(a) applied: viz. Ms Walker had died before the trial. 38. However, even if a hearsay statement falls within one of the four classes set out in section 114(1), section 114(3) stipulates that nothing in Chapter 2 of Part 11 “ affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings ”. That power to exclude is complemented by section 126(2), which specifically provides, in paragraph (a), that nothing in Chapter 2 prejudices “ any power of a court to exclude evidence under section 78” of PACE. Thus, hearsay evidence that the prosecution wishes to adduce which is, on the face of it, admissible under one of the conditions set out in section 114(1), can be excluded by the court in the exercise of its powers under section 78 of PACE. The test under that section is, of course, whether the admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 39. As we have already noted, at the trial there was no application by the defence to exclude the witness statements of Ms Walker on section 78 grounds. (2) Horncastle in the Court of Appeal 40. In Horncastle the Court of Appeal and then the Supreme Court There were, in fact, three cases before the Court of Appeal and two before the Supreme Court. Those two were: R v Horncastle and another which concerned convictions for causing grievous bodily harm with intent contrary to s.18 of the OAPA 1861, where the complainant had died before the trial but his statement was admitted pursuant to s.116(2)(a); and R v Marquis and another which concerned convictions for kidnap. The complainant gave a statement describing the incident but then disappeared before the trial, fearing for her safety, although that had nothing to do with the defence. Her statement was admitted pursuant to s.116(2)(e). considered the question of when a court should exclude a hearsay statement made by an identified witness who had subsequently died before the trial and where the conditions set out in section 116(1) were fulfilled. We have decided that we should examine the Court of Appeal’s decision in some detail because, in giving the leading judgment in the Supreme Court, with which the other six members of the Supreme Court panel agreed, Lord Brown of Eaton-under-Heywood did add a short judgment of his own: [112]-[121]. Lord Mance and Lord Judge CJ provided, respectively, analyses of relevant Commonwealth decisions and a survey of whether evidence that Strasbourg decisions said was admitted contrary to Art 6(3)(d) would have been treated according to English domestic provisions. Lord Phillips of Worth Matravers, President, said that he endorsed the Court of Appeal’s conclusions and “ ..almost all the reasoning…”. He commended the Court of Appeal’s judgment and he said that his own should be read as “..complementary to that of the Court of Appeal, not as a substitute for it”. [13] of Lord Phillips’ judgment. 41. In the Court of Appeal the appellants in Horncastle challenged their convictions on the ground that they were based solely or to a decisive extent on the statement of the dead complainant whose evidence they had, necessarily, not been able to cross-examine. (We examine the facts more fully below) They alleged that their rights guaranteed by Article 6(1) and Article 6(3)(d) of the ECHR had been violated and their convictions were therefore unsafe. The arguments of the appellants in the three cases before the Court of Appeal and the two in the Supreme Court were based on various decision of the ECtHR, culminating in its decision, sitting as a Chamber, in Al-Khawaja and Tahery v United Kingdom. [2009] 49 EHRR 1 . (We will refer to the Chamber decision as “Al-Khawaja” as opposed to the decision in the Grand Chamber, which we will refer to as “Al-Khawaja – GC”). 42. Both the Court of Appeal and the Supreme Court dismissed the appeals. 43. The Court of Appeal started from the basic proposition that, “ in the case of unavailable witnesses, and in the case of apparently reliable hearsay, the CJA 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be”. [16]. Moreover, these statutory provisions “ represented a considered Parliamentary resolution of the proper balance to be achieved between competing interests in the light of Convention rights”. [22] 44. The Court emphasised a number of aspects of this statutory “ code”, four of which are particularly important for the present appeal. The first is that Chapter 2 of Part 11 of the CJA is concerned with identified but absent witnesses, not anonymous witnesses. [48] Secondly, the importance of section 124, which permits the admission of material which could have been put to the absent witness if he had given evidence at the trial; but which also permits the introduction of material which, if the witness had given evidence, could only have been put to him in cross-examination in circumstances where the witness’ answers would have been final. Section 124, the court said, was designed to counterbalance the absence of cross-examination of the witness in person. [16] 45. The third aspect emphasised by the court was the power given to a judge by section 125, which it described as an “ important exception to the usual rule of the law of England and Wales that the assessment of the weight of the evidence is a matter for the jury: see R v Galbraith [1981] 1 WL R 1039 ”. Fourthly, the court noted that section 126(2) preserved the general power of the court to exclude any evidence relied upon by the Crown (but not by the defendant) if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. [16]. There is an additional power in section 126(1), but that is not relevant to this appeal. 46. The Court of Appeal next considered in detail the case law of the ECtHR (up to and including Al Kawaja) on the application of Article 6(3)(d) in cases where there had been a criminal conviction based on the evidence of witnesses who had not, for one reason or another, been present to give evidence at the trial of the defendant. It noted [52] that at paragraph 40 in its decision in Lucà v Italy, [2001] 36 EHRR 807 the ECtHR stated the general proposition, apparently equally applicable to cases of both absent witnesses and anonymous witnesses, that: “…where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provide by Article 6…”. 47. In the opinion of the Court of Appeal, however, upon an analysis of the ECtHR case law, there was no reason to treat the cases dealing with absent witnesses in the same way as those dealing with anonymous witnesses, as the passage in the Lucà case appeared to do. [53] The Court of Appeal considered that this portmanteau approach of applying the “ sole and decisive” test to the case of the absent but identified witness as well as anonymous witnesses was carried over into the ECtHR’s decision in Al – Khawaja. [52]-[53] 48. In Al-Khawaja the ECtHR heard two applications together. In the first Mr Al-Khawaja had been convicted of two counts of indecent assault on female patients. One of the victims had made a police statement but had then committed suicide for totally unrelated reasons. Her statement was admitted as evidence at his trial, pursuant to section 23 of the 1988 Act. Her evidence was supported by the fact that she had complained shortly after the incident to two friends. They gave oral evidence at the trial. Moreover, another patient, who gave oral evidence at the trial and who was cross-examined, said that she had suffered a very similar assault. Al-Khawaja was convicted. His appeal to the Court of Appeal was dismissed. [2006] 1 WLR 1078 49. In the second case Mr Tahery was convicted of wounding with intent during a street fight in the early hours of the morning between a group of Kurds and a group of Iranians. An Iranian, S, was stabbed in the back. Tahery had administered first aid to S and gone to the hospital with him. Another participant in the fracas, T, later told the police that he saw Tahery use a knife to inflict the wounds. No other witness identified Tahery as the assailant. Tahery himself at first asserted that the assault was the work of two black men, but later admitted that this allegation was untrue. At the trial T told the judge that he had been threatened. The judge excused him from giving oral evidence and his statement was read in support of the prosecution case. Tahery was convicted and his appeal against conviction was also dismissed by the Court of Appeal. [2006] EWCA Crim 529 50. In its decision in Al-Khawaja the ECtHR held that the right under Article 6(3)(d) was a minimum right that must be accorded to anyone charged with a criminal offence. [54] referring to para 37 of Al-Kawaja. The Court of Appeal in Horncastle also noted that the ECtHR concluded in both cases in Al-Khawaja that none of the counterbalancing measures or factors was sufficient to overcome the prejudice caused to the defence by the admission in that case of the absent witnesses’ statements. [54] referring to para 40 of Al-Kawaja. 51. The Court of Appeal analysed the consistency of Al-Kawaja with previous case law in the ECtHR. The Court of Appeal concluded: (1) the ECtHR case law demonstrated that the right to confront witnesses for the prosecution under Article 6(3)(d) was not an absolute one. [56]. The court stated also that the Privy Council had acknowledged this to be the position in Grant v The Queen [2007] 1AC 1 at [17](1) and (3) in the opinion of Lord Bingham of Cornhill. That was an appeal from the Court of Appeal of Jamaica. (2) In the case of evidence from an identified but absent witness, even when that was the “sole or decisive” evidence against the defendant, “counterbalancing measures” could protect the rights of the defence sufficiently, at least in cases where the hearsay evidence was “ demonstrably reliable or its reliability was capable of proper testing and assessment”. [57] Conclusion (2) was based on a number of considerations so far as criminal trial procedure in England and Wales was concerned, not least the provisions of sections 124 and 125 of the CJA and the rigorous application of the statutory conditions before hearsay evidence would be admitted. [58] 52. The Court of Appeal next analysed the difficulties in adopting a test of whether particular hearsay evidence was “sole or decisive” against a defendant as the basis for an absolute exclusion of such evidence in criminal trials. The court first of all challenged what it regarded as two false assumptions made by the ECtHR about hearsay evidence: first, that all hearsay evidence that was critical to a case was potentially unreliable in the absence of testing in open court ; and, secondly, that the fact finder could not be trusted to assess the weight of such evidence. [60] The Court of Appeal gave examples of the falsity of the first assumption, [61]-[65] and rejected the second, so far as the practice and experience of English jury trials were concerned. [66] and [76]-[78] It again emphasised the safeguards of section 125 of the CJA. [73]-[75] 53. The court ended its general survey by examining the practical difficulties of adopting a “sole or decisive” test in the case of identified but absent witnesses. In particular it questioned how, in advance of the result of a trial, it could necessarily be known what particular evidence was decisive against a defendant. [70]-[71] and [74] 54. The Court of Appeal’s general conclusion was: “…provided the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article 6(3)(d) if the conviction is based solely or to a decisive degree on hearsay evidence admitted under the CJA 2003… Where the hearsay evidence is demonstrably reliable, or its reliability can properly be tested and assessed, the rights of the defence are respected, there are in the language of the ECtHR sufficient counterbalancing measures and the trial is fair”. [79] 55. The Court of Appeal then considered the particular facts in the Horncastle appeal. They are instructive, because there are certain factors which are similar to the present case. The victim of the attack, Peter Rice, was a long-term and registered alcoholic. On the day of the attack by the three defendants (of whom two were convicted and one pleaded guilty) he had been drinking all day with companions. The attack took place in the evening of 7 May 2005 in Rice’s flat, when the defendants were trying to recover stolen property that had been deposited in the flat. Rice suffered head injuries which caused a large blood clot in the surface of the brain and another small clot inside the skull. He was in hospital for a month but made a good recovery. He gave a statement to the police on 3 June 2005. Rice died in July 2006. The trial took place (at the third attempt) in November 2007. 56. The judge admitted Rice’s statement pursuant to section 116(2)(a). The other evidence relied on by the prosecution at the trial included witnesses of fact who spoke to events before and after the attack. There was also forensic evidence, including a DNA profile of Rice’s blood found on crutches belonging to one of the defendants. There was no application by the defence under section 125 at any stage after the close of the prosecution case. 57. In the Court of Appeal, as a result of the decision of the ECtHR in Al-Khawaja , it was argued that (i) the statement of Rice was the “sole or decisive” evidence against the defendants, so that, in accordance with the decision in Al-Khawaja, the admission of Rice’s statement was itself a breach of Article 6(3)(d) so that the trial was thereby unfair. In addition, (ii) there were insufficient counterbalancing safeguards to overcome the prejudice to the defence which would be caused by the admission of this untested hearsay evidence. It was noted in particular that the jury had asked to see a copy of Rice’s statement once they had retired to consider their verdicts. Accordingly, for that additional reason the trial was unfair and so the convictions were unsafe. 58. The Court of Appeal concluded, first, that there was, in fact, substantial evidence that was independent of Rice’s statement which proved that all three defendants were present in Rice’s flat and that the attack occurred in the presence of each of them. [108] However, secondly, the court accepted that Rice’s statement had been regarded by counsel, the judge and the jury as the basis, “ to a decisive degree”, on which the two appellants were convicted. [110] Thirdly, even if that was the case, that was only one factor in seeing whether the trial was unfair or not. When all the statutory safeguards in the “code” were considered in the light of the facts of this case, there was no unfairness. Indeed, “… if that statement had been excluded…or the trial stopped using the power in section 125 , there would have been a denial of justice in circumstances where the death of a key witness intervened prior to the trial”. [111]-[113]. There had been a fair trial and there was ample evidence to support the jury’s conclusion. (3) Horncastle: the judgment of the Supreme Court 59. As already noted, the judgment of the Supreme Court was given by the President, Lord Phillips of Worth Matravers. He first gave a short history of how hearsay evidence has been dealt with in criminal trials in England and Wales. Looking at the CJA provisions, he drew a distinction between two broad classes of hearsay evidence. In the first were statements of witnesses who had died, were ill, missing or absent from the trial through fear. Lord Phillips said those were examples of hearsay evidence made admissible because the evidence would otherwise be unavailable. He contrasted this with other categories of hearsay evidence that was made admissible because, “ …in the ordinary way, they are likely to be reliable”. In this class, Lord Phillips included business records and other examples. [35] He said that the CJA provided safeguards to protect a defendant against unfair prejudice as a result of the admission of hearsay evidence, over and above the general safeguards that apply to every jury trial. He summarised them. [38] Lord Phillips then surveyed hearsay in Commonwealth jurisdictions and the United States and considered criminal procedure in civil law jurisdictions. 60. Lord Phillips next analysed the Strasbourg jurisprudence on Article 6(3)(d) prior to Al-Khawaja. He pointed out that Article 6(3)(d) does not deal with the question of what procedure is appropriate where “ …it is simply not possible to comply with Article 6(3)(d); where for instance, after making a statement, the witness for the prosecution or defence has died. Fairness does not require that in such circumstances the evidence of the witness should not be admitted to the trial”. [66] Indeed, he added, the opposite might be so and the Strasbourg cases had recognised this, provided that there was justification for that course. [66]-[67] If there is justification, then, in Lord Phillip’s view, the ECtHR had been concerned with whether the process as a whole “ …has been such as to involve the danger of a miscarriage of justice”. [69] 61. However, Lord Phillips concluded that although the ECtHR had accepted that in exceptional cases a failure to comply with the strict requirements of Article 6(3)(d) would not invalidate the fairness of the trial, the court had not acknowledged this in terms. He continued: “The court might have said, in terms, that paragraph (3)(d) has no application where it is impossible to call a witness at the trial but it did not. The court might have said, in terms, that in exceptional circumstances a failure to comply with paragraph (3)(d) will not render the trial unfair, but it did not. Rather the court has used language that has tended to obscure the fact that it is, in reality and in special circumstances, countenancing a failure to comply with the requirements of paragraph (3)(d). I shall take Kostovski v The Netherlands [1989] 12 EHRR 434 as an example of the language used. The phraseology is almost standard form in cases dealing with Article 6(3)(d)”. 62. Lord Phillips then analysed statements in paragraphs 39 and 41 of Kostovski and drew three further conclusions. The first is that the ECtHR had recognised that the requirements of Article 6(3)(d) were not absolute. The second is that the ECtHR was there contrasting adversarial argument at a public hearing (whether at trial or at an earlier stage) with the position where there had been no opportunity for the defence to challenge evidence, whether at trial or at an earlier inquisitorial investigation stage. The third is to identify the danger that a repeated repetition of a principle, often in identical words, “… may lead to its being applied automatically without consideration of whether, having regard to the particular facts of the case, its application is appropriate”. [75]. 63. Lord Phillips next considered the so-called “sole or decisive” rule. He noted that, in Doorson v The Netherlands, [1996] 22 EHRR 330 the ECtHR had said, at paragraph 76 that: “Finally, it should be recalled that, even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements”. Lord Phillips stated that this went further than previous decisions of the ECtHR had done, because it appeared to state an absolute rule that even where there was a justification for not calling a witness, to base a conviction solely or decisively on that witness’s evidence would be unfair. [77] He noted that in that case the ECtHR gave no explanation of the “sole or decisive” rule, nor had it done so in subsequent decisions, either in the case of anonymous witnesses or where a witness could not be called. [80] and [86] But he concluded that the ECtHR must have decided that in the case of a conviction based “solely or decisively” on the evidence of an anonymous witness or one not called and cross-examined (as opposed to a conviction based only partly on such evidence) it violated Article 6(3)(d), because such a conviction “ would not be safe ”. 64. Lord Phillips continued by reiterating the concerns of the Court of Appeal over the impracticality of trying to apply the “sole and decisive” test, at least in cases where it was suggested that the evidence of the absent or anonymous witness is said to be “decisive”. The trial judge would have to try and predict whether a particular statement was capable of proving “decisive” for the jury; no easy task. And, he said: “ If ‘decisive’ means capable of making the difference between a finding of guilt and innocence, then all hearsay evidence will have to be excluded”. [90] We voiced the same difficulty about the meaning of “ decisive ” during argument. We asked, by analogy, what was the “decisive” factor in the defeat of Napoleon Bonaparte at Waterloo? Wellington’s generalship; Napoleon’s own strategic errors; Marshal Ney’s caution at Quatre-Bras or his inability/failure to obey orders at Waterloo itself; the failure of Prince Jerome Bonaparte to take Hougoumont or the re-arrival of Blücher to the relief of Wellington late in the afternoon of 18 June? Historians have never agreed on the answer. 65. Finally, Lord Phillips analysed the decision in Al-Khawaja itself . He noted, first, that, at paragraph 34, the judgment had set out “ general principles applicable to both cases [viz. absent and anonymous witnesses]”. It is worthwhile repeating the passage of the ECtHR’s judgment which Lord Phillips quotes at [96] of his own judgment: “Article 6(3)(d) is an aspect of the right to fair trial guaranteed by Article 6(1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument ( Krasniki v Czech Republic). Application No 51277/99: 28 February 2006 para 75. As with the other elements of Article 6(3), it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence. As minimum rights, the provisions of Article 6(3) constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick [2005] 1 WLR 3257 as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barberà v Spain; [1988] 11 EHRR 360 at [67]-[68] Kostovski v The Netherlands). [1989] 12 EHRR 434 at [39] ” 66. Lord Phillips stated that he found it impossible to reconcile this passage with other statements of the ECtHR that the fairness of a trial is to be assessed on a case by case basis, looking at the trial as a whole and that “ ..an inability on the part of a defendant to examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair”. [97] 67. Next, Lord Phillips quoted paragraph 36 of the ECtHR’s judgment, which itself referred to paragraph 40 of its decision in Lucà v Spain, which stated: “If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6(I)(3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had to no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6…”. 68. As Lord Phillips then pointed out, [100]-[101] neither proposition is self-evidently correct. A mere opportunity to challenge a deposition does not make its admission at the trial fair even if the maker is there to be cross-examined. The second proposition is plainly not a corollary of the first proposition. It is a rule that has resulted from the Strasbourg case law. 69. Lastly in his analysis of the decision in Al-Khawaja, Lord Phillips examined paragraph 37 of the ECtHR’s judgment. He commented [103] that the paragraph “ did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in [circumstances other than a refusal to testify through fear].” 70. Lord Phillips completed his survey with this conclusion: [108] “In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason”. 71. Lord Brown of Eaton-under-Heywood agreed with Lord Phillips and expressed the hope that the Grand Chamber of the ECtHR would “ clarify the law on hearsay evidence and recognise that our domestic legislation is compatible with Article 6”. [121] (4) The decision of the Grand Chamber in Al-Khawaja 72. The Grand Chamber consisted of 17 judges of the Court, including Sir Nicholas Bratza, who sat as the national judge in a case brought against the United Kingdom. He is the ECtHR’s current President. The judgment of the majority Judges Sajó and Karakas gave a “Joint Partly Dissenting and Partly Concurring Opinion”. Effectively they concluded that the ECtHR should maintain its previous position that “ …where a witness cannot be cross-examined and the conviction is based on hearsay as the sole or decisive evidence, the rights protected under Article 6 will be violated”, in other words, an absolute rule. In their view, contrary to the conclusion of the majority, the trial in the case of Al-Khawaja was not fair and was contrary to Article 6(1). reviews the circumstances of the two cases, the relevant domestic statutory law, practice and case law (including Horncastle) and then considered relevant comparative law. It summarises the Chamber’s decision and the submissions of the parties. From [118] the judgment sets out the Grand Chamber’s assessment. 73. The judgment first sets out some general principles. We hope we can fairly summarise these as follows: (1) the admissibility of evidence is a matter for regulation by national law and national courts. The ECtHR’s only concern is to see whether the proceedings have been conducted fairly. (2) The guarantees in Article 6(3)(d) are specific aspects of the right to a fair hearing set out in Article 6(1). The guarantees in Article 6(3)(d) have to be taken into account in any assessment of the fairness of the proceedings, but the ECtHR’s concern under Article 6(1) is to evaluate the overall fairness of the criminal proceedings. (3) The principle enshrined in Article 6(3)(d) is that all evidence against an accused must normally be produced in his presence at a public hearing “ with a view to adversarial argument” before the accused can be convicted. Exceptions to this rule are possible but must not infringe the rights of the defence. As a rule they include the right to have an adequate and proper opportunity to challenge and question a witness who is against the accused, whether this is done at the time he initially made his statement or later in the criminal proceedings. These propositions come from [118] (4) There must be good reason for the “ non-attendance” of a witness. That reason must be investigated before considering whether that person’s evidence is “sole or decisive”. [119] and [120] (5) “ When a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined [at any stage in the criminal proceedings], the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6: (the so-called “sole or decisive rule”). [119] The ECtHR characterises the admission of a witness statement in lieu of live evidence at trial in circumstances where the witness had not been examined at any prior stage as a “ measure of last resort”. [125] 74. The ECtHR then considers the history and rationale of its “sole and decisive” rule. It states the rationale in the form of an axiom that “ if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted.” [128] At this stage there is neither a definition of the “defence rights” nor any discussion of what the axiom implies, which must be that there can be acceptable restrictions on the “defence rights”. 75. The judgment next examines objections to the “sole or decisive” rule. In doing so it recognises that what it describes as English law’s “ dilutions of the strict rule against hearsay,” by virtue of the CJA (and the 1988 Act), have been accompanied by statutory safeguards. It therefore accepts that “ the central question in the present case is whether the application This is our emphasis. of these safeguards was sufficient to secure the applicants’ rights under Article 6 (1) and (3)(d) ”. [130] 76. The judgment debates the question of what is covered by the word “decisive” which the Court of Appeal and Supreme Court in Horncastle had criticised for being impossible of precision. The ECtHR states that the word, whose French equivalent is stated to be “ déterminante” Dictionnaire Hachette says of it: “ qui amène à prendre une décision; décisif.” means more than “probative”. The Court states: “Instead, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be decisive”. [131] 77. For our part we respectfully suggest that this attempt to give the word “decisive” more precision so as to make the “sole and decisive” test more useful does not meet all the criticisms raised by both the Court of Appeal and the Supreme Court in Horncastle. In a trial with a jury in England and Wales, the judge is not the finder of fact. Even at the end of all the prosecution evidence, how is a judge able to determine whether a jury would regard a particular piece of hearsay evidence of an absent witness as passing from being “not decisive” to “decisive”? Or, to put it the other way round, how is he to assess whether other corroborative evidence is sufficiently strong to tip the balance so the relevant hearsay evidence turns from being “decisive” into “not decisive”? With great respect to the ECtHR’s statement at [134], when a judge is asked to withdraw the case from the jury on a submission of no case to answer at the close of the prosecution case, he does not test the “ strength and reliability of the evidence of the prosecution”. He only has to decide whether the prosecution must fail for lack of evidence, or because the evidence overall is of such a weak and tenuous nature that no properly directed jury could reasonably convict on the basis of it. The strength and reliability of a particular piece of evidence is a matter for the jury, not the judge. As the Court of Appeal in Horncastle pointed out, section 125 introduced, for the first time in English law, a strictly limited principle that the judge, not the jury, should assess the importance and strength of particular hearsay evidence in the context of the case against the defendant. But section 125 does not have a “sole or decisive” criterion; it is a broader test. 78. We respectfully suggest that a more useful test is used by the ECtHR when it considers the facts of Al-Khawaja itself. [154] It points out that the trial judge characterised the statement of the complainant (who had died) as: “ no statement, no count one”. The statement of the victim was thus a necessary (although not necessarily sufficient) pre-condition of bringing the case to trial; it was, in the words of one distinguished commentator “ the central piece of evidence without which the case could not proceed”. Prof JR Spencer: “Hearsay Evidence at Strasbourg: A Further Skirmish or the Final Round?” Archbold Review 16 February 2012 at page 7. The ECtHR regarded that statement as “decisive”; [154] even though there was other, strongly corroborative, evidence. The victim had complained to two friends immediately after the incident; and another witness, who was cross-examined, claimed to have suffered a very similar assault. The Court’s conclusion in that case was, effectively, that although the victim’s statement was “decisive”, it was not decisive enough to lead to an infringement of Article 6(1) or (3)(d), whereas the admission of the hearsay statement of the witness T in Tahery, which was also a “decisive” statement, did lead to an infringement. There must therefore be degrees of “decisiveness”. 79. The Court concludes [142] that there are two reasons which underpin the “sole or decisive” rule first adumbrated fully in Doorson. These are: (1) untested statements of witnesses can look cogent and compelling, but often fall apart on cross-examination, so care is needed before they can be used against defendants; (2) a defendant must not be placed in a position where he is unable to defend himself properly because he cannot challenge a hearsay statement against him. The judgment then states, somewhat curiously, “ Trial proceedings must ensure that a defendant’s Article 6 rights are not unacceptably restricted and that he or she remains able to participate effectively in the proceedings”. [142]; our emphasis. This again implies that a degree of restriction is permissible; but the degree of permissible restriction is not defined. 80. The judgment continues by saying that the ECtHR has always considered it necessary to examine the significance of the untested evidence to determine whether the defendant’s rights have been “unduly restricted”. [143] In examining the “ overall fairness of the proceedings” the ECtHR will consider “ the way in which statutory safeguards have been applied” including the way in which the proceedings have been conducted by the trial judge. [144] 81. The general conclusion on the “sole or decisive” test is set out at paragraph 147 of the ECtHR’s judgment. It is necessary to quote it in full: “The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 (1) . At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case”. 82. The judgment then examines the procedural safeguards contained in the 1988 Act and the CJA. [149]-[151] It notes: (1) the use of statements of absent witnesses has to be justified and must fall within one of the identified categories; Section 116 of the CJA (2) the effect of sections 114(3), 124, 125 and section 126(2), together with section 78 of PACE; (3) the common law requirement that the judge direct the jury on the burden (and we would add standard) of proof to be attained before they can convict and the dangers of relying on a hearsay statement. The Court concludes that those safeguards are, in principle, “ strong safeguards designed to ensure fairness’. But it remained to see how they were applied in the two cases before it. 83. The Court concluded that in Al-Khawaja’s case there were “ sufficient counterbalancing factors” to the difficulties caused to the defence by admitting the dead victim’s statement (which it characterised as “decisive”) to conclude that its admission “ did not result in a breach of Article 6(1) read in conjunction with Article 6(3)(d) of the Convention”. [158]. 84. But the Court reached the contrary conclusion in Tahery’s case. In doing so it seems to have concluded that the hearsay evidence of the witness who would not give evidence was not “ demonstrably reliable”. Yet because it was the only evidence that Tahery had stabbed the victim and it was uncorroborated, it was “decisive”. The Court rejected HM Government’s submission that the combination of (a) the judge’s conclusion that the admission of the statement would not be unfair; (b) the defendant’s ability to challenge the statement in evidence; and (c) the judge’s full and careful summing up and direction to approach the evidence given by an absent witness with care all constituted sufficient counterbalances to the handicap under which the defence laboured. The Court noted that the defendant “ was not able” to call any other witness to contradict the evidence in the hearsay statement and also the equivocal and circumstantial evidence of the victim. Overall, the Court concluded: “…there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T’s statement [so that] there has been a violation of Article 6(1) read in conjunction with Article 6(3)(d)”. (5) How can the ECtHR’s approach in Al-Khawaja – GC to hearsay evidence in criminal trials be summarised, at least so far as dead witnesses’ hearsay statements are concerned? 85. The ECtHR’s necessarily elaborate judgment is difficult to summarise, but we think that, for present purposes, the pertinent points are as follows: (1) issues of the admissibility of evidence are for national courts. (2) The ECtHR is primarily concerned, in respect of Article 6(1), with the overall fairness of the criminal proceedings concerned. (3) In such proceedings there has to be a good reason for the admission of hearsay evidence of an absent witness whose evidence is to be relied on and whose evidence has not been examined at some stage in the procedure. The admission of such hearsay evidence is a “ measure of last resort”. (4) In order to decide whether the admission of such a hearsay statement would lead to overall unfairness and a breach of Article 6(1) it is first necessary to see if the evidence is the “sole or decisive” evidence relied on for the conviction of the defendant. In this context, “decisive” means the central corpus of evidence without which the case cannot proceed. (5) If the evidence has that characteristic then its admission does not result automatically in a breach of Article 6(1) or Article 6(3)(d). (6) To decide whether that is the case, the existence and application of sufficient “ counterbalancing measures” in the trial process, including the existence and use of strong procedural safeguards, must be considered. (7) These measures will include those that permit a fair and proper assessment of the reliability of the relevant hearsay evidence to be undertaken before its admission and afterwards if it is admitted. (8) The question in each case is whether (a) the existence of these “ counterbalancing measures” and (b) their proper enforcement in the instant case, is sufficient to enable the defence to counter the handicaps it would suffer by the introduction of the untested hearsay evidence. The defendant’s Article 6 rights must not be “ unacceptably restricted”. 86. It seems to us that, at least so far as the hearsay evidence of dead witnesses is concerned, the ECtHR appears to conclude that the combined “ counterbalancing measures” of the common law, section 78 of PACE and the provisions of the CJA are in principle sufficient to make a trial fair in cases where the untested hearsay evidence sought to be admitted is the “decisive” evidence against the defendant. That seems consistent with the principle of “last resort” and means that a prosecution for a serious offence can proceed, provided the “ counterbalancing measures ” are rigorously applied. That is always going to be the acid test in any particular case. F. Are there any differences in approach between the Supreme Court in Horncastle and the ECtHR in Al-Khawaja? 87. In R(RJM) v Work and Pensions Secretary [2009] 1 AC 311 at [64] in the speech of Lord Neuberger of Abbotsbury with whom the other law lords agreed. the House of Lords stated that where the Court of Appeal considers that an earlier decision of the House of Lords, which would otherwise be binding on the Court of Appeal, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then, other in wholly exceptional circumstances, the Court of Appeal must faithfully follow the decision of the House of Lords. That principle continues to apply. There are no “ wholly exceptional circumstances” which might prevent this principle from applying to the present case. See Kay v Lambeth LBC [2006] 2 AC 465 at [45] for an example: ie. the effect of the passing of the Human Rights Act 1998 on a previous House of Lords’ authority. Thus, even if we were to conclude that Al-Khawaja- GC is not consistent with the approach of the Supreme Court in Horncastle, it is for the Supreme Court to decide what to do about it, not us; we have to follow the principles laid down in Horncastle. 88. It seems to us that there is a difference in approach between the Supreme Court’s decision in Horncastle and the Grand Chamber’s decision in Al-Khawaja. First and foremost, the Supreme Court declined to apply “the sole or decisive” test, at least to the two cases before it. The Grand Chamber confirmed that this test remained part of the Strasbourg jurisprudence, although it accepted that the consequence of concluding that a particular piece of untested hearsay evidence was “sole or decisive” did not automatically mean that the particular trial where that evidence was admitted was unfair. 89. This difference may be more one of form than substance, however. Thus, the Court of Appeal talked of a conviction being based “ solely or to a decisive degree on hearsay evidence admitted under the CJA” CA decision at [79] and the Supreme Court talked of the hearsay evidence being “ critical evidence”. SC decision at [108] That may not be very different from the Grand Chamber’s concept of “sole or decisive”. See the discussion leading up to [147] of the majority judgment. Next, the Court of Appeal and the Supreme Court both emphasise that when the untested hearsay evidence is “critical”, the question of whether the trial is fair will depend on three principal factors. First, the English courts accept that there has to be good reason to admit the untested hearsay evidence. To decide this under English law there must be compliance with the statutory code. CA decision at [16]; SC decision at [33] and [36]. The Grand Chamber necessarily puts this requirement on a more general basis, but it emphasised the need for “ justification ”. [120] of the majority judgment. Secondly, and we think most importantly, all three courts stipulate that there must be an enquiry as to whether that evidence can be shown to be reliable. “ Demonstrably reliable” per the CA at [79]; “ can be shown to be reliable” per the SC at [108]; [156] and in particular [160] of the G-C’s judgment, where it deliberately uses the very phrase employed by the Court of Appeal in Horncastle. Thirdly, all three courts are concerned with the extent to which there are “ counterbalancing measures ” and if so whether they have been properly applied in deciding whether to admit the “critical” untested hearsay evidence or to allow the case to proceed. In the case of England and Wales those “ counterbalancing measures ” must include all the statutory safeguards in the “code”, CA decision at [79]; SC decision at [108]; as well as a proper application of common law safeguards, such as proper directions in the summing up. The Grand Chamber emphasised the same thing at paragraph 144 and particularly in its “ general conclusion on the sole or decisive rule ” at paragraph 147, which we have quoted above. I. What is the task of this court in this case? 90. It seems to us that, consistently with the judgments of the Court of Appeal and Supreme Court in Horncastle, but, we think, in practice also consistently with the approach of the Grand Chamber in Al-Khawaja, we must deal with four questions in order to determine whether the appellant had a fair trial and so determine whether his conviction on count one is safe. The first is: was there proper justification for admitting the untested hearsay evidence in Ms Walker’s statements. Under English law, this must depend on whether the conditions of section 116(1) and (2)(a) were satisfied, although that test is also subject to the “ counterbalancing measures ” in the statutory “code” and the common law. Secondly, how important are the three untested hearsay statements of Ms Enith Walker in relation to the prosecution’s case against the appellant on count 1? Do they amount to the “central corpus of evidence without which the case could not proceed” on count one, to use Professor Spencer’s phrase. Archbold Review of 16 February 2012 page 7. Thirdly, how “demonstrably reliable” are those statements? Fourthly, were the “ counterbalancing safeguards ” inherent in the common law, the CJA and section 78 of PACE properly applied in this case so as to ensure that the appellant did have a fair trial? 91. We think, (again, we hope consistently with the approach of the Court of Appeal and the Supreme Court but, also, with that of the Grand Chamber) that all these four issues are interlocking, particularly the latter three. The more central the untested hearsay evidence, the greater the need to ensure that there is proper justification for its admission; and the greater the need to ensure that the untested hearsay evidence is reliable and to ensure that there are adequate “ counterbalancing measures ” which have been properly applied in this particular case. All three courts agreed that, ultimately, there is only a single test: did the defendant have a fair trial or not. J. The arguments of the parties 92. Ms Danielle Cooper, who both advised the appellant at the stage when leave to appeal out of time was sought and obtained as well as appearing before us, advanced four grounds of appeal. She argued them with conspicuous conciseness and clarity. Ground one is the general one, viz. that the admission of the three hearsay statements of Ms Walker pursuant to section 116(2)(a) of the CJA caused the trial of the appellant to be unfair and contrary to the appellant’s rights in Article 6(1). The three more particular grounds are: that the judge should have excluded the three statements pursuant to section 78 of PACE because the admission of that evidence had such an adverse effect on the fairness of the proceedings such that they ought not to have been admitted: ground 2. Next, at the latest by the conclusion of all the evidence in the case the judge should have stopped the case and directed the jury to return a verdict of not guilty in relation to count 1, pursuant to section 125 of the CJA: ground 3. Lastly, the judge failed adequately to direct the jury on the dangers of relying on hearsay evidence: ground 4. 93. In oral argument, Ms Cooper emphasised the importance of Ms Walker’s three statements for the prosecution’s case on count 1. Further, in her submission the first two statements, at least, were not reliable for the following reasons: (1) Ms Walker was a heroin addict. Ms Cooper pointed out that in Horncastle the Court of Appeal had described drug users as belonging to a category who might be thought to be very unreliable as witnesses. See [43] of the judgment. (2) Ms Walker had made a false complaint and had also given an untrue reason for not telling the police about the rape when seen by WPC Baldwin on the night of the alleged rape (viz. that she was subject to an ASBO). (3) There were manifest inconsistencies between her account to Ms Cook of the incident in 2004 and that set out in her 7 October 2005 statement. (4) There was no rational explanation of the 2 ½ year delay in making a statement alleging the rape by the appellant. (5) Although Ms Walker had identified the appellant on an identity procedure, that was after a well publicised civil injunction had been imposed on the appellant and a photograph of him as the man thought to be the “serial rapist” had been produced to all female sex workers in the Edgbaston area in order to minimise their risk. 94. Ms Cooper submitted that the three statements of Ms Walker should have been excluded by the court, exercising its power under section 78 of PACE, although she accepted that this had not been argued below. The statements were too unreliable and so it was unjust to admit them. She submitted that the test under section 78 and the “ interests of justice” tests in section 114(2) of the CJA that a Court had to consider before permitting hearsay evidence to be admitted pursuant to section 114(1)(d) were similar and the “check list” in section 114(2) was a useful guide when deciding whether the court should exclude hearsay evidence sought to be admitted under section 116(1)(a). 95. In the alternative, Ms Cooper submitted that the judge erred in not accepting the submission of counsel for the defence at the close of the prosecution case that there was no case to answer on count 1 or that the jury should be directed to acquit pursuant to section 125. In that regard, Ms Cooper submitted that the two tests were different, but accepted that this court had stated See: R v Joyce and Joyce [2005] EWCA Crim 1785 at [19]; R v Bennett and Turner [2008] EWCA Crim 248 at [19]-[21]. that the standard required for section 125 is not higher than that required for a submission of no case pursuant to R v Galbraith. Lastly, Ms Cooper submitted that the judge had failed to give any warning to the jury about the dangers of untested hearsay evidence and that failure was not mitigated by the reference to the agreed facts on the credibility (or lack of it) of Ms Walker’s statements. 96. For the Crown, Mr Andrew Jackson submitted that the key issue was whether Ms Walker’s statements were sufficiently reliable to be admissible. He submitted that they had to be assessed in the context of the overall evidence that was adduced by the prosecution in relation to count 1. He emphasised: (1) the appellant accepted that he had encountered Ms Walker that night and they had discussed the question of sex. (2) Therefore the suggestion of collusion as to identification was irrelevant; the issue was whether he had had vaginal intercourse without consent as Ms Walker had alleged. (3) The evidence of Ms Toogood and the 999 call. (4) the fact that the police found the appellant running away from the scene after they had responded to the 999 call and there was evidence he had struggled. (5) Ms Walker was found in the vicinity by WPC Baldwin and was upset. 97. Mr Jackson also submitted that the defence had the means available to attack the credibility of Ms Walker generally. In particular it had the agreed statement of facts, the differences between Ms Cook’s record of Ms Walker’s statement about the 2004 incident and the differences between Ms Walker’s evidence and that of Ms SES concerning the phone box. 98. Mr Jackson further submitted that although the wording of section 125 of the CJA is different from the formula of Lord Lane CJ in Galbraith, the effect is the same. It is, he submitted, inconceivable that a submission on the second limb of Galbraith would fail, but would succeed on section 125. The judge was correct to reject both submissions. 99. Lastly, Mr Jackson submitted that there were no significant omissions in the summing up of the judge. Accordingly the appellant had a fair trial and his conviction was safe. K. Discussion and conclusions 100. The first question is whether there was proper justification for admitting the untested hearsay evidence in the three statements. If Ms Walker had been alive to give oral evidence, the substance of her three statements would have been admissible as evidence that was relevant to counts 1 and 2. She was identified to the court’s satisfaction and she had died by the time of the trial. So, by virtue of the statutory conditions set out in section 116(1) and (2)(a) there was proper justification for admitting the statements as hearsay evidence, subject to the issue of sufficient “ counterbalancing measures ”. 101. The three statements of Ms Walker, and especially the first one of 7 October 2005, were very important in relation to the prosecution’s case against the appellant. We would say that they were central. Without the statement of 7 October 2005, the case against the appellant on count 1 could not have proceeded. 102. How reliable were those statements, in particular that of 7 October 2005? The first thing to note must be that the jury did not find that statement reliable so far as count 2 is concerned because they acquitted the appellant of that charge. The prosecution’s evidence on that consisted, effectively, of the statement of 7 October 2005 and the evidence from Ms Cook. (Ms SES’s evidence was derived from Ms Walker). Secondly, Ms Walker was a heroin addict and, so, to use the Court of Appeal’s words in Horncastle At [43] “… might be thought to belong to a category of the potentially very unreliable[witness]”. Thirdly, Ms Walker had demonstrated not long before the alleged rape in March 2003 that she was not reliable because she made her false allegation of a sexual assault in January 2003, which was then withdrawn a day later. Ms Walker had been prepared to make this false allegation in a section 9 CJA 1967 form of statement where she attested to its truth and claimed to understand the consequences of giving an untrue statement. Fourthly, Ms Walker claimed that the reason that she had not told WPC Baldwin about the attack was fear of being in breach of her ASBO, when she was not, in fact, subject to one at that time. Even if in October 2005 Ms Walker could not be expected to recall the date when the ASBO had been imposed, it clearly could not in fact have been the reason for not saying anything to the police as at March 2003, because she was not subject to an ASBO then. There must have been some other reason for not saying anything, despite the fact that Ms Walker was, according to WPC Baldwin, very upset when the police officer encountered her that night. Fifthly, the statement was made in October 2005 and there was no explanation whatsoever for the two and a half year delay in making it. 103. We accept that we have to balance against those matters that the facts that (a) the appellant admitted that he had encountered Ms Walker that evening; (b) Miss Toogood’s evidence of hearing a scream of “rape” supported Ms Walker’s account; and (c) the actions of the appellant when he was found by the police (running away and struggling) suggest possible foul play. 104. The question is whether, on the central issue of whether the appellant had non-consensual sexual intercourse with Ms Walker that evening, her principal statement can be “ shown to be reliable”, to use Lord Phillips’ words in Horncastle. At [108]. We are not satisfied that it can be. The only directly supporting evidence is Ms Toogood’s account of hearing a scream of “rape”. That is not enough to convince us that the statement is shown to be reliable, given the other contrary factors. 105. We are not even satisfied that the third statement, dealing with the identification, can be shown to be reliable, in the sense that this was a truly independent identification, given the publicity that had been given to the identity of the alleged rapist. 106. What is the consequence of this conclusion? In our view, if counsel for the defence had had the benefit of the judgments of the Court of Appeal and Supreme Court in Horncastle and that of the Grand Chamber in Al-Khawaja, he would have been bound to have made a submission that even though Ms Walker’s hearsay statements satisfied the conditions in section 116(1) and (2)(a), the court should exercise its power to exclude them, pursuant to section 78 of PACE. If, as we have concluded, those statements were central to the prosecution’s case on counts 1 and 2 and if, as we have concluded, they are not shown to be reliable, then we think it must follow that the admission of that untested hearsay evidence would have had such an adverse affect on the proceedings that the court ought not to have admitted the statements. If the court were to have considered all the factors set out in section 114(2) of the CJA as a kind of checklist, we think that, inevitably, the scales would have come down firmly in favour of excluding the statements. 107. We do not accept the submission that the question of reliability and the credibility of Ms Walker’s evidence should have been left to the jury. It seems to us that the clear effect of the judgments of the Court of Appeal and Supreme Court is that it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it can be admitted. That is also the view of the Grand Chamber of the ECtHR. That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the CJA. 108. Further, even if that view be wrong, we have concluded that the judge should have acceded to the defence submission made pursuant to section 125 of the CJA. The judge erred in stating that the evaluation of the untested hearsay evidence of Ms Walker was a matter for the jury. First, under section 125(1)(a) the judge had a duty to decide whether the case against the appellant on count 1 was based wholly or partly on Ms Walker’s statements. It plainly was based at least partly on her statements; in fact they were central to the prosecution case. Secondly, under section 125(1)(b) the judge then had to decide whether the evidence was so “ unconvincing ” that, considering its importance to the case against the appellant on count 1, his conviction of the offence would be unsafe. 109. It seems to us that when the judge is considering whether the untested hearsay statement falls foul of section 125(1)(b), he has to have uppermost in his mind whether the statement has been shown to be reliable in the light of all the other evidence then adduced. If an untested hearsay statement is not shown to be reliable and it is a statement that is part of the central corpus of evidence without which the case on the relevant count cannot proceed, then we think that the effect of the decisions in Horncastle and Al-Khawaja – GC is that the statement is almost bound to be “unconvincing” such that a conviction based on it will be unsafe. In our view, the principal statement of Ms Walker, untested hearsay that it was, was sufficiently unconvincing that, considering its importance to the case against the appellant on count 1, his conviction on that count would be unsafe. 110. We are not convinced that the test in section 125 and that in Galbraith will necessarily be the same. When there is a submission of no case to answer, the judge does not have to satisfy himself that the relevant evidence has been shown to be reliable before leaving the case to the jury. Under Galbraith , provided the evidence gets over the threshold tests set out in that case, issues of reliability and the importance of particular pieces of evidence are quintessentially jury issues. But under section 125, given the approach of the courts in Horncastle and that of the Grand Chamber in Al-Khawaja, it seems to us that the judge is duty bound to make his assessment of reliability and importance of the hearsay evidence that has been admitted, before making his decision on whether to let the case proceed or not. 111. Therefore, in this case, we have concluded that the judge should have stopped the case in respect of count 1. Given the centrality of Ms Walker’s statements to count 1, we think that the judge would have been bound to direct the jury to acquit the appellant of that charge. 112. These conclusions means that we do not need to consider in detail Ms Cooper’s further submission on the failings of the summing up. However, we think it important to reiterate the statement made in Blackstone’s Criminal Practice (2012 Ed) para F 16.26. The learned authors emphasise the requirement that a jury be reminded that a hearsay statement admitted under Chapter 2 of Part 11 of the CJA will not (usually) have been verified on oath; it will certainly not have been tested by cross-examination. The judge should identify and point out the specific risks of relying on that evidence and should invite the jury to scrutinise it with particular care. The jury’s attention should be drawn to the context in which the statement was made and to all the other evidence in relation to it. If there are discrepancies between the hearsay statement and the evidence of other witnesses the jury’s attention should be specifically drawn to them. 113. We are, of course, very conscious that the judge in this case did not have the benefit of the Court of Appeal and Supreme Court’s judgment in Horncastle, nor that of the ECtHR’s Grand Chamber in Al-Khawaja. But nevertheless we think we should note that in his summing up the judge did not specifically invite the jury to scrutinise the evidence in the hearsay statements with particular care. The judge did not point out specifically the risks of relying on untested hearsay statements which were central to the prosecution case on count 1. The judge did not draw the jury’s attention specifically to the discrepancies between what Ms Walker had said in her October 2005 statement about the 2004 incident and what had been recorded by Ms Cook in the statement made (and signed by Ms Walker) on 19 February 2004. Nor was there a specific warning about the discrepancy between Ms Walker’s statement on the 2004 incident and Ms SES’s evidence Summing up page 37D that she had never been in a phone box with Ms Walker when there was a further allegation of rape. 114. In all these respects we have concluded that the “ counterbalancing measures ” that are contained in the provisions of Chapter 2 of Part 11 of the CJA and in the common law were not properly applied in this case. Accordingly, for all these reasons we must conclude that, in relation to count 1, the appellant did not have a fair trial and his rights under Article 6(1) were infringed. L. Disposal 115. The appellant’s conviction on count 1 is therefore unsafe. The appeal must be allowed and the conviction on count 1 must be quashed. M. Sentence on the two remaining convictions for rape. 116. As a consequence of this conclusion, we have been asked to exercise our powers under section 4 of the Criminal Appeals Act 1968 (as amended) in relation to the sentences of 10 years imprisonment imposed on the appellant in respect of each of his convictions for rape on Counts 13 and 14. These are the convictions for the oral and vaginal rape of Ms SES. The rapes occurred on the same occasion. 117. The facts, very briefly, are these: Ms SES worked as a prostitute to pay for her drug habit. In September 2005 she was approached by a man who asked her how much it would be for sex. She agreed a price and followed him to a car park where there was some conversation and the man smoked some cannabis. The man then pushed Ms SES and held her with something in her back which she could feel through her coat. She said that she thought it might have been a knife and that he later said “I will cut you”. She said that she performed oral sex on the man (wearing a condom) because she believed that she might be stabbed if she refused. She said that she asked for money and that he said that he would give her £5. She said that the man then pushed her further into the bushes and raped her vaginally from behind although only partially because she had her hand in the way to stop him. She said that he ejaculated and she did not know what had happened to the condom. She said that she did not shout or scream because she thought he might stab her and that when she walked away she dialled 999. 118. The police responded to the 999 call. Ms SES was found by the police to be very scared and crying. She was examined by a doctor later that day and there was no evidence that either supported or refuted an allegation of sexual assault. No used condom was ever found and no semen detected on vaginal swabs, her coat, tights or knickers. However DNA from the appellant and Ms SES was detected on the front inside of the appellant’s shorts. 119. It is submitted that the starting point for these offences is 5 years imprisonment concurrent for each one. It is accepted that the fact that there were two offences on the same occasion and that there was the suggestion of the threat of the use of a knife constitute aggravating features so that the starting point must be higher. As against that, however, it is said that there had been an agreement to perform sexual acts before the offences occurred. It is also emphasised that the appellant was only 19 at the time of the offences and of previous good character. 120. When the judge passed sentence he emphasised the seriousness of the offences against the victims. He concluded that the offences were “ planned and deliberate ” offences; he also concluded that the appellant had deliberately gone out armed with a knife. Now, as a result of our conclusion, we have to consider the seriousness of the two offences, on the same occasion, against a single victim, as well as the mitigating factors. 121. The starting point for a single offence of rape would be 5 years. However, these were two offences which were committed one immediately after the other. The judge was correct to emphasise the seriousness of their effect on the victim. She may have been prepared to engage in consensual sex for money but that does not mean she was prepared to undergo the ordeal she must have suffered. The threat of the knife (to which the judge specifically referred) is another aggravating factor; so also is the fact that the appellant ejaculated after the vaginal rape. Although the appellant was previously of good character and only 19 at the time of the offences, he can claim no discount, having disputed these matters at the trial. 122. We have given very careful consideration to the question of whether the sentence for the two offences of rape should be reduced from that of 10 years passed by the judge. In the end we have concluded that the sentences should not be disturbed. They are appropriate sentences in all the circumstances of the case. Appendix Criminal Justice Act 2003 (Ch 2 of Pt 11) 114 Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)— (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it. (3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings. 115 Statements and matters stated (1) In this Chapter references to a statement or to a matter stated are to be read as follows. (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been— (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated. 116 Cases where a witness is unavailable (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard— (a) to the statement’s contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any other relevant circumstances. (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a) by the person in support of whose case it is sought to give the statement in evidence, or (b) by a person acting on his behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement). 124 Credibility (1) This section applies if in criminal proceedings— (a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and (b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement. (2) In such a case— (a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings; (b) evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; (c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself. (3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation. (4) In the case of a statement in a document which is admitted as evidence under section 117 each person who, in order for the statement to be admissible, must have supplied or received the information concerned or created or received the document or part concerned is to be treated as the maker of the statement for the purposes of subsections (1) to (3) above. 125 Stopping the case where evidence is unconvincing (1) If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that— (a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and (b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury. (2) Where— (a) a jury is directed under subsection (1) to acquit a defendant of an offence, and (b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence, the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1) in respect of it. (3) If— (a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged, and (b) the court is satisfied as mentioned in subsection (1) above at any time after the close of the case for the prosecution that— (i) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and (ii) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the person, a finding that he did the act or made the omission would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury. (4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury. 126 (1) ……….. (2) Nothing in this Chapter prejudices – (a) any power of a court to exclude evidence under section78 of the Police and Criminal Evidence Act 1984 (exclusion of unfair evidence) or (b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise). Police and Criminal Evidence Act 1984 78 Exclusion of unfair evidence. . (1)In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2)Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. ………….. European Convention on Human Rights ARTICLE 6 Right to a fair trial (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.	[ "LORD JUSTICE AIKENS", "MR JUSTICE FIELD", "HIS HONOUR JUDGE NICHOLAS COOKE QC" ]	2012_04_27-2973.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/837/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/837	1,059
1559a916b5dccac4fc0405b29cc652b3a1b9f635bf48315932bf1e2132973bde	[2009] EWCA Crim 1228	EWCA_Crim_1228	2009-05-21	crown_court	No. 2008/03267/C2 Neutral Citation Number: [2009] EWCA Crim 1228 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 21 May 2009 B e f o r e: LORD JUSTICE GOLDRING MR JUSTICE McCOMBE and SIR PETER CRESSWELL - - - - - - - - - - - - - - R E G I N A - v - HUGHROY CLARKE - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 740	No. 2008/03267/C2 Neutral Citation Number: [2009] EWCA Crim 1228 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 21 May 2009 B e f o r e: LORD JUSTICE GOLDRING MR JUSTICE McCOMBE and SIR PETER CRESSWELL - - - - - - - - - - - - - - R E G I N A - v - HUGHROY CLARKE - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr P Rule appeared on behalf of the Appellant Mr M Anning appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Thursday 21 May 2009 LORD JUSTICE GOLDRING: 1. The issue in this case is whether the appellant received a fair trial. The submission is that he did not and that his conviction is consequently unsafe. Leave to appeal was granted by the full court after refusal by the single judge. 2. On 1 April 2008, following a two day trial in the Crown Court at Stafford, the appellant was convicted in his absence and without representation of unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861 . He was subsequently sentenced to an extended sentence comprising four years' imprisonment and a period of one year's licence. 3. A co-defendant, Lawrence, was similarly charged. He pleaded guilty to the charge of unlawful wounding. We mention, for it is relevant, that the appellant and Lawrence are black. There were twenty black inmates in the wing of the prison in which the alleged offence occurred. 4. The complainant was a man called Whitfield. He, like the appellant, was an inmate at Her Majesty's Prison Dovegate in Derbyshire. On the morning of Sunday 9 July 2006 he said that he was in his cell asleep. He said that he was awoken by a blow to his face. He felt a pain to his lip. He saw what appeared to him to be a knife. He felt a stabbing pain to the left side of his head. He described the knife as ten to eleven inches long. He also felt a flurry of punches to the head. He could not say for how long the attack lasted. He could remember nothing more, he said, until he woke up in hospital. In his witness statement, which was read to the jury, he said: "The only thing I can remember about my attacker is that I remember seeing that person who was holding the knife had a black skin, as I saw his hands. I can't remember anything said by the people who attacked me." Although he there referred to "people", he appears only to know that one person attacked him. 5. The case against the appellant relied upon the evidence of Teri Carter, a prison officer. She had worked on B Wing (the wing in question) for about nine months. She had known the appellant for about two. At about 11.10am on 9 July 2006, as a result of speaking to another inmate, she went into Whitfield's cell. She found him lying on his bed. There was blood on the wall and floor and on his clothing. We have seen the photographs which were later taken. 6. There was a CCTV recording from 9 July. It covered the area of that part of the wing which included the entrance to Whitfield's cell. We have seen the CCTV recording. Mr Anning, on behalf of the respondent, informs us that the quality of what we have seen is similar to that which the jury saw. 7. Teri Carter gave evidence of what she could see from that CCTV. She said that when she saw the CCTV recording on different equipment it was a lot clearer. She said that she could identify the appellant and Lawrence. She said that both men could be seen entering Whitfield's cell. The appellant was wearing a bandanna. They were in the cell for about six-and-a-half minutes. When they came out (the appellant first), Lawrence did not appear to be wearing a white shirt that he had been wearing when he went in. He was possibly carrying it. He handed something to a prisoner called Hutton. Teri Carter said that she had not seen anyone else wearing a bandanna. There was no risk of confusion between different inmates. She knew the wing extremely well. She knew every inmate by name. 8. Before Teri Carter saw the CCTV recording, she had been told by another inmate who Whitfield's attacker was. In her witness statement she said that that inmate told her that Lawrence and "Bubba" (the nickname of the appellant) had done it. That inmate said that he was "200% sure of that" because they came into the cell and told him. Although a hearsay notice had been served regarding that evidence, it was not pursued and the evidence was not before the jury. 9. In his summing-up regarding the CCTV evidence the judge said this: "The CCTV footage is real evidence and you are entitled to watch it, make up your mind about it and form your own views and decide what you think it proves or does not prove, but in doing that, you are entitled, if you believe it right -- and it is your decision, not mine -- to take into account what Teri Carter tells you, because she has certain advantages over you; first of all, she knows everybody on the wing as you have heard, or on the wing at that particular time and, secondly, she has seen the footage on better equipment than the equipment that you have and so you can, if you believe it right, in all fairness -- it is for you to decide -- take into account what she tells you she has been able to discern from watching that same footage as you have seen on the better equipment. You remember that she told you, particularly that on the equipment that she has seen it on at Dovegate Prison, she was able to recognise every single person who appears on the film; ...." 10. At the end of his summing-up, at Mr Anning's suggestion, the judge gave a Turnbull direction. He said: "Members of the jury, because this case is, in effect, one where there is not the usual contest, no issue has been raised by the defence in respect of the prosecution case, but in many cases involving allegations of assault, issues of identification are often raised and Mr Anning has referred me to a particular legal case where judges are reminded to give juries specific directions in respect of identification where identification is in issue." The judge then gave the conventional Turnbull direction. A little later he said: "Therefore, it is important, before you rely upon evidence of identification, that you, first of all, ask yourselves the question: how long was the person identified in the view of the person carrying out the identification? -- in this case Teri Carter -- and you know how long because it is the CCTV footage that you yourselves have viewed. You must take into account the quality of the lighting, the distance, any difficulties represented, for example, by other people getting in the way or staircases getting in the way, floors getting in the way and that sort of thing. You are entitled to take into account any other factors that you regard as potentially undermining the correctness of the identification that she has made. You know that in respect of the co-accused, Dwayne Lawrence, that her identification was correct because he has pleaded guilty, but it doe not, as a matter of logic, mean that she must be right in respect of Hughroy Clarke. So look at all the circumstances, the distances, the lighting and that sort of thing and ask yourself the question: are we sure that it is a safe identification that she has made? If you are not sure, then you must acquit. Only if you are sure that it is as correct identification can you go on to consider the joint enterprise aspect as put forward by the prosecution ...." Weapons 11. On 10 July 2006, in the cell of an inmate called Hutton, were found what were said to be the weapons used in the unlawful wounding. They were home-made metal spikes. Their finding was adduced before the jury. On one of them was Whitfield's blood; it also contained an additional minor DNA component which matched Lawrence. There was no blood on the other spike. None of the DNA evidence from the spikes was adduced. In other words, the jury did not know that there was evidence connecting Lawrence with what were said to be the weapons and that there was none connecting the appellant. Indeed, Mr Anning has accepted before us that in the absence of anything tying those spikes to either the appellant or Lawrence, strictly speaking, their finding was of no probative value in the case that the jury heard and should never have been adduced. 12. On 9 July 2006, swabs were taken from the hands of both Lawrence and the appellant. The taking of the swabs from the appellant was adduced. No blood was detected. Although that fact was not in terms adduced, the summing-up made it clear that there was no forensic evidence which implicated the appellant. 13. Whitfield's blood was found on Lawrence's trainers. It was also found on what was said to be Lawrence's white shirt, which had been recovered. That evidence was not adduced. 14. Clothing was recovered from the appellant on his arrest. The officer in the case told the jury that clothing was not tested for blood because it was believed that the appellant had had the opportunity to change his clothing before it was seized. Interviews with the appellant 15. On 15 November 2006, Detective Constable Breen saw the appellant. He told him, "I am arresting you for a GBH wounding with intent to cause GBH on Steven Whitfield at Dovegate Prison on 9th July 2006". The appellant was cautioned. He made no reply. That conversation was adduced before the jury. 16. On 1 May 2007, Detective Constable Morson spoke to the co-defendant Lawrence. He cautioned him and reported him for summons regarding the grievous bodily harm offence. According to his witness statement, DC Morson "also requested to speak to inmate Hugh Clarke .... regarding the same matter. However, he refused to speak to me". That conversation was adduced before the jury. 17. On 11 May 2007, DC Breen saw the appellant again. He cautioned him and said, according to the witness statement which was served, "I am reporting you for summons on .... Whitfield .... You don't have to say anything but it may harm your defence if you don't mention now something you later rely on in court". The appellant made no reply. That conversation was not adduced before the jury. 18. In summing up the interviews the judge said this: "In respect of the evidence, you know that the defendant, Hughroy Clarke, was approached by the police with a view to being interviewed and he refused to give an interview. That is his right. Nobody accused of a crime has to be interviewed if he does not want to be and, therefore, it is important for you to remember that if he has that right, you should not take it away from him. So you must not draw any inference against him from the fact that he refused to be interviewed. The fact that he has effectively remained completely silent throughout this case is no evidence against him. It simply means he has not put forward any account to rebut or to explain the account that the prosecution have put forward and the inferences that they invite you to draw." The History of the case 19. On 14 March 2008, the appellant's then solicitors served a defence case statement. The appellant denied being in Whitfield's cell when he was assaulted. It was said that at the time he was likely to have been in his own cell. Under the heading "Points of Law" the evidence of Teri Carter was objected to on the basis that by the time of her identification she had been told that the appellant was one of those who had been in the cell. 20. Subsequently there were served two undated "skeleton arguments" by those solicitors. The first sought an extension of time to apply for dismissal under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1988. The second was the application itself. In that application it was said in the first paragraph: "The defence make an application to dismiss the charges themselves on the basis that the evidence on which the Crown intends to rely is wholly inadequate and fails to establish a prima facie case against the defendant." It refers to Teri Carter having been previously told that the appellant and co-defendant were guilty of the attack. It refers to the poor quality of the CCTV recording and suggests that the facial features of the inmates there depicted cannot be made out. In relation to the DNA evidence it states: "There is DNA evidence attached .... but the DNA indicates there was no blood from the complainant on the defendant himself. There is no mention of further DNA evidence by way of clothing or fingerprints linking this defendant to the alleged assault." 21. The appellant was in custody throughout. He chose throughout not to attend every hearing of this case. He was, as we have observed, legally represented. The case was due to be heard on 1 April 2008. It was mentioned in court on 31 March 2008. The appellant was not present. The judge decided that he should continue to hear the case in the absence of the appellant and without him being represented. He said this: "The matter was ventilated yesterday and I gave Mr Clarke one more opportunity to attend and gave directions that a letter be sent to him at the prison where he is, explaining to him that I would consider the prosecution application to proceed in his absence if he did not attend, explaining to him the format of the trial that was envisaged and warning him that it was very much in his interest to attend. I have seen a copy of the letter that was sent by fax. It has been returned by the prison, endorsed with the fact that the original was handed over to him, so he has had it. The history is that Mr Clarke has been in custody throughout these proceedings. .... He has adamantly refused to attend every hearing. Until yesterday, he has been legally represented and all the pretrial hearings have been heard with those representatives present. Yesterday, his legal representatives retired from the case because they had received a letter from him withdrawing instructions. It is perfectly clear from what I was told that Mr Clarke does not wish to attend and does not wish to be represented and he knows that this case can now proceed in his absence. I have considered the criteria set out in the relevant authorities, which are summarised in Archbold at chapter 3, paragraph 198, and I am satisfied that if there was a further adjournment, Mr Clarke would still fail to attend, he would still refuse legal representation and that there is, therefore, no advantage at all in further adjourning the case to give him those opportunities. The fact that this case now is likely to proceed in his absence is entirely a matter of his own choice and, therefore, weighing up all the criteria that I have to, I have come to the conclusion that the correct decision is that the case should now proceed in his absence and I so direct." 22. We have been shown a copy of the fax referred to by the judge. It is addressed to the appellant. It states as follows: "Your case was listed today at the Crown Court sitting at Stafford, for an offence of unlawful wounding. His Honour Judge Eades has ordered that your case will proceed tomorrow morning and if you are not in attendance he will consider proceeding without you in your absence. The prosecution intend to read the following witness statements as evidence." There is then set out a list of witness statements. "The prosecution intend to call the following witnesses to give live evidence." There is then set out the names of the two witnesses it was proposed to call. The fax ends: "His Honour Judge Eades has asked that you are informed it is in your interest to attend court for this trial." It is signed by Vic Deeley, an officer of the court. 23. The appellant now disputes that he ever received that fax. He suggests through Mr Rule, who represents him, that he only received it when on 1 April 2008 he was informed that he had been found guilty in his absence. It seems to us perfectly clear that the appellant did receive the first fax and that the judge was entitled accordingly so to find. 24. Before the jury was empanelled, there was discussion between the judge and Mr Anning. Mr Anning suggested what the judge might say as to the absence of the appellant. The judge accepted Mr Anning's suggestion. At the outset he said this to the jury, which had by then been empanelled: "It is this defendant Hughroy Clarke's choice not to be at court. He is entitled not to come if he wishes. He has been told of the consequences of not attending court and is well aware that the case is going to proceed in his absence today. In addition, he has refused legal representation for the trial today. He was legally represented until yesterday when he dismissed his legal team. That is also his right and his choice. The fact that he is not here does not, of course, mean that he is guilty. The trial will take place in the ordinary way and it will be your task to decide whether the evidence produced by the prosecution proves his guilt. If it does, you will convict him. If it does not, you will acquit him. So I stress, your decision depends upon the evidence and you will draw no inferences against the defendant at all from his absence. Your task, therefore, is to concentrate on the evidence that is going to be given." The judge effectively repeated those observations at the beginning of his summing-up. He said, among other things: "So you must treat the fact that he is not here entirely neutrally. It is no evidence of guilt. If a person exercises a right, you cannot hold it against him and you must not hold it against him. You know, members of the jury, that he has been put in a full picture as to what was likely to happen today about the trial proceeding and he was given every opportunity to attend if he wished and he chose not to. The same applies to the lack of legal representation. You know that up until yesterday he was legally represented. He chose to do away with his legal representation. That was his choice, made of his own free will. Again, members of the jury, do not hold it against him that he is not legally represented. That is his choice and his decision and it does not indicate guilt or innocence in any shape or form. So please treat that entirely neutrally as well." The judge directed the jury on joint enterprise. Although in the grounds of appeal there is floated some criticism of what the judge said, Mr Rule very sensibly has not seriously sought to pursue it today. The judge made plain to the jury that the case against the appellant was one of joint enterprise; that he had not necessarily directly, according to the prosecution, participated in the attack on Whitfield. Lawrence's plea was admitted in evidence. The judge made clear to the jury that the fact that Lawrence had pleaded guilty was no evidence of the appellant's guilt; it was merely evidence that Whitfield had been assaulted. It is unnecessary to quote his precise words. The Grounds of Appeal 25. There are four grounds of appeal. The first is that the judge was wrong to proceed to try the appellant in his absence and in the absence of any legal representation; that the trial was unfair; and that it breached article 6 of the European Convention on Human Rights. Leave was not granted on that ground. It was renewed and amplified in submissions before us to this effect. It is said that the appellant had sought fresh solicitors; although he had met his present solicitors before trial, it was not until 2 April 2008 that the representation order was transferred; and that in those circumstances the matter should not have proceeded. 26. In short, the position as at 1 April was this: first, the appellant knew perfectly well that the case was to be heard; second, he knew that he could attend and make submissions; third, he decided deliberately to absent himself from the hearing; fourth, he decided to withdraw his instructions (the fact that the representation order was not formally withdrawn is in our view on the present facts irrelevant); fifth, he had not before in the course of the case attended any hearing; and sixth, the judge considered the issues raised in R v Jones [2003] 1 AC 1 . There can, in our view, be no criticism of him permitting the trial to proceed. The way the judge dealt with the appellant's absence and lack of representation 27. Although this is not said by Mr Rule to be among the two most important points, we shall deal with it next. The submission is this. The proceedings were artificial. It was incumbent upon both the prosecution and the judge to reduce the prejudice to the appellant as far as possible. Reference is made to the Judicial Studies Board specimen direction at 45A. It is unnecessary to set it out, although we have read it were care. Its terms, it is rightly submitted, were not specifically followed; some aspects were not dealt with. It is submitted that the observations made by the judge were prejudicial and heightened the burden that the appellant faced in his absence. 28. Mr Anning, who was responsible (indirectly at least) for what the judge said, told us that he suggested to the judge such directions as were given for these reasons: some explanation had to be given for the fact that the appellant was not present and nor was he represented. Mr Anning suggests that the JSB direction is largely for situations when the defendant is absent, but is represented; what the judge said was satisfactory because it made clear that the appellant's absence and the lack of legal representation was not to be held against him. That is why he suggested the direction in the terms he did. He suggests that, in the absence of such a direction in the particular circumstances of this case, the jury might have speculated about a number of matters which would have been prejudicial to the appellant. 29. A judge, of course, is not required slavishly to follow the JSB directions. He must tailor what he says to the case in hand. The judge here entirely accurately set out the position. It does not seem to us prejudicial to say of a defendant who, as is clear to everyone, is not present or represented, that that was his decision. The jury was told firmly on two occasions that they had to decide the case on the evidence that they heard, that the absence of the appellant and lack of representation did not indicate guilt or innocence in any shape or form. They were reminded of the importance to concentrate on the evidence. They were reminded clearly of the burden and standard of proof. The jury, whom we must trust, was perfectly able, in the face of the judge's observations, dispassionately, in our view, to consider the evidence. That ground of appeal therefore fails. 30. The second ground of appeal upon which leave was granted was in respect of the forensic evidence. The suggestion is that the full forensic findings should have been placed before the jury. We have indicated that there was forensic evidence implicating Lawrence, and that there was none, as the judge told the jury, implicating the appellant. The point made by Mr Rule on behalf of the appellant is that nothing was done to point the jury towards the negative forensic evidence which was consistent with innocence and a positive fact capable of lending support to the appellant's innocence. 31. Mr Anning rightly points out the judge's observation as to the lack of forensic evidence. Moreover, he rightly points out that the case against the appellant was of joint enterprise. It was not suggested that he was necessarily the user of any weapon, or that he joined directly in the attack or necessarily did so. The absence of forensic evidence, as far as he was concerned, was therefore irrelevant to the case as it was advanced. 32. As it seems to us, while it might have been preferable to spell out the forensic evidence as far as it went, and as far as the appellant is concerned, the failure to do so, given the way in which the case was put, could not conceivably render the conviction unsafe. It was, in reality, of very little probative value. Apparent errors by the judge 33. Leave was granted to argue that errors were made by the judge in relation to what he said of the appellant's refusal to answer questions in interview. We shall not repeat what he told the jury. In short it was that the appellant refused to be interviewed but that it should not be held against him. 34. On the material before it, the full court was of the view that there was nothing to suggest that any request for an interview had been made; that the request was merely to see the appellant in order to report him for the summons. 35. Mr Anning says that the prosecution, in fact, have a document dated August 2008 in which it is stated that a request was made to interview the appellant, that he refused to leave the prison, and that he became extremely violent. It does not seem to us appropriate to have regard to such information, it never having been adduced. 36. That having been said, and accepting that to some degree what was said by the judge about the interviews was not entirely accurate, what was said in the circumstances was peripheral. The appellant said nothing. The jury was told that he was entitled to say nothing. The jury was also told that it was irrelevant to his guilt or innocence. Such error as there was therefore could not in our view render the conviction unsafe. The extent to which the identification evidence was tainted as a result of the witness Teri Carter having been told in advance of viewing the CCTV footage who the perpetrators were 37. The full court granted leave to argue that point which is encompassed in the second ground of appeal, which is that identification evidence should have been excluded under section 78 of the Police and Criminal Evidence Act. The submission, again put shortly, is this. The CCTV was of very poor quality. Before she saw it, Teri Carter had been told (possibly unreliably and by way of hearsay) that the perpetrators were Lawrence and the appellant. That could well have influenced her identification of the appellant. The jury did not know about that possible influence. The matter should have been investigated. The judge should have been invited to consider whether in those circumstances the evidence should have been adduced. In the circumstances it should not have been. 38. We have referred to the fact that in evidence Teri Carter said that she had seen much clearer CCTV footage. We have also referred to the fact that we have seen the CCTV footage in the sort of quality it was seen by the jury. It seems to us, even having regard to the poor quality of the CCTV which we saw, that it would be reliably open to someone who was familiar with those who lived on the wing in question to identify them. They are shown, if Teri Carter is right, both upstairs, downstairs, and upstairs again. Additionally, she was plainly right in her identification of Lawrence. 39. It seems to us that the prosecution was entitled to rely on Teri Carter's evidence. The judge gave a careful direction concerning her evidence, to which we have already referred. Plainly it could not be adduced before the jury that she had been told what she had, for to do that would have been too prejudicial. 40. Leave was also given to argue the circumstances of, and approach to, the Turnbull direction. The first submission is that the observations just before it was given to the effect that there was "no usual contest" were themselves prejudicial and detracted from the Turnbull direction. It is also said that that direction should have been given at its correct point in the case. 41. If (and we are by no means certain that it was so) there was a need for a Turnbull direction in this case, it was in our view adequately given. The witness, after all, purported to identify on CCTV footage someone she knew well. She could see the recording again and again. She saw it on better quality equipment. Either she rightly recognised those whom she purported to identify or she did. In other words, this is not a "fleeting glance" or a Turnbull type situation. Assuming, therefore, a warning was necessary, it was in all the circumstances sufficient. 42. It is also submitted in renewed grounds of appeal that the conviction of Lawrence should not have been adduced. Reliance is placed on the decision of this court in R v Smith [2007] EWCA Crim 2105 . It is said that the admission of that conviction unfairly undermined the identification of the appellant. There was no issue but that Whitfield had been attacked. 43. We disagree. We think that the judge was entitled to admit this evidence for the reasons he gave. He carefully directed the jury regarding it. There is nothing in this ground. Leave is refuse. 44. Ground 4 suggests that the defence case was not properly put in the summing-up and that it contained errors. We have dealt with the interview issue. We have dealt with the Turnbull direction. There was, as we have already mentioned, criticism of the joint enterprise direction. That is not vigorously pursued and in any event would be wholly without substance. It seems to us that if the prosecution was right and the appellant voluntarily remained in the cell for six minutes, the jury was entitled to infer that he was present when he knew that the victim was being attacked with a weapon. Conclusion 45. For the reasons we have given, this appeal against conviction is dismissed.	[ "LORD JUSTICE GOLDRING", "MR JUSTICE McCOMBE", "SIR PETER CRESSWELL" ]	2009_05_21-1953.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1228/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1228	1,060
723268c2994d67495276e67e6eea5b8b70d0145457b3c0c501d479b12be514f0	[2024] EWCA Crim 291	EWCA_Crim_291	2024-03-01	crown_court	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 pers	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. 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IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation Number: [2024] EWCA Crim 291 CASE NOS 202103817/B2 & 202200599/B2 Royal Courts of Justice Strand London WC2A 2LL Friday, 1 March 2024 Before: LORD JUSTICE LEWIS MR JUSTICE GOOSE THE RECORDER OF LIVERPOOL HER HONOUR JUDGE MENARY KC (Sitting as a Judge of the CACD) REX V SHELDON POMMELL __________ 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) _________ DR F GERRY KC appeared on behalf of the Applicant _________ J U D G M E N T 1. LORD JUSTICE LEWIS: On 4 November 2021 in the Crown Court at Woolwich following a retrial, the applicant Sheldon Pommell was convicted of attempted murder. The jury were unable to agree a verdict on a second offence of possession of a firearm with intent to endanger life. On 26 January 2022 the applicant was sentenced to 26 years' imprisonment. 2. The applicant was refused leave by the single judge to appeal against conviction and sentence. He renews his application for leave to appeal both against conviction and sentence today. He also seeks leave to amend his grounds. He seeks leave in addition to adduce fresh evidence in the form of a number of witness statements. He has been represented today by Dr Gerry KC who has very fully developed the original grounds and the amended grounds by reference to a wide range of materials. 3. The facts can be stated shortly. On the evening of 24 August 2019 (a Saturday) a private event was taking place at a nightclub in Rupert Street, Soho, London. The applicant and another man, Richard Palmer, attended the event. They arrived at 00.30 on the morning of Sunday 25 August 2019. A fight broke out. During the course of that fight an individual was stabbed. The event was closed down and everyone was required to leave the venue. 4. Outside the venue Palmer ran down the street and shot the victim twice in the back. Palmer was charged with attempted murder. The prosecution case was that Palmer did not act alone. It was said that Pommell had assisted and encouraged Palmer. That was count 1 on the indictment. The prosecution also alleged that Pommell had had the gun in his possession at some stage during the night. That formed the subject matter of count 2 on the indictment. 5. There had earlier been a trial in relation to this incident. At that earlier trial three men were accused of various charges. First, Pommell and Palmer were charged with attempted murder. Secondly, Pommell and Palmer were charged with possession of a firearm, a .22 Beretta pistol. Thirdly, Pommell, Palmer and a third man, Roberts, were charged with transfer of a prohibited firearm. Palmer had initially pleaded not guilty to all the charges. On 10 October 2020 Palmer changed his plea and pleaded guilty to attempted murder. On 14 January 2021 he pleaded guilty to possession of a firearm with intent to endanger life. At the earlier trial Pommell pleaded not guilty to attempted murder and possession of a firearm. The jury could not reach a verdict at that earlier trial hence the need for a retrial on those two counts. 6. In relation to the third count, transfer of a prohibited weapon, this was an allegation that in the evening of 24 August 2019 Pommell, Palmer and Roberts had been together at a house in Coleridge Drive and Roberts had handed the Beretta pistol to the others. Roberts had never been at the nightclub so any transfer of the gun from him to the other two must have happened before Palmer and Pommell got to the nightclub. All three defendants were acquitted of the count of transfer of the prohibited weapon. 7. Turning to the retrial, which is the subject matter of this application, Pommell was charged with attempted murder and possession of a firearm with intent to endanger life. As indicated, the prosecution case was that Palmer was the shooter, that he did not act alone and Pommell was a secondary party as he encouraged or assisted Palmer in the attempted murder. The prosecution also alleged that Pommell had been in possession of the gun that evening in the nightclub and he (Pommell) had handed it over to Palmer outside the club. 8. The prosecution relied upon a number of strands of evidence. Among them was CCTV footage from inside and outside the nightclub and video footage from dash board cameras from cars in the street. The prosecution said that the footage showed Pommell and Palmer standing by Pommell's car and showed Pommell pointing up the street, Palmer running up the street, stopping, looking back to Pommell, Pommell pointing and then Palmer shooting the victim twice. The prosecution also relied upon Pommell's failure to give evidence at trial as evidence supporting their case. 9. The defence case was that the applicant knew nothing of any planned violence. He did not participate or direct or encourage Palmer to shoot anyone. He was not aware that Palmer had a gun. He relied on a number of witnesses. These included the co-host of the party who was standing by Pommell outside the nightclub later. That person said he did not see the applicant with the gun and that he did not consider the applicant had encouraged Palmer to shoot anyone. 10. Critically, Palmer (the man who admitted shooting the victim) was also called as a witness on Pommell's behalf. He gave evidence that he had shot the victim and that Pommell was not involved. Palmer said that he (Palmer) had bought the gun because he was worried for the safety of his family as he owed money for drugs. He refused to say where or from whom he had obtained the gun. He said the gun was in his bag which was in Pommell's car. He said that he and Pommell had been standing together by the car and they had got into the car at one stage prior to the shooting as he (Palmer) wanted a cannabis grinder. Palmer said that when they were standing by the car subsequently, Pommell was pointing and was saying something like: "Look, there's something going on." Palmer said that he then run up the street, saw a friend of his fall to the ground, was told the friend had been stabbed and so he shot the victim thinking that the victim had stabbed his friend. 11. Palmer was cross-examined on a number of matters. These included the fact that he had been talking to Pommell by the car, that Pommell was pointing down the street, that Palmer had run down the street looked back at Pommell and then turned and shot the victim. It was put to Palmer that in his defence statement made prior to his change of plea to guilty to attempted murder, Palmer had said that he had taken drugs and alcohol and was paranoid. He had heard men screaming and shouting and so ran towards the noise and shot one of them. It was put to him that he had never said in his defence statement anything about him having shot the victim because he believed erroneously that the victim had stabbed his friend. He had never said anything about being told that his friend had been stabbed. He was also asked about the shooting itself. Palmer said that he had taken the gun from a bag he was carrying and he had shot the victim. He was asked when he loaded the gun. Palmer said that it had been loaded earlier in that evening before he had left the house and he had carried it loaded throughout the evening even though it did not have a safety catch. It was put to him that he was giving evidence now at Pommell's bidding in effect to exonerate Pommell but he effectively denied that. 12. At one stage the defence applied to admit evidence of the fact that Palmer had been acquitted at the first trial of the offence of transferring the gun. The judge refused leave to adduce the evidence of the acquittal. 13. On the attempted murder charge the issues for the jury were identified by the judge as follows: 1. Were they sure that the applicant Pommell was aware that Palmer had a gun in his possession when he set off up the road? 2. If they were sure that Pommell knew Palmer had the gun, were they sure that he shared the intention with Palmer that the gun should be used to kill? 3. Did the applicant encourage or assist Palmer in the carrying out of the joint venture with the intention of killing the victim? 14. In relation to count 2 and possession of a firearm with intention to endanger life, the judge identified the issues for the jury as follows: 1. Did the applicant possess the Beretta pistol? 2. Did he intend at any stage during the night of 24/25 to endanger life? 15. The jury convicted the applicant on count 1, attempted murder, but were unable to reach a verdict on count 2. 16. The applicant was sentenced on 26 January 2022 to 26 years' imprisonment. It was agreed and the judge accepted that the case fell within Category A2 of the Sentencing Council Guidelines for attempted murder. The judge considered that the applicant was the prime mover and the motivator behind the attack. The judge also considered that there was a degree of planning as the gun was brought to the scene. She considered that the applicant did have a gun in his possession in the nightclub during the course of the night, notwithstanding the fact that the jury had been unable to reach a verdict on that matter. The judge noted that the applicant had no previous convictions for violence. The starting point under the recently issued guidelines was 30 years. The judge took into account that various matters had led to the sentencing of Pommell taking place after the introduction of those guidelines, whereas Palmer had been sentenced under earlier guidelines. She considered the sentence she had imposed in Palmer's case where she had taken a starting point of 24 years and then reduced that to reflect the particular mitigation in Palmer's case. She the imposed a sentence on Pommell of 26 years' imprisonment. 17. We deal first with the application for leave to appeal against conviction. We start with consideration of the question of the safety of the conviction. The applicant originally applied for leave to appeal against conviction on two grounds. Leave to appeal was refused by the single judge. The applicant instructed fresh counsel and made a renewed application with additional grounds. The first ground is that the judge was wrong not to allow the defence to adduce details of Palmer's acquittal at the trial. In the first set of grounds, also adopted by Dr Gerry today, it was put on the basis that whilst it was proper to cross-examine Palmer on matters to do with the contents of the defence statement, it was correct and proper in that context to adduce the details of the first trial and the acquittal. In the revised grounds it is put on the basis that if the acquittal at trial of the applicant had been admitted in evidence it would have demonstrated that Palmer must have been believed by the jury. 18. Dr Gerry expanded on those submissions this morning. Her essential submission was that the prosecution had explored the possibility of the transfer of the gun in a number of ways during the trial and she submitted it was therefore relevant for the jury to hear about the acquittal on the transfer of the gun and secondly that it would have undermined the prosecution case and support Mr Pommell's case. On the second way of putting it, it is submitted that had the jury known of the acquittal of Mr Palmer that would or might have boosted his credibility in the eyes of the jury. 19. We see no basis in this ground of appeal. The first point to note is that the question of the acquittal in relation to the transfer of the gun concerned the question solely of whether the gun had been handed over to Pommell and Palmer by Roberts on the evening of 24 August 2019. Although Dr Gerry refers to parts of the summing-up at the first trial which records Mr Pommell's case that he denied having the gun at any stage in the night, it is clear that the issue at the first trial must have included transfer prior to the nightclub because Mr Roberts never went to the nightclub. The first point to note then is that the acquittal related to the question of transfer from Roberts to Pommell and Palmer which logically is likely to have been at Coleridge Drive and not at a later stage in the evening. 20. Secondly, as a general rule, evidence of an acquittal is not admissible as it is not legally relevant. That is the position here. The fact that the jury in the first trial were not sure that the gun was handed over by Roberts earlier on in the evening of 24 August 2019 is not legally relevant to the events concerning the shooting in the early morning of 25 August 2019. 21. Thirdly, there is no question of the matter going to the credibility of Palmer. He did not give evidence at the first trial and there could have been no possibility of a jury having believed what he said in evidence for the simple reason that he did not give evidence. 22. The second ground of appeal in the original grounds was that the summing-up was unfair. That ground was essentially an assertion that the judge had focused not on what Palmer's evidence was but dealt largely or exclusively with the criticism of it by the prosecution. In the perfected original grounds attention is drawn to three particular comments made by the judge. Dr Gerry in oral submission this morning took us to other passages in which it is submitted that the judge gave an unbalanced and flawed approach which in effect prevented the jury from fairly assessing Palmer's evidence. 23. We have read the entirety of the summing-up. The judge very clearly set out the nature of the applicant's case early on in the summing-up. She said that the applicant through counsel and his witnesses said that he knew nothing of any planned violence. He said he did not participate, far less direct, organise or encourage Palmer or anyone else for that matter to do harm to anyone that night. The judge identified the critical issues in the case. She then summarised the prosecution evidence. In relation to the fact that the applicant was pointing up the street, she reminded the jury of the evidence that others were also pointing. She dealt with the evidence called on behalf of the applicant, starting with Mr Sinclair and then the Entessania sisters. The judge then dealt with the evidence of Palmer. She explained why the jury had heard evidence of Palmer's criminal convictions. She summarised his evidence-in-chief including how he said that he acquired the gun. She reminded the jury that Palmer had said that Pommell had picked him up and Palmer had not told him that he, Palmer, had a gun. Palmer said the gun was in his bag and that was in the car. She reminded the jury that Palmer's evidence was that he saw his friend in a commotion, that the friend stumbled into the road and someone had told him that the friend had been stabbed. She reminded them of Palmer's evidence that at this point all that Pommell had said to Palmer was: "Look, what's happening." She reminded the jury that his evidence was that he (Palmer) then ran up the street and shot the victim because he believed the victim had stabbed his friend. The judge therefore fully set out Palmer's version of events. She explained that the thrust of the cross-examination was about what they, the jury, had to decide, that is what happened in Rupert Street and the nightclub. She itemised some of those issues: Why had Palmer chased anyone? Why did he get close enough to ensure that he would hit somebody? And why was his account now different from the account that he had initially given. The judge referred to other matters with which the cross-examination had been concerned. 24. We have read the passages about which particular complaint is made. We are satisfied that there is no justifiable basis for criticising the fairness of the summing-up. Both the prosecution case and the defence case were put to the jury. It was made clear that it was for them to decide what they were sure happened that night. The evidence of Palmer was fairly summarised and the jury were left to consider the truthfulness of his account. This ground of appeal is not arguable. 25. We turn then to the new further grounds of appeal. It is said that the judge failed accurately to direct the jury and in particular failed to direct them on the law of commands and the need for a causative link, as Dr Gerry put it, between the order or the instruction that Pommell was alleged to have given and the actions of Palmer in shooting the victim. 26. We have had some difficulty in understanding this ground of appeal. We have summarised the issues that the judge set out already. They were that the jury had to be sure that the applicant, Pommell, was aware that Palmer had a gun, that they had to be sure that Pommell the applicant shared the intention with Palmer that the gun should be used to kill and that they had to be sure that the applicant encouraged or assisted Palmer in the carrying out of the joint venture. We note that the directions were agreed by the prosecution and the defence counsel at trial. The applicant's trial counsel has been asked for his comments on this matter and he confirms that the defence did not consider the directions to be deficient. Dr Gerry this morning put her case on this matter essentially in one of two ways. First, she submitted that in the way that she analysed the way the case had been put by the prosecution it was a critical part of the case that Pommell transferred the gun to Palmer and instructed or ordered Palmer to go and shoot the victim. The first way in which we understood Dr Gerry to put the case was that, given that factual matrix, the directions about encouraging and assisting were insufficient and there had to be directions tailored to Dr Gerry analysis of the case, that is what she described as the issues of command and causation. The second way that Dr Gerry put the case was that the directions the judge gave were simply incorrect as a matter of law. The thrust of that submission appeared to be that on analysis the assistance and encouragement in this case did amount to commanding or procuring the murder and therefore the judge should, as a matter of law, have given the directions required as if the indictment had included a a charge of procuring. 27. We have read the directions given by the judge. We do not accept the submissions of Dr Gerry. We do not see that the directions were in any way deficient. They made it clear that the question was whether the jury were sure that the applicant Pommell knew that Palmer had a gun, that Pommell intended the gun be used to kill someone and that Pommell encouraged or assisted Palmer in that enterprise. The case was not that the applicant procured the commission of the offence, it is that he participated in it with the necessary intention by encouraging or assisting the commission of the offence. This ground of appeal is not arguable. 28. Next it is said that the conviction is against the weight of the evidence and that the outcomes are inconsistent. We do not see any realistic basis for this argument. The verdicts are in fact perfectly consistent. The jury were sure that the applicant encouraged or assisted in the attempted murder by Palmer of the victim. They were not sure that Pommell possessed the gun with intent to endanger life. The verdict is not against the weight of the evidence. 29. For those reasons, we do not see that any of the grounds of appeal against conviction are arguable. For completeness we note that we have read the new evidence which the applicant seeks to adduce. We have heard submissions from Dr Gerry on the new evidence. We are not satisfied that it satisfies the criteria under section 23 of the Criminal Appeal Act 1968 and we would not admit it. The new evidence does not in any way event cast any doubt on the safety of the conviction. 30. Turning to sentence, the applicant was convicted of an offence of attempted murder. The judge correctly categorised this as a Category A2 case under the sentencing guidelines applicable at the time of the sentence. Those guidelines provided for a starting point of 30 years' imprisonment and a range of 25 to 35 years' imprisonment. The judge considered that the applicant was the prime mover in this crime. Palmer fired the gun and shot the victim. But the judge considered Pommell was the main motivator behind the attempted murder. We see no inconsistency with that conclusion and the finding that he was a facilitator in the sense of assisting or encouraging Palmer. It is perfectly possible to assist and encourage but in reality to be the main motivator behind the attempted murder. Having conducted the trial, the judge was well-placed to assess the relevant culpability of Palmer and Pommell. She was well-placed to assess the fact that the prime mover in this attempted killing of a man was the applicant Pommell. 31. We doubt that the judge was entitled to take into account her view that the applicant had a gun in the nightclub given that the jury had not convicted him of that offence and had been unable to reach a verdict on that offence. We do not think it was helpful of the judge to speculate as to why the jury were unable to reach a verdict on count 2. But having said that, the question for this court is whether the sentence is manifestly excessive. We do not consider that it was even arguably manifestly excessive. It was well within the guidelines. It was below the starting point. There was no inconsistency with Palmer. The starting point in his case was 24 years before the particular mitigation in his case was taken into account, rather than 26 years, and although he did the actual shooting the judge was satisfied that the applicant was the prime mover behind the attempted murder. A sentence of 26 years is well within the appropriate sentencing range and is a just and proportionate sentence for this offence of attempted murder. We refuse permission to appeal against sentence. 32. For those reasons the applications for leave to adduce fresh evidence and the applications for leave to appeal against conviction and sentence are refused. 33. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 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70cc6c3a1e998f188b61019928a6c438af53e188853e65b649f5ce4f1b7897f7	[2018] EWCA Crim 798	EWCA_Crim_798	2018-03-13	crown_court	Neutral Citation Number: [2018] EWCA Crim 798 Case No:2017/02873/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 13 th March 2018 B e f o r e: LORD JUSTICE GROSS MRS JUSTICE LANG DBE and SIR PETER OPENSHAW _________________ R E G I N A - v - RACEY JAKER McDONALD ____________________ Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No	Neutral Citation Number: [2018] EWCA Crim 798 Case No:2017/02873/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 13 th March 2018 B e f o r e: LORD JUSTICE GROSS MRS JUSTICE LANG DBE and SIR PETER OPENSHAW _________________ R E G I N A - v - RACEY JAKER McDONALD ____________________ Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) ____________________ Mr J Arsenio appeared on behalf of the Appellant Miss A Felix appeared on behalf of the Crown ______________________ J U D G M E N T ( Approved ) LORD JUSTICE GROSS: 1. On 19 th May 2017, following a trial in the Central Criminal Court before His Honour Judge Marks QC (the Common Serjeant of London) and a jury, the appellant, Racey McDonald (now aged 30), was convicted of inflicting grievous bodily harm (count 1) by a majority of 10:2, and of having an offensive weapon (count 3) unanimously. He was acquitted of having an offensive weapon (count 2), and no evidence was offered against him on certain other counts. 2. On 16 th June 2017 he was sentenced by the trial judge as follows: on count 1, 42 months' imprisonment; and on count 3, six months' imprisonment to run consecutively. The total sentence was, therefore, four years' imprisonment. Various other orders were made which do not need repetition here. 3. The appellant appeals against conviction by leave of the single judge. 4. Although there has been some debate between counsel about the precise facts as they are set out in the Criminal Appeal Summary, nothing turns on the disagreements and so we take the facts from the Summary. They will in no sense prejudice our view of the matter. 5. On 22 nd November 2016, the complainant, David Roberts, went to the Cash Converters store in Sutton with his two brothers, Vincent Roberts and Dean Cable. The complainant left the store to have a cigarette. He became involved in a verbal argument with the appellant who was outside with his girlfriend and her young son. Eventually the appellant walked away and the complainant and his brothers headed home. 6. The complainant and his brothers saw the appellant again on Lodge Place. The appellant ran towards them and a physical altercation took place during the course of which the complainant produced a small knife. The appellant then stabbed the complainant in the armpit (count 1). The appellant made away from the scene on a bicycle and the police were called. The complainant told the police that the appellant had stabbed him with a large kitchen knife that he had been carrying (count 2). 7. The complainant, who was bleeding heavily, was taken to hospital. He was found to have a deep laceration to his right axilla which required emergency surgery to repair major blood vessels and nerves. 8. The following day the appellant's car (a Volkswagen Polo), which had been connected to the incident, was traced and found in the McDonald's restaurant car park at Gatwick Airport. At 11.15pm the appellant was arrested. When he was interviewed he said the following. He accepted that there had been an argument. He had gone to look for his girlfriend, having fetched his car because he was concerned that she and their son were in danger. He was attacked by the complainant's group who were all armed with knives. One of them dropped a knife which he (the appellant) picked up and used in self-defence. He had been surrounded by the group and the guy ran into it. He would not say where the knife was or whether that which was retrieved from his car was the knife. In short, his defence was a combination of accident and self-defence. 9. The appellant's car was searched. A carving knife with a 20.5cm long blade was found in the boot (count 3). The knife, which had no bloodstaining or fingerprints on it, was forensically examined, but the DNA results were of such a low level that no meaningful comparisons with DNA profiles could be made. 10. The prosecution case in relation to counts 1 and 2 was that at all material times the appellant was in possession of a large kitchen knife. During the altercation with the complainant, the appellant used this knife to inflict grievous bodily harm upon the complainant. 11. The prosecution case in relation to count 3 was that on 23 rd November 2016, the appellant was in possession of the knife found in the boot of his car at Gatwick Airport. 12. The defence case in relation to counts 1 and 2 was self-defence or accident. The appellant picked up the knife that the complainant had dropped and held it out in order to defend himself. The appellant was at no point in possession of a large kitchen knife. 13. The defence case in relation to count 3 was that the appellant had acquired the knife found in the boot of his car for carving meat at Christmas. It will be recollected that the knife was found on 23 rd November. It was not the same knife that had been used in the stabbing. 14. The issue for the jury in relation to count 1 was whether the appellant had acted in self-defence and/or whether the complainant was stabbed by accident. The issue for the jury in relation to count 2 was whether the appellant was in possession of a large kitchen knife on 22 nd November 2016. The issue for the jury in relation to count 3 was whether or not the appellant was in possession of the knife found in his car on 23 rd November 2016 for the purpose of carving meat at Christmas. 15. The judge summarised the critical issue on count 1 as follows: "The critical and central issue in the case revolves around the issue of self-defence or accident. The [appellant's] case is in effect a mixture of the two. That is, that he picked the knife up that David Roberts had dropped and held it out with an outstretched arm to defend himself and that David Roberts then ran on to it, i.e. accident or self-defence. The law of self-defence is really just common sense. … The [appellant's] case is really a mixture of accident and self-defence … He says he picked the knife up off the ground which David Roberts had been wielding, held it out at arm's length in effect to defend himself and that David Roberts then walked on to the knife or ran on to the knife… If you think that this account is or may be true, he is entitled to be found not guilty. Because the prosecution must prove his guilt, it is for the prosecution to make you sure that he was not acting in self-defence and that this was non-accidental; it is not for him to establish the contrary. You must consider the matter of self-defence in the light of the situation that he honestly believed he faced. …" 16. The jury were directed, with the agreement of all concerned, to approach each count separately. The judge carefully prepared a set of written legal directions. Direction 2 reads as follows: "2. You must consider each count separately. Your verdicts on each of the counts may be the same (be it guilty or not guilty); alternatively, your verdicts may be different. You will of course appreciate in this regard that each count represents separate alleged criminality and it follows that the evidence in relation to each count is different, hence why separate consideration of each is required." 17. At page 8 of his summing-up the judge gave directions on both count 2 and count 3. He reminded the jury that count 2 referred to the incident on 22 nd November. The issue was in relation to the large knife which was used to stab the complainant. The question was to whom it belonged. As the judge put it: "If you think it belonged to David Roberts or one of his brothers and the [appellant] picked it up off the ground so as lawfully to defend himself – [or] that may be the position – he would not be guilty of count 2, since in these circumstances he would have had a reasonable excuse for being in possession of it and using it in the manner that he did. Conversely, if you are sure that it was the [appellant's] knife and that he had armed himself with it in the period prior to the confrontation and intended to cause injury, should the need for it arise, then on the facts of this case he would be guilty of this offence." 18. The judge next turned to count 3. The judge emphasised that this was "a completely separate allegation" relating to the recovery of the knife from the appellant's car on 23 rd November. The judge recounted the rival arguments, including the appellant's explanation that he had acquired this knife and left it in the car with a view to cutting chicken or duck at Christmas. This was a different knife from that involved in the stabbing. The prosecution case was that it was the same knife. The judge gave a careful direction as to how the jury should approach count 3. 19. Pausing there, we observe that, at least with hindsight, the need for count 2 is not apparent. It adds nothing to the allegations on count 1. Secondly, although the judge posed two alternatives at page 8 of the summing-up with regard to count 2, the jury was not bound to accept either factual alternative. 20. The appellant, as we have recounted, was convicted on counts 1 and 3 and acquitted on count 2. When he came to pass sentence, the judge expressed the matter this way: "These charges all arose out of an incident which occurred in the early evening of 22 nd November 2016 in Sutton. Outside the Cash Converters shop you got into an argument with a man by the name of David Roberts. The argument appears to have been utterly trivial … Where exactly the fault lay for this argument is difficult to discern and it may be that there was an element of fault on both sides. You walked off with your partner, Leah Jones, and your young stepson but you continued looking back at David Roberts who was with his two brothers. You went back to your vehicle but then ended up returning to the High Street and then on to a side road. On that side road (Lodge Place) you are seen on the CCTV footage running down the road and then confronting the three Roberts brothers. Matters quickly came to blows between you and David Roberts and you ended up stabling him. You rode away on a bike that you took from a young boy …. The police had become aware of the registration plate of your vehicle and you were stopped and arrested the following evening. Hidden inside the boot of your car at this time was a substantial kitchen knife (that being the subject matter of count 3). David Roberts himself was in possession of a knife at this time and he accepted in evidence that at the beginning of the fighting in Lodge Place he had produced that knife. He explained that he had it in his possession because of a recent burglary at his home and the fact that his brother had been threatened a few days earlier. Your case was that you were not yourself in possession of a knife at all. You asserted that David Roberts dropped his knife which you then picked up off the floor and wielded in front of him in order to ward him off, and that he ran on to the knife which you were holding with an outstretched arm. Accordingly, you claimed that his was a mixture of accident and self-defence. The case for the prosecution however was that, although David Roberts had produced a knife, you had your own knife and that it was that knife that was used to cause the injury; and moreover that it was that same knife that was recovered by the police from your vehicle the following evening. … I am entirely sure, to the criminal standard of proof, that the knife used to inflict the injury was yours and was the same knife that was recovered from your vehicle (cf. count 3). In particular I found the evidence of Aaron Lintott extremely compelling. He was a 14 year old boy who was an independent witness to these events and he gave a vivid description of your removing a large knife from the groin area of your trousers. I have no doubt that he was a reliable and honest witness." The judge then recounted further evidence as to the knife and as to it being the same knife that was found the following day. He continued as follows: "In my judgment your acquittal on count 2 is not inconsistent with the verdict of the jury on count 1, nor with this interpretation of the facts. On count 2 you were specifically indicted with having an offensive weapon in Lodge Place. In paragraph 26 of my legal directions I directed the jury: 'the carrying of an offensive weapon as a general precaution, to use in case of attack, is not permissible; it may though be a reasonable excuse that the carrier is in anticipation of imminent attack and is carrying it to defend himself if that should arise'. Given the trouble there had been between you and David Roberts a few minutes earlier, in my judgment the verdict of the jury on count 2 is consistent with their conclusion that you had returned to the vehicle and armed yourself because you were in fear of further imminent trouble from David Roberts and his brothers, and had armed yourself in anticipation of such trouble at a time when you had gone out to look for your partner and her son from whom you had become separated and for whose safety you were concerned. Such an interpretation of the verdicts of the jury is not inconsistent with their conclusion on count 1 on the basis that you did then use the knife unlawfully but, given that only one wound was involved, you did so without an intention to cause really serious bodily harm. Accordingly, I intend to sentence you on that basis." Later in his sentencing observations, the judge added that he also accepted that the complainant and his brothers had been far from blameless in the incident. As the judge had observed, the complainant was in possession of a knife and it would have been open to him and his brothers simply to walk away. They did not do so. 21. We turn to the rival cases. Essentially, the point raised on behalf of the appellant is that this was a case of inconsistent verdicts. As put in his written submissions and as succinctly developed in his oral argument today by Mr Arsenio, the appellant's acquittal on count 2 could only mean that the jury believed his account: namely, that the knife was not his knife, but a knife belonging to David Roberts which he picked up at the scene. Even if the jury were of the opinion that this was a knife that the appellant had taken from his car and at the moment he entered Lodge Place he was justified in having it because there was a risk of an imminent attack, when he used it his possession of the knife would have lost all legitimacy, unless he had been acting in self-defence. Mr Arsenio thus focuses on what was (as he put it) the temporal coincidence between the events comprising count 1 and count 2. Accordingly, Mr Arsenio submitted that the verdicts of guilty on the alternative count of causing grievous bodily harm (count 1) and not guilty on the possession of an offensive weapon (count 2) were inconsistent with one another. Mr Arsenio argues that the jury were clearly confused and the result was that the conviction on count 1 was unsafe. 22. For the Crown, Miss Felix submitted that the test was that to be found in R v Fanning [2016] EWCA Crim 550 ; [2016] 1 WLR 4175 . We shall return to that authority in a moment. It was clear by their verdict that the jury were satisfied that the appellant did not act in self-defence and that the injury was not the result of any accident. She canvassed a number of possible factual scenarios for the jury's verdict. It did not follow from the acquittal on count 2 that the verdict on count 1 was unsafe. It was entirely in accordance with the judge's direction and also the fact that the judge had specifically directed the jury to consider each count separately. It was, she submitted, possible to postulate a legitimate chain of reasoning which explained the jury's verdicts. Discussion The Law 23. The law in this area has recently been authoritatively clarified in Fanning after an extensive consideration of earlier case law. The test, based on an unreported judgment of Devlin J (as he then was) in R v Stone (13 th December 1954), is helpfully summarised in the headnote in Fanning : "Where inconsistency between verdicts was advanced as a ground of appeal against conviction, the burden was upon the defendant to satisfy the court that the two verdicts could not stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion; that if the jury could not have reasonably have come to the conclusion the convictions could not stand; that the test did not require elaboration and the verdicts of the jury were not to be treated as inconsistent simply because the jury had been sure about some parts of the evidence given by a witness but unable to be sure to the requisite standard about others; and that, accordingly, since in each case the defendant had failed to discharge the burden of proving that the verdicts of conviction on some counts and acquittal on others were logically inconsistent, the convictions were not unsafe." As the court made clear in Fanning , elaboration is unnecessary and to be avoided. 24. Two further matters emerge clearly from Fanning . First, the starting point is the constitutional role of the jury and the need for an appellant to persuade this court to set aside a verdict as unsafe. As the court observed ( Fanning at [16]), the merit of the test established by Devlin J was that it recognised the constitutional position of the jury, whilst providing the necessary safeguard for a defendant. Secondly, before concluding that the verdicts are so inconsistent as to demand interference by an appellate court ( Fanning at [8]), it may be helpful to consider whether the jury simply followed the judge's direction to consider separate counts separately, or took a "merciful" or " ameliorative" view of the facts of one count: see the passage from a judgment of the High Court of Australia in Mackenzie v R (1996) 190 CLR 348 at pages 366 to 368, cited with approval in Fanning at [11] and elsewhere. The application of the law to the facts 25. At the outset count 3 can be put to one side. It is a wholly separate count and does not give rise to any concerns as to inconsistency. There can be no doubt that the conviction on count 3 was safe. Count 3 does not, however, provide assistance in resolving the issue which arises on this appeal as to the suggested inconsistency between the verdicts on counts 1 and 2. 26. The real issue on this appeal relates to the guilty verdict on count 1 and the acquittal on count 2. The short point is that made by the single judge when giving leave: namely, at the moment of stabbing the guilty verdict on count 1 must also entail guilt on count 2. The fear of imminent further trouble, which may have provided the appellant with a defence on count 2 up until then, must by the jury's verdict on count 1 have been superseded. 27. For our part, while following the premise of the argument advanced by Mr Arsenio and the considerations of strict logic, which prompted the giving of leave, we are wholly unable to go further and to conclude that the appellant's conviction on count 1 was unsafe. Bluntly expressed, any inconsistency between the jury's verdicts on counts 1 and 2, if such there be, only assists the appellant if it points to the conviction on count 1 being unsafe, rather than an error in the appellant's favour on count 2. In our judgment, the insuperable difficulty facing the appellant is that, however analysed, there is no such pointer to jury confusion as to count 1, or the unsafety of the conviction on count 1. 28. First, and without opposition at the hearing, the judge gave the jury the direction that separate counts were to be considered separately. The jury plainly followed that direction. Against this background, and even if not itself decisive, it is difficult to conclude that the jury's verdicts were inconsistent within the meaning of Fanning so as to require this court to interfere. 29. Secondly, the judge directed the jury very clearly on count 1 and the key issue or issues relating to it. We have set out the relevant passage. The jury carefully considered count 1. They acquitted the appellant on the section 18 offence, before convicting him on the alternative section 20 offence. There is nothing whatever to suggest, let alone establish, that the jury's verdict on count 1 was unsafe, taken by itself. In particular, there is simply no plausible basis for suggesting that the jury's rejection of the combination of accident and self-defence, which comprised the appellant's defence, was the result of confusion or was otherwise unsafe. 30. Thirdly, having once rejected accident and self-defence, the only realistic factual routes to the jury's verdict, whatever their errors as to count 2, in no way impact on the safety of the conviction on count 1. Thus: (1) The appellant was not in possession of a knife until he picked it up from the road, having been dropped by the complainant. He then used it to inflict serious injury, without the intention for section 18. The factual matrix is in part consistent with the defence case of having picked up the knife. (2) Alternatively, in accordance with the judge's factual basis for sentence, the appellant did arm himself before he entered Lodge Place. He did so because he anticipated imminent attack and was carrying it to defend himself. Once at the scene, he stabbed the complainant in circumstances which negated accident and self-defence, but without the intent for the section 18 offence. That such an interpretation of the facts was not advanced by either party is neither here nor there. It can readily be seen why this version was not attractive to either the complainant or the appellant. Importantly, neither of these scenarios casts any doubt whatever on the safety of the appellant's conviction on count 1. 31. Fourthly, for our part, such difficulty as has arisen was either attributable to the jury taking the view that the section 20 offence encompassed the fleeting moment when possession of the knife was unlawful, or that the jury took a merciful or ameliorative view of count 2, having once convicted the appellant on count 1. On either footing, and whatever the error on count 2 in the appellant's favour, the safety of the conviction on count 1 is not imperilled. To hold otherwise would involve the tail of count 2 wagging the dog of count 1. 32. In the circumstances, we are not persuaded that the verdicts of the jury on counts 1 and 2 were inconsistent within the meaning of Fanning , such as to demand interference by this court. Accordingly, this appeal is dismissed. _____________________________________	[ "LORD JUSTICE GROSS", "MRS JUSTICE LANG DBE" ]	2018_03_13-4205.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/798/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/798	1,062
c3e7d6054d3ac47b92ab3138fc9e115ecbe47229455bd992b91d0fe324534dfc	[2023] EWCA Crim 893	EWCA_Crim_893	2023-07-18	crown_court	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 pers	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 893 No. 202203625 A1 Royal Courts of Justice Tuesday, 18 July 2023 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE GARNHAM HIS HONOUR JUDGE LICKLEY KC REX V STEVEN PAUL CRAIG __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ Mr C. Tehrani KC appeared on behalf of the Appellant. Mr R Pakrooh appeared on behalf of the Crown. _________ JUDGMENT LORD JUSTICE WILLIAM DAVIS: 1 Steven Craig is now aged 59. In about 1995, when he was in his early 30s, he began a relationship with a woman named Jacqueline Kirk. (For ease of reference, we shall refer to them by their surnames only. No discourtesy is intended thereby.) Kirk was born in 1957, so she was about seven years older than Craig. Their relationship was volatile in that Craig used violence against Kirk. From time to time, her family saw her with bruises on her face. She once suffered a cracked cheekbone. On one occasion he had gone into her bedroom with a can of petrol. He poured the petrol over her and threatened to set it alight. Overall, his behaviour towards Kirk was controlling. At least some of his actions and behaviour were the result of drug and alcohol abuse on his part. 2 On 15 April 1998, Craig was with Kirk at Bath Railway Station. He was violent and threatening towards her. He then locked her in a toilet cubicle at the station and abandoned her. She was only found some hours later by a cleaner. Two days later, Craig told Kirk that he was taking her to Plymouth in his car. She agreed to do so, so as to not upset him. They left Bath. En route, Craig stopped at a petrol station. He filled an empty Coke bottle with petrol. Craig then diverted to Weston-Super-Mare. During that part of the journey he struck Kirk repeatedly even though he was driving at the time. Once they arrived in Weston, Craig appeared to calm down. They slept in the car overnight in Weston. 3 On 18 April 1998, Craig and Kirk were still in Weston. They were sitting in the car in a car park. Craig was expressing his anger in relation to Kirk's previous boyfriends. He said he was going to torture Kirk. He hit her in the mouth, drawing blood. Anticipating another beating, Kirk bent her head over as she sat in the passenger seat. In fact, Craig poured the petrol which was in the Coke bottle over her head and neck. Kirk got out of the car as did Craig. He had a cigarette in his hand. He suggested that Kirk should have one, as it may be her last. With that, he held the flame of the lighter close to her face. The petrol ignited, causing dreadful injuries which we shall describe in detail shortly. Craig's reaction was to tell Kirk to keep away from him. He apparently was concerned that he should not get burned. He did nothing to help Kirk, by trying to extinguish the flames or otherwise. 4 Initially, Kirk did not make a complaint against Craig. He told lies, saying the offence had been an accident which had occurred when Kirk had spilled petrol on herself and then lit a cigarette. 5 The relationship between Craig and Kirk, perhaps unsurprisingly, came to an end after the attack on 18 April. 6 Craig took up with a new partner. In January 1999 he raped his new partner and caused her grievous bodily harm with intent. He caused those injuries by repeatedly beating his victim with a wooden slat. However, in the course of the attack he did pour lighter fuel over her face and threatened to ignite it. In the end, he did not carry out the threat. Those offences were committed against the background of the victim wishing to end the relationship with Craig in favour of someone else. 7 When Kirk learned of what Craig had done to his new partner, she told the police exactly what had happened to her. Thus, in due course, Craig stood trial for causing grievous bodily harm to Kirk and for raping and causing grievous bodily harm to the new partner. He was convicted by a jury of all three counts. 8 The trial judge's sentencing remarks in 2000 were brief. She said that it would be difficult to conceive of a more horrendous offence than the one committed against Kirk. She said that the consequences of the offence would be with her for the rest of her life. The judge said that Craig had inflicted appalling injuries on the new partner. Though they were not to be minimised, they did fall into a different standard to those suffered by Kirk. The judge found that Craig presented "the gravest danger to the public". That is, in summary form, the substance of the judge's sentencing remarks. She imposed a sentence of life imprisonment in relation to each offence. The minimum term was nine years less time spent on remand. She identified the notional terms in relation to the individual offences as 18 years in respect of the attack on Kirk, and six and eight years in relation to the offences against the new partner. It would appear though that the overall sentence must have been aggregated to reflect all offending. 9 Returning to the injuries sustained by Kirk, they were life threatening and life changing. She was transferred from a hospital in Weston to a specialist intensive care unit in Bristol where she remained for three-and-a-half weeks. She had significant external burns on 35 per cent of her body, including face, neck, chest, hands, torso, upper thighs and buttocks. The burns meant that she was unrecognisable. She had severe inhalation injuries. Her mouth, respiratory tract and lungs were burned. Her vocal chords were left in a fixed and closed position. After two weeks, a tracheostomy was inserted. This allowed her to continue breathing unassisted but it by-passed her vocal chords. She did eventually learn how to speak but only very softly and with difficulty. The tracheostomy remained in place until her death. Kirk was in hospital altogether for eight-and-a-half months after the injuries were inflicted, during which time she underwent 14 operations. 10 Kirk had a son and a daughter. In 1998 the son was aged 22 and the daughter was aged 13. Both made victim personal statements after Kirk died. They described the horror of seeing their mother in hospital in the aftermath of the attack. They said their mother was in constant pain with itching from the scarring being particularly troublesome. Eating was a struggle. Their mother slept badly and suffered nightmares. She was frequently depressed. Nonetheless, she had made a life for herself despite the effects of the injuries. She did have to go to hospital on many occasions, particularly when she suffered a chest infection. 11 In August 2019, Kirk was admitted to hospital. She was seriously ill. Her intestines were swelling and herniated. As a result, pressure was being placed on her diaphragm. Had she been fit for surgery, it would have been possible to relieve the pressure; she was not, because of the injuries she suffered in 1998. Because her chest and abdomen were not able to expand, the diaphragm was fatally ruptured. On 23 August 2019, Kirk died. 12 Craig was charged with murder, the date of the offence on the indictment being identified as 23 August 2019. He was tried in the Crown Court at Bristol. The only issue for the jury was whether the injuries inflicted by him in April 1998 played a significant part in Kirk's death. The prosecution alleged that the injuries were causative in two respects. First, the scarring meant that the chest and abdomen were not able to expand; second, surgery could not be undertaken because of the risks inherent in somebody of Kirk's condition. The prosecution case was accepted and Craig was convicted of murder. 13 On 10 November 2022, Craig was sentenced to imprisonment for life with a minimum term of 15 years and five days. The judge concluded that the appropriate minimum term by reference to Schedule 21 of the Sentencing Code would have been 34 years. She deducted all of the time spent in custody in relation to the offence of causing grievous bodily harm of which Craig was convicted in 2000, namely the time on remand prior to that conviction and the entirety of the period in custody thereafter, including periods after the expiry of the minimum term when the Parole Board considered it not safe to release Craig or when Craig would have been recalled. That total period was just short of 19 years. 14 Craig now appeals his sentence with the leave of the single judge. He has three grounds of appeal. First, that the judge should not have applied Schedule 21 of the Sentencing Code because the true date of the commission of the offence for sentencing purposes was 18 April 1998, i.e., when the injuries were inflicted. Thus, the transitional provisions in paragraph 12 of Schedule 21 should have applied and the appropriate minimum term should have been set by reference to the practice followed by the Secretary of State in 2002. That would have led to a minimum term of somewhere between 15 and 20 years. Second, if and in so far as Schedule 21 did apply, the judge erred when she concluded that the seriousness of the offence was particularly high so as to give a starting point of 30 years. Third, even if it were appropriate to use the starting point of 30 years, there were no matters justifying increasing that starting point to 34 years. 15 We deal first with the issue of the date of the offence. The judge provided a written ruling on that issue. She had written submissions from the parties. She noted that the purpose of these transitional provisions in Schedule 21 was to avoid the imposition of a sentence which offended Article 7.1 of the European Convention on Human Rights which prohibits the imposition of a heavier penalty than one that was applicable at the time the criminal offence was committed. 16 In argument, the defence had relied on R v Wright and Hennessy [2022] EWCA Crim 68 as authority for the proposition that the offence of murder may be complete when the causative act is committed. In that case, the trial judge had sentenced on that basis. The judge noted that it was not an issue on the appeal as to whether the trial judge's approach was correct. On the facts of the case the transitional provisions did not apply, the injuries being caused in 2006, namely well after the Criminal Justice Act 2003 had come into force. The approach taken by the judge was intended to reflect the youth of the appellants in that case at the time of the original infliction of the injuries. Thus, so found the judge, Wright and Hennessy provided no support for the defence argument. 17 The judge concluded that an essential element of the offence of murder was the death of the victim. The definition of murder requires the offender to have unlawfully killed the victim with intent to kill or to cause really serious harm. Unless and until the victim had died, there can have been no unlawful killing. Thus, Kirk was murdered on 23 August 2019. The passage of time between the unlawful act and the death may give rise to circumstances highly relevant to an offender's culpability and to factors aggravating or mitigating the offence. By that route, the court can adjust the starting point in so far as is necessary to ensure there is no injustice to an offender. The judge gave the obvious example of where the offender was particularly young at the time of the unlawful act. 18 We are quite satisfied the judge was correct in her ruling. The view taken by the trial judge in Wright and Hennessy was noted by this Court on appeal. It was not the subject of any argument. The Court did not discuss the issue of the date of the commission of the offence, whether for sentencing purposes or otherwise. It was of academic interest given the facts of the case. In our view, an offence cannot be committed until all elements thereof have been proved. Until 23 August 2019 the prosecution could not prove that Kirk had been killed. Until that date the appellant could not have been charged with murder. It was only when he was charged with murder that he could be sentenced for that offence. 19 The grounds of appeal stated that he had been sentenced more harshly than when he commenced the chain of causation which led to death. Even if that were correct, it would be of no consequence. The relevant point is when the offence was committed. The judge's ruling did not offend Article 7.1 of the Convention. Sentencing the appellant by reference to the current sentencing regime did not offend Article 7.1. 20 The second and third grounds require us to consider the judge's reasoning which led her to conclude that without any deduction of time spent in custody hitherto the appropriate minimum term was 34 years. The judge concluded that the starting point should be 30 years. The factors which led her to conclude that the seriousness of the offence was particularly high were as follows: the planned and premeditated nature of the attack; the sadistic nature of the appellant's conduct in the build-up to the attack; the appellant's awareness of the level of seriousness involved in his use of petrol. She considered the case of R v Dunstan [2016] EWCA Crim 2098 which had been referred to in the course of argument. She rejected any suggestion that that case provided support for the proposition that the appropriate starting point should be 25 years. She concluded that Dunstan was distinguishable on its facts. 21 The judge found that thereafter there were aggravating factors. First, and most significant, she identified the pattern of violence by the appellant towards Kirk which had increased over time. The appellant in a chilling way had forced her into submission over a course of months and years. Kirk was vulnerable. The appellant's behaviour was an abuse of trust. The judge, in making those observations, clearly had well in mind the overarching principles in relation to domestic abuse issued by the Sentencing Council and effective from 24 May 2018. Second, the appellant was drunk when he committed the offence. Third, the appellant's actions after he had set fire to Kirk were cowardly; he had done nothing to help her. 22 The judge went on to refer to two further aggravating factors. First, the appellant's actions involved a high level of sadism. The nature of the attack was extreme. Second, Kirk endured physical and mental suffering for 21 years, and the impact on her family over the same period had been substantial. Those various aggravating factors served to increase the minimum term to 35½ years. 23 The judge then turned to personal mitigation. She said that his behaviour from 2000 to the date of death did not assist him. The passage of time had not led him to make the most of himself. The Parole Board had not considered him safe for release until 2015. Within three years his behaviour whilst on licence had led to his recall to prison. She said that little weight could be given otherwise to the passage of time that had elapsed since the appellant had inflicted the injuries given the effect on Kirk and her family over that period. The judge accepted that there had been no intention to kill. However, she said that this had "reduced significance, almost to vanishing point, because of the risk of her dying from what the appellant did was so obvious even if it was not his intention". She said she gave some weight to the fact that the appellant had a sense of disappointment at being subject to further incarceration for what he had done in 1998. 24 The judge reduced the minimum term by 18 months to take account of personal mitigation thereby reducing that to 34 years. The judge considered that justice required that the minimum term to be imposed for the offence of murder should be reduced by the total time that the appellant had already spent in custody. The appellant's previous sentence was based on identical facts. Reduction was to take into account the time the appellant had spent on remand prior to the trial in 2000 and all the time that he had been detained pursuant to that sentence in 2000, including periods of recall. So it was that 18 years 11 months and 25 days was deducted from the period of 34 years, giving a minimum term of 15 years and five days. 25 Mr Tehrani KC argued that the judge had erred in setting the starting point of the minimum term at 30 years; the starting point should be reserved for the most serious of cases of which this case was not one. His submission to us was that the court in 2000, when setting a specified period of nine years' imprisonment in relation to the three life sentences, must already have taken account of the matters that placed this case in the category of particularly serious offending. Following his conviction for murder, all that the sentencing judge should have concerned herself with was how much longer the minimum term ought to have been over and above the specified period of nine years' imprisonment. This would involve a minimum term reflecting simply the fact of death and the deceased's pain and suffering prior to death. Paragraph 3(1) of Schedule 21 reads as follows: "3(1) If - (a) the case does not fall within paragraph 2(1) but the court considers that the seriousness of the offence ... is particularly high, and (b) the offender was aged 18 or over when the offence was committed, the appropriate starting point, in determining the minimum term, is 30 years." Paragraph 3(2) of the Schedule gives examples of cases that would normally fall within paragraph 3(1). The list of examples is not exhaustive. It is for the court in any particular case to assess whether the facts and circumstances render the seriousness of the offence particularly high. 26 In Dunstan , to which we have already referred, this court took the view that where the offender had spontaneously poured white spirit on a woman with whom he was staying and set fire to her the case did not fall within paragraph 3(1). It distinguished the line of cases commencing with R v Jones [2005] EWCA Crim 3315 which indicate that a 30-year starting point is appropriate where there has been a deliberate and planned arson attack on a house. The court concluded in Dunstan that the starting point should have been 15 years though the many aggravating features served to increase the starting point to 25 years. However, the court said at [24]: "That is not to say that there will not be cases where death is caused by deliberate arson in circumstances similar to the facts of this case which will properly be described as being particularly serious for the purposes of Schedule 21 ... Inevitably, these are and will be fact-sensitive and difficult assessments for a judge to make." 27 We have no doubt that the judge was wholly justified for the reasons she gave that the facts of this case meant that the seriousness of the offence was particularly high. Her fact-sensitive assessment cannot be criticised. The circumstances and facts in this case were very different to those in Dunstan . 28 We reject the submission made by Mr Tehrani as to what the judge's task was when sentencing the appellant in 2022. The judge had to sentence the appellant for the offence of murder. The fact that another judge in 2000 imposed a sentence when the appellant was convicted of causing grievous bodily harm was of relevance to her overall assessment of the appropriate sentence, that is after she determined the correct minimum term for the offence of murder. That sentence was not to be used when considering the appropriate sentence for the offence for which this judge had to sentence the appellant in 2022. 29 The third ground of appeal is that the judge fell into the trap of double counting when increasing the minimum term to take account of aggravating factors. In writing, Mr Tehrani argued that matters taken into account by the judge must have been taken into account by the judge who sentenced the appellant in 2000 for the offence of causing grievous bodily harm with intent. Thus, the judge should not have taken them into account in 2022. We reject that argument. We reiterate the appellant was being sentenced for the offence of murder. All of the factors relevant to the commission of that offence had to be taken into account by the judge. The fact that they may have been considered at the time of the earlier sentence was irrelevant to the judge's assessment of the case. The consequences of the earlier conviction and sentence properly were reflected in the adjustment of the minimum term after the starting point had been identified and adjusted to take account of aggravating and mitigating factors. 30 We should say that it is not at all clear the extent to which the judge in 2000 took into account, for instance, the domestic abuse of which the setting fire to Kirk was the culmination. Her sentencing remarks were brief. They concentrated on the horrific nature of the offence and on the danger presented by the appellant. This is a practical example of why it would not be appropriate in any case of murder to discount factors which may have been taken into account at an earlier sentencing exercise for a different offence. 31 In oral argument, Mr Tehrani also submitted that the aggravating factors identified by the judge were what had led her to the minimum term of 30 years and, therefore, should not further increase the custodial term. 32 We disagree. Her analysis related, first, to the particular circumstances of the offence and then, quite separately, a detailed recitation of the aggravating factors with particular reference to the element of domestic abuse. The judge is criticised for giving insufficient weight to the mitigating factors. It is said she identified the relevant factors but either discounted them altogether or did not give them the weight they deserved. This was a matter for the judgment of the trial judge. She was fully seized of the mitigating factors being advanced. We would have to conclude that the judge was wrong in her assessment in order to interfere. We do not and cannot reach that conclusion. If anything, we consider that the judge may have been generous to the appellant. 33 This was a horrifying and cruel attack on a defenceless woman by a controlling man. The circumstances of the attack justified the starting point of 30 years. The background of domestic abuse made the offence particularly serious. A substantial uplift from the starting point was justified. The uplift chosen by the judge cannot be described as manifestly excessive. Proper account was taken of such mitigation there was. It follows that we reject the argument that the minimum term imposed was manifestly excessive. 34 The appellant's minimum term of 15 years and five days was calculated, as we have said, by reference to all of the time he spent in custody up to the date of sentence. That overall reduction was not something to which he was entitled by statute. References in section 240 ZA and section 241 of the Criminal Justice Act 2003 to credit the time served relate to periods of custody pursuant to a court order, namely a remand order or an order committing an offender to custody. Once the minimum term imposed in 2000 had expired, the appellant was being held until the Parole Board considered it safe to release him. From that point on he was not being held pursuant to a court order. When he was recalled to prison that was also not pursuant to a court order. 35 The judge had a discretion to go beyond the statutory regime if she was satisfied that the circumstances were exceptional: see Wright and Hennessy at [29]. That is the view she took. Self-evidently, it is not something we are asked to review now. However, we observe that the appellant may consider himself fortunate that the judge exercised her discretion to the extent she did. First, the sentence imposed in 2000 was not solely in respect of the facts which related to the fatal attack. The appellant was also sentenced in respect of quite separate offending in relation to a different victim. In so far as the overall sentence was affected by that separate offending, admittedly difficult to identify from the sentencing remarks in 2000, that part of the sentence should have had no part to play in reducing the minimum term. 36 Second, unlike the appellants in Wright and Hennessy , the appellant had not just been detained pending the Parole Board's satisfaction that it was safe to release him. He had also been recalled to prison after his initial release and prior to any recall following the death of Kirk. Whether justice required that period to be credited to him, is, in our view, arguable. In any event, the upshot is that the appellant was given full credit for all time spent in custody. That was to his advantage. It further underlines that the sentence imposed on him in 2022 was not manifestly excessive. Taking into account all the matters we have rehearsed, we dismiss this appeal. __________	[ "LORD JUSTICE WILLIAM DAVIS", "MR JUSTICE GARNHAM", "HIS HONOUR JUDGE LICKLEY KC" ]	2023_07_18-5760.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/893/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/893	1,063
53d6fe333b93a1833c1127029d80e6c858b8bd389b2bbfb546a3a2be90f25ac4	[2022] EWCA Crim 742	EWCA_Crim_742	2022-05-30	crown_court	Neutral Citation Number: [2022] EWCA Crim 742 Case No: 202200389 A2 202104120 A3 & 202104121 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HHJ HENDERSON SITTING IN THE CROWN COURT AT BIRMINGHAM HHJ LUCRAFT QC, RECORDER OF LONDON SITTING AT THE CENTRAL CRIMINAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/05/2022 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MRS JUSTICE MCGOWAN and MRS JUSTICE FARBEY - - - - - - - - - - - - - - - - - - - - - Between : Darren L	Neutral Citation Number: [2022] EWCA Crim 742 Case No: 202200389 A2 202104120 A3 & 202104121 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HHJ HENDERSON SITTING IN THE CROWN COURT AT BIRMINGHAM HHJ LUCRAFT QC, RECORDER OF LONDON SITTING AT THE CENTRAL CRIMINAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/05/2022 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MRS JUSTICE MCGOWAN and MRS JUSTICE FARBEY - - - - - - - - - - - - - - - - - - - - - Between : Darren Lestat Collins -and- Regina Jamie Lewis Deniz Jaffer Appellant Respondent 1 st Applicant 2 nd Applicant - and - Regina Respondent Ms Kelly Cyples (instructed by Turnocks Solicitors ) for the Appellant Mr Peter Grieves-Smith (instructed by Appeals Unit of the CPS ) for the Respondent Mr Luke Ponte (instructed by Reynolds Dawson Solicitors ) for 1 st Applicant Mr Neil Saunders (instructed by Reynolds Dawson Solicitors ) for 2 nd Applicant Mr Joel Smith (instructed by CPS Complex Casework Unit ) for the Respondent Hearing dates: 11 May 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Dame Victoria Sharp P: Introduction 1. The cases before us raise important questions in relation to sentencing those who are guilty of misconduct in public office. They concern misconduct in the form of the creation, possession and misuse of photographic images. 2. Darren Collins pleaded guilty to one count of misconduct and was sentenced to 3 years’ imprisonment. While working for the police as a civilian Digital Forensics Expert, he had transferred thousands of images of scenes of crimes, including numerous images of murder victims and other dead bodies, from police databases to computers and other devices at work and at home. He appeals against sentence with leave of the Single Judge. 3. Jamie Lewis and Deniz Jaffer were police officers who, while tasked with protecting the scene of the brutal murder of two sisters, breached a police cordon and took photographs of the dead women’s bodies. The two men exchanged photographs with each other. They showed or sent photographs of the bodies to other police officers and (in Jaffer’s case) to a friend. 4. Lewis and Jaffer each pleaded guilty to one count of misconduct and were each sentenced to 2 years and 9 months’ imprisonment. Their applications for leave to appeal against sentence have been referred to the full court by the Registrar. The legal framework 5. Misconduct in public office is a common law offence. In Attorney-General’s Reference (No. 3 of 2003) [2004] EWCA Crim 868, [2005] Q.B. 73, para 61, the court reviewed the case law and confirmed that the offence requires proof of: i. A public officer acting as such; ii. Who wilfully neglects to perform his or her duty and/or wilfully misconducts him- or herself; iii. To such a degree as to amount to an abuse of the public’s trust in the office holder; iv. Without reasonable excuse of justification. 6. The court held (at para 56) that there must be a serious departure from proper standards before the criminal offence is committed. That departure must be not merely negligent but must amount to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. Save in exceptional circumstances, the gravity of the offence and the high public interest in deterrence means that it will attract a sentence of immediate custody ( R v Butler [2021] EWCA Crim, para 41). 7. In Attorney General's Reference (No. 30 of 2010) (Mark Edward Bohannan) [2010] EWCA Crim 226, [2011] 1 Cr. App. R. (S.) 106, the offender was a serving police officer who had provided sensitive and confidential information to a drug dealer for a period of about five years in return for the supply of cocaine to his wife. The information assisted the drug dealer to avoid detection and to run his drugs business. Increasing the offender’s sentence from three to six years’ imprisonment, the court (Leveson LJ, Davis J and Lloyd Jones J as they then were) considered the relevant case law and held at para 64: “None of these decisions are, of course, binding in the sense that they drive the decision in this case. They are, however, illustrative of a number of important principles. First, punishment and deterrence are always important elements in these cases: not only must police officers be deterred from misconduct, but also the public must see that condign punishment will be visited on police officers who betray the trust reposed in them and do not live up to the high standards of the police service. Secondly, an incentive (usually money but it need not be) inevitably increases the seriousness of the offence. Third, misconduct, which encourages or permits criminals to behave in the belief that they will be kept informed of areas to avoid in connection with their criminal activities, or of those who might be informing on the police also increases its gravity. That is reflected in the observation of the learned judge who commented that Ahmed had boasted that it was ‘like having his own police station at the end of a phone’. Fourth, any misconduct that impacts on police operations moves the offence into a different category of gravity.” 8. The four broad principles set out in this passage are plainly not an exhaustive list of factors relevant to sentencing: there will be other aggravating or mitigating factors in particular cases. The Bohannan principles are, however, a good starting point for sentencing in misconduct cases. 9. In the fourth Bohannan principle, the court recognised the gravity of offending that has an impact on police operations. We would emphasise that misconduct that has an impact on the investigation and prosecution of crime must be regarded as serious. The criminal justice system plays a vital part in keeping the public safe and in ensuring that the rule of law is upheld. It is essential that the public should be able to trust the police to play their proper part in ensuring that those who commit crimes are brought to justice. Conversely, the rule of law means that those who are not guilty of crimes should have the opportunity to exculpate themselves. Misconduct that undermines public trust in the process of bringing those guilty of serious offences to justice, or the process of preventing innocent people from early exculpation, must be punished severely. 10. The retrieval, examination and storage of data in electronic formats has become essential to the investigation and prosecution of crime. Whether in the form of text or images, the collection and storage of data is an essential tool of contemporary policing and is now fundamental to the administration of justice. As the case of Collins demonstrates, electronic databases may hold vast amounts of personal and sensitive material. Those who work for the police may be entrusted with privileged access to large amounts of data that may touch on the personal lives of victims, suspects and members of the public alike. In R v Kassim [2005] EWCA Crim 1020, [2006] 1 Cr. App. R. (S.) 4, para 19, this court (Lord Justice Rose VP, Bodey and Owen JJ) held: “It seems to us that, especially nowadays, the preservation of the integrity of information regarding members of the public held on databases like those maintained by the police is of fundamental importance to the well-being of society. Any abuse of that integrity by officials including the police is a gross breach of trust, which, unless the wrongdoing is really minimal… will necessarily be met by a severe punishment, even in the face of substantial personal mitigation.” 11. If data is copied or disseminated other than in lawful ways for lawful purposes, it carries the inevitable risk that neither the police nor the victims of crime nor their families will be able to control who sees it or the circumstances in which it is viewed. In the cases before us, the statements that we have read from family members movingly describe the deep distress caused by their loss of control of the treatment of those for whom they grieve. 12. The harmful effects of the misuse of electronic images may be impossible to rectify. The ease with which images may be disseminated by electronic means (via phones, laptops and other devices) and the difficulty in controlling their spread is an important aspect of the harm caused by offences of this kind. 13. In relation to images of the dead in particular, the act of creating, accessing or copying such images, if unauthorised, will amount to a failure to accord dignity and respect to those who have died and their families. This loss of dignity and respect is an integral part of the harm that may be caused by offences of this kind and warrants appropriate, and sometimes condign punishment in itself. 14. The harm caused by sending images to others is not limited to distribution of images to members of the public who are not bound by the same duties of confidentiality as police officers. When images are shown or distributed by one police officer to another in these sort of circumstances this has a corrosive and pernicious effect, putting pressure on colleagues to collude in activity that demeans the police and is hidden from those who have responsibility for the effective investigation of crime. Darren Collins The facts 15. Collins had worked for Staffordshire Police since 2002. He was employed as a civilian employee rather than a police officer. He was initially employed as an IT Technical Support Officer. In September 2015, he was appointed as a Digital Forensics Specialist whose role was to examine the content of digital devices seized during police investigations. He would examine the content of devices and produce reports for evidential purposes. 16. Collins was subject to strict terms and conditions governing the confidentiality of information. His contract stipulated that he was permitted to use police IT and police information only in connection with his work for Staffordshire Police. He had received training in data protection and the lawful handling of police information. 17. On 16 January 2019, during the course of an unrelated enquiry, police investigators seized computers used by Collins in his employment which, upon examination, contained thousands of images of scenes of crimes which had been investigated by Staffordshire Police. On 26 March 2019, he was arrested at his home address. In response to caution Collins said: “I have an interest in that kind of thing, I want to be a Scenes of Crime Officer. I was only looking at them out of interest.” He went on to say: “I’ve just been stupid, there was no malicious intent.” 18. In interview Collins admitted that he had deployed a method to gain access to police databases that circumvented proper procedures. He accepted that he had extracted data from the police computer system and had taken that data home on a memory stick. 19. Investigations revealed that Collins had either accessed at work or brought home over 700,000 images. The police found over 60 electronic devices at his home, albeit that not all the devices that were examined contained images of the sort we have described. The material he had accessed included images of murder victims and decomposed bodies, the deposition sites of murder victims and post-mortem images. As many as 178 images related to the post-mortem of one particular murder victim. The criminal proceedings 20. On 9 November 2021, in the Crown Court at Birmingham before HHJ Henderson, Collins pleaded guilty on re-arraignment to one count of misconduct in public office. The particulars were that, between 1 April 2014 and 31 December 2018, he had gained access to Staffordshire Police photographic folders containing numerous images of deceased persons taken from crime scenes and transferred large numbers of such images to memory sticks and thereafter to his personal computers. 21. On 7 January 2022, before the same judge, he was sentenced to 3 years’ imprisonment. The judge’s sentencing remarks 22. The judge took into consideration that Collins (who was 56 years old) had acted from morbid and gratuitous curiosity. He noted the long indictment period (nearly five years) during which Collins had accessed thousands of images. As described in the many victim personal statements from family members, Collins had insulted the victims of murder whose images had been accessed and had also insulted their families. 23. The judge went on to say: “one of the most serious consequences of this kind of behaviour, if not the most serious consequence, is that it shakes the public’s faith in the system and their confidence that, if they tell something to the police in confidence or the police have to intrude legitimately into private situations and private lives, that material will be kept safe and private as far as possible.” 24. By way of mitigation, the judge emphasised that there was no evidence that Collins had made any attempt to distribute any of the material. He had significant psychiatric difficulties, to the extent that he was suffering post-traumatic stress disorder, as a consequence of viewing disturbing material legitimately during the course of his employment. He had no previous convictions. 25. The judge took into consideration the four principles in Bohannan that we have set out above. He had been assisted by reading the sentencing remarks of HHJ Lucraft QC in the cases of Lewis and Jaffer. He noted that each case turned on its own particular facts. He concluded that he should not distinguish between a civilian employee of a police service and a police officer. He stated that it was proper to treat both categories in the same way because the public is entitled to expect the same standard of behaviour. He regarded the case as less serious than the cases of Lewis and Jaffer. The sentence before the 10 per cent discount for guilty plea would be 4 years’ imprisonment, making 43 months after the discount. Taking account of mitigation the judge further reduced the sentence to 3 years. Jamie Lewis and Deniz Jaffer The facts 26. In the early hours of the morning on 6 June 2020 two sisters, Nicole Smallman and Bibaa Henry, were brutally murdered in a park in North West London. Ms Henry had arranged an outdoor party with family and friends on the evening of 5 June to celebrate her birthday. The last of the guests left at around 12:35 am on 6 June, leaving the sisters together in the park. Subsequently, both women were stabbed to death. Their bodies were found by concerned friends who had returned to the park to search for them. On 6 July 2021 Danyal Hussein was convicted of murdering both women. On 28 October 2021 he was sentenced to life imprisonment at the Central Criminal Court with a minimum term of 35 years. 27. The bodies of Ms Henry and Ms Smallman were found inside a wooded strip, some five metres deep, hidden by a row of trees. They were not readily visible. In order to preserve the scene for forensic examination before the bodies were removed, various cordons were set up. The innermost cordon was placed around the area of hedgerow where the bodies were located. 28. Lewis and Jaffer were police officers. They arrived in the park at approximately 3.30 am on 8 June and were assigned (with other officers) to guard the scene. Their duties were to preserve the integrity of the scene and to prevent it from being contaminated. They were placed on the inner cordon at the points closest to the bodies and were instructed by the officer in charge to remain at their posts. They were not wearing full barrier forensic clothing. They were made aware of the general location of the bodies but were not shown the bodies and had no reason to enter the hedgerow area. They were expected to remain at their place on the cordon until another officer relieved them for a break. 29. Although it was a key part of their duty to remain at their allocated posts, they each walked backwards and forwards, leaving their posts, to talk to each other and to another officer, PC Asprogenis. At one stage PC Asprogenis left her post and visited Lewis, who shone his torch into the bush area to show her the locations of the bodies. 30. During a refreshment break between 5.00 am and 6.00 am, Lewis, Jaffer, PC Asprogenis and another officer, PC Wilson, drove together to a nearby petrol station. During the journey, Lewis showed PC Wilson a photograph on his phone of the women lying in the hedgerow. He later showed one of the images to a female probationary officer who was disgusted and told him she did not think it was appropriate to show such images. Lewis showed his phone, displaying an image of the crime scene, to another female officer. 31. Forensic examination of their phones revealed that Lewis took two images of the crime scene and that Jaffer took four. In addition, Lewis created an image on his telephone on which he superimposed his own face in front of the bodies of the deceased (“the selfie image”). 32. Lewis and Jaffer were members of a WhatsApp group called the “A Team” (which we shall call “the A group”) which had 41 members who were officers in the Metropolitan Police Service. Jaffer was a member of a WhatsApp group called “Covid Cunts” (which we shall call “the C group”) comprised of ten individuals, the other nine of whom were not police officers. 33. At approximately 3.50 am on 8 June, Lewis sent a series of messages to the A group. He sent a link to a Daily Mail article concerning the finding of the bodies and stated “Me, Izzy, Dennis [ sic ] and Matt are living the Wembley dream.” An image was attached of the park showing grass (but not the bodies), as was an image of the park showing a tent (but not the bodies). Another officer responded stating: “Enjoying the sunrise.” Lewis responded: “Unfortunately, I’m sat next to two dead birds full of stab wounds.” 34. Jaffer sent a series of messages to the C group. He sent a link to the same Daily Mail article and a second message which said: “I’m here now – will try to take pictures of the two dead birds.” A further message read: “This is my view now.” He attached a photograph of the scene which did not show the bodies. 35. At 3.58 am another officer sent a message to the A group, in apparent reference to Lewis’s use of the words “dead birds”, saying: “Who’s been out stabbing pigeons?” Lewis replied with a picture image of a man with pigeons on his shoulder. He then took a photograph with the bodies of the deceased visible in the background. 36. At 4.39 am Jaffer sent two pictures to Lewis, both of which showed the two women. Two minutes later Lewis used Snapchat to create the selfie image which he sent to Jaffer on WhatsApp. At 5.10 am Lewis took another, closer photograph of the two deceased lying in the hedgerow. At 5.21 am Jaffer sent a series of images to Lewis showing the women lying on the ground. At 5.49 am Jaffer sent four WhatsApp messages to PC Asprogenis containing four images of the women, including the selfie image. 37. At 7.10 am Jaffer sent a WhatsApp message to a friend who was not a police officer. The message said: “Good morning … do you want to see the two dead bodies?” He then posted a link to a Sky News article concerning the finding of the bodies and sent a message to the C group saying: “I have pictures of the two dead victims. Let me know who doesn’t want to see?”. The friend replied: “Yes, what happened?”. Jaffer responded with a message which said: “The best pictures of the two dead victims, both stabbed to death in broad daylight and dragged up the trees – one is 14 and the other is 20 – she is pregnant.” The ages of the women and the reference to pregnancy were wrong. He then sent a message to the friend which contained an image of the two women. 38. At 8.49 am a member of the C group responded: “Is it bad, Den?” to which Jaffer responded: “Not really; I’ve seen worse.” 39. At approximately 4.10 am Lewis sent two photographs of the park without the bodies being identifiable to a female friend and told her that he was “sat next to two stabbed up dead women.” He sent a series of messages to another WhatsApp group containing seven non-police members in which he stated that he was involved in the investigation of a double murder. He said that the deceased were sisters, aged 14 and 20 and that one was pregnant. As we have said, he was wrong. He told the group: “Got pics,” but those pictures were not disseminated. 40. The women’s bodies were not visible from the path on which Lewis and Jaffer should have been standing and so it would not have been possible for them to take photographs from where they had been instructed to stand. It would have been necessary to enter the bushy area itself, thus risking contamination of the crime scene. 41. On 19 June 2020 the Independent Office for Police Conduct was alerted to what had happened. Lewis and Jaffer were arrested and interviewed. Their phones were seized. 42. During Hussein’s trial, agreed facts were placed before the jury stating that (i) the officers had distributed images of the deceased bodies; (ii) it would have been necessary for them to have left their posts to take the photographs; (iii) neither of the officers had been wearing protective clothing, and (iv) their DNA had not been compared to DNA findings from the deposition site and the bodies as there was no unknown DNA recovered in that area. 43. It was suggested by the Defence at Hussein’s trial that one reason to explain the presence of forensic evidence emanating from Hussein at the crime scene was that the integrity of the crime scene had been compromised as a result of the actions of the applicants. In their closing speeches, both prosecution and defence counsel addressed the conduct of Lewis and Jaffer. In the event Hussein was convicted of all charges that he faced. 44. On 24 November 2021 an accelerated misconduct hearing took place. Neither Lewis nor Jaffer participated. A finding of gross misconduct was made against each of them on the basis of the conduct that we have described above and the fact that Jaffer had used a racially derogatory term in a message to members of the public and that Lewis had failed to challenge or report its use. 45. Lewis was dismissed on the same day as the misconduct hearing. Jaffer had already resigned. The criminal proceedings 46. Lewis and Jaffer first appeared at Westminster Magistrates’ Court on 27 May 2021 when each indicated an intention to plead guilty. The case was sent for trial at the Central Criminal Court. 47. Although they were each indicted on a separate count, the particulars of the offence were the same in each case, namely that each had wilfully misconducted himself by: i. entering a crime scene they had been assigned to protect without authorisation; ii. sending information about his attendance at the scene to members of the public on WhatsApp; iii. taking photographs of the crime scene (including photographs of the bodies); iv. showing a photograph or photographs taken at the crime scene to another officer; and v. sending a photograph or photographs taken at the crime scene to other officers (and in Jaffer’s case also to members of the public) on WhatsApp. 48. On 2 November 2021, before the Recorder of London, the applicants each pleaded guilty on accepted bases of plea. It was common ground before him that no distinction needed to be made between the applicants for the purposes of sentence. Lewis said he did not touch or otherwise disturb the bodies and did not, at any point, enter the wooded strip. He accepted that he did not remain at his post but said that it had not been made “entirely clear to him” that he had to remain in one place. He accepted that his actions had caused a risk that the integrity of the crime scene could be called into question at the murder trial but claimed that the risk did not occur to him on the night. We note (and endorse) the judge’s scepticism about this last element of the basis of plea and his observation that, while Lewis had only limited service as a police officer, the primary reason for having a cordon must have been obvious to him. 49. In his basis of plea, Jaffer accepted that he had entered the crime scene but said he was never close enough to have touched or in any way interfere with either of the bodies. He estimated he was about 20 feet away but accepted it could have been closer. 50. Following the pleas, the judge adjourned the sentencing hearing until 6 December 2021 when he imposed sentences of immediate imprisonment in the terms set out above. Jaffer (who was 47 years old) had joined the Metropolitan Police just over two years’ previously having worked before then in unrelated employment. Lewis was 33 years old and had just over 9 months’ service in the Metropolitan Police having previously worked for the British Transport Police for over three years. The judge’s sentencing remarks 51. In his detailed sentencing remarks, the judge said that the defendants’ conduct was “appalling and inexplicable.” They had violated the police cordon. They had wholly disregarded the privacy of the two women and their families by taking images and passing them to others, for what could only have been a “cheap thrill, kudos, a kick or some form of bragging right.” They had undermined the trust and faith in police officers that the public should be able to expect at such times. They acted without any thought as to the wider public interest. 52. Having referred to Bohannan , the judge concluded that there were five aggravating features as identified by prosecution counsel, namely: i. The general breach of public trust which was particularly weighty in the case of police officers committing misconduct in the course of their duties. ii. The offending took place in the midst of an investigation into the double murder of two women which caused a justified and significant public outcry. It was almost impossible to conceive of a more serious piece of offending against the background of which the offenders’ own criminal acts had been committed. iii. While it could not be shown that the integrity of the crime scene was compromised, the offender responsible for the murders could suggest it had been. The misconduct had assisted Hussein in placing an unmeritorious defence to murder before a jury. iv. The offending had stripped Ms Henry and Ms Smallman of dignity in death. This factor was weightier given that Lewis and Jaffer were charged with protecting their bodies. v. The offending had included not only the taking of photographs but also their dissemination. In the case of Jaffer, that dissemination was not only to police officers but also to civilians (in respect of whom there could be less confidence that there would not be further dissemination). Both Lewis and Jaffer had continued to show or disseminate the images after they left the crime scene. 53. In terms of mitigating factors, the judge took into consideration that there was no financial gain. Both defendants had admitted the offence from the earliest stage. The judge had read the many extensive character letters and references written on behalf of both men from family and close friends. He kept in mind the medical material that had been provided in relation to Jaffer, his wife, father and daughter. He took account of their previous good character but that was of little, if any, weight in cases such as this. They had shown some remorse. 54. The judge said that he did not intend to draw any fine distinction between them in terms of conduct which needed to be seen as one piece. After a trial, there would have been sentences of some 4 years 6 months’ imprisonment. After a one-third discount for the guilty pleas, that would be reduced by one third to 3 years. Making a further allowance for the remorse and personal mitigation, the lowest sentence the court could impose was one of 2 years and 9 months’ imprisonment. The parties’ submissions 55. In her written and oral submissions on behalf of Collins, Ms Kelly Cyples submitted that the judge had been wrong to refer to the sentencing remarks in the cases of Jaffer and Lewis as they did not amount to binding authority and those cases could be distinguished on their facts. In assessing the seriousness of Collins’ offending, the judge ought to have drawn a distinction between a police officer and a civilian employed by the police force. Emphasising the mitigating factors, Ms Cyples submitted that the sentence of 3 years was manifestly excessive. 56. In response, Mr Peter Grieves-Smith QC on behalf of the prosecution submitted in writing that the role of civilians employed by police forces is vitally important and that the public place significant trust in all employees whether civilians or constables. The judge was right not to distinguish a civilian employee from a police officer. We did not need to call on Mr Grieves-Smith to make oral submissions. 57. In their joint written submissions, supplemented by individual oral submissions, Mr Neil Saunders on behalf of Jaffer and Mr Luke Ponte on behalf of Lewis submitted that the judge had treated the general breach of public trust not only as an ingredient of the offence but also as an aggravating factor warranting an upward adjustment to the sentence. As a result the judge had risked “double counting” by increasing the sentence on the basis of a factor already included in the nature of the offending itself. 58. Mr Saunders and Mr Ponte acknowledged the serious nature of the offence but submitted that there were important factors that reduced its gravity in the present cases. Referring the court to the Bohannan principles, they submitted that the operational impact of the offending was limited. Any operational impact in the present case was a by-product of, rather than the purpose of the offending. No operational harm had eventuated: there was no evidence that the crime scene was contaminated and Hussein was convicted after his trial. There had been an operational risk but the judge should have sentenced the applicants on the basis the risk was taken, at worst, recklessly. For these reasons, the offending did not merit moving the case into a different category of gravity. 59. There was strong personal mitigation in each case: remorse, good character, the impact of delay in the proceedings, health-related matters and the particular impact of a custodial sentence on the applicants who have both suffered assaults from fellow prisoner who know that they were police officers. In all the circumstances, the sentence in each case was manifestly excessive. 60. In response, Mr Joel Smith on behalf of the prosecution submitted that the sentences imposed were not arguably manifestly excessive or wrong in principle. He argued that there were four factors to justify the length of the terms imposed. Firstly, the background was two offences of murder. Secondly, the misconduct created two distinct breaches of trust: the general trust of the public that police officers will conduct themselves in an appropriate manner and further that the officers were specifically entrusted to guard this particular crime scene. Thirdly, he emphasised the inevitable impact upon the family of the deceased. The actions of the officers had displayed a complete lack of respect or willingness to afford any dignity to the victims. Fourthly, the misconduct had put at risk the integrity of the murder scene and the consequential risk to the conviction of the man who was guilty of these brutal murders. He added that the act of taking of the photographs was greatly aggravated by the dissemination of the photographs in the manner outlined above. 61. Mr Smith submitted that there had been no double counting of the breach of trust given, as he submitted, that there had actually been a double breach of trust. Further he argued that the Recorder of London had properly accounted for all mitigating features, both those personal to the applicants and the factors that reduced the seriousness of the offending. The lack of financial gain might properly be described as an absence of an aggravating factor. The duration of offending continued from the crossing of the cordon until the point of the final dissemination of the photographs. The potential damage to the integrity of the crime scene may not have been the purpose of their actions but it was an obvious consequence of their deliberate acts. Discussion Collins 62. We turn to our consideration of the sentence imposed on Collins. The question for this court is whether the sentence imposed by the judge was manifestly excessive or wrong in principle. We do not see how reference to the sentencing remarks of another judge, in the way the sentencing judge in Collins did, can possibly lead to either conclusion. It may be the case that the employment status of a person carrying out particular duties for the police could make a difference to the degree of trust afforded to him or her by the public; but it made no difference in Collins’ case. His job involved forensic examination of electronic devices seized by police officers and the production of reports for evidential purposes. In terms of public trust in the police bringing to justice the perpetrators of crime, and the damage to public confidence in policing which misconduct in relation to such data is likely to cause, we see no material difference between a civilian forensic examiner, such as Collins, and a police officer. As the judge observed, the public is entitled to expect the same standard of conduct. The judge had in mind the mitigating factors (such as they were) but in light of the duration of Collins’ offending and the sheer number of images involved, he was entitled to impose a three-year term of imprisonment. There is no reason for this court to take a different view. Lewis and Jaffer 63. The culpability that falls to be punished by an offence must be reflected in the sentence that is imposed. In relation to the offence of misconduct in public office, the culpability lies in the abuse of public trust. In order to reflect the degree of culpability underlying an offence of misconduct, the starting point will be that offences involving a high degree of abuse of trust will attract longer sentences. We reject the submission that the abuse of trust inherent in the offence debars a judge from differentiating between higher and lower degrees of abuse on grounds of double-counting. On orthodox sentencing principles, the more serious the conduct which the offence is intended to punish, the more severe the sentence. 64. Nor do we regard it as necessary for a miscarriage of justice to have occurred before misconduct may be regarded as having had an impact on police operations. The fourth principle in Bohannan suggests no such limitation. In the case of a grave crime such as murder, in which there is intense public interest in bringing the perpetrator to justice, the risk of a police officer compromising a full and proper forensic investigation itself represents an acute breach of public trust that will increase an offender’s culpability. 65. The impact of the misconduct of Lewis and Jaffer was clear. It enabled Hussein to rely on their offending at the murder trial to support what the jury concluded was his false defence. Although the jury rejected his defence, the misconduct of the police officers afforded him an opportunity to bolster his case which imperilled the administration of justice. In sentencing Lewis and Jaffer, the judge was entitled to treat their misconduct as involving high culpability and to reflect that culpability in the sentences he imposed. 66. The misconduct also caused serious harm. By taking photographs for their own inexplicable purposes, both officers breached universal standards of decency; and they denied the two murdered sisters and their family the dignity and the respect that they deserved. The officers ought to have known the perils of unauthorised entry to the scene of a double murder. Even if they did not know, they had received an instruction to stay in post – which they disobeyed. The purpose of the instruction was to preserve the murder scene. It is in truth no mitigation to say that they did not appreciate what they were doing. 67. Given the corrosive effect of such conduct as we have described above, it is an aggravating factor that they shared images of the bodies with colleagues. In Jaffer’s case, it was an aggravating factor that he shared an image with a member of the public who was not subject to the authority or scrutiny of superior officers. An upward adjustment to their sentences was appropriate to reflect this additional harm. 68. The judge appreciated the various mitigating factors in relation to each offender, including their previous good character. He was however entitled to conclude that the serious breach of trust and the need for appropriate deterrence outweighed any mitigation. It is not arguable that the sentences were manifestly excessive or wrong in principle. Conclusion 69. As we announced in court: i. The appeal of Collins is dismissed. ii. The applications of Lewis and Jaffer for leave to appeal are refused.	[ "MRS JUSTICE FARBEY" ]	2022_05_30-5346.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/742/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/742	1,064
ed4ef3eaf496b2a1dbd8058264ff1504adde5a505e11ba3f006522241972fbed	[2016] EWCA Crim 1626	EWCA_Crim_1626	2016-09-14	crown_court	Neutral Citation Number: [2016] EWCA Crim 1626 Case No: 201603710 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 14th September 2016 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE HADDON-CAVE MRS JUSTICE ELISABETH LAING DBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - R E G I N A v LEWIS ALAN DAVIDSON - - - - - - - - - - - - - - - - - - - - - Computer Aided Tr	Neutral Citation Number: [2016] EWCA Crim 1626 Case No: 201603710 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 14th September 2016 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE HADDON-CAVE MRS JUSTICE ELISABETH LAING DBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - R E G I N A v LEWIS ALAN DAVIDSON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Weekes appeared on behalf of the Attorney General Mr N Walker appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LADY JUSTICE SHARP : On 17th June 2016 in the Crown Court at Carlisle, at the plea and trial preparation hearing, Lewis Davidson, the offender, pleaded guilty to possessing a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968 ("the Firearms Act"), for which he was sentenced at the same court on 15th July 2016 by the Recorder of Carlisle to 12 months' detention suspended for two years, with a requirement to complete 25 days of a rehabilitation activity. 2. The Attorney General now applies for leave to refer that sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. We give leave. 3. The offender pleaded guilty at the PTPH to three other offences, for which no separate penalty was imposed at the sentencing hearing. These were theft contrary to section 1(1) of the Theft Act 1968, offering to supply a controlled drug of Class B contrary to section 4(3) of the Misuse of Drugs Act 1971, and possessing a controlled drug of Class B contrary to section 5(2) of the Misuse of Drugs Act 1971. A plea of not guilty to a further count alleging possession of an offensive weapon, a police style truncheon, was entered, but no evidence was then offered on that count on the ground that it was sufficient for the offender to be dealt with on the counts to which he had pleaded guilty. 4. The offender is now 19 years old. He was 18 at the time of these offences and when sentenced. 5. The facts fall within a relatively narrow compass. At about 7.30 pm on 17th March 2016 a Mr Shaun Boustead was inside a house on Friargate, Penrith, when he saw the offender drive along Friargate and shop his car opposite the job centre on the street. Mr Boustead had recently heard that the offender was telling others that Mr Boustead owed him money and he went outside and approached the offender. During the conversation the offender asked Mr Boustead if he wanted to buy cannabis from him. The offender gave prices for the drug as "a tenner a gram". Mr Boustead declined that offer. The offender asked Mr Boustead if he had any money with him. Mr Boustead confirmed he did and produced two £10 notes from his pocket as proof. The offender got out of his car and snatched the cash from Mr Boustead. He produced a four to five inch knife in his left hand. In the opinion of Mr Boustead, the knife was produced to prevent him from getting his money back. Mr Boustead ran away and reported the incident to the police. 6. Later that night the offender was stopped by the police on the Ullswater Road, Penrith, while driving his car. He was detained and told he was going to be searched for a knife. He said, "I haven't got a knife ... he owed me 20 quid from ages ago and wouldn't give me it. It was the only way to get it to rob it off him". 7. The offender was searched. A small amount of cannabis in a snap seal bag was found in his coat pocket. His car was also searched and two other items from it were seized. One was a disguised stun device, a taser, and another was an extendable police-style baton. Both were hidden inside the fascia in the front of the vehicle, which was very loose and easy to remove. 8. The taser device was in the void under the leather gearstick cover of the central console. It was constructed in the style of a mobile telephone and had a static picture stuck on the front of it. 9. An examination revealed that the device was a functional electronic stun device, displaying the same characteristics as a police taser. The device was operated by a slide switch on one side and a press button in the same location. When they were pressed together an arc of electrical current was seen appearing between the barbs. 10. The extendable police-style baton was found inside the heater vents on the driver's side of the dashboard. 11. No knife or charging device for the taser was recovered from a search of the offender, his car or his home. 12. The offender's car had been searched some three weeks earlier on 26th February 2016. The void under the gearstick was then found to be empty. It is clear from what the offender was subsequently to say that he had brought it into and concealed it inside his car. 13. The offender was taken into custody. He had with him three £10 notes and two £20 notes. 14. In interview he denied the allegations concerning the drugs or any knowledge of the police baton. He was not asked any questions about the taser. 15. The offender has four previous convictions: two for theft and handling stolen goods in 2013, for which he received a referral order; a further offence of theft in 2013, for which his referral order was extended; and, most relevantly for present purposes, for the offence of threatening someone with a bladed article in a public place in 2015, for which he was made the subject of a youth rehabilitation order. 16. The pre-sentence report for the sentencing hearing described the offender as being "a medium risk of serious harm to any associate who may upset or anger him". This risk was likely to be reduced if the offender engaged in work to explore his understanding of consequences and to improve his decision-making skills. The offender was assessed as being suitable for a suspended sentence with community based requirements. 17. As to what the offender was saying at that stage about the taser, the report said as follows: "Of the weapons found in the car, [the offender] states that he had discovered the Taser around a month previously; he describes the edge of the gaiter being loose, and trying to tuck it in and finding what he initially believed to be a mobile phone. He says that he considered handing it in under the police amnesty scheme, but thought that his previous conviction for possession of an offensive weapon would raise suspicions and decided against doing so. When asked why he did not dispose of the device, Mr Davidson stated that he was concerned about the consequences of someone finding it, yet, somewhat conversely, said that he did not think that having it was a particularly serious offence." 18. The facts of the various offences were opened in full to the judge at the sentencing hearing and the relevant statutory provisions, to which we shall refer shortly, were drawn to his attention. The prosecution were not in a position to identify the effect the device would have had if used on a person, but it was accepted that it was not a lethal weapon. An issue was raised between the prosecution and defence as to whether the device was charged when it was seized, but the judge declined to adjourn the hearing to obtain evidence on the point and sentenced the offender on the basis that the device was charged. 19. The offence of possessing a disguised firearm contrary to section 5(1A)(a) is caught by the minimum sentence provisions contained in section 51A of the same Act. Section 51A was inserted into the Firearms Act by section 287 of the Criminal Justice Act 2003. Section 51A provides that: "The court shall impose an appropriate custodial term (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so." 20. By virtue of section 51A(4) of the Firearms Act, the required minimum term for an offender aged 18 years of age or over is one of five years' "imprisonment" (although in the offender's case this would have been a sentence of detention in a young offender institution). 21. Although possession of a taser device itself is not caught by the minimum sentence provisions, possession of the same device in a disguised form is: see R v Brereton [2012] 2 Cr App R (S) at 69. The court in that case set out the relevant statutory provisions, including section 5(1) of the Firearms Act and section 51A(2), to which we have already referred. Irwin J, giving the judgment of the court, said this at paragraph 8: "... as a matter of law, there is a specific offence for a weapon designed to discharge a noxious liquid, gas or 'other thing'. This weapon [a disguised taser] was designed for such a discharge, and thus possession of this weapon contravenes section 5(1)(b). However, this weapon was disguised as a mobile phone. Despite the fact it is not a firearm in the ordinary sense of firing a projectile, Parliament has provided that such a disguised weapon falls within the minimum sentence provisions". 22. During the course of the sentencing hearing the judge was concerned to discover why the offender was in possession of the device. He was initially told by defence counsel that it was in the car when the offender acquired the car. The judge made it plain, however, that he did not accept this was true and he asked defence counsel to take further instructions. The judge was subsequently told that the offender had been prevailed upon to harbour it for an associate he refused to name and he had had it for between a month and six weeks. Counsel said "he is absolutely resolute that he is not prepared to name the person involved". 23. Defence counsel identified the following matters as exceptional circumstances which he submitted would justify the court not imposing the minimum sentence: in relation to the offender - the offender's age, his immaturity, the support of his parents, and the effect that a sentence of five years' detention would have upon him; in relation to the offence - the absence of a charging device, the fact that it was not one of the obviously life-threatening devices that the Act was principally designed to remove from circulation, and the absence of evidence that the device had actually been used. 24. Defence counsel also drew the court's attention to the decision of this court in Craggs [2012] EWCA Crim 3062 , in which the Court of Appeal quashed the minimum sentence imposed upon a young appellant in possession of a stun gun and substituted a sentence of ten months' detention in circumstances in which that weapon was not charged and the appellant had no charger. 25. In his sentencing remarks, the judge said he made the following findings about the device: "... it was not a mobile phone and you knew it was not a mobile phone. They found it underneath the gaiter of the gear lever of your car. It was an electronic stun device. It was functional; the battery was low. It was a prohibited weapon. There is no evidence, however, that it was lethal. You did not have the charger for it. You had never used it." He went on to say this: "I am invited by the Court of Appeal after the authorities of R v Ramsen [sic] and R v Craggs to take a holistic approach, to look at things in the round and make sure I do not pass a sentence that is arbitrary or disproportionate. I have already referred to various features about the weapon, for example not being lethal. I will not repeat those again. But there are also other matters which I have to bear in mind, quite apart from those in R v Avis , and those relate to your personal mitigation. You were 18 and you [are] 18 now. You are not of good character, in fact at the time of this offence there was a week to run on the youth rehabilitation order. But on the other side of that you had completed all the conditions of that youth rehabilitation order satisfactorily as far as the pre-sentence report is concerned. In fact that pre-sentence says about you that you qualify for a suspended sentence in their view. What causes me the greatest difficulty in this case are the moving letters of reference that have been placed before me on your behalf. I am not talking about the letters from Mr Hughes and Mr Clark, who talk about you in work context but, nevertheless, say positive things about you and have shown that they are prepared to support you; I am talking about the letters from Mr Miller, your grandfather. That is a very sad state of affairs and more particularly to two people who are not your biological parents but, nevertheless, have stood up to support you, have sat in court with you today. They obviously feel there is something about you that is worth supporting. They are your adoptive parents Janice and Dennis Davidson. What they say about you in your letter (sic) is moving, it is compelling, it is cogent and it is persuasive. There is some good in you, young man. Should I send you to prison for five years or should I give you another chance? That is really what I am being asked to today and I am going to give you another chance, but I will tell you it is a chance you are going to take because I am not going to give you another one. These two people supported you. It is time to give them something back. They have invested an incredible amount of time in emotional and love for you. Do you not think it is time to give something back to them? I would like to hear an answer to that question. THE DEFENDANT: Yeah. THE RECORDER: I think so. Going out at night with cannabis, offering to supply cannabis, with a youth rehabilitation on your head and having that weapon in your car, a weapon that could have caused serious injury in the wrong hands had that person asked for it back. It may be that other courts will query my decision, but it is a decision that I am afraid that having looked at the case from all sides I consider to be right. Merciful perhaps, lenient some may say, but not unduly so." Discussion 26. The issue in this case is a simple one to articulate: was the judge justified in finding there were exceptional circumstances, either in relation to the offence or the offender, which meant he was not obliged to impose the minimum term of five years' custody for this offence? Putting it another way, is this court justified in interfering with the sentence imposed because the court below was clearly wrong in identifying exceptional circumstances when they did not exist? 27. In R v Rogers and others [2016] EWCA Crim 801 , decided after sentence was imposed in this case, the Lord Chief Justice, giving the judgment of the court, said at paragraph 121 that: "When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing ... The hurdle for the defendant, in establishing exceptional circumstances, remains a high one." 28. The particular benefit of this approach in a case where the minimum term provisions are engaged is that it prevents "fudge": it concentrates the mind of all in court before the sentence is determined on the matters that are said to be exceptional and whether they surmount the exceptionality threshold, whether on their own or looked at collectively. 29. In R v Rehman [2005] EWCA Crim 2056 , Lord Woolf CJ, giving the judgment of the court, emphasised that a "holistic" approach was required when deciding whether exceptional circumstances exist, and he went on to say at paragraph 11: "There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional." 30. We have been referred, in addition to Rehman , in the written submissions provided by the parties to a large number of authorities on the issue of exceptional circumstances, some of which concern disguised firearms and some of which do not. These include Craggs ( supra ); R v AC [2012] EWCA Crim 3062 ; R v Ramzan [2013] 2 Cr App R (S) 33; R v Graham Stocker [2014] 1 Cr App R (S) 47 ; Attorney General's Reference No 51 of 2013 [2014] 1 Cr App R (S) 83 ; and R v Withers [2015] 1 Cr App R (S) 64 . 31. In Withers , Globe J, giving the judgment of the court, provided an analysis of the facts of some of these cases. 32. We have also been referred to the well-known passage in R v Avis [1998] 1 Cr App R 420 at 424, where Lord Bingham CJ, giving the judgment of the court, gave guidance in a pre-minimum term case on the series of questions it was appropriate for the court to ask when considering the appropriate level of sentence in any firearms case. 33. It is trite, however, that whether there are exceptional circumstances is a fact-sensitive question. It is also the case that there is no checklist of matters which determine on which side of the line a case falls. In Rehman , at 414, Lord Woolf CJ emphasised the importance of not dividing circumstances into those that were capable of being exceptional and those that were not. 34. On the facts of this case we consider the judge was wrong to find there were exceptional circumstances. The offender had the disguised taser in a public place and he had earlier concealed it in his car, and in circumstances where it was charged and readily available for use. He also had with him concealed and available for use a police-style baton. He had earlier that evening used a four to five inch knife to intimidate someone from whom he had snatched some money in an incident which he was fortunate did not result in a robbery charge. He had a relevant previous conviction for threatening someone with a bladed article. There was, therefore, cogent evidence that the offender was someone who was prepared to arm himself with a weapon and use it in a public place to threaten others. The background to this conduct was the offender's possession of cannabis, his offer to supply that particular drug and the theft, for which offences he was sentenced on the same occasion. At the time of the instant offending he was in breach of a youth rehabilitation order imposed for the bladed article offence. Albeit he was not asked about the taser in interview, he was not frank about the circumstances in which it was in his possession, either to the author of the pre-sentence report or initially to the court. 35. Mr Weekes, for the Attorney, submits that the mere fact that a defendant is 18 years old and that the weapon possessed is a disguised taser, rather than a disguised conventional firearm for example, are not factors which, on their own, can constitute exceptional circumstances given the clear terms of the statutory provisions to which we have referred. We agree. 36. It is true that there was no evidence of actual use, but the offence itself is one of possession and the taser was in a public place and plainly available for use. 37. The absence of the charger was not a particularly compelling feature, in our judgment, in circumstances where the device itself was charged and concealed but available in the circumstances we have described. 38. We would add that it seems tolerably plain from what the judge said that he did not in fact regard these features as particularly compelling and that he was swayed by sympathy for the offender's family: the moving letters of reference from the appellant's grandfather, the obvious decency of the offender's adoptive parents and the loving support which they had given him and would continue to give him. It is that particular feature and the interaction which took place between the offender and the judge upon which Mr Walker, who did not appear below but appears before us today, has placed emphasis in the course of what, if we may say so, are very helpful and well-argued submissions. 39. It is clear, however, that the cases where exceptional circumstances will be found are rare. See, for example, what is said in Attorney General's Reference No 51 of 2015 , where the relevant principles are encapsulated. See further Attorney General's Reference No 115 of 2015 (Greenfield ), where the Vice President of the Court of Appeal Criminal Division, Hallett LJ, giving the judgment of the court, said at paragraph 31 as follows: "There has been a clear steer from this court in recent years that the word 'exceptional' is not to be diluted; sympathy for an offender is not enough to prevent a judge from doing their statutory duty." Nor, we would add, for the offender's family, as appears to have happened here. 40. We have carefully read the documents that were supplied by the offender's family to the judge. With respect to him, we do not consider the matters which they refer to, or those referred to by him in his sentencing remarks, were capable, without more, of making this case exceptional for the purposes of sentence. 41. There is no doubt that statutory provisions requiring the imposition of minimum terms pose a particular challenge for sentencing judges. Unless, however, there are facts which are capable of establishing exceptional circumstances, where the imposition of a five year minimum term would result in an "arbitrary and disproportionate sentence", then the minimum term laid down by Parliament must be imposed. 42. The alternative submission made by Mr Weekes on behalf of the Attorney is that, on analysis, the sentence of 18 months, as it must have been before discount for plea, was unduly lenient in any event, and on the facts a sentence of the order of three and a half years to four years before discount for plea should have been imposed. He further says that on the facts this was not a case, not least because of the length of sentence that should have been imposed on this alternative scenario, where it was appropriate to suspend the sentence. 43. We have read the pre-appeal report for the purposes of this hearing, from which it is clear that the appellant has demonstrated a very poor compliance with the suspended sentence order that was imposed. In the event, however, it is unnecessary for us to address this aspect of the matter before us, save to say that our strong preliminary view is that the Attorney's submissions in relation to length are well founded. 44. It follows from that we have said that we consider that the sentence that was imposed for the firearms offence was unduly lenient. We quash that sentence, that is of 12 months' detention suspended for two years, and substitute for it a sentence of five years' detention in a young offenders’ institution. That will run from the date of the original sentence. 45. The offender must now surrender to custody and we will hear submissions on that matter. 46. MR WALKER: My Lady, the officer in the case I think had nominated Carlisle, but I had, at 5 o'clock this morning, communication that it might be Penrith. I wonder whether I could check my phone to see whether I have been told which is which. The alternative is my Lady nominate Carlisle within 24 hours rather than Penrith by 4 o'clock today. 47. LADY JUSTICE SHARP: We will rise for a moment so you can check what the position is. (The Bench retired for a short time) 48. MR WEEKES: Mr Walker is still taking instructions, my Lady. The thought that occurs to me, having taken instructions on the point -- and I am conscious Mr Walker is not here -- but if your Ladyship was to order 24 hours hence ... 49. LADY JUSTICE SHARP: We will rise again. (The Bench retired for a short time) 50. MR WALKER: I think I missed the court, I am sorry. 51. LADY JUSTICE SHARP: No, we came in without being told that you were here, so not your fault at all. 52. MR WALKER: I have sent an e-mail and I have not had a response to those instructing me, and I have also tried to phone those instructing me today. I have spoken to my learned friend. Penrith and Carlisle are the two towns that we are concerned with. I think the officer in the case thought it was Carlisle. Looking at the offender's address, it is Penrith, and so I had made a suggestion that it might be Penrith. I wonder whether, subject to the court's satisfaction, we could say that on the basis that I will communicate it with those instructing me, Mr Davidson knows what is going on today and has been in touch, as has his family, and whether we can nominate that either by noon tomorrow he surrenders himself at Carlisle, or whether it is 4.30 at Penrith, which is the alternative. 53. LADY JUSTICE SHARP: Do you know whether the opening hours of Penrith station? 54. MR WALKER: That is why I said 4.30, assuming that Penrith would be open on a week day at 4.30. The answer is "no". 55. LADY JUSTICE SHARP: We have one other matter to deal with, which I think is a non-counsel. My preference would be for this matter to be resolved so the offender knows exactly what he has to do and when. 56. MR WALKER: If I can then be excused and try and make sure we have a city and a time. 57. LADY JUSTICE SHARP: Perhaps you might also find -- I am afraid I do not know how far Penrith is from Carlisle. 58. MR WALKER: Yes, I will. It is one of those places where it may not be very far on a map, but the roads up there are something else. I will make those enquiries. 59. MRS JUSTICE ELISABETH LAING: I think you can go up the M6. 60. MR WALKER: You would, yes. 61. LADY JUSTICE SHARP: If you and Mr Weekes could agree the way forward once you have made those enquiries, then we can take it from there. 62. MR WEEKES: The only difficulty, my Lady, is this. I only have an e-mail address for the officer in the case and he has himself nominated Carlisle. 63. LADY JUSTICE SHARP: He has nominated? 64. MR WEEKES: He nominated Carlisle, and so what I do not know -- I am afraid it may not be easy to discover this -- is the ability of Penrith police station to handle this matter if the offender presents himself there, but I will do my best. 65. LADY JUSTICE SHARP: Could you make enquiries and we will obviously have to do the best we can with the information we have after we dealt with this other matter. 66. MR WALKER: The information I have from those instructing me, if it helps, because this is somebody who understands the area more than I do, is that at 5.46 this morning "I will arrange for him to be at Penrith Police Station, Hunter Lane, Penrith for 4.30 pm", and there is another matter referred to. That is what those instructing me believe. I do not know whether, on the basis of that -- 67. LADY JUSTICE SHARP: Presumably they are local solicitors. 68. MR WALKER: They are, yes. 69. LADY JUSTICE SHARP: So they would, one would hope, know what the position is. 70. MR WALKER: They did not send a note to me saying "Silly counsel, the police station is shut on Wednesday afternoons" or something, so ... 71. MR WEEKES: I will do what I can make contact with the officer to ascertain whether that is a course -- 72. LADY JUSTICE SHARP: For the future, perhaps this message could go to the Attorney's office, in cases of this nature where there is a possibility, depending on the outcome, that an offender may have to surrender to custody, there should be communication in advance of the hearing as to what that place should be and when, so that the court is not dependent upon enquiries made on the hoof. 73. MR WEEKES: My Lady, yes. 74. LADY JUSTICE SHARP: Thank you very much. (The case was adjourned for a short time) 75. MR WEEKES: My Lady, Mr Walker is taking further instructions as to the possibility of his lay client surrendering. 76. LADY JUSTICE SHARP: All right. We will rise and the usher will let us know when he is back. We hope it should be before 1 o'clock. (The case was adjourned for a short time) 77. MR WEEKES: My Lady, I have been able to speak to the custody sergeant at Carlisle police station, who tells me that there is no custody facility at Penrith, so I think the position would be if he surrendered to Penrith he would simply be told to go to Carlisle, and in the circumstances I do not think I can make any undertaking that the police would be prepared to transport him from Penrith to Carlisle. 78. LADY JUSTICE SHARP: It will have to be Carlisle. Presumably Carlisle is open all hours? 79. MR WEEKES: It is a custody facility, my Lady, so it would have to be. 80. LADY JUSTICE SHARP: Yes. 81. MR WALKER: My Lady, it clearly makes absolute sense to go to a police station that can receive him. I have tried to get through to those instructing me, who told me yesterday that she was going to be in court in Carlisle. She will be in contact with Mr Davidson today. The only issue is what time this court places upon his attendance at Carlisle. 82. LADY JUSTICE SHARP: It must be at some point today, it cannot be overnight. 83. MR WALKER: That could not be clearer, today. 84. LADY JUSTICE SHARP: The offender must surrender to custody by 5.30 pm at the Carlisle police station. 85. MR WALKER: Thank you. 86. LADY JUSTICE SHARP: Thank you very much, both of you, for your assistance.	[ "LADY JUSTICE SHARP DBE", "MR JUSTICE HADDON-CAVE", "MRS JUSTICE ELISABETH LAING DBE" ]	2016_09_14-3823.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1626/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1626	1,065
9deb6f85de73562615d5356363f36bad38e951239408c39550553c16545ca2f9	[2008] EWCA Crim 2728	EWCA_Crim_2728	2008-10-28	crown_court	No: 200802963/A9 Neutral Citation Number: [2008] EWCA Crim 2728 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 28th October 2008 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - R E G I N A v MICHAEL CARROLL - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A M	No: 200802963/A9 Neutral Citation Number: [2008] EWCA Crim 2728 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 28th October 2008 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - R E G I N A v MICHAEL CARROLL - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr A Lodge appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. Mr Justice Foskett: On 6 May 2008 at Stafford Crown Court the appellant pleaded guilty to one count of possession of a class A drug, heroin, with intent to supply, one count of possession of a class C drug, cannabis, with intent to supply, and a further count of possession of a class C drug, cannabis resin, with intent to supply, those offences being committed on 11 November 2007 in the circumstances we will indicate shortly. He was sentenced by Mr Recorder Qureshi to a total of six years' imprisonment, comprising a sentence of six years' imprisonment in relation to the class A offence concurrent with concurrent 12 month sentences on the class C offences. The total sentence was expressed to be concurrent with a sentence already being served. 2. On 9 May 2003 at Liverpool Crown Court the appellant had been sentenced to an extended sentence of eight years' imprisonment, with a custodial element of five years, for three offences of robbery, one of attempted robbery, and three of possessing an imitation firearm. He was released on licence on 19 September 2006. As a result of the commission of the offences with which this case is concerned he was recalled to custody on 21 January this year. 3. He appeals against the sentences imposed with the leave of the single judge. 4. The circumstances of the offences were as follows. At about 2.30 pm on 11 November 2007 the appellant went to Stafford prison with a visiting order to see an inmate. The visiting order contained an express warning about the consequences of being caught with drugs. The visitors entrance used by the appellant had further warnings displayed. 5. On arrival the appellant was searched and a search dog indicated that he had drugs on him. The appellant produced a clingfilm wrap from the back of his trousers that contained three packages of powder containing a total of 15.7 grammes of heroin at 48 per cent purity with a potential value in prison of £6,280. The wrap also contained 11.5 grammes of cannabis and 8.68 grammes of cannabis resin which together had a prison value of £400. 6. He was arrested, interviewed and admitted going into the prison to pass drugs to the inmate he was visiting. He claimed that he had been put under pressure to do so, saying it was more than his life was worth not to do so. 7. The appellant was aged 28 at the date of the offences and 29 by the time he was sentenced. As will already be apparent he had previous convictions. He had been before the courts on eight previous occasions for 30 offences, including two convictions for possessing cannabis. The most serious matter was the matter to which we have already referred, which was in part motivated by cocaine misuse. Much of his previous offending had been drug related. He had not been involved in drug supply before. 8. Mr Adam Lodge, who represented the appellant before the Crown Court and before us, has submitted that a sentence of six years' imprisonment on a plea of guilty was too long in the circumstances, particularly by reference to sentences passed in other reported cases to which he had referred in his Advice on Appeal. He does not, of course, suggest that anything other than a substantial prison sentence was appropriate, but submits that six years was out of scale. 9. As to the general approach to this kind of offence we would venture to repeat what was said by this court earlier in this year in R v Suhail Akhtar and Mohammed Ashfaq [2008] EWCA Crim 791 . Thomas LJ, giving the judgment of the court, said this: "Those who attempt to supply drugs to prisoners require exemplary sentences. Drugs within a prison, even where the drugs are not heroin, cocaine or crack cocaine, are entirely inimical to the rule of law within a prison. They become the currency of a prison. They are used to extort or bully, and the evil that they do is even worse than the evil done within our open society. Those who try and smuggle drugs into prisons are dealt with, because of the problems in detection, by extremely harsh sentences. People have to be deterred." 10. That mirrors what this court also said in R v Rogers [2007] EWCA Crim 2438 where Auld LJ, giving the judgment of the court and referring to a series of case to which the court had been referred, said this: "Those authorities show that deterrent sentences are imposed on those who take drugs into prison because drugs inside prison have a much greater value than they have on the streets. Drugs are a form of currency in prison. They can be responsible for injury to persons, particularly prison staff. Such offences are too prevalent and require the imposition of deterrent sentences. These are not offences for which a nominal period of imprisonment is appropriate, despite the mitigation which may exist for the individual offender." 11. The learned Recorder in his sentencing remarks noted that this court has in the past upheld sentences of between two and four years for, as he put it, tiny amounts of heroin being taken into prison. He would doubtless have had in mind when saying that Attorney General's Reference No 75 of 2002 [2003] 1 Cr App R(S) 109 where the offender had pleaded guilty to three offences of attempting to supply class A drugs to a friend in prison and had been sentenced to five months' imprisonment. In the course of his judgment the then Vice President of the Court of Appeal Criminal Division, Rose LJ, agreed with the submission of counsel for the Attorney General that the appropriate sentence should have been at least three years. In this case, of course, the amount was over 15 grammes with a substantial prison value. 12. The Recorder also made an oblique reference to the case of R v Dooley [2007] EWCA Crim 2748 decided in October 2007 when a sentence of five years' imprisonment on a 24-year old female trainee solicitor with no previous convictions was upheld for bringing into someone she claimed untruthfully that she was seeing professionally 10.6 grammes of heroin at 39 per cent purity and a total of a little over 13 grammes of cannabis. It appears that she did not receive full credit for her plea of guilty because she had, in the sentencing judge's view, put forward a false story about her knowledge of the heroin to engineer a reduced sentence. She had at one stage intended to pursue a Newton hearing. The Recorder said that that case gave some sort of guidance to the kind of sentence to be imposed in the present sentencing climate. 13. Mr Lodge submitted that that case involved a serious breach of trust that made it more serious than the present case, a submission that he has made about two other cases to which he referred in particular in his advice. They were R v Whenman [2001] 2 Cr App R(S) 87, where a sentence of seven years was upheld in respect of a prison officer of good character, who, on 15 or 20 occasions over a period of 16 months, supplied heroin to a serving prisoner. On any view that case involved a very significant breach of truth over a prolonged period. The other case was R v Mills [2005] 1 Cr App R(S) 38 where a serving prison officer had been sentenced originally to seven years' imprisonment for attempting to smuggle into prison 9.35 grammes of heroin at 20 per cent purity and admitted doing something similar on an earlier occasion, a sentence which was reduced by one year to reflect his offer to give evidence against a co-defendant. 14. We accept, of course, that those two cases, and indeed the case of Dooley , to some extent each involved a breach of trust that constituted an aggravating feature, a feature which is not present in this particular case. 15. However, in the appellant's case, whilst, as we have said, the same aggravating feature does not arise, there are other features that need to be noted. First, as we have already observed, the amount of heroin, 15 grammes, was a significant amount with a substantial prison value. Second, as someone well versed with the prison regime, the appellant must have known the risks he was taking, even if, as may have been the case, he was under some degree of pressure. Third, he was on licence for serious offences committed apparently because of his own involvement with class A drugs. 16. Against that background, notwithstanding the personal mitigation to which Mr Lodge has referred and to the progress that he is making in prison, we do not think that the sentence can be characterised as manifestly excessive. In those circumstances the appeal is dismissed. 17. We should say that we have considered also the submission that Mr Lodge made that the effect of what the learned Recorder did was to impose a six and a half year sentence. We do not see that that is the way in which the Recorder approached this matter. The appellant had been recalled administratively in relation to the extended sentence to which we have referred previously and had served a total of 93 days in relation to that prior to the imposition of the sentence by the Recorder in this case. The Recorder said that he had taken it into account in determining whether this sentence should be made consecutive or concurrent with the existing sentence. That, in our view, was entirely the correct course and we do not see any reason to interfere with the sentence passed on that account either. 18. Thus, as we have indicated, this appeal is dismissed.	[ "LADY JUSTICE HALLETT DBE", "MR JUSTICE FOSKETT", "HIS HONOUR JUDGE MORRIS QC" ]	2008_10_28-1695.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2728/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2728	1,066
a28589ff93b6da50685c3bbb91a8ba0791d8fb058542331bba4288f167425704	[2012] EWCA Crim 720	EWCA_Crim_720	2012-03-15	crown_court	No: 201104832/D1 Neutral Citation Number: [2012] EWCA Crim 720 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 15th March 2012 B e f o r e : LORD JUSTICE JACKSON MR JUSTICE IRWIN HIS HONOUR JUDGE ROOK QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v PF - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street	No: 201104832/D1 Neutral Citation Number: [2012] EWCA Crim 720 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 15th March 2012 B e f o r e : LORD JUSTICE JACKSON MR JUSTICE IRWIN HIS HONOUR JUDGE ROOK QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v PF - - - - - - - - - - - - - - - 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 I Hope appeared on behalf of the Applicant Mr S Gaunt appeared on behalf of the Crown - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE JACKSON: This judgment is in three parts, namely Part 1: Introduction; Part 2: The Facts; Part 3: The application for leave to appeal. Part 1: Introduction 2. This is an application for leave to appeal against conviction in which the main issue concerns the powers of the Crown Court upon a retrial. In this judgment we will refer to the Criminal Appeal Act 1968 as the "1968 Act". Section 7 of the 1968 Act provides: "Power to Order Retrial (1) Where the Court of Appeal allow an appeal against conviction ... and it appears to the Court that the interests of justice so require, they may order the appellant to be retried. (2) A person shall not under this section be ordered to be retried for any offence other than— (a)the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above; (b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or (c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence." 3. We shall refer to the Criminal Justice Act 2003 as " the 2003 Act ". Section 100(1) of the 2003 Act 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." 4. The Indictments Act 1915 permits joinder of counts in an indictment. It also permits the amendment of indictments when this is necessary to meet the circumstances of the case. The Criminal Procedure Rules 2011 deal with the powers of the court to permit joinder of counts in an indictment. Rule 14.2(3) provides: "An indictment may contain more than one count if all the offences charged- (a) are founded on the same facts; or (b) form or are part of a series of offences of the same or a similar character." 5. Having identified the statutory provisions which are relevant to this application, we must now turn to the facts. Part 2: The Facts 6. For many years the applicant ran a coach company and he employed a number of teenage boys to clean the vehicles. Three of the boys whom the applicant employed were SJ, JC and CS. The applicant was also in loco parentis towards SJ for some years while he was living with SJ's mother. 7. In October 2007 JC made allegations of sexual abuse against the applicant. He was duly interviewed by the police on DVD. The police arrested and interviewed the applicant but did not take matters further at that stage. 8. In May 2008 SJ made allegations of sexual abuse against the applicant. The police again investigated. On this occasion they decided to proceed. The applicant was charged with committing a series of sexual offences against SJ and JC. During June 2009 the applicant stood trial before Judge Coleman and a jury at Peterborough Crown Court sitting at Huntington on an indictment containing 15 counts. Counts 1 to 13 related to sexual offences against SJ and counts 14 and 15 related to sexual offences against JC. The jury convicted the applicant on ten of the counts relating to SJ, namely three offences of rape, two indecent assaults, two sexual assaults, two offences of sexual activity with a child and one offence of causing a child to engage in sexual activity. The jury convicted the applicant on two counts of sexual assault against JC. The jury was discharged from returning verdicts on three counts relating to SJ which were alternatives to the rape charges. 9. In respect of two of the rape offences the judge sentenced the applicant to imprisonment for public protection, with a minimum term of 7 years, less time spent in custody on remand. The judge imposed various shorter determinate sentences in respect of the other counts. 10. On 16th July 2010 the Court of Appeal quashed the applicant's convictions on two grounds. First, the judge had allowed certain evidence to be called which ought not to have gone before the jury. Secondly, the judge's direction concerning the applicant's good character was unsatisfactory. The Court of Appeal directed a retrial pursuant to section 7 of the 1968 Act . 11. On 27th August 2010 the applicant was arraigned before His Honour Judge Coleman on the same 15 count indictment as before. He pleaded not guilty to all counts. In September 2010 CS made allegations of sexual abuse against the applicant. He was duly interviewed by the police on DVD. The police then arrested and interviewed the applicant about these new allegations. In due course the applicant was charged on a second indictment with offences against CS. The second indictment contained eight counts of sexual assault, one count of attempted rape and one count of attempted sexual activity with a child. 12. The prosecution then applied for joinder of the two indictments. The defence opposed that application on the ground that to add further counts to the first indictment would prejudice the applicant's position on his retrial. This would be contrary to the guidance given in recent authorities concerning retrials ordered by the Court of Appeal. This was the argument put by defence counsel before the court. 13. In a ruling given on 2nd February 2011 the judge rejected the defence submissions and acceded to the prosecution application for joinder. In the result therefore, the applicant faced an indictment containing 25 counts. The first 13 counts related to SJ, counts 14 and 15 related to JC and counts 16 to 25 were the 10 new charges relating to CS. 14. The applicant stood trial on the 25 count indictment before Judge Coleman and a jury at Milton Keynes Crown Court in July and August 2011. The prosecution witnesses included of course the three complainants. During the course of SJ's evidence defence counsel sought leave to put in evidence, some of the school records concerning SJ. The records in question concerned SJ's misbehaviour at school on certain occasions. The judge in the exercise of his discretion, under section 100 (1) of the 2003 Act refused that application. The trial duly proceeded. The applicant gave evidence denying all the allegations against him. On 5th August 2011 the jury convicted the applicant on counts 2, 3, 4, 6, 7, 8, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23 and 24. In respect of counts 4, 8 and 11 (the three rape charges) the judge imposed a sentence of imprisonment for public protection, with a minimum term of 7 years less time spent in custody on remand. He imposed various shorter determinate sentences in respect of the other counts upon which the applicant had been convicted. 15. The applicant was aggrieved by his convictions. Accordingly he has applied for leave to appeal to the Court of Appeal. Part 3: The application for leave to appeal to the Court of Appeal . 16. The applicant applied to the Court of Appeal for leave to appeal against conviction on three grounds. The first ground is that the judge erred in allowing joinder of a fresh indictment to the indictment upon which the Court of Appeal had ordered retrial. The second ground is that the judge erred in not allowing the defence to cross-examine the complainant, SJ, about allegations of violent misconduct as recorded in the school records. The third ground is that in all the circumstances the applicant's convictions are unsafe. 17. The first ground of appeal is the ground upon which the applicant principally relies and has been the subject of extensive argument this morning. Both Mr Hope for the applicant and Miss Gaunt, for the prosecution, draw attention to R v Hemmings [2000] 1 WLR 661 and R v Booker [2011] 1 Cr App R 26 as the two principal authorities which are relevant. We shall therefore begin by reviewing those decisions. 18. In Hemmings the three defendants were convicted of conspiracy to steal amongst other matters. The Court of Appeal quashed their conviction and ordered a retrial. Before the retrial began both prosecution and defence agreed that the indictment should be amended by replacing the conspiracy charge with six counts of theft. The defendants were convicted on those counts. They appealed on the ground that section 7 of the 1968 Act prohibited the amendment to the indictment which had been made. The Court of Appeal dismissed the defendant's appeal. Clarke LJ, giving the judgment of the court, summarised the court's reasoning as follows at paragraph 25: "(1) Section 5(1) of the Act of 1915 is in wide terms. If it is construed by reference to its terms, the judge had power to permit the amendment. The indictment was defective within the meaning of section 5(1) for the same reason as it was defective at the first trial. At the first trial the amendment would have been 'necessary to meet the circumstances of the case' within the meaning of section 5(1) for the reasons given in paragraph 7 above. Further, it could not have been said that the amendment could not have been made without injustice. (2) This court could not have ordered a retrial under section 7(1) of the Act of 1968 on an indictment containing the theft offences because of the terms of section 7(2) . However, there is nothing in section 7 or section 8 of the Act of 1968 which expressly affects the power of the trial judge at a trial (which logically must include a retrial) to permit the amendment of the indictment preferred pursuant to an order of this Court under section 7 . Neither section is concerned with amendment. Section 7(2) is concerned with the order and section 8 with the subsequent procedure. (3) It is not implicit in section 7(2) that the trial judge's power to permit any amendment under section 5(1) of the Act of 1915 is proscribed. There is no reason why the trial judge should not permit an amendment under section 5(1) if the criteria in that section are satisfied. (4) In the instant case those criteria are satisfied because the amendment was 'necessary to meet the circumstances of the case' and, not only could the amendment be made without injustice, but the amendment served the interests of justice for the reasons given above. (5) The position would almost certainly have been different if the proposed amendment had put the defendants in a worse position than they had been in at the original trial. As we see it at present, it would not be permissible to permit the amendment of an indictment if to do so would put the defendant in a worse position than he had been after the original trial because any decision on an application to amend must respect the statutory purpose behind section 7 of the Act of 1968. (6) In this case the amendment was consistent with that statutory purpose and not inconsistent with it. In our judgment, section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the Act of 1915." 19. In Booker the defendant and others were convicted of conspiracy to supply cocaine. The Court of Appeal quashed the defendant's conviction and ordered a retrial. Before the retrial the prosecution secured an amendment to the indictment to join a new defendant, Mr Breskal, as an alleged co-conspirator. Mr Breskal's participation in the retrial turned out to be highly damaging to the defendant's case. The defendant was convicted. He appealed on the ground that the judge ought not to have allowed the indictment to be amended. The Court of Appeal dismissed the defendant's appeal. Pill LJ, delivering the judgment of the court summarised the court's reasoning as follows at paragraph 24: "(1) Section 7(2) of the 1968 Act deals with charging for different offences and specific situations in which that may arise. Hemmings was concerned specifically with the substitution of a different charge. (2) A ban on adding a defendant to the indictment does not appear in section 7(2) and section 5(1) of the 1915 Act should not be applied as if it did. Section 7(2) does not proscribe the exercise of the trial judge's power to permit an amendment under section 5(1) . (3) There is no general principle that previously absent co-conspirators cannot be tried with a conspirator subject to retrial. (4) While we would accept that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken. A defendant may often be in a worse position at a retrial, amendment or not, because further evidence has emerged, or is better presented, and he cannot normally complain about that. (5) We accept that there could be circumstances in which an application to join a defendant at a retrial could be an abuse of the process of the court. The requirement of fairness inherent in section 7(2) could spill over into consideration of a decision to add a defendant. By using the language it did, the court in Hemmings , particularly at reason (5) cited above, probably had broader considerations in mind than the change of charge specifically considered. If a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, the court would not permit it. (6) Notwithstanding the absence of an explanation for the delay in charging Breskal, we are not prepared to conclude that the delay was contrived to make possible a joint trial or that the prosecution were abusing the process of the court when applying to join Breskal as a defendant at the retrial. In the event, it worked against the appellant but it is not established that the prosecution abusively took advantage of the situation to prejudice the appellant in circumstances where Breskal's change of position emerged only during the trial. (7) In considering whether there has been an abuse, it is appropriate to have in mind the information available at the time the amendment was granted, which in this case did not include Breskal's dramatic change of position. Moreover, when that change did occur, no application to discharge the jury was made on behalf of the appellant. (8) The judge retained a discretion in deciding whether to permit the amendment of the indictment. Fairness to a defendant being retried must be central to the decision. In our judgment, the judge was entitled to make the decision she did when she did." 20. Mr Hope, on behalf of the applicant, places reliance on paragraph 25(5) of Hemmings . He submits that the amendment permitted in this case did put the applicant in "a worse position than they had been in at the original trial." 21. In argument the court suggested to Mr Hope that paragraph 25(5) of Hemmings should be construed as meaning that the prosecution cannot step up the charges on a retrial. For example, if the charge at the original trial was section 20 wounding, the prosecution on the retrial could not amend that count to allege wounding contrary to section 18 of the Offences Against the Person Act 1861 . 22. Mr Hope accepted that this would be prohibited by section 7 of the 1968 Act , but he submitted the restrictions imposed by that section are wider. Mr Hope placed reliance in particular on paragraph 24(5) of Booker . He drew particular attention to the sentence reading: "By using the language it did, the court in Hemmings , particularly at reason (5) cited above, probably had broader considerations in mind than the change of charge specifically considered." 23. Mr Hope submitted that there is something special about a retrial. The ability to embark upon a second trial after something has gone awry with the first trial is a benefit given to the prosecution by statute. It is a benefit which the prosecution enjoy in the public interest. Nevertheless, the prosecution should be scrupulous to act in a way which is fair and which does not put the defendant at a disadvantage because he is being tried for a second time in respect of the offence or offences for which his conviction has been quashed. 24. Miss Gaunt, for the prosecution, accepts that the prosecution must ensure that a defendant is treated fairly at a retrial. However, she submits that nothing in the Act or in the authorities prohibits the joinder of additional counts to the original indictment if such joinder becomes appropriate. She points out that in the present case the applicant was being retried on precisely the same 15 counts that he faced at the original trial. What has happened is not that those charges have changed or been made more serious but merely that other charges, not part of the retrial, have been added. 25. In our view, the issue raised by the first ground of appeal turns upon the interpretation of section 7 of the 1968 Act . That section limits the offences for which a defendant can be retried following the quashing of his original conviction. Section 7 prevents the judge at the retrial replacing a less serious charge with a more serious charge. 26. Section 7 is silent on the question whether other defendants or other charges can be added to the indictment at the retrial. The section does not expressly prohibit such a course. 27. In Booker the Court of Appeal held that it was permissible to amend the indictment before the start of the retrial by adding another defendant, unless the amendment involved some manipulation or abuse of process by the prosecution. It is significant that in paragraph 24(4) of Booker Pill LJ said: "While we would accept that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken." 28. In our view a similar approach should be adopted in cases where the prosecution at a retrial seeks to add further counts to the indictment. If there is manipulation of the process or abuse of process by the prosecution, then the judge on the retrial will not allow the proposed amendment. If however the application to add further counts is a proper one, because further evidence has come to light since the original trial, then in the view of this court the judge is not precluded either by section 7 of the 1968 Act or by any principle of law from allowing the amendment. 29. In the present case, as the applicant's counsel concedes, the requirements of rule 14.2(3) of the Criminal Procedure Rules are met. The alleged offences against CS "form or are part of a series of offences of the same or a similar character." This was therefore a perfectly proper and reasonable application for joinder of additional counts on its merits and in its own right. Furthermore, CS's evidence of abuse was not available to the prosecution at the original trial, so those counts could not possibly have formed part of the original indictment. In our view, the judge's decision to allow amendment of the indictment by the addition of the further counts cannot be faulted. We would therefore reject the first proposed ground of appeal. 30. We turn now to the second ground. This was developed much more briefly by Mr Hope and we can deal with it briefly as well. We have been through the school logs which defence counsel wished to put in cross-examination. As Mr Hope very fairly conceded, the incidents relied upon were relatively minor acts of misbehaviour at school although involving violence. Only six of the incidents occurred during the indictment period. It should also be noted that some of the entries in the school records indicate that SJ was usually well behaved at school. 31. Mr Hope submits that the main relevance of the entries in the school records is that they show SJ standing up to adult authority. Yet, says Mr Hope, he was put before the jury as someone who could not stand up to the applicant. 32. We do not see force in this line of argument. Only one of the six incidents which occurred during the period covered by the indictment involved standing up to adult authority. That incident is not out of character with SJ's account of matters as put before the jury. That account of matters includes two occasions when SJ forcefully stood up to the applicant. 33. The judge dealt with the defence application to put in the school records as an exercise of the court's discretion under section 100 of the 2003 Act . The judge concluded that none of the tests contained in section 100 (1) were satisfied. The evidence was not important explanatory evidence. The evidence did not have substantial probative value in relation to a matter which was in issue in the proceedings and the evidence waqs not of such substantial importance in the context of the case as a whole that it ought to go before the jury. 34. In the course of his ruling the judge took into account all relevant factors. Mr Hope does not suggest that there was any relevant factor which the judge overlooked, nor does he suggest that the judge placed reliance on any factor which was irrelevant. In our view the judge made an entirely sensible case management decision for reasons which he set out with care. This court should not interfere. We therefore reject the second ground of appeal as put forward in the application. 35. The third proposed ground of appeal is that the applicant's conviction is unsafe. That ground is parasitic on the first two and is not based upon any additional arguments. We can see no possible basis for saying that the applicant's conviction is unsafe. 36. The result, therefore, is that this application for leave to appeal must be refused. Although we are dealing with a leave application, not an appeal, we have found it necessary to decide a point of law which may be of occasional interest in other cases. We therefore direct that this judgment may be cited on future occasions if counsel so wish. 37.	[ "LORD JUSTICE JACKSON", "MR JUSTICE IRWIN", "HIS HONOUR JUDGE ROOK QC" ]	2012_03_15-2955.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/720/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/720	1,067
568315ae60ffd41b647da269b3b7ee70f974d4e4bf05c4d0d17cfddca915b43b	[2017] EWCA Crim 597	EWCA_Crim_597	2017-02-28	crown_court	Neutral Citation Number: [2017] EWCA Crim 597 Case No: 201601368 B1; 201500443 C3; 201505334 C3; 201503122 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 28 February 2017 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LADY JUSTICE HALLETT DBE) MR JUSTICE KERR MRS JUSTICE CHEEMA-GRUBB DBE - - - - - - - - - - - - - - - - - - - - - Between: R E G I N A v TERENCE CONAGHAN R E G I N A v THOMAS WILLIAM HENRY JAMES	Neutral Citation Number: [2017] EWCA Crim 597 Case No: 201601368 B1; 201500443 C3; 201505334 C3; 201503122 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 28 February 2017 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LADY JUSTICE HALLETT DBE) MR JUSTICE KERR MRS JUSTICE CHEEMA-GRUBB DBE - - - - - - - - - - - - - - - - - - - - - Between: R E G I N A v TERENCE CONAGHAN R E G I N A v THOMAS WILLIAM HENRY JAMES R E G I N A v DAVID NOEL RAMCHAITAR R E G I N A v MICHAEL HERBERT SOLOMON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss R Suttle appeared on behalf of the Applicant Conaghan The Applicants James, Ramchaitar and Solomon did not attend and were not represented The Crown did not attend and was not represented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. THE VICE PRESIDENT: 2. Introduction: 3. These four renewed applications for leave to appeal against conviction have been listed together because each applicant has been assisted in presenting his application by a third party who is not legally qualified. The judgment on the four applications is one to which all members of the court have contributed. 4. It has become increasingly common in the Court of Appeal Criminal Division (“CACD”) for the court to receive applications by unqualified third parties to represent an applicant and address the court, usually at renewed applications for leave hearings where public funding is exhausted. This trend has led to the following problems: (i) Third parties have submitted applications on a litigant in person's behalf where it has been unclear that they were acting in an applicant's best interests and or with their full authority. (ii) Third parties have requested transcripts and other documents on behalf of a litigant in person and attempted to correspond with the office directly as if they were a legal representative. (iii) Staff, particularly administrative staff, have been unsure about what information they can provide to third parties, particularly over the telephone. (iv) Third parties have advanced applications in which criticisms are made of trial lawyers, without consulting the trial lawyers as is required of fresh legal representatives by the judgment in R v McCook [2014] EWCA Crim 734 . (v) Third parties with a personal interest in the proceedings, or with a cause they wish to advance, or simply with the best of intentions, have presented totally unmeritorious applications. They have thereby raised the hopes of an applicant, taken up a very considerable amount of time and resources of the court, and put an applicant at risk of a loss of time order pursuant to the judgment in R v Gray & Ors [2014] EWCA Crim 2372 . In Gray & Ors the court declared that: "The only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985". (vi) Third parties have taken years to advance an application, seemingly unaware of the approach this court takes to applications requiring significant extensions of time. (vii) Third parties have advanced applications seemingly unaware of the approach this court takes to applications to advance fresh evidence, particularly those based on fresh expert evidence. 5. In this Special Court, the third parties seeking to assist the litigant vary. James is a litigant in person. He has been assisted throughout these proceedings by his wife, Mrs James, on the basis he is dyslexic, not articulate and cannot answer questions very quickly. Mrs James has lodged grounds of appeal on her husband’s behalf and with his authority. She initially applied to address the court orally but abandoned her application. She was a defence witness at trial and with an obvious personal interest in the proceedings. 6. Solomon is assisted by Mr Whetstone, who informed us that he is a friend of long standing. He got in touch with the applicant after the trial and offered to help, when he discovered trial counsel had advised against an appeal. He says he is not being paid but has declined to provide any further information on his background. We assume, therefore, he is not and never has been professionally qualified. He calls himself a "McKenzie type friend". He has lodged grounds of appeal on the applicant's behalf and has been corresponding with the office on a regular basis. He lodged a complaint with his MP that the applicant's case had been delayed pending this hearing. He made an application to address the court. This was refused because the court did not consider this was an exceptional case. He then submitted written representations and a video recording said to undermine the safety of the conviction. These have been considered, but, as we note later in this judgment, his representations contained explicit criticism of trial counsel and reliance on comments allegedly made by trial counsel, but no documents have been provided to support the representation and there has been no proper compliance with the procedure set out in McCook . 7. Conaghan is now assisted by law students of Northumbria University. The students prepared his application for leave to appeal but the process took nearly six years. The students settled the grounds of appeal including criticism of trial counsel without complying with the requirements of McCook and they lodged a report on the applicant's behalf from a witness whose expertise in the relevant field has been doubted on a previous occasion by this court. The same students are assisting in other live cases before the court. Although the Court of Appeal Office has been told they are supervised by a solicitor, it is not clear the extent of the supervision. However, it was not the students who sought to represent Mr Conaghan at today’s hearing. He had the very considerable advantage of being represented before us by Miss Suttle on a pro bono basis, and we are indebted to her. 8. In the case of Ramchaitar, the Registrar granted an application for a non-qualified third party to conduct litigation namely the Criminal Appeal Project of BPP Law School. The project was established to assist applicants who have exhausted their appeals process. The Law School first submitted an application to the Criminal Cases Review Commission for the applicant, but it was rejected because he had not exhausted his avenues of appeal before this court. By that time they had carried out substantial work on the applicant’s behalf and the Registrar allowed them to continue acting for him. They have twice sought an adjournment of the application on the basis that two different counsel instructed to attend pro bono could not attend. The most recent application was yesterday, less than 24 hours before the hearing. Both applications were refused. The Law School were unable to obtain the services of another counsel to advance the application. 9. In an attempt to address some of the concerns, in December 2015 the Registrar issued his Practice Note entitled "Practice Guidance: Litigants in Person – Assistance by Third Parties (Criminal Appeals)". A letter was also drafted to explain in clear terms to applicants the level and type of assistance an unqualified third party would ordinarily be permitted to provide. The guidance was intended to reflect the practice elsewhere. 10. We have been invited by the Registrar to consider the Practice Note and to give general guidance on the assistance that a non-legally qualified third party may give to a litigant in person in the CACD. The law and practice 11. Part 3 of the Legal Services Act 2007 lists and defines reserved legal activities. Those who wish to conduct them are subject to stringent requirements. Exercising a right of audience is a reserved legal activity, as is conducting litigation. However, the court has an inherent jurisdiction to grant a right of audience on a case-by-case basis to any person who would not otherwise have a right of audience: see D v S (Rights of audience ) [1997] 1 FLR 724. It is a discretion that should be exercised only in “exceptional” circumstances. To do otherwise would thwart Parliament’s clear intention. 12. The decision in D v S related to the provisions of the Courts and Legal Services Act 1990 which have now been repealed. The provisions with which we are concerned are contained in the Legal Services Act 2007. They mirror the previous provisions and the position therefore remains the same: the court may allow an unqualified third party permission to address the Court in exceptional circumstances. 13. In three relatively recent decisions, this court (the CACD) considered whether exceptional circumstances existed to justify the grant of rights of audience to a third party. In R v Samra [2015] EWCA Crim 1551 , the applicant's sister was granted permission to address the court following an application by the applicant that she was his appropriate adult and had drafted his grounds of appeal. In R v Kirk [2015] EWCA Crim 338 , the court refused to grant rights of audience to a third party assisting a litigant in person on the basis they were what was described as a "McKenzie friend" and the case was not exceptional. In R v Rees [2014] EWCA Crim 1056 , the court allowed a Mr Howell (status unknown) to address the court. It appears the application was made entirely without notice and no reasons are given by the court for allowing the application, although Mr Howell is referred to in the judgment as a "McKenzie friend". 14. The current position in the Civil and Family Courts is that joint Practice Guidance was issued by the Master of the Rolls and the President of the Family Division. The Guidance sets out the approach that should be taken to what are still known as "McKenzie friends" in many quarters, albeit the term has become contentious. Concerns have been expressed in the Civil and Family Courts about the increased use of third parties, particularly professional “McKenzie friends” who are paid fees for the work they do. Given the importance of reserved activities under the Legal Services Act, many question whether it is in the public interest, or generally in the interests of an individual litigant to allow “Mackenzie friends” to operate in the courts as litigators and advocates, unqualified, uninsured, unregulated and not bound by the rules that bind qualified lawyers. Others, such as the Consumer Panel of the Legal Services Board believe that, in certain circumstances, they can make a positive contribution to the system and provide worthwhile assistance to the otherwise unrepresented litigant. 15. A working group has been set up by the Lord Chief Justice to examine the current guidance. A consultation document was issued and consultation closed last year. One of the issues the consultation addresses is the use of the title "McKenzie friend". The Bar Council in its response to consultation favoured the use of the term "lay supporter or helper". 16. Having considered these developments and the Registrar's Practice Note, it is our view that: (i) The term "McKenzie friend" is not appropriate in the Court of Appeal Criminal Division. Terms such as "applicant's friend" or "applicant's helper" might well be more appropriate, but it would be wrong to express a concluded view pending the results of the consultation in the Civil and Family jurisdictions. (ii) The court will only allow a non-qualified third party to address the court in exceptional circumstances, and this will be decided on a case-by-case basis. (iii) If the Registrar has exceptionally granted permission for a non-qualified third party to act as a litigator, it does not follow that the court will also grant the third party a right of audience. It will only do so in exceptional circumstances. (iv) The Registrar's Practice Note is generally consistent with the current law and best practice in this area. However, we recommend a number of possible improvements. First, we would invite the Registrar to consider whether the terminology is such that it can be properly understood by the majority of litigants in person. Second, we suggest the Registrar may wish to structure the guidance in such a way it better highlights the individual stages in the process. This should enable bodies (such as student law advisory bodies) to make an informed decision as to how far they can go in assisting a litigant before involving the services of a lawyer. Third parties should be put on clear notice that an application should not be advanced beyond the single judge stage, following a refusal, without the applicant being fully advised as to the possible consequences. 17. We turn to the facts of the individual cases. Conaghan Background 18. Conaghan was convicted of an offence of murder on 2 August 2007 at the Central Criminal Court. His co-accused, John O'Flynn, was also convicted of murder. Another co-accused, Richardson, was acquitted. He applies for an extension of time of 14 days in which to renew his application for an extension of time of 8 years and 8 months to apply for leave to appeal against conviction. He also renews his application to rely on fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. If there were any merit in the application we might be prepared to overlook the 14-day extension of time required, caused as it was by the illness of one of those assisting the applicant. However, it is the nearly 9 years' extension of time that creates a significant hurdle for the applicant. 19. Miss Suttle informed us that the applicant was advised by leading and junior counsel at trial that he had no grounds for appeal. According to a statement received this morning he then lost faith in the justice system; correspondence went astray; he contacted other lawyers but they did not reply; and he was concerned with other proceedings in Scotland. This was said to account for his not contacting the Northumbria University Student Law Office until July 2010, at which point any application was already out of time. 20. Since July 2010 the application has been conducted by students of the Student Law Office, who change every few years as they complete their studies. It is a pro bono organisation with limited time and resources, and on that basis it was asserted that it was reasonable for them to take five years for five different sets of students to put the application in order. Part of the delay was also attributable to the time taken to obtain an expert report. The prosecution case 21. In the early hours of Wednesday, 4 February 2003, George Francis, the deceased, was shot dead near his car in Bermondsey outside his haulage company. Neighbours heard gunshots, discovered the body and called the police. Four empty cartridges and a bullet were found near the scene. The prosecution case was the applicant and his co-accused O'Flynn murdered the deceased, having been recruited by the co-accused Richardson. The accused and O'Flynn climbed into the deceased's yard shortly after midnight to adjust the CCTV camera covering the road, and then one or both fired the fatal shots at about 4.45 am when the deceased arrived in his car. 22. The prosecution relied upon: (i) the evidence of an expert in imaging analysis who examined the CCTV footage; (ii) the evidenced of Julie-Ann Cornelius, a forensic scientist, who examined cellular material recovered from the arms and nose bridge of spectacles found at the scene using Low Copy Number (LCN) DNA analysis and received a full copy DNA profile which matched that of the applicant; (iii) the evidence of a footwear mark expert that there was limited support for the proposition that a footprint recovered from the scene matched the tread pattern on trainers owned by the applicant; (iv) evidence that a cigarette butt bore a DNA profile that matched the co-accused O'Flynn; (v) mobile telephone evidence that demonstrated extensive contact between the applicant and O'Flynn on the night of 13 May and the morning of 14 May 2003 and in the preceding weeks; (vi) cell site evidence suggesting that the applicant and O'Flynn were in the Bermondsey area at the right time; (vii) evidence from an acquaintance of the co-accused O'Flynn that O'Flynn confessed to her that he and the applicant had been paid to murder Mr Francis and that in the course of the incident the applicant had dropped his glasses. O'Flynn later asked her to store a bag containing two firearms, one of which, when examined, bore O'Flynn's DNA; (viii) the applicant's previous convictions, including ones for possession of firearms; (ix) an adverse inference from his failure to give evidence. 23. The defence case 24. The defence case was a denial of any kind of involvement or presence and a challenge to the DNA evidence. The defence pointed to the fact that when Ms Cornelius first gave her opinion as to the profile she had obtained, she stated that she had obtained a partial profile that matched the applicant yet she went further in her evidence before the jury. It was only in cross-examination that she opined that she had obtained a full profile that matched the applicant. This was said to render her opinion unsatisfactory and unreliable. A defence imaging analysis expert disputed the prosecution expert's interpretation of the CCTV. An explanation was tendered for the cell site evidence; medical evidence was provided to suggest the applicant would not have had the capacity to climb over the fence in the way suggested; and several witnesses gave supportive character evidence. The account of a confession to her from O'Flynn was challenged on various grounds. Ground of appeal 25. The ground of appeal against conviction is based on ‘fresh’ evidence obtained from a Professor Alan Jamieson, described as an expert in Low Copy Number DNA analysis. This evidence is said to undermine the Crown's evidence at trial that the DNA profile found on the spectacles matched the applicant. 26. Professor Jamieson relying solely on a note of the evidence and without having conducted an analysis himself maintains that the circumstances of and the reason for Julie-Ann Cornelius's change of opinion did not withstand scientific scrutiny. He insists that her methodology has no proper scientific basis and has been shown to be unreliable. 27. Professor Jamieson gave evidence before this court in R v Reed & Reed [2009] EWCA Crim 2698 . On that occasion the court expressed "clear reservations about the extent of his expertise in relation to DNA profiles", describing it as ‘limited’, without any first-hand laboratory or research experience. The court also made strong criticisms of aspects of his evidence, including his willingness to criticise the integrity of other scientists with no foundation whatsoever. 28. In light of this decision, the applicant's representatives were invited to lodge further submissions addressing the criticisms. A further 15-page report came from Professor Jamieson asserting his expert credentials. He insists that the Forensic Institute, the legitimacy of which was under scrutiny in Reed and Reed is a legitimate forensic science institute that he established in Glasgow. He also took issue with the court's characterisation of his expertise in Reed & Reed and maintains he does have the relevant experience. 29. However, they did not contact trial representatives. The Registrar did. Mr Rock Tansey QC (now retired), at the time of trial leading counsel for the applicant, has done his best to explain what happened. He and his colleagues (junior and instructing solicitors) were very much alive to the issue of Ms Cornelius's DNA analysis and her change of opinion. A report had been commissioned from their own expert, Dr Sara Short. Dr Short had conducted an analysis herself and prepared a report together with a comprehensive set of possible questions with which to challenge Ms Cornelius. These were deployed as best Mr Tansey could. However, he was somewhat inhibited by the fact that Dr Short’s analysis produced a very similar conclusion to that obtained by Ms Cornelius. Dr Short agreed with Ms Cornelius's results and in her estimation the chances of obtaining "a major profile if that part of the DNA came from a man other than and unrelated to T Conaghan was of the order of one in a billion". 30. Mr Tansey explained that, in those circumstances, Ms Cornelius’ change of opinion suited the defence purposes. Having taken time to reflect and to take further instructions, he decided not to make an application. Miss Suttle struggled valiantly to advance the application for leave to appeal in the light of this information. 31. Conclusions 32. Refusing leave to appeal against conviction, the single judge gave the following reasons: "The extension of time required is over 8 years. No explanation is given for the delay between the original advice on appeal in 2007 and the first contact with Northumbria University in 2010. Whilst it is understandable that the pro bono activity of the students could not be expected to be conducted with same expedition as a firm of solicitors, it was undertaken in a leisurely fashion. Further, the report which is the cornerstone of the proposed appeal is dated June 2014 whereas the appeal was only lodged in 2016. There is no proper basis for the extension of time given the high threshold which has to be reached where a very long extension is in issue." 33. We wholeheartedly agree. As indebted as we are to law students in various institutions around the country conducting investigations of this kind and taking on cases of this kind, this court operates on the basis of clear and established principles of which timeliness is one. Institutions that take on cases must understand the consequences of inexcusable delay. 34. The single judge also considered the substance of the application. He dismissed Professor Jamieson's ‘fresh’ evidence as neither fresh nor adequate. 35. Again, we agree. We are surprised that if Professor Jamieson has the expertise and the experience that he claims, he was prepared to criticise Ms Cornelius's findings to the extent that he did solely on the basis of a note of her evidence. His approach was unsatisfactory. We would have expected him at least to call for Ms Cornelius’ notes of her analysis. Had he made a simple enquiry if any other expert had examined the samples, he would have discovered Dr Short’s analysis. In short, he seems to have opined on the integrity of a fellow scientist without checking his facts. 36. We have no hesitation whatsoever in rejecting Professor Jamieson's report. We are not satisfied as to his expertise, we do not find it credible, it does not provide a ground of appeal and there is no reasonable explanation for it not being called at trial. In any event, the defence had available an expert who could advise and, if necessary, give evidence on the same issue. This is yet another example of post conviction ‘expert-shopping’, a practice that has been deprecated by this court on many occasions. 37. The applicant has made representations that this court should not make a ‘loss of time’ order. He was advised by ‘counsel’ (not Miss Suttle) that there was merit in his appeal and that counsel was willing to represent him pro bono. As was made clear in Gray & Ors , counsel’s positive advice would not prevent us from making a loss of time order. However, having heard Miss Suttle's representations and given there is little point in our making a loss of time order, we conclude it would be inappropriate to do so. James Background 38. On 16 July 2014 in the Crown Court at Reading before Her Honour Judge Cutts QC, the applicant, who is now aged 74, was convicted of one count of rape and six counts of indecent assault, all contrary to the Sexual Offences Act 1956. He applies for an extension of time of 32 days in which to renew his application for an extension of time of 5 months and 9 days. In addition, he applies for leave to call a witness pursuant to section 23 of the Criminal Appeal Act. 39. Mrs James explains that her husband’s solicitor did not tell him how to appeal and he did not receive letters from the solicitor because they were sent to the wrong prison. They made enquiries of the CCRC and only then became aware that they had to come to this court first. 40. The applicant was first arrested in 2000. He was interviewed in relation to allegations made by the complainant "NG". He denied the allegations in police interviews and was not prosecuted at that stage. He was re-arrested in 2012 in relation to offences allegedly committed against NG and another girl, "AB". The offending was alleged to have taken place between 1997 and 2000, when AB was 11 years old and NG was about 8 years old. Both girls said that, at the time, they had looked up to the applicant and to his wife. The prosecution case was that the applicant had taken advantage of such a relationship sexually to assault both girls when they visited his home. AB claimed that Mrs James was present in another part of the house on some occasions she was assaulted in the kitchen; NG was not sure whether Mrs James was in the house. 41. The defence case was that no sexual impropriety had occurred and that contact had been appropriate and entirely innocent. Mrs James gave evidence that it was not possible her husband had abused either girl. The property in which they lived had been badly made and she would have heard whatever was going on wherever she was in the house. AB had never been alone in the kitchen with the applicant, there was no door to the kitchen, and that the door to the living room would never have been shut leaving AB and the applicant alone in the kitchen. Grounds of Appeal 42. Mr and Mrs James advanced the following grounds of appeal: counsel was given insufficient time to prepare for trial; the police lost tapes and papers from the 2000 arrest; the charges were altered in court; the applicant's disability was not taken into account; the applicant's medical condition in 2000 was not taken into account; counsel failed to ask questions about relevant matters; no evidence was sought or adduced in relation to doors in the property; NG had seen the applicant on three occasions since he was charged; during the trial the applicant was unable to gain the attention of counsel; counsel told the applicant he would have extra time to answer questions, but he was not given that time and this made him appear in a bad light; the contents of three psychiatric reports were not taken into account; the opinion of one of the psychiatrists that he should not be tried was not taken into account; nothing was said about the fact that no indecent material was found on his computer hard drives; there was a delay in holding the trial, and this was not taken into account; the applicant's wife was unable to be in court because of her disability and this adversely affected the fairness of the trial. 43. The further grounds lodged included reference to the layout of the inside of the kitchen, the position of the kitchen door when closed, and the availability of a witness now to confirm this. 44. In view of the criticisms made of trial counsel and solicitors, the applicant waived his privilege, and Mr Mark Smith explained that he took over the defence brief in unusual circumstances after the first witness had been examined in-chief. Counsel originally instructed had to leave to attend to a serious family emergency and the judge was unwilling to adjourn. Mr Smith assured this court that he was well able to take over the case at such short notice and in those circumstances. He is an experienced advocate. He did not feel underprepared or rushed. All parties were well aware of the applicant's medical condition, partly because the trial had to be adjourned for a day when the applicant fell ill. A close eye was kept on the applicant to ensure he was focused and well enough to continue. All the relevant details such as the local geography, the lay out of the house and the opportunity to assault were explored with the witnesses. Conclusions 45. Refusing leave to appeal conviction, the single judge gave a number of reasons, including the fact that the so-called fresh evidence did not raise any doubts about the safety of the conviction and it is not fresh evidence. He indicated the full court should consider making a loss of time order if the application was renewed. The applicant opposed such an order. He said this: "I have never received this form prior to this one that was sent to my wife on 10 September. If, as requested, this was sent to my wife, you would have definitely had it returned in time as I am not guilty of the undated charges. Neither my wife nor I have any assets and my wife is living on our pensions. We cannot afford costs nor a solicitor." 46. We agree with the judge’s observations in refusing leave and do not need or wish to expand upon them. The grounds are totally unmeritorious and are nothing more than an attempt to re-argue matters argued at trial. We endorse the observations of the court in Gray & Ors that unmeritorious applications of this kind take up the precious time and resources of this court that should be devoted to more meritorious applications. The only power that this court has to deter applications of this kind is to make a loss of time or a costs order. In this case, we consider it appropriate to make a loss of time order of 4 weeks or 28 days. Ramchaitar Background 47. On 18 December 2003 at the Inner London Crown Court, the applicant was convicted of an offence of robbery and causing grievous bodily harm with intent. On 30 June 2003 at the same court he pleaded guilty on a separate indictment to another offence of robbery. He renews his application for an extension of time of 11 years and 10 months in which to apply for leave to appeal against conviction and for leave to rely on fresh evidence pursuant to section 23 of the Criminal Appeal Act. The fresh evidence is the expert evidence of Professor Timothy Valentine and evidence of Garvey Powell, his alleged co-accused. 48. In support of the application to extend time, he relies on an alleged failure by his representatives to lodge an application in time. He claims that in 2004 he provided instructions to a firm of solicitors to lodge grounds of appeal but none were ever lodged. However, he has not explained the delay since that time. Facts 49. On 15 June 2002 at about 3 am the victim was in his taxi in London when he was brutally attacked by two men. One of them smashed the driver's side window; the other forced the offside door open. They shouted demands for money and the complainant was punched repeatedly to the face whilst his wallet was taken. In the course of the robbery the complainant struck the taller of the two men to the face with a torch. The complainant himself lost five teeth and required 24 stitches. The men ran back to their car where a third male was waiting and they drove away. 50. A passerby called the police and provided a partial vehicle registration. Police officers saw a vehicle matching the description and partial registration and gave chase. The occupants stopped the vehicle, alighted and ran away. A police tracker dog unit conducted a search of the area and recovered a baseball cap and denim jacket. The prosecution case was that the applicant was one of the two assailants along with the co-accused, Garvey Powell. Powell pleaded guilty to robbery and causing grievous bodily harm. 51. The prosecution relied on the following: (i) the complainant’s evidence that both the men who approached his car were involved in the robbery; (ii) the guilty plea of Powell; (iii) CCTV evidence footage from which police officers positively identified the applicant as the shorter of the two assailants (as described by the complainant); (iv) examination of a jacket discarded during the police chase that bore blood staining containing the applicant's DNA on the collar; (v) the reaction of the police dog on finding the jacket indicating the jacket had been very recently discarded; and (vi) an adverse inference from the failure to mention relevant facts in interview. 52. The defence case was that the applicant was not present and the purported identification was mistaken. The jacket had been stolen from him in February of the previous year. The CCTV footage and the stills were of insufficient quality for an identification to be safely made. The complainant attended an identification procedure but failed to pick out the applicant. Conclusion 53. We do not need to rehearse the grounds of appeal against conviction or the grounds of opposition to the appeal set out in the Crown's helpful respondent's notice; it is sufficient to quote part of what the single judge said when refusing the applications. He combined the grounds with his observations: "2. There is no adequate explanation for the delay in launching and pursuing this appeal. In particular there is unexplained delay in acting upon the initiation of an appeal by your solicitor in 2004; in seeking the assistance of BPP CAP in 2008/9; in applying to the CCRC in 2013; and in making the present application. Such explanation as is offered falls far short of the 'special and unusual facts' suggested as being necessary in R v King [2000] Cr App R 391 . 3. You seek to rely on a new expert report from Prof Timothy Valentine dealing with identification evidence. But there is no reason why such evidence could not have been adduced at trial. In any event, the jury would have been able to assess the images themselves and reach their own conclusion on the strength of the identification. The judge made it clear that it was open to the jury to reject Baldwin's evidence [a police officer who purported to identify him]. I see no justification for admitting this evidence now, 13 years later. 4. You seek to rely on a statement from your co-accused obtained many years after his conviction. But no good reason is offered for why this evidence could not have been adduced at trial especially given that Powell had already pleaded guilty. In any event, given the DNA on the jacket found nearby, Powell's evidence would not render the conviction unsafe. 5. You seek to raise an objection to the evidence from PC Manning related to his tracker dog. This is an argument that could, and should, have been raised at trial if there was any merit in it. But in fact I see no arguable case that the evidential basis which is required for such evidence, (as per R v Pieterson [1995] 1 WLR 293), was absent, given in particular the later statement of Manning dated 15 December 2003. Furthermore, the evidence of DNA on the clothing found near the scene would have been powerful, even without the tracker dog evidence as to likely time that the scent was deposited. 6. You contend that the identification evidence of DS Baldwin, the CCTV and still images ought to have been excluded under section 78 of PACE. Baldwin had spent substantial time considering the CCTV and photos and the judge was right to conclude that he was entitled to give expert opinion on that material. In any event, that was not the only evidence on the issue." 54. We agree with those observations and we do not need to expand upon them. The applications for an extension of time, leave to appeal and leave to call fresh evidence are refused. 55. The single judge indicated that the Full Court should consider making a loss of time order. However, we have been informed this morning by BPP Criminal Appeals Project that the applicant is has served both the determinate sentence of 9 years and the 4-year minimum period for the life sentence imposed for these offences. He remains in custody because he has been unsuccessful in his efforts to seek parole. In those circumstances, there is no point in making a loss of time order and we do not do so. Solomon Facts 56. On 14 November 2011 in the Taunton Crown Court the applicant, now aged 69, was convicted of rape of a child, sexual activity in the presence of a child under 13 and sexual assault of a child under 13. He renews his application for an extension of time. Of 3 years, 6 months and 12 days in which to seek leave to appeal against conviction. He seeks permission to call a witness, and a representation order. 57. The applicant was accused of raping an 8-year-old girl, "R", whose parents had allowed him to take her to buy sweets at a petrol station in 2007. It was said that he had taken her to a sports ground where he raped her vaginally and masturbated to ejaculation over her stomach (counts 1 and 2). A year or so later, the applicant was seen touching R around her bottom and on her legs under a table while they were at a party with her parents (count 3). 58. Social services became involved and R spoke to a social worker but she did not make a full disclosure at that time. She eventually spoke to school friends and then a teacher in 2010. Police were informed, and on 15 October 2010 she gave an ABE interview. She was medically examined and no abnormal findings were made. The doctor stated that in the majority of cases where sexual abuse is being investigated, normal examination neither confirms nor refutes the allegation. 59. The applicant, who was of previous good character, was interviewed under caution. He admitted taking the child to the sports ground in 2007 after he had driven her to the petrol station. He denied that anything untoward had happened. Similarly, he accepted that he sat next to her at a party in 2008 and that she had taken his hand at one point, but he denied touching her sexually. He gave evidence at trial maintaining those denials. Grounds of appeal 60. The applicant, with Mr Whetstone’s assistance, has advanced a number of proposed grounds of appeal. In summary, the grounds are there was an insufficiency of evidence against him and that the police investigation was inadequate; improper restrictions were put on cross-examination of the complainant; there was an unfair presentation of the medical evidence; pressure was placed on the jury to reach verdicts; and there is fresh evidence available capable of undermining R's account. 61. The applications were out of time because the applicant had not understood that, following a negative advice on appeal against convictions, no further work was being done on his case. It was only when Mr Whetstone became involved that progress was made, although it took another two years to obtain the necessary information and evidence. Conclusions 62. The single judge considered there was no merit in the grounds. She gave detailed reasons for rejecting each proposed ground of appeal. Because the applicant was not legally represented, she considered whether there was any other basis for arguing that the convictions were unsafe. There was not. We agree with and endorse (but this being a renewal hearing do not repeat) the single judge's conclusions. We have also read and considered the further written submissions sent in after leave was refused which take issue with the decision. They do not add significantly or at all to the matters that the single judge has already considered. In addition, we have considered DVD footage, and photographs prepared for today's hearing. 63. We accept that Mr Whetstone has gone to a great deal of effort to prepare his presentation for the court. However, he does not seem to understand the approach this court adopts to applications to advance appeals based on fresh evidence and to applications which are significantly out of time. 64. The material submitted does not meet the criteria for ‘fresh evidence’ in this court. In truth, there is nothing ‘fresh’ about it. The points made are all points that could have been made and many of which were made at trial including R's limited recollection of the place in which she said she had been raped. We have considered the likelihood of raping a rape of a child in an exposed part of a sports ground where the applicant might have been observed by people in houses beyond a nearby field, the lack of precision with which the child recalled locations, the possibility that she may have been taken back to the scene by her parents before her ABE interview, questions asked by her mother and a police officer about the accuracy of her evidence about the location, and the potential inaccuracy in the time taken to walk from where the defendant admitted going into the sports ground to where R said she was attacked. These are all fairly characterised as jury points, and no doubt to the extent that they were relevant they were pursued at trial. 65. In conclusion, there is no proper basis for arguing that the verdicts are unsafe. We refuse all the applications before us. 66. We find the application as unmeritorious as the single judge did, and, although the single judge did not specify that this court should consider making a loss of time order, we repeat the observations of the court in Gray & Ors . This does not prevent the court from considering making such an order. The applicant will have been warned on more than one occasion that if he advanced an unmeritorious application he might suffer the consequences. In this case, for the reasons given earlier in the judgment, the consequences are that we make a loss of time order of 4 weeks, namely 28 days.	[ "MR JUSTICE KERR", "MRS JUSTICE CHEEMA-GRUBB DBE" ]	2017_02_28-3936.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/597/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/597	1,068
300a63ced8967ddd86f9da72a345550b6ff70074ebd8829c6a5eed7a71121d6a	[2004] EWCA Crim 1625	EWCA_Crim_1625	2004-05-17	crown_court	No: 200400408/A8 Neutral Citation Number: [2004] EWCA Crim 1625 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 17th May 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GRIGSON MR JUSTICE ANDREW SMITH - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 5 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet S	No: 200400408/A8 Neutral Citation Number: [2004] EWCA Crim 1625 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 17th May 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GRIGSON MR JUSTICE ANDREW SMITH - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 5 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR H DAVIES appeared on behalf of the ATTORNEY GENERAL MR J ROSE appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. We grant leave. 2. The offender was born in November 1980 and so he is 23 years of age. On 29th November 2003 he was convicted by the jury of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 . On 19th December 2003 he was sentenced by His Honour Judge McIntyre, who had presided at the trial (which, somewhat surprisingly, apparently lasted two weeks), at the Reading Crown Court. He sentenced him to 30 months' imprisonment. 3. In summary, the offender had witnessed and helped to promote a fracas between two other groups of young men at a public carnival on the night of 8th June 2002. Racist abuse was directed at the offender's friend, Gilzean, by a friend of the young man who became the victim. A fight developed between the victim and Gilzean which resulted in a cut above the victim's left eye. The offender left the scene but returned about 10 minutes later. He broke a bottle, thrust it into the right-hand side of the victim's face, in a single jabbing motion, and thereby caused 10 separate lacerations around the eye which required 17 stitches. 4. In a little more detail, the carnival in question was at Maidenhead and the offender attended with male and female friends on the night of 8th June. The offender and his friend, Gilzean, are black. 5. The victim, Tom Palmer, was 18. He and a friend who was with him called Gill are white. The offender and the victim had never met before. There was a good deal of tension at the carnival between various people. The offender admitted that, at one stage, he had stood on a wall promoting confrontation by saying to others such things as "if you're going to hit him, then hit him." 6. The situation deteriorated so that there was the violence to which we have already referred, which involved Gill and Gilzean. The sentencing judge accepted that there had been racial abuse directed at the offender's party by one of the victim's party. The offender, when he came back, had taken a glass bottle from a bin. He smashed it. He approached the victim with the bottle behind his back. He made verbal threats. He thrust the bottle into the right side of the victim's face in a single jabbing motion and said "you're messing with my bro". 7. A variety of witnesses said that the victim would have had little or no warning of the attack. The offender ran away and was arrested with other members of his group a little after 10 o'clock the same evening. 8. There were, as we have said, 10 separate lacerations in the vicinity of the right eye, requiring a total of 17 stitches and resulting in some not particularly significant scarring. 9. In interview by the police the offender said that responsibility for the assault belonged not with him but with his friend, Gilzean. Gilzean was indeed charged in January 2003 because it was found, on forensic examination, that there was the victim's blood on Gilzean's jacket. At that time, the offender was told that, on the material then available, he was not going to be prosecuted. But he was charged in March 2003 after identification evidence as to the assailant had been re-examined. The trial resulted, as we have said, in the conviction of the offender and also the acquittal of Gilzean. 10. On behalf of the Attorney-General, Mr Davies submits that there are three aggravating features. First, the assault was the consequence of retribution. Secondly, there had been a deliberate arming of himself by the offender with the bottle which he smashed. Thirdly, the bottle was used on the victim's face. 11. Mr Davies draws attention to three mitigating features: first, the racist abuse which preceded the assault; secondly, the good character of the offender, in that he has no previous convictions; and, thirdly, that he was acting out of character, never normally being a young man prone to violence. 12. Mr Davies drew attention to four authorities, Attorney-General Reference No 25 of 2002 [2003] 1 Cr App R(S) 28, Attorney-General's Reference No 24 of 1998 [1999] 1 Cr App R(S) 278, Attorney-General Reference No 41 of 1994 16 Cr App R(S) 792 and Attorney-General's Reference No 20 of 1993 15 Cr App R(S) 797. In the light of those authorities Mr Davies submits that a sentence of 30 months for such an offence was unduly lenient, bearing in mind the aggravating features to which reference has been made. It is submitted that the judge's sentence failed adequately to reflect the gravity of the offence, the need to deter others and public concern about offences of this kind. 13. On behalf of the offender, Mr Rose accepts that the sentence was a lenient one but, he submits, not unduly lenient. He submits that the range of sentence for section 18 offences is between two-and-a-half and 5 years' imprisonment. We do not accept that, particularly following a trial. 14. The learned judge was clearly, as his sentencing remarks show, influenced by the element of racial abuse to which we have referred. That, submits Mr Rose, is a provocative feature, not found in many of the authorities. It has to be pointed out in that regard, however, that it was not the victim who delivered himself of racial abuse. 15. Mr Rose accepted that there are in this case the aggravating features to which Mr Davies drew attention. But he submits the circumstances of personal mitigation are particularly strong. The offender not only is of good character, with a good work record, he also has qualifications which he has achieved at school. He has support of a number of referees. Mr Rose also refers to the historical feature to which attention has already been drawn, namely that there was a period of some 2 or 3 months when the offender believed that he might not be prosecuted. But Mr Rose accepts this was not one of those cases in which he had been plainly told that he never would be prosecuted. 16. Mr Rose drew attention to Attorney-General's Reference No 9 of 1995 [1996] 1 Cr App R(S) 116 where, in a judgment of this Court given by Lord Chief Justice Taylor, a sentence of 18 months was increased to three-and-a-half years following a trial. 17. Finally, Mr Rose relies on the element of double jeopardy, which is inherent in the second sentencing process by this Court in all Attorney-General's Reference cases. 18. We take all of these considerations into account. Having regard to the aggravating and mitigating features which have been sufficiently identified, we would have expected, in the court below, a sentence of at least four-and-a-half years' imprisonment. It follows that this sentence of 30 months was unduly lenient. Taking double jeopardy into account, the sentence which we substitute in place of the 30 months is one of three-and-a-half years' imprisonment.	[ "(LORD JUSTICE ROSE)", "MR JUSTICE GRIGSON", "MR JUSTICE ANDREW SMITH" ]	2004_05_17-236.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1625/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1625	1,069
068ddaf01502262824aaf76c59a69f607c465cc8ece11e0c81f70f147302cdfe	[2024] EWCA Crim 466	EWCA_Crim_466	2024-04-16	crown_court	This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202302317/A1 & 202302331/A1 [2024] EWCA Crim 466 Royal Courts of Justice Strand London WC2A 2LL Tuesday, 16 April 2024 Before: LORD JUSTICE WARBY MR JUSTICE SAINI HER HONOUR JUDGE KARU THE RECORDER OF SOUTHWARK (Sitting as a Judge of the CACD) REX V	This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202302317/A1 & 202302331/A1 [2024] EWCA Crim 466 Royal Courts of Justice Strand London WC2A 2LL Tuesday, 16 April 2024 Before: LORD JUSTICE WARBY MR JUSTICE SAINI HER HONOUR JUDGE KARU THE RECORDER OF SOUTHWARK (Sitting as a Judge of the CACD) REX V KAMALJIT SINGH CHAHAL BHIPON CHAHAL __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR P LEWIS KC appeared on behalf of the Applicant Kamaljit Chahal MR B SINGH appeared on behalf of the Applicant Bhipon Chahal _________ J U D G M E N T (Approved) LORD JUSTICE WARBY: 1. Before the court today are two renewed applications for leave to appeal against sentence, following refusal by the single judge. The applicants are Kamaljit Chahal, aged 53, for whom Mr Lewis KC appears today, and Bhipon Chahal, aged 26, who is represented by Mr Singh. There was a third renewal by a co-defendant named Sandeep Johal but that was formally abandoned by a notice in writing received yesterday. 2. The case is one of conspiracy to supply controlled drugs on a scale beyond the top end of the Sentencing Council Guideline. 3. It arises from a national police operation called Operation Venetic. The facts, briefly summarised, are that decoding of encrypted messages on EncroChat disclosed the existence of an organised crime group ("OCG") that included the two applicants, Johal, and others that was involved in the supply of drugs in substantial quantities to lower level drug dealers throughout the East Midlands. 4. The conspiracy indicted lasted for some eight months, from 1 February 2020 to 23 September 2020. The EncroChat evidence showed that in one 14-week period within this overall timespan, that is between 26 March 2020 and 5 June of that same year, the OCG had supplied roughly 70 kilos of cocaine in kilogram and multi-kilogram quantities, as well as some 2.5 kilograms of heroin and 33 kilograms of cannabis. The EncroChat evidence also showed that during the relevant period the OCG had moved more than £1.6 million connected with the supply of drugs. 5. The applicant Kamaljit Chahal was the leader of the OCG. Bhipon Chahal, who is his nephew, worked closely with Kamaljit Chahal and also had a leading role in the sense that he was involved in the leading activities but he was below his uncle in the hierarchy. Both Kamaljit and Bhipon Chahal used EncroChat devices. Johal, to whom we have referred, had a significant role acting as a courier but also having responsibility for collecting and delivering drugs and cash. The EncroChat and other evidence led to the arrest of the applicants, Johal and four others. 6. In proceedings brought in the Crown Court at Leicester, the applicants and Johal all pleaded guilty on 20 August 2021 to three counts of conspiracy to supply controlled drugs, namely drugs of class A (cocaine) (count 1), drugs of class A (heroin) (count 2) and drugs of class B namely cannabis (count 3). The other defendants pleaded guilty to the cocaine conspiracy alone. 7. On 14 June 2023 all defendants bar one were sentenced by Mr Recorder Alty KC (as he then was). Kamaljit Chahal received a sentence of 18 years' imprisonment. Bhipon Chahal was sentenced to 15 years. Johal received 11 years. All those sentences were imposed on count 1 to reflect the overall criminality involved. Lesser custodial sentences, although substantial ones still, were imposed on counts 2 and 3 to run concurrently. The co-defendants received lesser but still substantial sentences. 8. In this court each of the applicants contends that the "starting point" adopted by the sentencing judge was “far too high”, that the increase to reflect the offending on counts 2 and 3 was excessive, and that the judge had insufficient regard to the available mitigation. The second applicant has further and additional grounds. We shall consider the case of each applicant separately in turn. 9. Before doing so, however, we recall some general principles about sentencing for drug conspiracies and we note some features of the sentencing remarks in the present case which apply to the cases of both applicants. 10. The effect of the authorities on the approach to the harm element of drug offending of this kind was recently summarised by this court in R v Wilson [2024] EWCA Crim 124 at paragraph 26: "Although it is appropriate for judges sentencing for drug conspiracies to use the statutory guideline, it does not expressly govern such cases and should not be slavishly applied to them. There are several differences between the approach to sentencing a defendant for a substantive offence and sentencing him for the criminality involved in a conspiracy. A defendant who takes part in a conspiracy supports the overall enterprise. The amount with which that defendant is personally and directly involved is of lesser relevance. The assessment of harm must also take account not only of the quantities with which the conspirator actually dealt but also of what the conspirators intended or foresaw. That is particularly significant when a conspiracy is brought to an end by police action. Such a conspiracy is usually intended to continue into the future. See Pitts [2014] EWCA Crim 1615 ; Smith [2020] EWCA Crim 994 ; and Cavanagh [2021] EWCA Crim 1584 ." 11. In this case, having made clear that he had these principles in mind, the sentencing judge went on to say the following: "The harm, be it actual intended, or reasonably foreseeable, in this case is immense -- close, in fact, to being incalculable. The best calculation that can be made here is that for a little under half of the duration of the conspiracy approximately 70 kilograms of cocaine, 2.5 kilograms of heroin and 33 kilograms of cannabis was supplied. I avoid the strictly arithmetical approach, but these estimates inevitably err on the side of caution and I must bear in mind that at the time the EncroChat messages begin, the conspiracies are already in full swing, and what brings them to an end is the intervention of the authorities. Thus, when considering harm, I struggle to imagine many more scenarios where the harm might be significantly greater. But for the intervention of the authorities, I have no doubt these conspiracies would still be running now, with massive profit coupled with immeasurable misery and suffering in consequence continuing." 12. We interpose to observe that the word "now" related to the date of sentence in June 2023. 13. The Recorder identified six aggravating features of the case which applied to each of the defendants before him: "a) the duration of the conspiracy; b) the amounts of drugs being traded, usually multi-kilo quantities; c) the sophistication of the enterprise; d) the use of EncroChat devices; e) the proximity to the source of importation, unusually close, as it is, in many regards here; and f) the persistence of the enterprise, particularly after you were told to stop using the EncroChat devices." 14. Observing that there must be an element of deterrence in sentences of this kind, the Recorder identified the appropriate sentence after a trial for someone playing a leading role in the cocaine conspiracy as one of 23 years' imprisonment. He noted that in the case of each of the present applicants that sentence had to be aggravated because of the other two conspiracies. The appropriate sentence after a trial for the heroin conspiracy would, he said, have been 14 years and for the cannabis conspiracy eight years. But, applying the recently revised Sentencing Council Guideline on Totality, the increase in the sentence after a trial for the lead conspiracy would be one of three years, bringing it to 26. 15. We turn to the case of Kamaljit Chahal. 16. He conceded that he had not only a leading role but the leading role in all of the conspiracies. He had a 2014 conviction for two offences of conspiracy to supply cocaine, the quantity being 12 kilograms, and two offences of transferring or concealing criminal property, namely £81,000. For those offences he had been sentenced to six years' imprisonment. To reflect this statutory aggravating factor the Recorder increased the notional sentence after a trial by one year to 27 years. The Recorder was not impressed by counsel's contention that this applicant had regrets and remorse. He did however allow full credit for the guilty plea and thus arrived at the sentence of 18 years to which we have already referred. 17. On behalf of this applicant Mr Lewis KC advances three main points. First, he says that the 23-year notional sentence for a leading role in the count 1 conspiracy (to which he refers as the “tariff”) was "far too high". Secondly, it is argued that the judge was wrong to "aggravate the tariff" by three years for count 2. Thirdly, it is submitted that the judge failed to take proper account of the mitigation available to this applicant. 18. In support of his first submission Mr Lewis has focused on the figure of 70 kilograms of cocaine to which we have referred. He relies on the approach to sentencing of His Honour Judge Mooncey in another class A drug conspiracy case sentenced in the Crown Court at Leicester arising from an operation called Carter. He has also referred us to the well-known case of R v Cuni [2018] EWCA Crim 600 , [2018] 2 Cr.App.R (S)18. In support of his second submission Mr Lewis argues that count 2 involved a far lower quantity of drugs than count 1. Again he relies on the prosecution calculations for the 14-week period to which we have referred. Thirdly, he identifies a number of mitigating features which he said should have contributed to the much lower “tariff” for which he contends. 19. In his oral submissions today, Mr Lewis has added a criticism of the sentencing judge’s reference to deterrence – not a matter raised in the written grounds. 20. We begin our consideration of these submissions with the Sentencing Council Guidelines for Supply of a Controlled Drug. These set the starting point for a leading role in the supply of five kilograms of cocaine or heroin at 14 years’ imprisonment with a range of 12 to 16 years. There are no guideline sentences for supply of the much larger quantities with which this case is concerned. But the guideline states that “Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than Category 1, sentences of 20 years and above may be appropriate, depending on the offender’s role.” 21. We have already referred to the factors that have to be borne in mind when the case is one of conspiracy to which the guideline does not apply directly. A number of decisions of this court indicate how the court should approach such cases. We have taken account not only of Cuni but also the case of Cavanagh which we have already mentioned, and Wraight and Bannister [2021] EWCA Crim 1968 , which was an Attorney General’s Reference arising from Operation Venetic where the total quantity involved in the operation was 120 kilos: see paragraph 3. 22. These and other cases provide important general guidance. One point that emerges is that sentences should not normally exceed 30 years, save in exceptional circumstances. But one consequence of that, as Cuni makes clear, is that there is bound to be a degree of “crowding or bunching” in cases such as the present, involving quantities which one might call "off the scale". In cases of this kind sentencing judges have to exercise judgment on the basis of the particular facts before them, applying the principles and guidance to be derived from the authorities. Where, as here, the sentencing judge has been involved in a case for some time and manifestly has a good understanding of the detail, then in the absence of an error of principle this court will be slow to interfere. 23. Looking carefully at this case as we have, we have found ourselves unpersuaded that the approach of the sentencing judge was out of kilter with the guideline or with the cases that we have mentioned. 24. As we have noted, the guideline provides a starting point of 14 years for a leading role in the supply of five kilos of cocaine. Kamaljit Chahal was the leader and guiding mind of a conspiracy which, during the 14-week period for which the calculations were made, had supplied that drug at a rate of five kilos per week. The conspiracy lasted for over 30 weeks, from which one may infer that the conspirators dealt or certainly intended to deal with very considerably larger quantities. The operation would, as the judge observed, doubtless have continued had the authorities not intervened. The sentencing judge was entitled to describe the amount involved as close to incalculable. He was clearly entitled to take a starting point beyond the 20-year figure mentioned in the guideline. 25. His task then was to arrive at a just and proportionate sentence before reduction for the guilty plea. In doing so, in our judgment, he took careful and sufficient account of the authorities cited to him. He expressly had regard to the decisions in the Operation Carter case but observed legitimately that its facts were “not directly comparable”. That case was of course in no sense an authority. The judge's focus was appropriately on the specific facts of the case before him, as to which he had the assistance of a detailed sentencing note from the prosecution and equally detailed submissions from the defence, expertly represented as they were. 26. As to quantity, our reading of the sentencing remarks is that whilst avoiding a strictly arithmetical approach the judge was also declining to deal with the case on the footing that for the purposes of sentencing, the quantity of drugs involved was limited to the quantities involved in the 14-week period to which we have referred. That in our judgment would have been unreal. 27. Besides the quantities involved, the case featured the catalogue of aggravating features we have mentioned, which inevitably exerted strong upward pressure on the sentence. There were also some mitigating factors. Other than the guilty plea there was the delay between plea and sentence, during which this applicant had been in custody on remand. At least part of that was during the pandemic. The applicant had made some positive steps during his period in custody. The judge referred to that last matter but he did not expressly mention all the other matters advanced to him or which have been relied on in front of us. It might have been better if he had. But we are satisfied that he took them all into account. At the end of his sentencing remarks he said: "I have given appropriate weight to all matters advanced in mitigation irrespective of whether I have expressly mentioned them in these sentencing remarks or not." We take the judge at his word. We observe additionally that the matters we have mentioned cannot in context be regarded as particularly significant counterweights to the multiple aggravating factors. 28. As for the reference to deterrence, we have reflected on this but see no reason to believe that it resulted in an uplift in the sentence additional to that which the judge would have arrived at applying the guidance and the authorities and referring to the guidelines themselves. Taking matters in the round, we have concluded that it is not arguable that this judge was wrong to arrive at the notional sentence of 23 years for the leading role in the offending on count 1. 29. As for the increase on account of the other offending, that reflected not only count 2 but also count 3 (the cannabis offence). No complaint has been made or could be made of the notional sentences at which the judge arrived for either of those counts. The heroin offence was implicitly treated as within guideline category 2 which has a starting point based on one kilo of 11 years' custody and a range of up to 13 years. The quantity of 2.5kg on which Mr Lewis has relied today would of itself take the case upwards within the range before consideration of aggravating factors. But reliance on that quantity is, with respect, misconceived when (a) it represents only part of the quantity that one can infer was dealt with or intended to be dealt with during the period of the conspiracy and (b) the applicant intended the conspiracy to continue. Similar reasoning applies to count 3. In our judgment, so far from being arguably excessive the uplift of three years to the lead sentence to reflect the additional offending was on the lenient side. 30. The addition of a single year to reflect the further aggravation provided by this applicant's recent relevant conviction was also a modest one. 31. Accordingly, we see no arguable merit in the grounds of appeal advanced on behalf of this applicant. 32. Turning to Bhipon Chahal, the Recorder noted that his conduct had features of leading role - that being the prosecution's case about his part in the offending - but the Recorder accepted that this applicant's behaviour also exhibited features that readily equated to “significant” role. The Recorder's observation in those circumstances was that he was "less concerned with seeking to put any particular defendant into any specific category and far more concerned with ensuring that the sentence I impose is just and fair in all the circumstances." He accepted that this applicant's role was subordinate to that of Kamaljit Chahal and on that account he reduced the notional sentence after consideration of relevant aggravating features by three years, bringing it down to one of 23 years. 33. The Recorder next made allowance for this applicant's relative youth, noting that he would have been in his early twenties when he became involved in the offending, and for what he called other "substantial mitigation". The applicant had no previous convictions and (as the Recorder put it, "more impressively") he had found the courage to withdraw from the conspiracy from the middle of May onwards. Those matters brought the notional sentence after trial down by a further two years to 21 years. Giving a full one-third reduction for the guilty plea the Recorder arrived at a sentence of 14 years. 34. The grounds of appeal advanced by Mr Singh are that (1) the notional sentence of 23 years for a leading role was “far too high”, (2) the sentencing judge overstated this applicant's seniority within the conspiracy, (3) the judge had no regard for the fact that this applicant was induced to take part in the offending by his older and influential uncle, (4) insufficient regard was had to the applicant's withdrawal from the offending, (5) no or no proper regard was had to the applicant's young age at the start of the offending and (6) there was insufficient regard to the applicant's other mitigation, including his good character, his difficult upbringing and his expressions of remorse. 35. Mr Singh has presented these points in writing and in oral submissions today with skill and subtlety. He has referred us to a number of supporting materials to which we have had regard. These include but are not limited to a report from a drug expert advancing contentions about this applicant's particular role and the case of ZA [2023] EWCA Crim 596 concerning the approach to be taken to the sentencing of young adults. 36. Our decision in the case of Kamaljit Chahal disposes of the first ground of appeal advanced on behalf of this applicant. The notional sentence for a leading role in the cocaine conspiracy, which is the stepping off point for the judge's approach to sentencing this applicant, was a legitimate one. We have also dealt with the propriety of the sentences for counts 2 and 3 and the appropriate increase in the lead sentence to reflect that other offending. 37. The first critical issue so far as this applicant is concerned relates to the judge's assessment of his role. We have not been persuaded that the sentencing judge's approach to that issue was arguably outside the range of reasonable responses to the material before him, or that he may have overlooked any of the other matters relied on. On the contrary, the applicant's voluntary departure from the conspiracy featured prominently in the judge's reasoning, as did his age. It is clear that the judge made downward adjustments to reflect those matters. We are also satisfied that the other matters of mitigation that are relied on before us were all taken into account as the judge expressly stated. 38. That brings us to the question of the weight attributed by the judge to those various factors. As to quantity, using an arithmetical approach it is legitimate to infer from the figures provided that this applicant was involved with roughly 60 kilos of cocaine, two kilos of heroin and 25 kilograms of cannabis. Departing from the arithmetical approach, the quantities with which he was involved undoubtedly go very far beyond the top of the range for a Category 1 offence. As to role, the prosecution sentencing note in our judgment justifiably puts a very different aspect on the matter from that advanced on this applicant's behalf. It identifies a number of messages which in our view amply support the judge's assessment. This applicant performed a number of important functions acting as a number 2 to his uncle over a period of some three months. 39. The applicant was not a child. He was 22 at the time of the offending. As the single judge said, there is a limit to the impact which his relative youth and the other mitigation factors could have. We agree with and adopt the single judge's observation that this applicant's behaviour was “not a hot-headed immature response to a situation, but it was the participation over a period of time in a highly sophisticated criminal conspiracy where there was the prospect of large sums being earned by you". 40. The ultimate question for us is whether it is arguable that the sentence imposed was not just and proportionate but manifestly excessive. With respect to the submissions advanced by Mr Singh, we do not consider that is so and in the result, despite the able arguments of counsel today, both of these renewed applications are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE WARBY", "MR JUSTICE SAINI", "HER HONOUR JUDGE KARU" ]	2024_04_16-6116.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/466/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/466	1,070
526feed0cf6ca0cd10ccf5472b0b07ebb76d26c087b820e0e27fc1a85455648e	[2019] EWCA Crim 1134	EWCA_Crim_1134	2019-06-06	crown_court	Neutral Citation Number: [2019] EWCA Crim 1134 No: 2019 00976 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 6th June 2019 B e f o r e : LADY JUSTICE THIRLWALL DBE MR JUSTICE MARTIN SPENCER THE RECORDER OF NORTHAMPTON HIS HONOUR JUDGE MAYO QC R E G I N A v EDWARD SEAMARK Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (O	Neutral Citation Number: [2019] EWCA Crim 1134 No: 2019 00976 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 6th June 2019 B e f o r e : LADY JUSTICE THIRLWALL DBE MR JUSTICE MARTIN SPENCER THE RECORDER OF NORTHAMPTON HIS HONOUR JUDGE MAYO QC R E G I N A v EDWARD SEAMARK Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr N Spasojevic (a solicitor advocate) appeared on behalf of the Appellant J U D G M E N T (Approved) MR JUSTICE MARTIN SPENCER : 1. The appellant appeals by leave of the single judge against sentences imposed by His Honour Judge Lowe at Cambridge Crown Court on 15th February 2019 in respect of two indictments relating to sexual assaults on children under the age of 13. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the victims of these offences shall be included in any publication during their lifetime if it is likely to lead members of the public to identify them as victims of these offences. This prohibition applies until or unless waived or lifted in accordance with section 3 of the Act . 2. The first indictment related to a little boy, 'ES', aged 7 at the relevant time. ES lived with his mother but would frequently visit his grandmother, 'S', who had met the appellant in 2000 and married him in 2004. She ('S') regarded him as a family man. He had children and grandchildren of his own. ES was a frequent visitor to his grandmother and would spend time with her and the appellant. 3. The offences occurred in June 2017. The appellant and ES were alone together in the kitchen, and the kitchen door was partially closed, which was unusual. The next day ES visited again, and his grandmother saw that the door to the appellant's bedroom was closed with the appellant and ES inside. When ES came out of the room his grandmother asked what he had been doing. He said that they had been making photographs, and he blushed. She asked what he meant, but he said he did not want to get into trouble and ran outside. This raised his grandmother's suspicions, and she was extra vigilant when ES visited again later that week. 4. ES and the appellant were in the garden. The appellant was sitting on a chair, and when S looked out of the kitchen door she saw that his shorts were pulled to one side and his penis was exposed. 5. The following day ES returned and went to play football with the appellant in the garden. The grandmother watched from the window. She saw the appellant sitting on a chair with his penis exposed. ES was sitting on his knee, and she saw the appellant touch ES's backside along the crease. ES then went off to play and the appellant followed him to the side of the house. The grandmother heard ES say, "I don't want to take my shorts and pants down". The grandmother then called for ES to come in, and she took him back to her daughter's house. The grandmother told her daughter what she had seen. They tried to speak to ES, but he became upset because he thought he would get into trouble and his mum would be angry. However, a few days later he told his mother that the appellant had exposed his penis. His mother asked ES if anything else had happened and if he could show her. ES then pulled down his own shorts and flicked his penis. 6. In a further conversation ES told his mother that the appellant had rubbed his penis on a number of occasions in the kitchen and in the bedroom whilst they had been playing hide and seek. This formed the basis of count 1 on the indictment. 7. Healso said that whenever he played football with the appellant, the appellant would expose his penis to him, and when ES sat on his lap the appellant would touch ES's anus with his finger, sometimes over his clothing, sometimes skin on skin. This formed the basis of count 2. 8. The police were contacted, and ES was interviewed on 21st July 2017. He told the police what had happened. He said on one occasion he had been sitting on the appellant's lap in the living room, and even whilst the grandmother was in the same living room watching television the appellant had put his hands down ES's shorts and squeezed his penis. ES said that this had happened "lots of times" and it made him feel "sad" because he thought the appellant was being rude. He said the appellant had exposed himself in the kitchen, the living room and the bedroom. This formed the basis of count 3 on the indictment, alleging indecent exposure. 9. He said that when he was in the bedroom the appellant had been lying on the bed and exposed his privates to ES, and had then turned over, pulled his shorts part way down and exposed his backside to ES. ES said this had happened more than once. ES said that on one occasion they were lying on the bed, the appellant had his privates out and they were taking photographs with a camera. ES said that the appellant had told him to touch the appellant's private area whilst they were in the bedroom, but ES had refused to do so. This formed the basis of count 4 on the indictment. 10. The appellant had been arrested on 7th July 2017. In interview he said that there had been one occasion when he had accidentally exposed himself to ES when he was washing in the bathroom and he might have accidentally touched ES's penis when he went to slap him on the bottom, and similarly he might have accidentally touched ES's anus, but otherwise he denied the allegations. 11. At the plea and trial preparation hearing in September 2018 the appellant pleaded not guilty and was released on bail. 12. As a result of these allegations the appellant had to move out of the matrimonial home, and he moved into a property where he became the neighbour of a woman, 'M', who had a 5-year-old grandson, 'FP'. The appellant became a regular visitor to M's house and was there at times when M, together with the appellant, was looking after FP in his own home. M and FP's parents, of course, knew nothing of the allegations against the appellant involving ES and the fact that he was on bail awaiting trial. 13. In relation to the matters involving ES, the appellant had a change of heart and on 11th December 2018 the Crown were informed that there would now be guilty pleas to all four counts on the first indictment. Thus, from that date, the appellant was accepting his guilt in relation to the matters involving ES and knew that he would be pleading guilty at the next hearing. 14. Astonishingly, despite his position in relation to ES, the appellant then committed further offences, this time against FP, on 20th December 2018 - just nine days after the indication of the change of plea in relation to ES. On that day FP told his father that during the day, while M had been looking after him and his parents had been at work, he had been alone with the appellant and the appellant had pulled down his trousers and pants and kissed FP on his bottom and made noises. 15. The police were immediately notified and FP was interviewed the next day on 21st December. He told the police that there had been two occasions the previous day when the appellant had pulled down his trousers and pants and kissed him on the bottom, once when he was alone with the appellant in the bedroom and once when they were in the living room. 16. The appellant was arrested and interviewed. He claimed that FP's trousers and pants had come down accidentally and that he had blown a raspberry on his back, but there had been no sexual touching. However, this account is proved to be untrue by virtue of the appellant's pleas of guilty to the two charges on the second indictment involving FP, namely sexual assault of a child under 13, reflecting the two occasions described by FP that occurred on 20th December 2018. 17. The appellant is now 75, having been born on 29th April 1944. Prior to the matters reflected in these two indictments, he had nothing recorded against him by way of previous offences or cautions or otherwise. 18. In a pre-sentence report, the appellant was recorded as having denied any intentional sexual touching of the complainants, but he did express some regret and remorse for his behaviour, saying he felt ashamed and terribly sorry for what had happened. The author of the report stated that the appellant struggled to recognise the potential long-term effect on his victims. The level of risk that the appellant had been willing to take in committing the offences was a matter of real concern. The risk of being caught or seen had not acted as a deterrent, which only went to highlight his desire sexually to offend. He had demonstrated no desire to desist from his behaviour given that he continued to commit sexual offences even whilst going through the court process. The author stated that the appellant clearly held attitudes that supported sexual attraction and sexual offending against children. The worry was that there was likely to have been further concerning behaviour in the past, as it would be extremely unusual for someone to begin sexual offending in their 70s. The author of the report assessed the appellant as posing a high risk of serious harm to children, and the risks he was willing to take when offending were of real concern. He continued to accept very little responsibility, including denying that his offending was sexually motivated. He demonstrated no desire to desist from sexual offending, and the author of the report was concerned about the likelihood of further sexual offending were he to be released. 19. In sentencing, the learned judge also had victim impact statements from the parents of both of these little boys. ES's mother described ES as having changed in character. He used to be an "outside boy, but now will get home from school, put on his pyjamas on and won't go outside at all". She described him as not nearly being as outgoing and confident as he used to be. His behaviour had also deteriorated. She describes him as being "like a light switch, really nice one minute, chatting, and then flying off the handle". She said: "He used to be a really fun-loving outgoing little boy to completely isolating himself. It is upsetting and it does make me angry that his character has changed and I know this is down to what happened." 20. There was also a statement from FP's father, who describes the sense of betrayal felt by the family arising from the incidents which occurred on 20th December. He describes the appellant's actions having caused a massive family fallout with the grandmother M because it had happened whilst FP was in her care. He describes FP as having been different since the incident: "extra sensitive, crying at every little thing; angry and naughty, saying he does it because of what the appellant did to him; scared, saying he does not want to see the appellant again and hopes he stays in jail; sad, because he does not see his grandmother now; and confused, questioning his parents on a daily basis, asking why the appellant had done this to him. The events had also affected the relationship of FP's parents. 21. Sentencing the appellant, the learned judge referred to the appellant's advocate having said that the appellant was ashamed by what he did to the two young boys. The judge said: "I am bound to say that that submission does not sit particularly easily with what I read in the pre-sentence report in terms of what the defendant has told the author of that report." He referred to the victim personal statements and the profound, long-lived and far-reaching consequences of the appellant's actions. He said that it is not simply the complainants themselves who have to live with the consequence of such offending but also their families, who have to live and manage the emotional consequences that flow from such offending. 22. The learned judge referred to the Sentencing Guidelines, and it was agreed with counsel that counts 1 and 2 of the first indictment relating to ES fell within category 2A of the Sexual Offences Definitive Guideline in relation to Sexual Assault of a Child Under 13 . This carries a starting point of 4 years' custody, with a category range of 3 to 7 years' custody. Similarly, the offences in relation to FP: not only was FP even younger, but the learned judge regarded it as an aggravating feature that the offences were committed in FP's own home, where he was entitled to feel safe and secure. Furthermore, of course, the offences reflected in the second indictment were committed whilst the appellant was on bail for the offences committed in relation to ES. 23. The learned judge considered the question of dangerousness. He said: "I also bear in mind the risks that this defendant was prepared to take in committing these offences, under the nose of his wife, under the nose of FP's grandmother. That feeds, in my judgment, directly into the question of dangerousness, because it reveals an attitude on his part which is not susceptible to deterrence. Similarly, the fact that whilst on court bail he goes on to commit similar offences against another boy whilst awaiting trial on the first indictment, indicates strongly to me that we are dealing here with a defendant who for such things provides absolutely no deterrent in committing offences of this nature. My judgment is that the facts of this case and what I know about the defendant, that I have been told and I have read in the pre-sentence report, take me to the conclusion that the statutory test of dangerousnesses here is met. There is, in my judgment, a significant risk that this defendant will commit further specified offences such that serious harm will be caused to other children." The learned judge reminded himself he could only impose a dangerous offender sentence where the sentence was in excess of 4 years, and that he had to consider whether or not the extended licence was necessary to secure protection or whether other factors would protect the public sufficiently and in particular the sexual harm prevention order that it was agreed should be made. 24. Referring to the defendant's advocate's submission that the length of a determinate sentence together with post-release supervision and the sexual harm prevention order were together sufficient to protect the public, the learned judge said: "I do not accept that submission, but I am satisfied that an extension to the licence period is necessary here in order to protect other children from being abused in the way that ES and FP were." 25. The sentence imposed by the learned judge was as follows: for the offences on the second indictment relating to FP, concurrent sentences of 2 years' imprisonment were imposed; for the two main counts on the first indictment relating to ES, the learned judge imposed an 8-year extended sentence, comprising a 5-year custodial period and a 3-year extended licence, with concurrent determinate sentences for the other offences on the indictment. In relation to the extended sentence the learned judge explained that, had the appellant been convicted after trial, the sentence would have been 6 years but this was reduced to 5 years giving appropriate credit for the plea of guilty. The 2-year determinate sentence in relation to the second indictment reflected a full one-third discount for the guilty plea where the sentence would have been 3 years after a trial. The learned judge then said: "I have considered the principle of totality. I have considered, of course, the defendant's age and lack of previous convictions and in relation to the custodial sentence and the custodial elements I have kept the sentences as short as I can to reflect the seriousness of what he did, offset against the mitigating features in this case." He then explained the effect of the sentence. 26. For the appellant, Mr Spasojevic today argues that the learned judge gave inadequate credit for plea and that the cumulative effect of the sentence with a 7-year custodial element and a 3-year extension is manifestly excessive. He submits that inadequate regard was had for the appellant's age and good previous character. He further submits that the starting points adopted were too high given the nature of the behaviour of which complaint was made. He relies on the lack of any coercion or intimidation, the lack of any suggestion that the appellant tried to stop the boys from speaking out, and the relatively short period over which the offences were committed. 27. Finally in relation to the finding of dangerousness, he renews the argument which he raised with the judge below and submits that it was unnecessary for the learned judge to go down the route of an extended sentence given the very significant consequences for the appellant in relation to the date of his release from custody when adequate protection would be afforded by a sexual harm prevention order and the notification requirements for an indefinite period. 28. He also submits that insufficient regard has been had to the principle of totality and insufficient credit was given for plea. 29. Turning first to the question of dangerousness, in our judgment the learned judge was entitled to go down the route of an extended sentence for the reasons which he stated, namely the risks which the appellant was prepared to run in committing these offences under the noses of the victims' grandmothers. It is a striking feature of this case that the offences in relation to FP were committed despite the jeopardy which the appellant faced, having admitted the offences in relation to ES only eight days previously. The learned judge was entitled to follow the opinion and view expressed in the pre-sentence report that the appellant poses a serious risk of serious harm to children, not just these two victims, but other children (known and unknown) to whom he may gain access through family or friendships. The author of the pre-sentence report expressed the view that the appellant had used grooming behaviours to gain the trust of these young boys, particularly the second victim who was only 5 years old, and had then significantly breached that trust for his own sexual gratification. She stated that the risks which the appellant was willing to take when offending were matters of real concern. Taking all those matters into account, it is our view that the judge was justified in making the finding of dangerousness and passing the extended sentence that he did. 30. So far as the credit for plea is concerned, this was within the discretion of the learned judge, given the stage at which the guilty pleas were indicated. Again, although other judges might have taken a different view, we take the view that to have given the credit that he did was not an error on the part of the judge. 31. Finally so far as the length of the sentence is concerned, although it was undoubtedly at the upper end for offences of this nature, in our judgment these sentences were not manifestly excessive. Consecutive sentences were appropriate where the appellant had committed the further offences whilst on bail for the first group of offences. The learned judge appropriately followed the Sentencing Guidelines, and in our view he had due regard to the principle of totality, particularly in relation to the sentences passed in relation to the second indictment. 32. In the circumstances, we take the view that the overall sentence, whilst on one view severe for this appellant, was not on any view manifestly excessive. In those circumstances the appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]	[ "LADY JUSTICE THIRLWALL DBE", "MR JUSTICE MARTIN SPENCER" ]	2019_06_06-4614.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1134/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1134	1,071
20540766b5dc556ec1505f2d1b9edd5d373b6fa905d713415aeaf8abc6851e7c	[2015] EWCA Crim 1627	EWCA_Crim_1627	2015-09-24	crown_court	No: 201500820 A4 Neutral Citation Number: [2015] EWCA Crim 1627 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 24th September 2015 B e f o r e : LORD JUSTICE LLOYD JONES MR JUSTICE BLAKE MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL SMITH - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2	No: 201500820 A4 Neutral Citation Number: [2015] EWCA Crim 1627 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 24th September 2015 B e f o r e : LORD JUSTICE LLOYD JONES MR JUSTICE BLAKE MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL SMITH - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr A Rimmer appeared on behalf of the Appellant Mr G Hughes appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LLOYD JONES: On 12th September 2014, in the Crown Court at Snaresbrook before His Honour Judge Kamill, the applicant pleaded guilty to a series of offences: counts 2, 3, 4 and 5 on the indictment. On 9th December 2014, following a trial before His Honour Judge Dawson, he was acquitted on count 1, wounding with intent, and on 23rd January 2015 he was sentenced by Judge Dawson as follows and I set out here the sentences as recorded on the record sheet: count 2, wounding with intent, the sentence was recorded as an extended sentence of ten years with a custodial term of six years and an extension period of four years; count 3, attempting to wound with intent, the sentence is recorded as an extended sentence of five years with a custodial term of one year and an extension period of four years; count 4, possession of an offensive weapon, the sentence is recorded as an extended sentence of five years with a custodial term of one year and an extension period of four years; count 5, unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861, the sentence is recorded as an extended sentence of six years with a custodial term of two years and an extension period of four years. All those sentences were to be concurrent, save for the sentence on count 5 which was to be consecutive. 2. He now applies for leave to appeal against sentence on the grounds advanced, drafted by his counsel, and which were refused by the single judge. However, the single judge referred the matter to the full court because the sentences passed are unlawful. The applicant has now renewed his application for leave to appeal against sentence on the full grounds, and we have had the benefit today of the submissions of Mr Rimmer for the applicant and Mr Hughes on behalf of the prosecution. We are very grateful to both of them. 3. In the early hours of the morning of 15th June 2014 the applicant went to a party at an address in London E6 in order to confront his brother Steven, who had been making allegations about him. The applicant's son, who was 21 years of age, accompanied the applicant. The applicant went armed with a knife, described by the judge as a bayonet-type knife, a very long and nasty looking instrument. That gave rise to count 4. 4. The party was being held in a back garden, where a marquee had been set up. Children had been present but were by that hour asleep in the house. The applicant admitted attending the party to "scare the shit out of his brother". He also admitted that he had deliberately changed his footwear and was wearing heavy books as he had anticipated a fight. 5. Count 5 (and also count 1, wounding with intent, on which he was acquitted) related to the wounding of Seanna Prime. When he arrived at the party the applicant walked into the marquee area carrying the knife. Seanna Prime was the first person to approach him and she told him to leave. There was conflicting evidence as to what happened next. However, as the judge accepted in his sentencing remarks, the jury at trial, in acquitting the applicant of count 1, must be taken to have accepted his version of what occurred. It appears therefore that she started pushing the applicant. He was holding the knife in front of her as she held him on his forearms. At some point while she was holding his forearms and he was holding the knife in the air, he was punched from behind, and on being punched he fell back, she fell on top of him and was stabbed through the stomach. The judge proceeded on that basis and so do we. 6. Count 2 related to the wounding of Richard Corcoran. Other guests at the party started to throw bottles at the applicant. Richard Corcoran was trying to protect Seanna Prime, and as he approached the applicant, the applicant stabbed him in the chest in retaliation, he said, for the bottles that were being thrown at him. 7. Count 3 related to the attempted wounding of Andrew Howe. Andrew Howe had intervened. He stated that the applicant went for him with a knife and attempted to wound him, causing him some minor abrasions across the stomach area. 8. The applicant and his son then left the party. The knife was found close by. 9. Seanna Prime suffered an incised wound to the right side of the umbilicus measuring 2.5 by 2 centimetres. The abdominal penetrating injury was seen to penetrate the base of the right lobe of the liver and there was active internal bleeding. She also had a puncture wound to her right hand. She required surgery. 10. Richard Corcoran sustained a wound 1 centimetre by 1 centimetre to the centre of the chest, a 1 centimetre laceration across the base of his left thumb, which was fractured, and a superficial laceration across the back of the right middle and little fingers. 11. The applicant himself was taken to Newham University Hospital and records there noted a vertical 5 centimetre full thickness laceration to his scalp which required five sutures. He also had extensive bruising to the back and he sustained supervision abrasion over the back of his legs. 12. The applicant had initially put forward a basis of plea in which he relied on excessive self-defence in relation to counts 2 and 3. However, this was not accepted by the Crown and was later abandoned and replaced by a second basis of plea. This was that he retaliated against those who were being hostile to him. He was being punched and bottles and subsequently chairs were being thrown at him. In retaliation he took the fight to Andrew Howe and Richard Corcoran, resulting in their being wounded by the knife which was in his possession. The 5 centimetre gash to the applicant's forehead was received prior to his attacking Mr Howe and Mr Corcoran. The Crown accepted the second basis of plea and the judge sentenced him on that basis. 13. The applicant was born in 1967, he is now 48 years of age. He had 14 previous court appearances for 25 offences between 1982 and 2011. They included in 1987 a section 47 assault, in 2011 a battery, and in 1992 and in 2006 offences of possessing offensive weapons. 14. There was before the court a pre-sentence report. The author of the report said that in interview the applicant claimed that he tried to leave before the violence started and that most of the people were attacking him. He said that he had been drug-free for many years. His offending history involved violence and was as a result of his not being able to control his anger and temper. He was assessed as a high risk of serious harm to his brother and members of the public. He was 44 per cent likely to re-offend. He was assessed as being a dangerous offender under the terms of the Criminal Justice Act 2003. 15. In passing sentence, the judge noted that he was passing sentence on the basis of the second basis of plea, and that was that he was retaliating because he was subject to what he felt was hostility by having bottles and other items thrown at him. He had admitted that he had gone to "scare the shit out of his brother". He had not only brought the knife with him, but he admitted to deliberately changing his footwear to heavier boots as he anticipated some sort of fight. He had already pleaded guilty to the section 20 offence committed against Seanna Prime and he fell to be sentenced on the basis of his plea that she was stabbed through the stomach as a result of his reckless holding of the knife. Once that had happened, he then turned his attention to another man at the party who was nothing to do with him. He was trying to prevent the applicant from continuing and trying to protect Seanna Prime. The applicant admitted to stabbing him in the chest with intent. His position was that he was retaliating because bottles had started to be thrown at him. Another man, Andrew Howe, who was Seanna Prime's boyfriend, then intervened as well. As far as he was concerned, the applicant went for him with a knife and attempted to wound him. His offending was, without any doubt, a vicious response. He had no axe to grind with the victims, who were perfectly innocent people at the party, not connected with his brother. 16. In considering dangerousness, the judge noted that the applicant had given his evidence in a very thoughtful and balanced way. He showed remorse and said on a number of occasions that he could not explain why he had acted in the way that he did. At least three witnesses said his act was deliberate, but the jury had acquitted him of the section 18 offence. In the judge's view, however, he had no regard for innocent people. The judge said that the pre-sentence report had been criticised by his advocate because the probation officer had made a decision that the applicant was dangerous. The judge considered that there was no problem with the author of the pre-sentence report making such an assessment and coming to that conclusion; that was only one factor to be taken into account by the judge arriving at his conclusion. 17. When considering the issue of dangerousness, the court reviewed his previous convictions. In the judge's view, the previous convictions did not show a pattern of escalating offending. They did, however, reflect someone who got involved in spats and disputes, sometimes in public, and who carried weapons of one sort or another, so they were of some relevance, although minor relevance, to the decision on dangerousness. 18. The judge considered that if something went wrong in the applicant's personal life again, which it almost certainly would from time to time, he might again act in such a way. Once upset, he was pretty unstoppable. 19. The judge said that the fact that he armed himself with such a vicious weapon, that he did not stop after causing such a nasty injury to Ms Prime, and that it all blew up out of nothing led to the conclusion that there could be no other finding than that he was a dangerous individual. The reality also was, presumably, that if he had actually come across his brother, he might well have suffered something even more severe, possibly a fatal injury, rather than the two nasty stab wounds which were the outcome of the visit to the party. In the judge's view, there was no doubt that he fitted the criteria for dangerousness. 20. The judge then turned to the guidelines. It was agreed that it was a lesser harm case because the injury to Richard Corcoran, although a nasty stabbing, was not excessively serious in terms of section 18. It was a higher culpability case because of premeditation, arming himself with a knife, and the use of the weapon. The sentence range was from five to nine years. It was aggravated by the circumstances, in particular the fact that there were two section 20 matters as well and that he continued with the knife after committing the offence on Richard Corcoran. 21. The positive elements of the pre-sentence report were taken into account. The judge expressed the view that clearly, apart from lack of control when things did not go right, he was a personable man. The judge gave him full credit for his mitigation, the strongest mitigation being the guilty pleas. 22. The judge then explained the sentences he imposed. The sentence on the section 18, count 2, was six years, taking into account one-third credit for his guilty plea; that injury could have been life threatening. In relation to the section 20 matter against Seanna Prime, the sentence was two years' consecutive. In relation to the count relating to the attempted stabbing of Andrew Howe, the sentence was one year concurrent. For possession of the knife, the sentence was one year concurrent. The judge then said this: i. "As I said, I find you dangerous and therefore this will be an extended sentence and the extension period will be one of four years. ii. What that means is that you will serve two-thirds of the eight years and then be released. You will get full credit, as I say, for the time you have spent in custody already. After your release your licence period will extend. The full term of your licence period will be eight years plus four years, calculated from now, less any time that you serve on remand." 23. It is said on behalf of the applicant that the extended sentence was wrong in principle and manifestly excessive. It is also said that the assessment of his posing a significant risk to members of the public was inappropriate in the context of the collective violence visited upon the applicant, the applicant's amended basis of plea and the absence of significant past offending for violence. It is said that the factual nature of the offending fell within the determinative sentence parameters of category 2 of the guidelines. It is also said that the judge gave insufficient regard to mitigation, the guilty pleas and the contrition shown. 24. We turn first to the fact that the sentences as recorded are unlawful sentences on two grounds. First, it has been constructed as a number of custodial terms with one freestanding extension period. Secondly, the judge purported to impose custodial terms of less than four years on counts 3, 4 and 5, where the applicant did not have a previous conviction for a qualifying offence. 25. The judge constructed the extended determinate sentence from multiple consecutive custodial terms and then one concurrent extension period. In R v Brown [2006] EWCA Crim 1996 , the court confirmed that an extended sentence is a two part sentence comprising a custodial element and an extended licence period; an extension cannot be added on to two separate custodial terms. 26. Furthermore, an extended sentence of imprisonment may be imposed only if the offender meets one of two qualifying conditions: (a) the offender has been convicted of an offence listed in schedule 15B of the Criminal Justice Act 2003 before committing the latest offence; or (b) the appropriate custodial term would be at least four years. As neither of these conditions was met in the applicant as case, extended sentences on counts 3, 4 and 5 five were, for this additional reason, unlawful. 27. Furthermore, it appears that they would not give effect to the intention of the judge as that appears from his sentencing remarks. The judge intended, as evidenced by the sentencing remarks, for the applicant to be sentenced to eight years in custody with a four year extended licence period thereafter. However, the sentence has been interpreted by the court official who completed the record sheet as four separate extended sentences of imprisonment, each with a four year extension period. Count 5 is recorded as a consecutive sentence. In accordance with the sentence recorded, the applicant would be released on licence at the two thirds point of his custodial term, but would be subject to an extended licence period of eight years. It will be necessary to return to this matter after considering the renewed application for leave to appeal against sentence on the grounds advanced by Mr Rimmer for the applicant. 28. We turn to the grounds advanced by the applicant for which leave was refused and which are now renewed. 29. We are totally unpersuaded by the submission on behalf of the applicant that the judge erred in his conclusion that the applicant was dangerous within the meaning of the Criminal Justice Act 2000. The judge gave detailed consideration to the evidence relating to this issue. He directed himself correctly as to the test to be satisfied. So far as the instant offences were concerned, the applicant went out looking for a violent confrontation: he was armed with a particularly vicious weapon and heavy boots. He had no regard for innocent people. Mr Corcoran was stabbed because he tried to intervene. The applicant kept and used the knife throughout the incident. He did not stop using it after causing a serious injury to Ms Prime. 30. There was further support for the view that he was dangerous in the pre-sentence report. The author of that report drew particular attention to the fact that he had shown little regard for the victims and continued to minimise the seriousness of his behaviour. While the decision on dangerousness is obviously ultimately one for the judge, it was appropriate and helpful for the author of the report to express a view on this issue, and the judge was clearly entitled to take it into account. Indeed, we note that section 229(2)(c) of the 2003 Act provides that the court, in making an assessment of dangerousness, may take into account any information about the offender which is before it. 31. So far as the applicant's previous convictions were concerned, the judge considered that they did not show a pattern of escalating offending, but they did reflect someone who gets into disputes in public and who carries a weapon of one sort or another. This, the judge thought, was of some but of minor relevance. 32. The judge also had the advantage, to which we have referred, of having heard the applicant give his evidence at trial. 33. In our view, there was an abundance of evidence on which the judge was entitled to conclude that the applicant was dangerous. Furthermore, we are unable to accept the submission that the judge paid insufficient regard to the surrounding facts of this case, in particular what Mr Rimmer describes as "the collective violence visited upon the defendant at or about the time Ms Prime confronted the defendant and the defendant's amended basis of plea". This appalling incident was initiated by the applicant, who went out looking for trouble and armed himself accordingly. 34. Next, it is said that the extended sentence of 12 years was wrong in principle, harsh and excessive. Furthermore, it is said that the sentences failed to take account of the applicant's contrition and that full credit for the guilty pleas was not reflected in the sentence. 35. The judge made clear in his sentencing remarks that it was his intention to impose a custodial term of eight years and an extended licence period of four years. 36. The applicant fell to be sentenced for one count of wounding with intent against Richard Corcoran, one count of attempting to wound with intent against Andrew Howe, one count of possession of an offensive weapon and one count of unlawful wounding against Seanna Prime. 37. However the total sentence is made up, having regard to the totality of the offending, we are unable to agree that an extended sentence of 12 years, comprising eight years custodial element and four years extended licence period, is even arguably manifestly excessive, and even after full allowance is made for the pleas of guilty. Accordingly, we refuse leave to appeal on the grounds advanced on behalf of the applicant. 38. It is, however, necessary to restructure the sentences imposed because the sentences on counts 3, 4 and 5 are unlawful. We propose therefore to impose a single extended determinate sentence of 12 years on count 2, constructed from an eight year custodial term and a four year extension period, and to impose concurrent determinate sentences on the remaining counts. In our view, the overall seriousness of these associated offences justifies the imposition of such a sentence on count 2. This course, which involves aggregating the sentences into the lead offence and thereafter imposing concurrent terms, was improved by this court in Pinnell and Joyce [2010] EWCA Crim 2848 . In this way we consider that effect will be given to the judge's intentions, evidenced by his remarks when sentencing the applicant, and effect will also be given to what we consider to be the justice of the case. 39. Accordingly, the extended sentences imposed will be quashed and the following sentences substituted: on count 2, the sentence will be one of a 12 year extended sentence, comprising an eight year custodial term and an extended licence period of four years; on count 3 the sentence will be a determinate sentence of one year's imprisonment concurrent; on count 4 the sentence will be a determinate sentence of one year's imprisonment concurrent; and on count 5, the sentence will be a determinate sentence of two years' imprisonment concurrent. 40. MR RIMMER: I was just going to say, my Lords, that notwithstanding that this renewed application has markedly been unsuccessful, I am here however in part through the Registrar of Criminal Appeals. Of course the narrow issue is as to the lack of clarity in the expression of how the lead offence gave rise to the 12 year extended sentence. I say that because I appear without a representation order. 41. LORD JUSTICE LLOYD JONES: Mr Rimmer, there are exceptional circumstances in this case which do justify that course. We will make a representation order. We are grateful for your assistance, both in relation to the unlawful sentences, which have given rise to the exceptional circumstances, and also for your assistance in relation to the other matters on which you were unsuccessful. 42. MR RIMMER: I am much obliged.	[ "LORD JUSTICE LLOYD JONES", "MR JUSTICE BLAKE", "MR JUSTICE HADDON-CAVE" ]	2015_09_24-3662.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1627/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1627	1,073
01256499f36de79e1205c07d7894c549ca3832f3c38b8b92709aa4c5737a1bef	[2013] EWCA Crim 1308	EWCA_Crim_1308	2013-07-25	crown_court	Neutral Citation Number: [2013] EWCA Crim 1308 Case No: 201205112 C1 201205110 C1 201205168 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Manchester Crown Court HHJ Lakin T20097724 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/07/2013 Before: LORD JUSTICE TREACY MR JUSTICE MACDUFF and MR JUSTICE DINGEMANS - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - IA TA FA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr L J	Neutral Citation Number: [2013] EWCA Crim 1308 Case No: 201205112 C1 201205110 C1 201205168 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Manchester Crown Court HHJ Lakin T20097724 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/07/2013 Before: LORD JUSTICE TREACY MR JUSTICE MACDUFF and MR JUSTICE DINGEMANS - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - IA TA FA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr L J McNulty (instructed by Registrar of Appeals ) for IA C Wade (instructed by Registrar of Appeals ) for TA S Robinson (instructed by Registrar of Appeals ) for FA P Cadwallader (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 11-12th July 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: Background 1. These three applicants seek leave to appeal against conviction, their cases having been referred to the Full Court by the Registrar. The applicants were convicted in the Crown Court at Manchester on 7 th August 2012 after a trial which had lasted about six months. 2. IA and TA are husband and wife, respectively. They were convicted of Counts 1 and 2, trafficking a person into the United Kingdom for exploitation contrary to Section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 . 3. Each of the three applicants was also convicted of counts of furnishing or permitting the furnishing of false information to obtain benefit contrary to Section 111 (A) of the Social Security Administration Act 1992 . IA was convicted on Counts 19, 23 and 24; TA was convicted on Counts 21, 25, 26 and 27; and FA who is the daughter of IA and TA and was convicted on Counts 20, 22 and 25. It will be noted that TA and FA were convicted on a joint count, namely Count 25. 4. In relation to IA, the jury could not agree verdicts on three counts of false imprisonment and thirteen counts of rape. In relation to TA, the jury could not agree on the same three counts of false imprisonment. The jury found her not guilty on Counts 17 and 18, sexual assault and unlawful wounding respectively. 5. The first two applicants live together in their matrimonial home at 11 Cromwell Road, Eccles. The third applicant lived in nearby Milton Road. There was another daughter of the family, TA2. 6. The prosecution case was that the complainant, RB, was first brought to the United Kingdom from Pakistan in June 2000 by TA2 when she was about ten to twelve years of age, although her passport did not give her correct date of birth. She was profoundly deaf and without speech. On arrival she had entry clearance to work as a domestic worker in a private household on condition that she did not seek recourse to public funds. 7. The Crown’s case was that from her arrival she was compelled to work as a domestic servant at the home of IA and TA until June 2009 when she was discovered by the authorities. Between 2000 and 2005 annual applications were made for RB’s leave to stay to be extended on the basis she was employed as a domestic worker by TA2. The Crown’s case was that she was in fact being used as an unpaid domestic servant by the first two applicants. 8. Counts 1 and 2 arise from the fact that the Ashars took RB back to Pakistan on two occasions to visit family, once in 2006, and again in 2009. On each occasion RB returned to the UK accompanied by TA, with IA following later. The two return journeys in March 2006 and January 2009 were the subject of the trafficking counts against the first two applicants, alleging that they arranged or facilitated the arrival of RB into the United Kingdom, with the intention of exploiting her. The Crown’s case was that RB was forced to work, and that her life was controlled through violence. 9. On 11 th July 2005 an application was made, ostensibly by RB, for indefinite leave to remain in the UK. The application was supported by TA2 and TA. Indefinite leave was granted on 25 th July 2005. This had the effect of lifting the restriction on claiming benefits. The Crown’s case was that almost immediately after leave was obtained, fraudulent claims for income support, housing and council tax benefits were made on RB’s behalf by the three applicants, either furnishing false information or permitting such information to be furnished. Claims were made on the basis that RB was unemployed and doing no paid or unpaid work; a false date of birth was submitted, and false documents such as sham tenancy agreements were furnished, as well as documents purporting to show a move to 13 Cromwell Road by RB. The Crown’s case was that, in reality, her circumstances had never changed; she was always an unpaid domestic servant at 11 Cromwell Road. 10. The Crown’s case was based upon the evidence of the complainant, and their assertion that she was a truthful and honest witness upon which the jury could rely. 11. IA’s case on Counts 1 and 2 was that he had done nothing to arrange or facilitate RB’s arrival in the UK. As to the benefit allegations, the accounts were clearly set up for RB’s benefit. RB’s allegations were denied. She had been coached and rehearsed by the police and her intermediary, Mr Flynn. RB herself was a manipulative liar, using her disability as a shield to avoid answering questions. 12. TA’s case was that RB was treated as a member of the family and was happy. When she returned to the UK in 2006 and 2009, RB had been insistent on returning. The benefit monies were obtained for RB, and had not been obtained dishonestly. 13. FA’s case was that she had not acted dishonestly in filling in the benefit application forms. The prosecution had proceeded on suspicion and guilt by association. 14. The issues for the jury on the counts we are concerned with were as follows on Counts 1 and 2: Did the applicants actively participate in arranging or facilitating RB’s arrival into the UK? And, if so, did the applicant intend that RB would be exploited by being forced to work? 15. As to the benefit counts, the issue was whether the applicants knowingly furnished or permitted to be furnished, false information with a dishonest intent to obtain benefits. 16. Prior to the trial itself, there was a lengthy series of pre-trial and preparatory hearings covering more than forty days. In the course of these the judge made rulings (inter alia), as to (a) the competence of RB as a witness, (b) the admissibility of evidence of violence by TA and others towards RB pursuant to Section 98 (a) of the Criminal Justice Act 2003 , (c) special measures for RB, (d) the appointment of Mr Flynn to act as an intermediary for RB at the trial, despite objections as to the way he had performed his role prior to trial and asserted breaches of guidance by him. 17. RB gave evidence in chief via fourteen video recorded ABE interviews, which were played to the jury over many days. Cross examination took place via a live link to a separate room. It took many weeks to complete in part due to the necessarily laborious process of eliciting evidence. During both the ABE interviews and in cross-examination questions were put to RB either by a police officer in the ABE interviews or by counsel at trial. A question would be put orally to a British Sign Language (BSL) Interpreter, who then signed the question in BSL to Mr Flynn, who was acting as the registered intermediary, both at the police station and at the trial. Mr Flynn himself was also profoundly deaf and without speech. Mr Flynn would then put the question to RB in an idiosyncratic sign language they had developed during a number of pre-ABE rapport meetings. Visual aids or pictures were also used. RB’s replies to Mr Flynn were then signed to the BSL interpreter, who then voiced RB’s answer to the police officer or counsel. An application by the defence for cross-examination of RB to be video recorded was refused by the judge. 18. Each of the applicants gave evidence and about sixteen other witnesses gave evidence for the defence, countering RB’s evidence as to the way in which she had been treated. 19. The jury retired to consider its verdicts on 23 rd July 2012. On 1 st August 2012 after deliberating for over 25 hours, a juror wrote a note to the judge. It reported that another juror had used racist language about IA, referring to him inter alia as a “black bastard”, and said that the jury should “throw the book at him”. The note writer had objected and was about to write to the judge when other jurors persuaded him not to, saying that if he did they would have spent six months for nothing. The juror thought about the matter for about a day and felt that he should report the matter to the judge, and so wrote the note. 20. There was discussion between judge and counsel, and Sander v UK [2001] 31 EHRR 44 was considered. The judge decided to carry out an investigation by calling jurors into court individually. Juror S, the subject of the note, admitted the accuracy of the note. She said she had made the remark in heated argument and apologised. She went on to add that other things had been said. She was asked if any other juror had made racist comments. Her initial reply was “in that room, no”. The judge investigated further, and she confirmed that she was the only person to have made such remarks, either inside or outside the jury room. 21. The other jurors were then brought into court one by one. They confirmed the accuracy of the note. They all said that no racial comment had been made by any other member of the jury in or outside the jury room. The judge did not specifically ask them about attempting to persuade the note writer not to report the matter to the judge. Defence counsel applied for discharge of the jury on the basis of contamination by the racist juror, who by then had been discharged. They expressed concern about that juror’s reply “in that room, no”. Although the implication had been withdrawn by her, there remained an issue as to her truthfulness. Any guilty verdict could not be regarded as safe, as it could be inferred that the discharged juror was intending to return a guilty verdict, and that the others, apart from the note writer, were prepared to return a verdict with her, without apparent concern for her racist views. 22. The judge refused the application, stating he was satisfied that every juror had answered his questions truthfully, and that no other juror had made any racist comment. He recognised that other jurors had failed to observe a direction given to draw problems to his attention, but said that there was no evidence whatsoever that any of them was racially biased, or that they would not decide the case solely in accordance with the evidence. There was no basis upon which a fair-minded observer would in the circumstances conclude that this jury was biased. The judge then asked each juror in turn whether they were able to decide the case on the evidence in accordance with their oath, and whether their decision would be in any way affected by considerations of race, colour of skin or religion. Each juror individually confirmed that they could properly try the case. Accordingly, the judge ordered that the trial should continue. 23. There is one further relevant matter which sets the scene for these various grounds of appeal. The jury, having disagreed on the allegations of rape concerning IA, a retrial was fixed for 5 th December 2012. On that day Mr Flynn, the intermediary, raised concerns about his continuing to act. He said he was very concerned about the situation with the defence expert, Mr Nicholson, who had been present through the original trial, monitoring his work closely. He said he had previously worked with Mr Nicholson some years before and there had been a dispute between them over different methods of working. Mr Flynn’s name was removed from a list of people working with Mr Nicholson’s company. 24. Mr Flynn expressed concern about this conflict undermining the work he was doing. It was a professional matter, not a personal matter. He felt that some of the questions asked in the original trial had been intended to undermine him, and were directed at him, rather than at RB. 25. Following submissions, the judge put the intermediary oath to Mr Flynn and asked if he could properly and dispassionately fulfil his function as an intermediary for RB. After some confusion about his answer, Mr Flynn confirmed that he could not fulfil his function as intermediary and comply with the oath if Mr Nicholson was involved in the trial. The judge ruled that Mr Flynn could not take any further part in the trial because Mr Flynn had candidly said he could not now honestly and faithfully comply with his oath. The retrial had to be postponed. Grounds of Appeal 26. There are many grounds of appeal. Some of them (Grounds A, C, D and E) are common to one or more applicants, and we will deal with those first. Thereafter there are grounds relied on by individual applicants which we will take in turn. (A) - The role of Mr Flynn, the intermediary 27. All three counsel raised matters relating to the role of Mr Flynn as intermediary. We give leave. 28. The arguments fell into two parts, the first of which related to Mr Flynn’s role and performance during the trial. The second area related to the development at the start of the rape retrial when Mr Flynn indicated he could no longer continue as an intermediary. As to what occurred at trial, it was argued that it was important for an intermediary to be impartial, and that there was a real possibility in this case that Mr Flynn was not able to perform his functions at the trial impartially and objectively. 29. There had been challenge to Mr Flynn’s conduct in the pre-ABE process at the voir dire. Mr Flynn had given evidence and had been challenged as to his behaviour. The judge did not find that anything had occurred which would lead him to exclude the ABE interviews from evidence, and he did not accept a defence submission that because Mr Flynn had been challenged at the voir dire, and those issues were likely to be raised during the trial, it would be inappropriate for Mr Flynn to act as an intermediary during the trial. The judge felt that those matters could be properly handled as part of the trial process, and expressly approved the use of Mr Flynn as the trial intermediary after seeking written confirmation from Mr Flynn that he was prepared to act as intermediary, bearing in mind that it was possible that allegations might be made relating to his integrity. Mr Flynn confirmed that he was prepared to act on that understanding. 30. The appellants submit that as matters transpired during the trial, challenges were made to the way in which Mr Flynn had, prior to trial, interacted with RB, and criticisms were made of the way in which he performed as an intermediary. There were complaints that on occasions Mr Flynn had oversimplified questions designed to test the witness by putting them in terms that she was lying. There were complaints that on occasion Mr Flynn had declined or objected to proceeding in a particular way, for example by using a timeline through which the defence wished to conduct some cross-examination. It was said that there were many occasions when Mr Flynn would say that the witness did not understand when she had previously appeared to answer questions on a topic with understanding. 31. Overall it was submitted that this had a disruptive effect on the flow of cross-examination, that on occasion judicial intervention was required; that certain topics were not fully pursued in cross-examination, and that the cumulative effect would have been to arouse sympathy for RB and hostility towards the defence. 32. Moreover, Mr Flynn gave evidence before the jury in the course of which his professional integrity was challenged. In those circumstances it was clearly unsatisfactory that he, as to some extent was a witness of fact, was assisting another witness of fact in describing events pertinent to the charges. What occurred at trial, it was said, justified the concerns expressed by the defence pre-trial, and their criticisms were further justified by the absence of a video recording of the intermediary work at trial with RB, a matter considered as a separate ground later in this judgment. 33. As to this issue we note that during the course of the trial Mr Flynn’s professional integrity was indeed called into question, and the judge interrupted proceedings so as to ensure that Mr Flynn understood that that was the case. He was anxious to see at that stage whether Mr Flynn felt he was in a position to continue. Mr Flynn’s reaction was to say that he could, but the matter was adjourned so he could take advice, after which he indicated that he felt able to continue to act as an independent intermediary in the circumstances. 34. He was aware throughout that his work was being monitored by experts instructed by the defence. There was Dr O’Rourke, who herself was able to understand and communicate sufficiently with RB, and who had seen her privately to assess her, and had been able to communicate on her own with her. In addition Dr O’Rourke was fluent in British Sign Language. Mr Nicholson, another expert, had specifically asked for a monitor to observe the interchanges between Mr Flynn and RB on the video interviews when played as her evidence in chief. During the course of the trial he raised issues of translation, both in relation to Mr Flynn, and also in relation to the BSL interpreter. From time to time during the trial issues were raised as to the accuracy of what Mr Flynn was conveying to the court and those appear to have been resolved. No evidence was called on behalf of any Defendant from an expert challenging what Mr Flynn represented RB as having said. When issues arose during the Crown’s case, whether in relation to translation or other difficulties, they were dealt with by the judge in the normal way. 35. As Section 29(2) of the 1999 Act makes clear, the function of the intermediary is to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them. The intermediary must explain such questions or answers so far as is necessary to enable them to be understood by the witness or person in question. 36. In the light of that we do not consider that a criticism that Mr Flynn had become no more than a relay interpreter carries any weight. He was acting as an intermediary as a result of the judge’s decision after very detailed pre-trial argument. In performing his functions he was entitled to interject in order to ensure that RB could understand what she was being asked. We do not consider that his interjections have been shown to be intended to be disruptive, nor were they widespread. In the course of argument we were taken to certain examples, but we are unpersuaded that they had disruptive effect which resulted in an unfair handicap to the defence. If anything, the extremely lengthy cross-examinations of RB were permitted to go on far too long. 37. Having examined the matter carefully, we do not think that this first limb of the argument is sustained. When the judge came to sum the matter up to the jury, he put fully and fairly to the jury defence criticisms made of Mr Flynn and of the process. He enabled the jury to consider detailed criticisms based on available guidance as to the use of and conduct expected of an intermediary. He put fully before the jury criticisms relating to Mr Flynn’s independence and accuracy in his role. Moreover, the jury themselves had seen Mr Flynn cross-examined on that basis. After careful consideration of all the materials, we do not consider there is anything in this aspect of this ground. 38. The other aspect of this ground arises from what occurred at the retrial when Mr Flynn said he could no longer follow his intermediary oath. At one point in the discussion at that time Mr Flynn said: “I felt a lot of the questions like previous last time (sic) were more directed at me than at [RB], and I think that that was a way of undermining me and it did affect the way I work.” 39. Mr McNulty drew attention to that last phrase and submitted that it meant that this court could have no confidence that Mr Flynn had done his job as an intermediary properly in the trial with which we are concerned. He says that since his integrity in the previous trial was under challenge, that remark demonstrates that he must have been influenced by that challenge, and there was a risk that in those circumstances he might have made what RB had to say tally with what he was saying. That must, of course, relate to the pre-ABE contacts. Moreover, it was argued that since his professional difficulties with Mr Nicholson predated the first trial, there was a danger that Mr Flynn had not acted impartially during that trial. 40. We do not regard the remark relied on as having the significance contended for. Both before and during the trial, the judge had considered and checked with Mr Flynn (who himself took advice) about his ability to act as an intermediary in the circumstances. At no stage during that trial did Mr Flynn indicate any difficulty in acting in accordance with his oath. The remark relied on does not demonstrate that Mr Flynn had not been true to his oath in the first trial. To our mind it demonstrates no more than Mr Flynn found the situation awkward or difficult. The fact that Mr Flynn came forward at the start of the retrial and indicated his misgivings and his feeling that at that stage he could no longer remain true to his oath is, in our judgment, a token of his integrity. At the point when he had come to that view, he made it known to the court. That does not mean that prior to that point he had been untrue to his oath, indeed it rather suggests to the contrary. 41. We again note that there was no evidence adduced at the first trial from the defence to suggest that Mr Flynn had not in fact acted in accordance with his oath and was not reporting faithfully what RB said. We are unpersuaded that the episode at the start of the retrial provides any basis for challenging the integrity of the work done previously by Mr Flynn. 42. Accordingly, neither strand of the arguments raised under this ground leads us to think that there was any impropriety or unfairness in the proceedings. We reject this ground. (B) – The judge’s refusal to exclude RB’s evidence at the close of the prosecution case 43. At the end of the prosecution case Mr McNulty, on behalf of IA, indicated that he wanted to make a submission to exclude all of the video recorded ABE interviews of RB. This issue had already been very extensively canvassed as part of the preparatory hearings. 44. A voir dire lasting forty two days had taken place. In the course of that the judge had heard evidence from many witnesses involved in the investigation of the case and the process of conducting the ABE interviews. There was extensive investigation of the role of Mr Flynn, the intermediary, and of the procedures adopted in lengthy contacts between Mr Flynn, RB and the investigating officers during the pre-ABE phase of the case in which Mr Flynn sought to build up a rapport with RB and establish a working means of communication with her. 45. The matter was examined in minute detail, notes, journal entries, and emails relating to the pre-ABE meetings having been provided to the defence. There had been extensive reference to the Intermediary Procedure Guidance Manual published by the Office for Criminal Justice Reform (October 2005). There was also reference to Achieving Best Evidence: Guidance (2007 Revision). 46. The defence objected to the admissibility of the ABEs because of the way they said Mr Flynn had conducted himself, resulting in asserted breaches of the guidance. They relied on Section 27(2) of the 1999 Act which provides that a special measures direction may not provide for a video recording to be admitted if the court is of the opinion, having regard to all the circumstances, that it is not in the interests of justice for the recording to be admitted. 47. The judge analysed a series of points about the way Mr Flynn had been involved in the process as well as taking account of the opinions of a defence expert, Dr O’Rourke, whose view was that Mr Flynn had improved the reliability of the ABE interviews, and whose evidence, in the judge’s view, substantially undermined the defence arguments relating to Mr Flynn. The judge considered the asserted departures from the guidance and concluded: “The main thrust of these points is consistency and suggestibility which I have dealt with above. The whole process of pre-interview visits to RB is entirely transparent because the police kept detailed notes. In my judgment those meetings did not in any way amount to, or even come close to amounting to, witness training or coaching. What is left are jury points nothing more.” 48. The judge held that there was no basis for excluding the ABE interviews, either by reference to Section 27(2) or under Section 78 of PACE 1984 . 49. After that exhaustive investigation pre-trial, which was then followed at trial by an examination before the jury of similar issues, Mr McNulty sought to raise the point of admissibility again at the close of the Crown case. The judge was unwilling to entertain the submission. He said that nothing new had arisen during the trial so that it was not appropriate to revisit this aspect of the case. 50. Before us Mr McNulty submitted that there had been a development during the course of the trial which warranted a re-opening of the matter. The judge’s reference in his original ruling to the process being “entirely transparent because the police kept detailed notes” had now been undermined. The officers present at the pre-ABE meetings had given evidence that they did not know what RB had said to Mr Flynn at those meetings. They had merely noted what he had relayed to them through the BSL interpreter at the time. There were clearly exchanges between Mr Flynn and RB which resulted in discussion between them so that he could conclude in his own mind what she was saying before he purported to pass on her comment. 51. Thus, submitted Mr McNulty, the absence of a full record of interchanges was an important new factor justifying the application, which if heard in full by the judge at this stage, would have resulted in the evidence being excluded on the basis that it rendered the proceedings unfair in the absence of a full recording (for example by video) of what had taken place. 52. We do not consider that there is any substance in this complaint, which was also supported by counsel for TA. The guidance given is exactly that. It is clear that the guidance has to be tailored to the individual witness and the circumstances of the case. The guidance undoubtedly places emphasis on the need for a full written record of intermediary involvement. It seems to us that the matters now relied by Mr McNulty must have been obvious to all concerned during the course of the very lengthy voir dire. The modes of communication involving RB, Mr Flynn and the BSL interpreters were all known then. Very extensive notes and other materials recording what was taking place were compiled. The judge was clearly impressed with the transparency of the exercise. 53. We do not consider that the matters now relied on by Mr McNulty represent any significant change in the situation. In the circumstances the judge was entitled to decline to reopen the issue. Had he chosen to do so, the result would have been the same. There was nothing which could arguably have led the judge to rule out the evidence. In the course of his ruling, the judge incorporated by reference his earlier ruling in which he had carefully set out Section 27(2) and Regina v Camberwell Green Youth Court [ex parte D][2005] UKHL 4 . He then referred to R v K [2006] 2 Cr App R 10 where Lord Justice Hooper at paragraph 23 endorsed the test: “Could a reasonable jury properly directed be sure that the witness has given a credible and accurate account on the videotape, notwithstanding any breaches?” 54. Mr McNulty also complained that at the close of the Crown case the judge would not permit him further to cross-examine Mr Flynn about his qualifications and the accuracy of answers given in the ABE. By that stage Mr Flynn had already been extensively cross-examined in the voir dire. He had also been cross-examined before the jury in the trial, and his competence and impartiality called into question then. The judge was fully entitled in exercising his case management powers to decline to give Mr McNulty a further bite of the cherry. 55. We do not consider that there is any arguable point and refuse leave on this ground. (C) – RB’s competence 56. We give leave in relation to this ground. 57. Section 53 of the Youth Justice and Criminal Evidence Act 1999 provides: “(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence…. (3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to – (a) understand questions put to him as a witness, and (b) give answers to them which can be understood.” 58. Section 54(2) provides that the party calling the witness must satisfy the court of competence on a balance of probabilities. Section 54(3) provides that in determining competence, the court shall treat the witness of having the benefit of any special measures. 59. The judge had been asked to rule on competence at a pre-trial hearing as long ago as 24 th May 2011. In doing so he had before him the statutory provisions; he had read all the ABEs; he had sampled the DVDs of those ABEs; he had heard evidence from Dr O’Rourke, a defence witness who had examined RB. Dr O’Rourke’s evidence provided significant support for the judge’s own views. She concluded that RB was not particularly suggestible, that she had the capacity to give an account, albeit she had difficulty with abstract concepts and issues outside her experience. 60. Dr O’Rourke’s first report stated: “In terms of her participation in proceedings, I do not find that she lacks capacity generally, although the court would be aware that, when under examination and cross examination, her responses to questioning maybe unclear. This is in contrast to her ability to give a free narrative account of her alleged experiences.” 61. The second report from Dr O’Rourke included this: “The issue of [RB’s] competence lies, not in an impaired intellectual ability, but in a lack of experience of the world and lack of exposure to effective communication, i.e. British Sign Language. In spite of this, in many areas, she is skilled and perseveres well to make herself understood.” 62. In the light of those observations, we do not think that the judge’s initial decision is capable of realistic challenge. 63. The submissions made to us are based on the further submissions made at the conclusion of the Crown’s evidence. It is submitted that during the course of the trial difficulties arose which cast doubt upon the competence of RB. This was said to be particularly so in cross-examination. It often took a great deal of time and perseverance to obtain an answer, and the defence found it difficult properly to cross-examine in relation to inconsistencies. 64. Regrettably an attempt to obtain a transcript of the cross examination has been unsuccessful. However, we have the benefit of detailed notes from prosecution and defence. We have examined those notes. We have to say that whilst there were undoubtedly difficulties in cross examination, very often the forensic techniques used to challenge the account being given by RB or to seek to demonstrate inconsistency are in reality examples of questioning where the questioners failed sufficiently to adapt their questions in order to take account of RB’s difficulties in communication. 65. The Crown accepts that the witness was not clear on every point raised and could not give an answer on certain topics. However, it submits that it is necessary to look at the totality of the position. One example cited on behalf of the Appellants is an asserted failure to be able to respond to questions about benefits. We have examined that, given the focus placed on it. It seems to us that RB was sufficiently clear in explaining that she did not understand the benefits system. However, she was clear about what she had done or not done in this case. She recognised her signature on benefit forms, but said she had signed many forms at TA’s instigation. She could not read what was on those forms. She had been taken to the bank where forms were signed, and money taken out, which was then kept by TA. 66. As stated the defence invited the judge to review the competence position at the end of the prosecution evidence. The judge considered the complaints made and rightly observed that the matter was a question of judgment. The judge acknowledged that the process of giving evidence was very slow and cumbersome, and that on occasions Mr Flynn, the intermediary, had struggled to interpret questions in a way which RB could understand. He accepted that RB was unable to answer a number of questions, particularly in relation to asserted inconsistency. However, his conclusion was that the witness had given clear understandable answers on the main areas of the case and, reviewing the statutory test, he remained of the view that RB was a competent witness. 67. An ancillary point raised was that the lengthy cross examination might have appeared oppressive, thus generating sympathy for RB. That of course is not a competence issue. In any event the judge said he would give a suitable direction to the jury in that regard, and in due course, he did so. 68. The initial position of the judge was that RB was a competent witness. He was well placed to revisit that conclusion after his experience of the conduct of the trial. He acknowledged that there had been difficulties and areas where the witness could not answer questions. 69. In R v Barker [2010] EWCA Crim 4 this court noted at paragraph 38 that the witness need not understand every single question or give a readily understood answer to every question. Dealing with the matter broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. What is involved is not the exercise of a discretion, but the making of a judgment. 70. In this case the judge rightly recognised that competence was, as he put it, “witness, trial and issue specific”. We attach considerable weight to the view of the judge who was in a far better position than we are to have the feel of competence, having seen how the trial developed. In reviewing the matter, he approached it in the correct way, took account of the acknowledged shortcomings in the witness’ performance, and made a judgment. 71. Having considered the materials drawn to our attention by counsel, we are not in any way persuaded that that judgment was incorrect. Accordingly, this ground must fail. 72. Before we leave this ground, we will draw attention to paragraph 42 of R v Barker . There is a need, both for advocates’ techniques and court processes to be adapted to enable the witness to give his or her best evidence. That will involve a degree of persistence and patience by all concerned. A witness found competent is entitled to have the best efforts made to adduce his or her evidence before the court, notwithstanding the difficulties that may exist. 73. The judge, in our view, rightly recognised in hindsight that he had permitted cross examination to go on too long. The essential nature of the defence case was that RB was being treated well and as a member of the family. Cross-examination to challenge RB’s account of maltreatment and to seek to establish the defence case could have been much simpler and did not need to turn over every stone. Much cross-examination was of a sort which was an oblique comment on the evidence, such as the attempts to demonstrate inconsistency, and could probably have been entirely disposed of or dealt with in much more summary form. (D) – The racist juror 74. We give leave to argue this ground. 75. In the light of the matters summarised above, Mr McNulty, supported by the other defence counsel, submitted that the judge should have discharged the whole jury. He relied on Sander v UK as supporting that course on the basis that the judge’s actions provided no sufficient guarantees to exclude legitimate doubts about the impartiality of the jury. He accepted that the presumption of jury impartiality had not been subjectively rebutted, but relied on paragraph 27 of Sander where the European Court said: “The court must also examine whether the court was impartial from an objective point of view, i.e. whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court.” 76. He relied on two particular matters, firstly, the racist juror’s initial implication that other jurors had made racist comments outside the jury room, and secondly, the fact that nine members of the jury had been willing to ignore the racist remarks and continue with their deliberations, and would have done so but for the intervention of the notewriter. 77. It is clear that the response of a judge in a situation like this must be fact specific in the methods adopted in seeking to ensure that the jury is objectively impartial. The advantage this judge had, denied to the judge in Sander , was that there was no dispute about the primary facts. Each juror acknowledged that the note written to the judge was accurate. When the racist juror made the comment upon which the defence rely, the judge immediately examined her about it, with the result that she produced nothing to justify the remark, and indeed retracted it. Notwithstanding that, the judge examined each of the other ten jurors separately as to whether they were aware of any racist comments made outside the jury room, and received the same negative answer. 78. This aspect of the enquiry was careful and thorough. The effect of the racist juror’s evidence was that there was nothing to indicate that any other juror had made a racist comment at any time, and this was confirmed by the separate examinations of the other jurors. Accordingly, there was nothing to rebut the presumption of impartiality recognised in paragraph 25 of Sander in relation to this aspect of the matter. 79. The defence submissions proceeded on the basis of scepticism, relying heavily on the juror’s initial remark, and treating the subsequent examination of it by the judge with her and other jurors as being of no value. We do not think this was the correct approach. The judge examined the position with care, as he was required to do because of the initial remark, but in the end was entitled to conclude that his examination had laid concerns arising from it to rest. What the judge did was to avoid speculation, and instead he made an appropriate investigation. 80. An important factor in his conclusion on this issue must have been the confirmation from the notewriter, who on the evidence would have been especially alert to any signs of racism by other jury members, that he had seen no evidence of this. 81. As to the second limb of the argument, namely the nine jurors’ reluctance to draw the racist juror’s comment to the judge’s attention, this was a factor in the judge’s mind in his assessment of the situation. The judge heard submissions from counsel on this topic before ruling. He considered whether a fair-minded and informed observer would conclude that there was a real possibility or danger that the jury were or would be biased. He concluded that each juror examined had spoken truthfully, particularly in relation to making or hearing any racist comment during the course of the trial. He was satisfied that the notewriter was a man of moral courage and fortitude who would not feel pressurised by other jurors. He recognised that a legitimate concern arose from the reluctance of some of the other jurors to bring the racism matter to the attention of the court, but concluded that there was no evidence whatsoever to indicate that the remaining jurors would not decide the case impartially and solely in accordance with the evidence presented to them. He made a specific finding that no juror was racially biased, and that each juror could decide the case on the evidence. 82. Having come to that conclusion, he brought the jurors back into court, reminded them of their oath and the need to decide the case solely on the evidence. He then invited each juror to confirm that his/her decision would not in any way be affected by considerations of race, colour or religion. Each juror did so. 83. We consider that the judge handled this potentially difficult situation in a careful and appropriate fashion. He carried out a full investigation, aided by the fact that there was no issue about what had occurred. We are satisfied that in the circumstances he took sufficient steps to be able properly to conclude that the remaining jurors could return verdicts in accordance with their oaths, unclouded by prejudice. In our judgment the necessary guarantees of impartiality referred to at paragraph 27 of Sander were in place. Accordingly, this ground does not afford a basis for challenging the convictions, and we dismiss it. (E) – Video recording cross-examination 84. Ms Wade for TA, supported by Mr McNulty for IA, contended that the judge should have acceded to their request that a video recording should have taken place of the cross-examination of RB. Her evidence in chief, of course, was visually available through the ABE DVD. Their argument was that because Mr Flynn, the intermediary, and RB were conversing via an idiosyncratic means, there needed to be a video record of that to enable, inter alia, the defence experts to check whether Mr Flynn was properly communicating what RB had to say. Not to have acceded to the request was unfair because there did arise in the course of the trial disputes concerning Mr Flynn’s communication work. In those circumstances there was a need for a record which could be checked. The audio tape would be insufficient. 85. The provisions of Section 28 of the Youth Justice and Criminal Evidence Act 1999 are not yet in force. However, we accept that a court has power to adapt its procedures so as to ensure that a Defendant has a fair trial. The experienced judge said he had never come across such a request before, but he did enquire into what facilities were available notwithstanding the fact that the defence request arose at the start of the trial and after many weeks of pre-trial and/or preparatory hearings in the preceding year. 86. The judge found that the course requested was not a practical possibility in the circumstances. That seems to us to be a relevant factor, albeit not decisive if otherwise the trial would be unfair. We are wholly unpersuaded that the judge’s refusal to take this step rendered the trial in any way unfair. Mr Flynn himself had intervened during the trial to correct transcript errors in relation to the ABE DVDs, and had liaised with defence experts to agree accurate amendments. 87. The defence had the benefit of Dr O’Rourke and Mr Nicholson as experts monitoring the communications between Mr Flynn and RB throughout. There were indeed occasions where they raised matters of incorrect communication by Mr Flynn. We have seen examples of such issues being raised, and of the judge intervening and dealing with them. 88. There is no doubt that the defence were critical of Mr Flynn and that there were episodes in the trial where the issue of whether he was performing his job accurately and correctly were raised. We consider that those episodes demonstrate that the trial process was working. At the close of the case the defence were critical of Mr Flynn’s performance, and in summing-up, the judge on more than one occasion put those criticisms to the jury in clear terms. 89. After due consideration we are unpersuaded that there is anything in this point. The decision which the judge made was entirely reasonable in the circumstances and well within his case management powers. We are not persuaded that the subsequent conduct of the trial shows that his decision was wrong or that the trial was arguably rendered unfair by the absence of the requested video record. We refuse leave on this ground and dismiss it. (F) – IA’s submission of no case on Counts 1 & 2 90. On behalf of IA it is submitted that the judge should have acceded to a submission of no case to answer in relation to Counts 1 and 2. The argument which the judge rejected was that there were no acts of IA which amounted to the arranging or facilitation of RB’s arrival in the UK in 2006 and 2009. 91. We accept that the necessary arrangement or facilitation would have to have occurred at a point prior to arrival in the UK or, if not, at a point very close in time afterwards. 92. Mr McNulty submitted that there was no evidence of any physical act done by IA which facilitated or arranged for RB’s travel to the UK. There was evidence that TA had purchased travel tickets and that she had accompanied RB on the flights concerned. As against IA, Mr McNulty said that whilst there may have been evidence of knowledge on IA’s part, and that on the second occasion he had travelled to the airport at the same time as his wife and RB, he had not accompanied them on the journey. 93. In rejecting the submission, the judge did not demur from the proposition that IA had not made any arrangements personally. He held that it was not necessary for the prosecution to prove that. He said that it was sufficient for the Crown to prove that IA was party to the arrangements or the facilitation. The judge identified a number of pieces of evidence given by RB showing that IA and TA were jointly in control of decisions relating to RB’s travel, including journeys to the UK. Moreover, the evidence of what had happened to RB by way of exploitation before and after the relevant journeys at the home of IA and TA was material from which an inference of joint involvement in the arrangements could be inferred. IA had been in Pakistan immediately prior to RB’s journey on each occasion. He was the head of the family, and at all material times involved in events relating to her treatment. 94. We consider that there was ample material for a jury to infer from the evidence adduced by the Crown that IA was party to the acts of arrangement or facilitation, which it was acknowledged existed in the case of TA, his wife. We refuse leave and dismiss this ground. (G) – IA’s complaint about summing-up on Counts 1 & 2 95. Associated with the preceding ground is an argument that the judge did not properly sum up Counts 1 and 2. Mr McNulty submitted that the judge should have specifically directed the jury that the arrangement or facilitation involved had a nexus with the arrival of RB in the United Kingdom, and that without such a direction, there was a danger that the jury would conclude that the provision of food and a home after arrival in the United Kingdom were sufficient to constitute the actus reus of the offence. 96. We reject this submission. The case was never put on that basis. In the summing-up the judge specifically put IA’s case on the basis that TA and RB returned to the UK, while he remained in Pakistan for a while. He had not been concerned with RB’s travel arrangements, and had not helped her to travel to the UK, nor had he asked anyone to help her to travel. The judge then pointed out that in TA’s case, she had paid for RB’s flights and accompanied her, so that the elements of arranging and facilitating were satisfied in her case. 97. He then put IA’s case to the jury on the basis of whether or not he was a party to what his wife was doing. The jury could have been left in no doubt that they had to focus on the travel arrangements and whether IA was party to them. As the judge put it: “Are we sure that the Defendant was involved in arranging or facilitating the arrival of RB into the United Kingdom…, and that is sure that the Defendant was an active participant in bringing RB back to the UK.” 98. The matter could not have been more clearly put. We reject this submission. We refuse leave and dismiss this ground. (H) – IA’s submission of no case on benefit offences 99. The case against IA on the benefit counts centred on tenancy agreements (Counts 19 and 23) and a change of address form (Count 24) which showed on their face that IA had signed such agreements as landlord of 11 Cromwell Road where RB was, for the purposes of the benefit claims, said to have been a tenant. The change of address form purported to show a change of address back to 11 Cromwell Road from 13 Cromwell Road, an address at which she had never lived. Further, her evidence showed that she was never a tenant at 11 Cromwell Road, albeit she lived there, and knew nothing of the agreements other than she recognised her signature thereon. She had written her signature on many documents at the instigation of TA. She paid no rent and the effect of her evidence was that the tenancy agreements were each a sham to obtain benefits. 100. The relevant documents had gone before the jury during the course of the trial without any objection. There was nothing in IA’s defence statement to suggest that he had not signed the documents. On their face the documents appeared to bear IA’s signature and contain details entirely consistent with the grant of a tenancy by him. It was admitted that IA was indeed the landlord of a number of properties, including 13 Cromwell Road. 101. Mr McNulty made no suggestion of any sort during the course of the prosecution case to the effect that IA had not signed the documents which had been placed in evidence without objection. The reason for this became apparent when IA gave evidence. He accepted that the signature on the documents were indeed his, or if not his, had been put there by his wife with his authority as sometimes happened. 102. In those circumstances the point taken before the judge must have come as a considerable surprise, if not an ambush. The point is entirely technical and devoid of any substantive merit. The judge rejected the submissions, pointing out the absence of any indication to the contrary in the defence statement, and stating that a reasonable jury, properly directed, could properly infer that IA signed all of the documents in question. 103. Mr McNulty initially submitted to us that the documents were real evidence and not hearsay, but he then submitted that insofar as they purported to be signed by IA, they were hearsay since the Crown wanted to prove that it was true that they had been signed by IA. The Crown accepted before us that in this respect the documents were hearsay. The matter was not fully argued before us, and there was no analysis of the statute or any case law. 104. We have some doubts as to the correctness of the Crown’s concession (see for example Pattison v DPP [2005] EWHC 2938 (Admin) ), but will proceed on the basis that the concession was properly made. It seems to us that the documents were properly admissible under Section 117(1) of the Criminal Justice Act 2003 as business documents. IA did have a business of letting properties and making tenancy agreements. Whilst, of course, the Crown case was that the document was a sham, we consider that the position is no different from any other fraudulent claim in a document made in a dishonest course of business. 105. Additionally, it seems to us that these documents were admissible under Section 114(1)(c), on the basis of agreement. The document had been served in advance of the trial as part of the prosecution case, the defence were aware of its existence, and prior to the admission of the documents before the jury, no objection whatsoever was taken to their admissibility. 106. In the light of Emlyn Williams t/a Williams of Porthmadog v Vehicle and Operator Services Agency [2008] EWHC 849 (Admin) the judge was entitled to regard the evidence, if hearsay, as admitted by agreement. Moreover, the Crown had submitted a hearsay notice pursuant to Rule 34.2 of the Criminal Procedure Rules. Such a notice is not necessary for a Section 117(1) business document. It is, however, apt to cover an application to admit hearsay pursuant to Section 114(1)(d). No counter-notice was served objecting to the introduction of the hearsay evidence. Rule 34.4(2) provides that in the absence of such counter-notice, the court will treat the evidence as if it were admissible by agreement. Had there been a contested application under Section 114(1)(d), we are confident that in the circumstances the judge would have admitted the evidence. 107. In our judgment, the judge rightly held that there had been a failure of compliance with Section 6 A(1)(b) of the Criminal Procedure and Investigations Act 1996 . In this respect IA had not indicated a significant matter of fact on which he took issue with the prosecution. The consequence of this is that by virtue of Section 11(2)(f)(ii) and Section 11(5)(b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence. 108. Mr McNulty in response seeks to rely on Section 11(10) which provides that a person shall not be convicted of an offence solely on an inference drawn under subsection (5). We do not consider that this point assists him. The jury had evidence from RB that she did not live at 13 Cromwell Road. She said she did not know what any document she signed was about and that she had signed all documents on instructions. 109. We are satisfied there is nothing in this point and we refuse leave. (I) – Admissibility of violence by TA and others 110. Objection was taken on behalf of TA at the start of the trial to the admissibility of evidence of violence by TA and other named family members towards RB. The judge held that the evidence was admissible at common law by reason of the definition of bad character at Section 98 of the Criminal Justice Act 2003 , which provides: “References in this Chapter to evidence of person’s “bad character” are to evidence of, or a disposition towards, misconduct on his part, other than evidence which – (a) as to do with the alleged facts of the offence with which the Defendant is charged…” 111. Ms Wade submitted that the evidence of violence was not sufficiently linked to Count 1 and 2 to bring it within Section 98 (a). She did not argue that the evidence was irrelevant to the case, but submitted that since it was not covered by Section 98 (a), it could only have been admissible under Section 101(1)(c) or (d), in relation to which the Crown would have had additional hurdles to surmount. 112. Counts 1 and 2 require an intention to exploit the victim in the United Kingdom. Section 4(4) of the 2004 Act provides: “For the purposes of this section a person is exploited if (and only if) – (a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour)…” 113. The case was put on this basis rather than other bases within Section 4(4) of the Act . We have considered R v K [2011] 2 Cr App R 34 , where this court examined core elements of Article 4 of the Human Rights Convention, namely “slavery”, “servitude” and “forced or compulsory labour”. 114. It is clear to us that forced labour can include violence. However, Ms Wade’s submission was that in this case there was insufficient nexus between violence inflicted on RB and the facts of the offences. In the light of R v Mullings [2011] 2 Cr App R 2 , which includes a helpful review of authorities in this area, Ms Wade retreated from her written submissions, based on R v Fox [2009] EWCA Crim 653 , that the exception in Section 98 (a) was only wide enough to embrace the actus reus of the offence. In our judgment, she was right to do so; the observations in Mullings are properly to be preferred to the obiter comments of the court in Fox . 115. Notwithstanding that concession, Ms Wade’s submission to us remained that the violence was insufficiently connected to the alleged forced labour to satisfy the exception in Section 98 (a). Moreover, she argued that some of the violence had been committed prior to the acts complained of in Counts 1 and 2, which took place in 2006 and 2009 respectively. 116. We accept that to come within the exception, the evidence must relate directly to the offence charged, be reasonably contemporaneous with it and be associated closely with it. It is not a requirement that the misconduct involved is essential to proof of guilt; direct relevance will be sufficient. 117. The Crown’s case was that IA and TA and others had used violence and threats of violence to force RB to work for them over an extended period of time, including the period specified in the indictment. The evidence also covered a timeframe prior to the indictment, but it was part of a continuum of violence related to the exploitation of RB prior to the two offences indicted. The violence was central to the case that RB had been exploited. Violence prior to the two alleged counts was directly germane to the element of an intention to exploit after arrival in the United Kingdom. 118. The evidence of violence by others was of violence inflicted by TA2, AT and WT. In the cases of TA2 and AT, the violence was part of the picture relating to work which RB had to carry out for the A family, and was inflicted in that context. In the case of WT, the evidence of a link between his violence and the forced labour is less clear. However, the evidence was of a single incident when food was thrown and, if not properly admitted, could have had no material bearing on the outcome of the case. 119. We are satisfied that the judge’s ruling was correct. We refuse leave and this ground is dismissed. (J) – FA and severance 120. Mr Robinson asserts that FA’s case should have been severed from the rest of the case at a point in the trial, during the cross-examination of RB by counsel for IA, when RB said that she had told FA that IA had been having sex with her, and secondly, asserted that FA had physically assaulted her. It was acknowledged at the time by the Crown that both these areas of evidence were irrelevant and inadmissible as against FA. Indeed, prior to the trial the Crown had agreed to edit the ABE interviews to exclude matters in these areas insofar as they affected FA. 121. Mr Robinson, therefore, applied to the judge for severance and discharge of the jury in FA’s case. The judge declined to do so, saying he could deal with the matter in summing-up. Mr Robinson’s complaint is that in essence the matter could not be properly dealt with in that way. 122. The offending evidence was given on 13 th March 2012. We note that the jury did not retire until 25 th July 2012, some two and a half months later. The inadmissible comments were made in general terms amid a vast amount of detailed evidence given by RB over a period of several weeks of court time, and indeed, over a number of months in real time due to various adjournments. 123. Nonetheless Mr Robinson argued that this was an attentive jury, and that the inadmissible matters referred to both sex and violence, which were significant features of the case involving IA and TA, but not FA. He argued that the prejudice caused was irredeemable. For understandable reasons Mr Robinson did not cross-examine FA on these points, nor did he adduce evidence from FA in relation to them. 124. We are not persuaded that there is any arguable point here. The judge gave a clear direction in the summing-up; firstly, as to treating the applicants separately, and secondly, in the case of FA, by telling the jury in the clearest terms that they should only consider the evidence in relation to the benefit counts in looking at the case against her. The jury were provided with in written form, repeated in summing-up, an extremely clear route to verdict document setting out the specific matters which the jury had to consider in FA’s case. The document focused correctly on the issue of dishonesty in her case. The question was whether she had dishonestly signed forms which were to be used in making benefit claims for RB. 125. It was, moreover, clear to the jury that FA was in a very different position from IA or TA. The case against her was confined to the benefit claims and not in any way based on allegations of violence which lay behind the principal matters IA and TA faced. The episode complained of was relatively brief and, as the judge said, represented passing comment. 126. We are satisfied that the judge was correct to refuse severance, and that he dealt with the matter appropriately thereafter. In our judgment, there is no tenable argument and refuse leave on this point. (K) – FA’s submission of no case 127. The submission to the judge acknowledged that the statements made in the documents signed by FA for the purposes of benefit claims were false in material particulars, for example, as to whether or not RB was working, and as to where she lived. FA acknowledged signing them. She did not merely sign as a witness, but signed in confirmation of the fact that she had as far as possible confirmed with RB that the answers written on the form were correct. 128. The submission made was that there was no evidence that by so signing FA had been acting dishonestly as the statute requires. Mr Robinson unsuccessfully argued that the mere fact of signature was insufficient to raise a prima facie case. 129. This was a document which required a degree of verification of the claim made by another person. FA provided that verification, and certified to say that she had checked the relevant information. Had she done so, RB would not have confirmed what it said about her work and place of residence. 130. In those circumstances we consider that the judge was right to reject the submission. The signing of the document by FA was sufficient to enable a jury to draw an inference from the circumstances that FA could not honestly have signed that document. That is sufficient to dispose of this submission. Other points raised on FA’s behalf, were in reality jury points. We have not been materially assisted by reference to Flintshire County Council v Reynolds [2006] EWHC 195 (Admin) . That case was decided on the basis of evidence given by the defendant in that case. There was no suggestion that, having signed the relevant document, Mrs Reynolds did not have a case to answer. 131. We refuse leave and dismiss this ground. Conclusion 132. For the reasons given in this judgment, all of the various grounds of appeal fail. The appeals against conviction are dismissed.	[ "LORD JUSTICE TREACY", "MR JUSTICE DINGEMANS" ]	2013_07_25-3233.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1308/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1308	1,074
0bf2f3ccb3696fca8490dd67d6ff50b43cc07913373d9f0e06a52b4324c89d5b	[2010] EWCA Crim 1316	EWCA_Crim_1316	2010-05-18	crown_court	Neutral Citation Number: [2010] EWCA Crim 1316 Case No. 2009/06227/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 18 May 2010 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE AKENHEAD and HIS HONOUR JUDGE GOLDSTONE QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - KEVIN MARK BUCHANAN __________________ Computer Aided Transcription by Wordwave International Ltd (a Merril	Neutral Citation Number: [2010] EWCA Crim 1316 Case No. 2009/06227/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 18 May 2010 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE AKENHEAD and HIS HONOUR JUDGE GOLDSTONE QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - KEVIN MARK BUCHANAN __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr B O'Toole appeared on behalf of the Appellant ____________________ J U D G M E N T LORD JUSTICE PITCHFORD: I shall ask His Honour Judge Goldstone to give the judgment of the court. HIS HONOUR JUDGE GOLDSTONE: 1. On 19 October 2009, following a trial in the Crown Court at Reading, the appellant, Kevin Mark Buchanan, was sentenced to a total term of 30 months' imprisonment for five counts of indecent assault. He was ordered to sign the Sex Offenders Register indefinitely and was made the subject of an indefinite Sexual Offences Prevention Order which contained six prohibitions. An application for leave to appeal against the sentence of imprisonment was refused by the single judge who did, however, grant leave to appeal in relation to certain aspects of the Sexual Offences Prevention Order. We gave leave at the outset of the hearing for the appellant to renew out of time his application for leave to appeal against the sentence of imprisonment. 2. The facts giving rise to the appellant's convictions may shortly be stated. The offences were committed between January 2001 and January 2004 against three young girls. One of the girls was the subject of offending on no less than three occasions. Each of the girls was the friend of the appellant's stepdaughter. None of them was older then 12 years of age at the time. The offences were committed in the appellant's home which he shared with his partner and his son and stepdaughters. 3. Count 1 related to an incident which occurred on the occasion of the appellant's stepdaughter's birthday party when he lay across C, licked her neck and said that he was going to "snog" her. On the same occasion he lay on another child, J, and bit her neck. That gave rise to count 2. 4. After a shopping trip the appellant told C to remove her trousers and show him a thong that she had purchased (count 3). 5. Following a Halloween party the appellant got into bed where his stepdaughter was sleeping with a friend, S. He stoked S's leg from top to bottom (count 4). 6. Finally, count 5 related to an occasion conceded to be the most serious offence when, between January 2003 and January 2004 he put his hand down C's trousers and touched her vagina. 7. When arrested and interviewed the appellant denied the offences. Even when, following conviction, he was interviewed for the pre-sentence report he admitted no more than that he used to play games with all of the children, but denied any suggestion that it included sexual or inappropriate behaviour or touching. 8. In summary, all the offences were committed against friends of his stepdaughter, giving rise to a breach of trust. All the girls were aged 12 or under. The offences were committed at his home which he shared with his family. They increased in seriousness, no doubt as he had not been stopped and thought that he would continue not to be stopped. Finally, they were committed over a prolonged period. Each of those factors is an aggravating feature of the offences. 9. In mitigation much emphasis was rightly placed upon the appellant's good character. It might be said that in a case such as this the phrase "good character" is richly deserved and does not state the full extent of the qualities which the appellant has displayed in the course of his life, both in relation to employment and in relation to many charitable works. Nevertheless, Mr O'Toole concedes, and rightly so, that these offences crossed the custody threshold and that an immediate sentence of imprisonment had to be imposed. It is, however, argued that the total sentence of 30 months' imprisonment was manifestly excessive, not only when considered individually, offence by offence, but (and this is the nub of the appeal) also when the principles of totality are considered. 10. Guidelines are designed to guide a court when dealing with one offence. We are not dealing with one offence; we are dealing with five, none of which can be considered in isolation from any of the other four. We have not been assisted by reference to authorities which predate or postdate the Sentencing Guidelines, although we did not seek to prevent Mr O'Toole from referring to them. 11. In our judgment a total of 30 months' imprisonment for these five offences is well within the bounds of the Sentencing Guidelines. It is not arguably excessive, far less manifestly so. It follows that the renewed application for leave to appeal against the sentence of imprisonment is refused. The Sex Offenders Register requirement remains indefinite. 12. We turn to the second limb of the appeal, which relates to the terms and duration of the Sexual Offences Prevention Order. As to the principle of making such an order, no argument has been advanced before us. However, by way of elaboration of a very helpful skeleton argument, Mr O'Toole has submitted that the Sexual Offences Prevention Order was excessive both so far as the prohibitions are concerned and in relation to its duration. It is said to be draconian and ill-defined, and that it was provided moments before the hearing with no advanced notice which was "somewhat worrying". 13. We would observe that if a person is convicted of a qualifying offence and presents a significant risk of harm to children, defence counsel should be alert to the possibility, if not the likelihood, of such an order being made when sentence is finally passed. Second, if the judge takes the initiative and prepares a proposed draft Sex Offenders Prevention Order, or alters one submitted by the Crown, that is effectively a discussion document. If there is insufficient time for counsel and the defendant to consider the contents or terms of such a proposed order because of late service, application should be made to the sentencing judge for the hearing to be put back in order for instructions to be taken. It is difficult to consider circumstances in which an appropriate period of time on the morning of the hearing would not be granted to enable such instructions to be taken. Third, just as the judge may have formed, by the conclusion of a trial or the opening of a plea of guilty, a provisional view as to the type of appropriate sentence, so he may also have a provisional view as to the imposition of such an order (subject, of course, to the assessment of risk). In such circumstances, when he directs the preparation of a pre-sentence report and a consideration of the assessment of dangerousness, it will usually be helpful to invite the Probation Service to consider whether the management of the risk could be assisted by the imposition of a Sexual Offences Prevention Order and, if so, the restrictions which might be appropriate. Furthermore, counsel for the prosecution should be in a position, when asked by the court, to submit draft proposals for incorporation into a Sexual Offences Prevention Order both to the court and to the defence in good time for the hearing. 14. Those preliminary observations having been made, we remind ourselves that no Sexual Offences Prevention Order should be drawn wider than is necessary to achieve its stated purpose. In the absence of evidence or inference which can properly be drawn, normal activities should not be prohibited or restrained. Section 107(2) of the Sex Offences Act 2003 states in terms that the only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. 15. Applying those principles to the facts of this case, we note that the offences involved young girls and young girls alone. There is no evidence that the appellant has an unhealthy interest in young boys. Second, they were committed in circumstances which amount to a breach of trust. Third, although there were a number of offences which appeared on an indictment yet to be tried and which might justify the imposition of prohibitions in relation to the use of internet or photographs, the fact of the matter remains that at the time when the sentencing judge dealt with the appellant, those matters had been severed from the original indictment and had not been proved. There was, therefore, no evidence upon which the sentencing judge could properly reach the conclusion that the prohibitions which precluded access to the internet and the related prohibition in relation to photographs were justified. 16. We have been helped considerably by the proposed draft which appears at Appendix 5 of Mr O'Toole's Grounds of Appeal (as revised). We consider, subject to the duration of such an order, that the prohibitions identified therein (four in number) achieve the purpose of the legislation and are consistent with the evidence and findings which the judge was entitled to make. We therefore propose to substitute for the original Sexual Offences Prevention Order, an order in the following terms: "Kevin Mark Buchanan is prohibited from: 1. Seeking the company of or being in the company of any female under the age of 16 in the absence of a supervising adult, save by order of this court or a Judge of the High Court or County Court. This prohibition does not operate to restrict communication or prohibit contact with females under the age of 16 when unavoidable in the course of lawful activities in public places, for example when travelling or shopping. 2. Attending any leisure or voluntary activity involving females under the age of 16 in the absence of supervising adults. 3. Undertaking any business, obtaining or seeking to obtain any employment, or voluntary activity that is likely to bring the appellant into routine contact with females under the age of 16 in the absence of supervising adults. 4. Staying after 9pm at an address where any female under the age of 16 resides in the absence of a supervising adult." 17. Mr O'Toole has submitted that the duration of this order should be for five years. However, in the course of argument he conceded that if the renewed application for leave to appeal against the sentence of imprisonment was unsuccessful, it would be more difficult for his arguments in relation to the duration of the order to be sustained. 18. Even if we had reduced the sentence to the level which he invited us to do so, we would still have had to consider the risk which the appellant presents in determining, first of all, whether to impose such an order and, secondly, as to its length. Having considered all the material available to us, including the contents of, and opinions contained within the pre-sentence report, we conclude, as did the sentencing judge, that the duration of this order should be indefinite. It will be open to the appellant to seek to vary the terms of the order or its duration if he shows the degree of insight into his offending which is currently lacking. 18. ( To the appellant ) Kevin Mark Buchanan, if, without reasonable excuse, you do anything which is now prohibited by the order, you will be liable to a sentence of up to five years' imprisonment. 19. LORD JUSTICE PITCHFORD: Mr O'Toole, we have reviewed the order of the single judge and we take the view that it would not be appropriate to make an representation order in favour of those instructing you. You already have a representation order in order to advance the successful ground of appeal. 20. MR O'TOOLE: I do. 21. LORD JUSTICE PITCHFORD: Thank you for your help.	[ "LORD JUSTICE PITCHFORD", "MR JUSTICE AKENHEAD" ]	2010_05_18-2390.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1316/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1316	1,075
cbf11631207610f1fd5d84583ae2cbf552f4ba25fcd163087c0802b0c8683754	[2020] EWCA Crim 1430	EWCA_Crim_1430	2020-10-14	crown_court	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 pers	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 1430 CASE NO 202001543/A3 Royal Courts of Justice Strand London WC2A 2LL Wednesday 14 October 2020 Before: LORD JUSTICE DAVIS MR JUSTICE SPENCER MR JUSTICE WALL REGINA V JOHN PAUL GRAINGER 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 CHUDLEIGH appeared on behalf of the Appellant. J U D G M E N T 1. MR JUSTICE SPENCER: This is an appeal against sentence brought by leave of the single judge. 2. On 7 May 2020, in the Crown Court at Cardiff, the appellant pleaded guilty to an offence of domestic burglary and was sentenced to a term of 33 months' imprisonment. It was his fourth qualifying conviction for domestic burglary, so the judge was obliged to pass a minimum term of 3 years, pursuant to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, unless there were particular circumstances relating to the offence or the offender which would make it unjust to do so in all the circumstances. 3. The judge considered that the appropriate sentence before credit for plea was 42 months. He allowed only 20% credit for plea. That was the principal ground on which the single judge granted leave. On the face of it there was no reason why the judge should not have allowed 25% credit for plea. In addition however, it is submitted in the grounds of appeal that the sentence was in any event manifestly excessive having regard to the fact that the appellant was already serving another 3-year minimum sentence for an earlier domestic burglary, less the maximum 20% credit for plea. It is therefore necessary to set out the chronology of the relevant offences. 4. The index offence for which the sentence of 33 months' imprisonment was imposed was a serious domestic burglary of its kind because it was committed in the early hours of the morning on 8 June 2019, when the householder and her partner were asleep in bed. The property was a house in Brackla, Bridgend. At around 4 o'clock in the morning her partner was awoken by a noise downstairs. They went to investigate. There were clothes strewn across the floor that had been previously hanging up in the conservatory. There were muddy footprints on the wooden floor of the conservatory which had not been present the previous evening. A music mixing desk had been stolen from a room off the dining room and also an ornamental knife. The total value of the property stolen was about £300. 5. CCTV footage from a shop some 500 metres away was examined. It showed that the appellant was in the vicinity of the shop in the early hours of the morning in possession of a sports bag. A police officer, on viewing the CCTV footage, recognised the appellant, who was arrested that evening. He was interviewed the next day. He denied being responsible for the burglary and denied that it was him on the CCTV. He was released under investigation by the police. 6. The shoes he had been wearing were seized and in due course forensic evidence was obtained which established a positive match between his shoes and the footprints left at the house. That all inevitably took a considerable time. It was not until 5 March 2020 that he appeared at the Magistrates' Court for that offence and was sent to the Crown Court for trial. 7. The burglary had left the householder extremely frightened and fearful within her own home. There was a victim personal statement. She struggled to sleep with the incident playing on her mind. She felt she had lost trust in people. She had to increase the medication she was already taking for anxiety. She was constantly checking to see if doors were locked in the house. She had to invest in CCTV and an alarm system to ease her feelings of anxiety. 8. Meanwhile, by the time this burglary charge reached the Crown Court the appellant had been dealt with in the Crown Court for two further offences of burglary. He had been interviewed about those offences during his time in police custody following his arrest for the burglary at Brackla back in June 2019. 9. The first and most serious of the offences was another domestic burglary, committed just a week before the Brackla offence, on 1 June 2019, at a house in Coity Road, Bridgend. The appellant gained entry through an insecure window and stole items from the living room including a laptop computer, a wallet, an HSBC debit card, some keys and earrings. He used the stolen debit card to withdraw a total of £100 cash as a result of which there were five counts of fraud by false representation. 10. He admitted those offences in interview and pleaded guilty at the PTPH in the Crown Court on 8 July 2019. It was his third qualifying conviction for domestic burglary. He was therefore sentenced to 3 years' imprisonment less the maximum permitted credit of 20% for plea, expressed as a sentence of 876 days. There is no complaint about that sentence nor could there be. 11. The appellant had also committed a non-domestic burglary in Bridgend on 7 May 2019, a month or so earlier, in respect of which he was interviewed on 9 June 2019, following his arrest for the Brackla domestic burglary. That was a burglary at the premises of Navidi Hair Company in Bridgend. Entry was gained by smashing a pane of glass in the front door. Goods to the value of some £3,000 were stolen together with £60 in cash from the till. The appellant also admitted a separate offence of criminal damage committed in February 2019, in which a fire extinguisher was thrown through the window of a Portakabin on a construction site in Bridgend. 12. The appellant appeared for those offences in the Magistrates' Court on 12 December 2019. He pleaded guilty and was committed for sentence to the Crown Court. He was sentenced on 3 January 2020, to a total of 6 months' imprisonment consecutive to the sentence of 876 days he was already serving for the domestic burglary at Coity Road. 13. It follows that when the appellant appeared before Judge Jenkins on 7 May 2020 and pleaded guilty to the Brackla domestic burglary, he was already serving a sentence of 876 days (which equates to around 29 months) plus 6 months, a total of 35 months. That total sentence ran from 8 July 2019, so he had already served 10 months in custody by the time he appeared before Judge Jenkins on 7 May, the equivalent of 20 months of the sentence. Having been convicted of his fourth qualifying domestic burglary the appellant was again liable to receive a minimum sentence of 3 years. 14. In addition to the domestic burglaries the appellant had a long record of convictions, principally for dishonesty and for public order offences. For his first qualifying domestic burglary and arson associated with it he was sentenced in April 2018 to a total of 20 months' imprisonment. For the second qualifying domestic burglary, committed in August 2017, he was sentenced to 32 months' imprisonment. 15. At the time of the domestic burglaries with which we are concerned, committed in June 2019, he had only recently been released from a sentence of 28 days’ imprisonment for shoplifting and failing surrender to custody. 16. There was no pre-sentence report nor was any report necessary. On behalf of the appellant his advocate, Mr Chudleigh, submitted to the judge that it would be unjust to impose a further minimum 3-year sentence, in view of the fact that he was already serving such a 3-year sentence for an offence committed only a week earlier. He urged the judge to have in mind the principle of totality. 17. The judge rightly considered that the Brackla burglary was a category 1 domestic burglary under the relevant Sentencing Council Guideline. There was greater harm because the occupiers were at home. There was higher culpability because there was targeting and planning beforehand. The starting point under the Guideline was therefore 3 years in any event, quite apart from the minimum sentence provisions, with a range of 2 to 6 years. The judge was therefore satisfied that it would not be unjust to impose a minimum sentence of at least 3 years. However, having regard to the appellant's record, the judge considered that the appropriate sentence after trial for this burglary would have been 42 months' imprisonment. He took into account the principle of totality and that was reflected by directing that the sentence he was imposing would run from the date of sentence, not consecutively to the sentence he was already serving. The judge said that if the appellant had admitted the Brackla offence at the time he was interviewed, both that offence and the Coity Road offence could have been dealt with together and the appellant would then have benefited from the principle of totality at that earlier stage. Nevertheless the judge made it clear he did not ignore totality. 18. The judge said that the appropriate discount for plea for the Brackla offence was 20%, which he would increase slightly to 9 months' discount, resulting in a sentence of 33 months which he then passed. 19. Owing to a failure in the recording system there is no transcript of the judge's sentencing remarks but Mr Chudleigh has very helpfully provided us with his full note of what the judge said, which is agreed by the prosecution, and we also have the judge's own comprehensive sentencing note for which we are also grateful. Prosecuting counsel and Mr Chudleigh both agree that there was no discussion in the course of submissions at the sentencing hearing about the appropriate level of credit for plea. They agree that in principle a reduction of 25% would have been appropriate because this was a plea entered at the PTPH. Although section 111 of the 2000 Act provides for a maximum discount for plea of 20% where a 3-year minimum term is imposed, it is well established that this simply means that the sentence where section 111 applies cannot ultimately be less than 80% of 3 years, that is 876 days. Where the sentence for the burglary significantly exceeds 3 years after trial, the ordinary principles of discount for plea apply, provided the eventual sentence is at least 80% of 3 years: see R v Gray [2007] EWCA Crim 979 ; [2007] 2 Cr App R(S) 78. 20. Thus, in the present case 25% credit against the sentence of 42 months would have produced a reduction to thirty-one-and-a-half months (or 958 days) and would not have offended against the minimum sentence provisions. 21. Although the reduction sought is comparatively small (only 2 months or so) and would not normally justify the intervention of this Court on appeal, it is appropriate where there is an error of principle in assessing credit for plea for this Court to intervene. Accordingly, we shall allow the appeal on that ground in any event. 22. More broadly, Mr Chudleigh submits that the total sentence the appellant is serving, by reason of the imposition of a further 3-year sentence elevated by 6 months to 42 months before credit for plea, breaches the principle of totality and has resulted in a sentence which is manifestly excessive. In his oral submissions this morning Mr Chudleigh has developed that point attractively but realistically. 23. We have considered these submissions carefully but we are unable to accept them. As the judge rightly observed, had the appellant admitted the Brackla domestic burglary at the outset rather than waiting until the footprint evidence gave him no prospect of avoiding conviction, both the domestic burglaries could have been dealt with on the same occasion. 24. In assessing whether the totality of the sentence that the appellant is now serving is or is not manifestly excessive, we have to consider the practical impact of the total sentence he is serving in the light of the sentence that the judge passed of 33 months. As we have already explained, the sentence of 42 months before credit for plea for the Brackla domestic burglary runs from the date it was imposed (7 May 2020). It follows that most of the earlier sentence, totalling 35 months, for the other domestic burglary and for the commercial burglary will be served concurrently with the latest sentence. In effect the appellant will only have served the equivalent of 20 months of that earlier sentence of 35 months (about 40%), with the result that the total sentence he I serving is, in effect, one of 51 months. 25. He committed these two domestic burglaries within the space of a week. The second burglary (the Brackla offence) was particularly serious. In our judgment, a total sentence of some 51 months (4 years 3 months) for all three burglaries, though stiff, cannot be said to be manifestly excessive in the light of his bad record. His total sentence, in our judgment, is just and proportionate. 26. Accordingly, we allow the appeal only to the very limited extent of affording credit of 25% rather than 20% for the guilty plea. We quash the sentence of 33 months' imprisonment and we substitute a sentence of 31 months' imprisonment. 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]	[ "LORD JUSTICE DAVIS", "MR JUSTICE SPENCER", "MR JUSTICE WALL" ]	2020_10_14-4996.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1430/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1430	1,076
4c88cf64135cf30f75b8562619966da94683d01f523580265e5fbd6310e62dca	[2022] EWCA Crim 1736	EWCA_Crim_1736	2022-09-09	crown_court	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 pers	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202103668/B3 7 202103669/B3 [2022] EWCA Crim 1736 Royal Courts of Justice Strand London WC2A 2LL Friday 9 September 2022 Before: LORD JUSTICE BEAN MR JUSTICE HOLGATE MRS JUSTICE THORNTON DBE REX V MARK POVEY __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T 1. MR JUSTICE HOLGATE: On 30 July 2021 in the Crown Court at Wolverhampton before Her Honour Judge Wall, the applicant was convicted of an offence under section 18 of the Offences Against the Person Act 1861 (count 1) and kidnapping (count 2). 2. On 8 November 2021 the applicant was sentenced to 15 years' imprisonment on count 1 and seven years' imprisonment on count 2 to run concurrently. His co-accused, Colin Edie, was also convicted of counts 1 and 2 and was sentenced to a total of 15 years' imprisonment. He renews his application for an extension of time for leave to appeal against conviction and sentence following refusal by the single judge. 3. On 10 June 2018 at around 5 am the police received a report that a man was being bundled into the boot of a car behind the Brown Lion flats. PS Keasey went to investigate, arriving at 5.20 am. He spoke to the applicant and a Valerie Williams, who were both standing outside the flats but they denied knowing anything about an incident. 4. At around 6.30 am the same morning the complainant was found by a passer-by shuffling out of a lane leading to some allotments. He had suffered serious injuries, including wounds to his head and neck and 12 per cent chemical burns to large areas of his body, and he was missing the tips of two fingers on his left hand. His hands and feet had been tied together and he was missing a shoe. He could not explain what had happened other than to say that he had been attacked at some point during the night. 5. The prosecution’s case was that the applicant and the co-accused, and potentially others unknown, had attacked him in the early hours of the morning inside those flats and then forced him, bound and gagged, into a car to dump him. To prove their case the prosecution relied upon:- 6. the evidence of the complainant; 7. evidence that the vehicle used to transport the complainant to the lane was registered to Edie and that he lived in Brown Lion flats; 8. evidence of PS Keasey who had seen Williams and the applicant outside the flats shortly after the report of a man being forced into a car, the applicant had a hand injury and his glasses were broken; 9. CCTV evidence from which the police could identify the applicant getting out of and then back into the car in the lane near the allotments at around the same time as the complainant was dumped in that location; 10. CCTV evidence showing Miss Williams using the complainant's bank card to purchase items later that day; 11. DNA evidence showing the complainant's blood was on a machete that the police found hidden under Edie's pillow, along with a kitchen knife; 12. evidence that one of the complainant's shoes was found on a flat roof near to the flat of the co-accused; 13. inferences to be drawn against the co-accused because of his failure to mention various facts in interview; 14. the applicant's account in interview during which he admitted that he had been present at the time the complainant was assaulted in the flats, but denied having taken part. He admitted that he had assisted other men to put the complainant in the car and had taken him to the allotments. He claimed that he had only done so because he was scared that if he did not help the men they would attack him as they had the complainant. The prosecution also relied upon the inconsistencies in his account and also his misleading account given to PS Keasey. 15. As regards the defence case, the applicant said he had been drinking when he decided to travel to Walsall to find a prostitute. He met Valerie Williams and she told him they could have sex in Brown Lion flats. So they went there together. Soon after they arrived the applicant was under the impression that a police raid was taking place and so he jumped out of a back window together with Miss Williams. They walked for a while and returned to the flats thinking the raid was over. It was then they spoke to PS Keasey. They went back into the flat. The complainant was lying on the floor. He was being attacked by some black men and a skinny woman who poured the contents of a kettle over him. One man was wielding a machete. The applicant referred to threats which were made against him by one of the men, to support his defence of duress. 16. The applicant’s advocate made a submission to the judge of no case to answer. Under the second limb of Galbraith it was said that although there was some evidence on count 1, it was of such a tenuous character that the count should be withdrawn from the jury. The submission did not extend to count 2. The judge ruled that there was a case to answer and in due course the applicant was convicted. 17. In her sentencing remarks the judge said that the applicant had played a full and active role. There was no mitigation for the applicant having informed the police about some of what had happened in the flat, because he had gone on to lie about his role and the true story. The only credible explanation for his behaviour during and after the kidnap was that he had been involved in the assault shortly before. The judge found no reason to distinguish between the applicant and Edie when sentencing. The attack was horrific and the injuries severe, causing the complainant to spend two weeks in hospital. He was completely helpless and no doubt in extreme agony when he was dumped in the deserted allotments. The applicant and Edie had no concern as to whether the victim would receive the medical treatment he so clearly required. It was unsurprising that he had thought he might die. His ordeal was unimaginable. The victim personal statement sets out the long lasting and devastating impact the attack had had and continues to have on his life. 18. Accordingly the judge said that count 1 fell into Category 1 of the guideline with a starting point of 12 years. This particular victim had not been targeted but both applicants had relevant previous convictions for violence. Count 2 was a serious aggravating feature intended to avoid detection and delay the victim seeking help. The sentence for count 1 would reflect the totality of the offending, but the kidnap alone merited a sentence of seven years. There was no mitigation for either the applicant or Edie. The global sentence would be 15 years. 19. The applicant was aged 56 at conviction. He had 22 convictions for 33 offences including actual bodily harm, actual bodily harm and affray, common assault and battery. In the pre-sentence report the author found the applicant was unwilling to provide a credible explanation for his involvement in these offences and he showed a degree of indifference to the suffering of the victim. 20. The grounds of appeal settled by trial counsel in relation to conviction say, first, that the judge erred in rejecting the defence submission of no case to answer in respect of count 1, there was no sufficient evidence of his involvement in the assault; and secondly, the jury did not deliberate for sufficient time to have properly considered all the evidence and consequently the conviction on count 1 was unsafe. 21. In relation to the application regarding sentence, it was submitted, first, that the judge did not give sufficient consideration to the limited role of the applicant and did not differentiate between the applicant and the co-accused who was more heavily involved. Secondly, it is suggested that the judge took a starting point in respect of count 1 that was too high by double-counting some of the aggravating features. It is also suggested that the applicant's culpability was no more than medium. In relation to count 2 it is submitted that the sentence was manifestly excessive because the kidnap involved removing the complainant from the location of the assault to a lane where he was "freed", albeit tied and bound. 22. The single judge in refusing leave to appeal against conviction said that the judge had correctly addressed herself to the legal test for determining a submission of no case to answer. The single judge then said: "In deciding the prosecution evidence fell into the second category [that is a matter which should be left to the jury] the Judge noted the following: · Your own evidence was that you were present in the flat where the attack took place and that you at least witnessed it. · You accepted taking part in the kidnap immediately afterwards. · The jury would be fairly entitled to conclude there was a continuum between the assault and the kidnap – as you accepted yourself on your own account - and that those taking part in one also took part in the other as a joint enterprise activity. · The jury would be fairly entitled to reject your defence of duress to the joint enterprise. They could take account of evidence that placed you outside the flats of your own accord less than half an hour after the kidnap, and of your demeanour at that time (either 'relaxed', or 'looking around'). If they rejected the kidnap defence they could consider, in the absence of any other explanation, that you were in fact a willing participant in the kidnap, and infer that your participation in the joint enterprise also encompassed the attack. · The evidence of the victim, although limited, was that a number of male voices heard during the attack, pointing to the involvement of more than one man. · There was evidence you were nursing a sore hand and dealing with broken glasses at the scene. · You said the only reason you were present in the flat was that you went there with a woman for sex. There was evidence that the woman was seen at an off-licence some hours later with the victim's bank card. The Judge concluded that the jury would be properly entitled, on the prosecution case at its highest, to be sure you and your co-defendant were part of a joint enterprise activity where there was a group attack on the victim and then the group together facilitated his kidnap. That was a conclusion she reached in accordance with the legal rules and principles, and it was properly open to her for the reasons she gave. She was entitled to put the prosecution case to the jury. Your conviction is not arguably unsafe on this ground." 23. With those reasons we entirely agree and consequently the renewed application for an extension of time in which to apply for leave to appeal against conviction is refused. 24. In relation to sentence, the single judge said this: "For Category A/1 offending the guideline gives a starting point of 12 years' imprisonment with a category range of 10-16 years ... the Judge reduced the starting point in your case to 11 years, to take account of the fact there was no evidence of premeditation. There were serious aggravating features. The violence had the character of gratuitous degradation and was inflicted in particularly traumatic circumstances. You had a considerable relevant record of previous convictions for violence. The Judge adjusted the sentence back up to 12 years for these reasons. She could well have increased it higher, consistently with the guideline." 25. The single judge then went on to explain how the sentencing judge decided to treat the kidnap as a substantial aggravating feature of the attack because it was closely associated with the assault. There is no Sentencing Council guideline for kidnap, but the single judge considered that the sentencing judge correctly directed herself to the relevant case law. Consequently, a sentence of seven years would have been justified for the kidnapping as a stand alone offence. The judge then increased the sentence for the section 18 offence by three years to take account of the kidnapping. That accorded with the totality guideline and produced a just and proportionate sentence to reflect the totality of the offending. This was a case where there was no relevant personal mitigation, there was no remorse or willingness to accept responsibility for the offences committed. Consequently the single judge concluded that it is not arguable on any basis that the sentence was manifestly excessive or wrong in principle. 26. We entirely agree with those reasons and consequently the renewed application for an extension of time within which to appeal against sentence is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE BEAN", "MR JUSTICE HOLGATE", "MRS JUSTICE THORNTON DBE" ]	2022_09_09-5428.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1736/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1736	1,077
430569f0ad5620d6e679b06925faf2612282a62faec8366af076ce6a79252c7b	[2006] EWCA Crim 273	EWCA_Crim_273	2006-01-19	crown_court	No: 2005/6096/A3 Neutral Citation Number: [2006] EWCA Crim 273 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 19 January 2006 B E F O R E: LADY JUSTICE HALLETT MR JUSTICE NELSON MR JUSTICE JACK - - - - - - - R E G I N A -v- JAMES GILMAN - - - - - - - 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)	No: 2005/6096/A3 Neutral Citation Number: [2006] EWCA Crim 273 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 19 January 2006 B E F O R E: LADY JUSTICE HALLETT MR JUSTICE NELSON MR JUSTICE JACK - - - - - - - R E G I N A -v- JAMES GILMAN - - - - - - - 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 CLIFF appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE JACK: On 30th September 2005 at the Crown Court at Stoke-on-Trent, the appellant James Gilman pleaded guilty to possessing an imitation firearm with intent to cause fear of violence. On 25th October he was sentenced to 18 months' imprisonment. He now appeals against that sentence by leave of the single judge. 2. The facts lying behind the offence were as follows. During the afternoon of Wednesday 22nd June 2005 a 16-year-old boy, Ashley Salt, was playing football with friends outside some garages near to the appellant's home. The appellant arrived in his car, got out and asked the group to leave. It was his view that they were disturbing the residents. According to Salt, the appellant then said: "I'm going to get my gun and shoot you, you little shit." He went to his house and returned a few minutes later with a plastic case, inside of which was some kind of imitation firearm. Some of the boys ran off, but Salt and another remained. The appellant grabbed hold of Salt's t-shirt, put the weapon to his head and said: "I don't care who you are, I'll put a hole in your head." Salt protested but the appellant ignored him. The appellant remarked that he had shot someone before and got away with it so he was not frightened of the police being called - that being something that Salt had said he would do by means of his mobile phone. The appellant then let go of Salt and went back inside his house. Salt told his parents what had happened. He gave a description of the weapon, which differed from that later provided by the appellant. 3. We remark that Salt, although this must have been an unpleasant experience for him, perhaps very unpleasant, he does not appear to have been particularly frightened and in his statement he says that he is about two inches taller than the appellant. 4. On 23rd June, the next day, the appellant was arrested. Officers recovered a black plastic pellet gun that looked like a real firearm. A similar weapon was found at the home of the appellant's girlfriend. When he was interviewed the appellant said that there had been problems with youngsters frightening elderly residents by playing football against the garages. The boys had said that there was nothing he could do about it. He got the pellet gun. He said Salt recognised what it was and said that it would only sting if the appellant shot him. The appellant said that he had replied with: "I won't shoot you with it, I'll ram it down your throat". 5. The appellant pleaded guilty on the basis that he had threatened Salt with a plastic ball-bearing gun. That basis of plea was not accepted by the Crown but it was accepted by the court on the basis that little turned on the dispute between the appellant and Salt as to the type of gun. It appears that the ball-bearings, that were referred to in the plea, were also of plastic like the gun itself. 6. In passing sentence the judge included the following in his remarks. The appellant was sentenced on the basis that what he produced was a BB gun. He acted out of annoyance and anger because some youths had refused to stop playing football near an alleyway. That could not possibly excuse his actions. His reaction was totally out of proportion to what the boys were doing. People who took the law into their own hands went down a path that was fraught with danger. People who were prepared to use firearms, whether real or imitation, to make a point or to get their own way were a menace and a danger to society. Only a custodial sentence was justified. He had the good mitigation of a guilty plea entered at the first opportunity and supported by his admissions in interview. Account was taken of his health which was described in the pre-sentence report. The court was not satisfied that there was a significant risk of serious harm. He was not to be sentenced as a dangerous offender. After a trial the sentence would have been two-and-a-half years' imprisonment. After credit for the plea and account being taken of the fact that he was being sentenced under the new regime the sentence would be 18 months. 7. The appellant is a man of 49 years old. He has a number of previous convictions, having been previously dealt with by the courts on 18 occasions between 1967 and 2005. His first offences were burglaries. He was put on probation for three years for assault occasioning actual bodily harm in 1976 and he received a conditional discharge for a second such offence the next year. Between 1998 and 2005 he was before the courts on eight occasions for offences relating to cannabis, apparently resulting from his use of cannabis to control pain. Lastly we note that in May 2000 he was conditionally discharged for threatening behaviour. 8. There was a pre-sentence report before the sentencing court. It stated that the appellant was adamant that he would not have fired the weapon, which was in any event not capable of causing serious harm. The writer had made some enquiries as to the weapon and expressed a view that it was capable of firing plastic pellets about 40 yards and that at close range the pellet would cause a sharp sting and leave a mark on bare skin. The report recorded that the appellant suffered from angina and had had three heart attacks. He also suffered from osteoporosis and was under medication from his doctor to help him cope with his stress. There was no recent relevant pattern of offending, the report stated, that would significantly aggravate the level of seriousness that was already attached to the offence. It recommended a suspended sentence. 9. Three grounds of appeal were advanced before us. First, insufficient account was taken of the type of firearm. Second, insufficient weight was attached to the background to the offence, in particular the appellant had limited ability to cope with the stress and perceived himself and others to be a victim of sustained anti-social behaviour. Lastly, although the appellant had a number of previous convictions he had none for offences connected with firearms and there was only the one public order offence. 10. Mr Cliff in his helpful advice has referred us to three cases on behalf of the appellant in which guns or imitation guns were used to make threats in circumstances where there was no intent to use the weapon and there was no serious criminal intention, where quite low sentences were passed following pleas. There were: Steele [1999] 1 Cr.App.R (S) 369 where a sentence of 18 months was reduced to nine months; Thompson [1999] 2 Cr.App.R (S) 292 where a sentence of two years was reduced to four months; and Poggiani [2001] 2 Cr.App.R (S) 64 at 305 where a sentence of 12 months was reduced to six months. They all of course turn on their own facts, but they do indicate that a more lenient approach can be taken to offences of possessing an imitation firearm with intent to cause fear of violence where that is appropriate. Mr Cliff has also emphasised to us today the background to the offences that in the appellant's view there was a history of anti-social behaviour by youths which centred on the alley where the offence took place. 11. Here we have to have in mind in particular the circumstances giving rise to the offence, the appellant's conduct while he committed the offence and his personal mitigation that includes his poor physical health and his difficulty in coping with stress. The fact that he was before the courts for a public order offence in May 2000 is an aggravating feature. 12. We are wholly satisfied that the judge was right to regard the present offence as requiring a sentence of immediate custody. We do, however, conclude that in all the circumstances the sentence of 18 months was rather longer than was appropriate. That sentence will be set aside and one of nine months will be imposed in its place. The appeal is allowed accordingly.	[ "LADY JUSTICE HALLETT", "MR JUSTICE NELSON", "MR JUSTICE JACK" ]	2006_01_19-688.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/273/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/273	1,078
a99e1f72decc350e6b074d31486ba279aa3bcfda77c615d939ac685923de53f0	[2012] EWCA Crim 1221	EWCA_Crim_1221	2012-06-01	crown_court	Case No: 2011 05015A7 Neutral Citation Number: [2012] EWCA Crim 1221 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Chelmsford Crown Court His Honour Judge Goldstaub, Q.C. T2006 7236 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/06/2012 Before : THE RT. HON. LADY JUSTICE HALLETT THE HON. MR. JUSTICE HEDLEY and THE HON. MR. JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - Between : Paul Ronald Gilbert Appellant - and - The Crown Respondent - - - - - - - - -	Case No: 2011 05015A7 Neutral Citation Number: [2012] EWCA Crim 1221 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Chelmsford Crown Court His Honour Judge Goldstaub, Q.C. T2006 7236 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/06/2012 Before : THE RT. HON. LADY JUSTICE HALLETT THE HON. MR. JUSTICE HEDLEY and THE HON. MR. JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - Between : Paul Ronald Gilbert Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Jonathan Addo (instructed by Mackesys Solicitors ) for the Appellant Ms Diana Pigot (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 25 th May 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Hon. Mr. Justice Hedley : 1. This is an application for an extension of time ( in excess of 5 years) and for leave to appeal against sentence which has been referred to the Full Court by the single Judge, and then adjourned to this hearing. This application raises a number of troubling matters and, having heard Mr. Addo’s helpful submissions, we have taken time to consider and now put our conclusions into writing. 2. On 11 th December 2006 the applicant pleaded guilty to an offence of robbery (thereby acknowledging himself in breach of a suspended sentence of imprisonment) before HH Judge Goldstaub, Q.C. sitting in the Crown Court at Chelmsford. On 26 th March 2007 he was sentenced by the same judge to imprisonment for public protection with a prescribed minimum term of 18 months with no separate penalty attaching to the breach. In the event the judge should have expressed the sentence as detention in a young offender institution for public protection given that the applicant was aged only 19. Nothing of substance, however, turns on that. 3. The robbery itself occurred on 22 nd September 2006. A young man aged 15 was standing on the platform at Romford Station waiting for a train to Clacton. He was approached by the applicant and engaged in conversation and both boarded the train, the applicant leaving it at Colchester. The applicant asked the young man if he had a telephone he could use and the latter replied that he had not. Once the ticket inspector had passed through, the applicant became more menacing, demanding the phone and saying (which was untrue) that he had been to prison for stabbing people. The young man had the presence of mind to remove the SIM card and the courage not only to try to recover it at Colchester but to inform the authorities notwithstanding the applicant’s expressed threat to kill should he do so. 4. Given the nature of the offence and the applicant’s rather low-tariff but nevertheless extensive and unattractive record, the judge’s conclusion that even on a plea this case merited a sentence of three years imprisonment is beyond criticism. The focus of the appeal was upon the judge’s findings under Chapter 5 of Part 12 of the Criminal Justice Act 2003 before its amendment by the Criminal Justice and Immigration Act 2008. 5. The plain fact is that this sentence could not now be passed given the minimum term taken by the judge. Moreover, even if the applicant were correctly assessed as dangerous, the indeterminate sentence is not mandatory and in any event consideration would have to have been given to an extended sentence. It was not so when the applicant was before Judge Goldstaub. Q.C. Once the judge made the finding of dangerousness, the indeterminate sentence was mandatory. Accordingly the focus of this appeal is inevitably on that finding. 6. Indeed, as counsel fully recognised, it was the sole issue in this application. This court has repeatedly made it clear that sentences must be considered as at the time they were passed and in the light of the law and guidance then prevailing. The critical test for the judge was: is there a significant risk to members of the public of serious harm by the commission by [the applicant] of further specified offences? - See Section 225(1)(b). As will appear, the only real issue in this case is whether such harm would be ‘serious’. 7. It is essential now to turn to the information about the applicant that was available to the judge. He had a pre-sentence report dated 3 rd January 2007 together with an addendum of 23 rd March. He also had a psychiatric report from Mr. Emad Yousif dated 19 th March 2007 and a local authority psychological assessment dated 27 th January 2006. Although not before the judge, we have a clinical psychology report dated 13 th November 2008 from Dr. Mike Watts, a chartered clinical neuropsychologist. Two comments can be made about these reports: first, in none of them is the question of future ‘serious’ harm explicitly addressed; and secondly, they do paint a consistent picture of this applicant. What follows is derived from all those reports and the substance of it was clearly before, and in the mind of, the judge. 8. The applicant, who was 19 at the date of sentence had an itinerant lifestyle and had clearly never experienced stable and consistent parenting. He had a mild to moderate learning disability which derived from an overall I.Q. of 58, which put him in the lowest 0.1% of the adult population and enabled him to function around the chronological age of 8. Although his daily living skills were those of a 10 year old, his socialisation and communication skills are those of a much younger child. His receptive skill was the lowest of all. Moreover, although he suffers from no mental illness, he has a personality disorder which expresses itself in impulsive and anti-social behaviour. These difficulties mean that although he can function on his own to a limited extent, he is unable to respond constructively to assistance. This latter is clearly demonstrated by two convictions for assaulting carers. Dr. Emad Yousif proposes what he needs and the probation officer simply has to record that no such facilities are available. 9. The applicant has a record of previous offending. He had 8 previous convictions covering 11 offences of damage, battery, common assault, aggravated vehicle taking, theft and racial abuse. It is a classic low-tariff anti-social behaviour record. It does, however, have to be seen in the context of escalating behaviour – the suspended sentence was for common assault – and his impetuous nature, as the probation officer fairly puts it – “Perhaps the most worrying aspect of Mr. Gilbert’s behaviour is the very unpredictability of it. On this basis alone the risk of harm remains high.” It cannot confidently be predicted what will happen next. 10. The judge was confronted with an almost impossible position. On the one hand he was dealing with a serious offence which merited a significant sentence. Moreover, the likelihood of re-offending was high and harm to the public thereby inevitable. On the other hand he was faced by a young man whose background and disabilities (for none of which could he be personally responsible) inevitably evoked real sympathy. In those circumstances the judge had no choice but to apply the law as he found it. 11. The result has been that the applicant has remained in custody throughout. He is currently in hospital, having been transferred there by the Secretary of State pursuant to powers under Sections 47 and 49 of the Mental Health Act 1983. We do not know how long he will remain there. We recognise that he may have real difficulties in satisfying the usual criteria for release on parole. He does not have the capacity to do all the courses and make the advances that would normally and properly be required before release on parole. He remains in the prison system a system which should not be (and was never intended to be) a fail-safe device for those unable to live a socialised existence in the community. We appreciate that this poses significant difficulties for all those responsible for this (still) young man’s future We recognise too that this sentence neither could nor would have been passed under the amended chapter 5 12. However, those matters, however troubling, are not for us and they were certainly not for the judge. He was required to consider whether the applicant was dangerous within the then meaning of Section 225: if he were, then an indeterminate sentence followed; if he were not, then a sentence of 3 years imprisonment was to be passed. As we have said the only question in this appeal relates to the question of ‘serious’ harm. The judge had information that bore on the issue but he had no advice specifically directed to it. All accepted that there was a significant risk of his committing further specified offences which would cause harm to the public. 13. The judge in his sentencing remarks set out fully and fairly all the relevant information that he had. He recognised that no-one is able to put forward a practical proposal for his care. The judge in the light of all those matters concluded that the risk to the public was of ‘serious’ harm. Mr. Addo attacks that conclusion. 14. The essence of his argument is that given the level of criminality both in the index offence and in his record, an indeterminate sentence was wrong in principle and the reason that it has been passed is that the judge has undervalued the concept of ‘serious’. He points to the case of LANG [2006] 2Cr.App.R (S) 3 and, more by way of illustration, to SHAFFI [2006] Crim L.R 665. 15. However, the questions for us are: first, was there material upon which the judge could properly come to the conclusion that he did; and secondly, if so, can it be shown that he was nevertheless wrong so to conclude? We have considered this with the greatest care aware, as we are, of the consequences of his decision and aware of the difficulty that confronted the judge. We are satisfied that he did have sufficient material on which to base his conclusion when all the available material is considered in the round and the question – what next? – is asked. We are, moreover, unable to accept that in the circumstances the judge was wrong to conclude as he did. Thus, whilst we think that the issues raised in this case merit both the grant of the necessary extension of time and of leave to appeal against sentence, that appeal must, for the reasons appearing in the judgment, be dismissed.	[ "His Honour Judge Goldstaub, Q.C.", "THE RT. HON. LADY JUSTICE HALLETT", "THE HON. MR. JUSTICE HEDLEY", "THE HON. MR. JUSTICE CALVERT" ]	2012_06_01-2991.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1221/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1221	1,079
0112daec8a711323640c1edbd65b0641cfafecb80a26d49fd4f69de5fdbce79c	[2009] EWCA Crim 651	EWCA_Crim_651	2009-04-02	supreme_court	Neutral Citation Number: [2009] EWCA Crim 651 Case No: 2006/05752/C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON MR JUSTICE MITTING Royal Courts of Justice Strand, London, WC2A 2LL Date: 2 nd April 2009 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE AIKENS MR JUSTICE MACKAY MR JUSTICE CHRISTOPHER CLARKE and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : R - V - Wood - - - - - -	Neutral Citation Number: [2009] EWCA Crim 651 Case No: 2006/05752/C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON MR JUSTICE MITTING Royal Courts of Justice Strand, London, WC2A 2LL Date: 2 nd April 2009 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE AIKENS MR JUSTICE MACKAY MR JUSTICE CHRISTOPHER CLARKE and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : R - V - Wood - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Malcolm Bishop QC and Mr O Daneshyar for the Appellant Mr Roger Smith QC for the Crown Hearing dates : 25 th February 2009 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales : 1. On 11 October 2006, after the jury rejected defences of provocation and diminished responsibility, Clive Wood was convicted of murder. He was sentenced to life imprisonment. The minimum term to be served was fixed at 18 years’ imprisonment. An appropriate order was made under section 240 of the Criminal Justice Act 2003 ( the 2003 Act ). 2. On 20 June 2008 this court, differently constituted, quashed the appellant’s conviction for murder and substituted a conviction for manslaughter on the grounds of diminished responsibility. The question of provocation did not arise for consideration. The jury was satisfied that the prosecution had disproved it, and the judge himself made plain that he did not believe a word of the defence case on the issue. After reflection the Crown did not seek a new trial for murder and accordingly the appellant must now be sentenced for manslaughter. 3. The essential facts of this crime are set out at [2008] EWCA Crim 1305 . For present purposes however we must underline that, in his own home, where he had offered accommodation to the appellant, the deceased, Francis Ryan, was subjected to a murderous attack of extreme ferocity. The attack was not only ferocious, it was persistent. There was ample evidence to show that the deceased had been attacked in two different rooms and the hallway, no doubt as he sought to escape from his assailant. 4. At post mortem 53 recent external injuries to his head, face, body and limbs were found. Many were consistent with having been caused by a meat cleaver. Other injuries were caused by blows with an object such as a lump hammer, yet further injuries may have been caused by gripping and yet others may have been defensive in nature. There were fractures in the thyroid cartilage, probably the result of pressure by an arm round the neck. The vast majority of the wounds in the scalp of the deceased extended down into the bone and there were underlying fractures in the skull corresponding to the wound in the left temple, the complex lacerations behind the left ear, and the complex wounds on the left side of the head. The fracture behind the left ear passed through the full thickness of the skull. The violence was indeed appalling, and the deceased’s suffering and pure terror before he died must have been extreme. 5. Subsequent police investigations revealed a lump hammer, found in the deceased’s lounge, which had contact blood staining, consistent with the DNA profile of the deceased, and a meat cleaver, found in the appellant’s rucksack, similarly blood stained, and similarly linked to the deceased. 6. The deceased was homosexual. He did not conceal his sexual orientation, and we have little doubt that the appellant fully appreciated it before he joined the deceased at his home. According to the appellant, after they had arrived there and he fell asleep, the deceased made a homosexual advance to him. This formed the basis for a provocation defence ultimately rejected by the jury. However, the appellant told the police at interview that he hated “gays”, an observation he sought to pass off in his evidence as something spoken in the confusion in his mind after his arrest, but if what he said was true, it is a little surprising that he chose to go with the deceased to his home. In addition there was evidence of some planning or preparation. The main weapon used in the attack on the deceased, the meat cleaver, was taken by the appellant to the deceased’s flat. He normally carried it in a rucksack, but at some stage after his arrival at the deceased’s home, he must have removed the cleaver from the rucksack and enfolded his jacket around it. When the attack began he went and “fetched” the cleaver from his jacket. 7. After the attack the appellant proceeded to search the deceased’s home, looking for alcohol in order to steal it. He was also searching for fresh clothes, and he stole a clean pair of trousers to exchange for his blood-stained pair. During his search the flat was ransacked. Thereafter the appellant took steps to hinder the finding of the deceased’s body, and to obstruct access to the living room where the deceased’s body was left. As he left the flat he locked the front door mortise lock and took the key away with him. Later he threw the key away. 8. The appellant is now approaching 50 years old. He has a long criminal record, and for many years he committed repeated offences of dishonesty and burglary. His record includes convictions for violence. In 2000 he beat his wife. In the attack her nose was broken and she suffered two black eyes. In 2004 he was convicted of common assault, and later of criminal damage, and in 2005 he was convicted of carrying an offensive weapon and criminal damage. The present offence occurred shortly after this conviction. 9. The most recent psychiatric report on the appellant is dated 1 September 2008. Dr Raki Abdur is a consultant forensic psychiatrist. He has examined the medical reports that were available at trial, although these, on examination, do not address the possible future risk presented by the appellant. Dr Abdur’s report describes the appellant’s history which shows that “although he is not violent on a regular basis, he has the ability to cause serious harm in the context of inter-personal conflict and especially when he (is) under the influence of alcohol. His history of carrying knives is certainly an additional risk factor”. The report continues that although the appellant is not “an indiscriminate risk of violence on a day-to-day basis, if he were to offend in the future, he can pose a “significant risk” of “substantial harm” and that such a scenario could arise “at least theoretically” if the appellant were to drink heavily again…it is always possible, given his history, that in the community he could slip back into his previous lifestyle, which would lead to a rapid escalation of risk.” Dr Abdur concludes his report by recording his judgment that the appellant probably lacks full insight into his own psychological functioning and that his explanations for the offence are “very simplistic”. A significant amount of “psychological work focusing on issues like alcohol, anger, alleged sexual abuse and victim empathy” must be completed. 10. It is a striking feature of this case that the appellant’s intention was to kill, and so it remained throughout the prolonged attack, until the victim was dead. That said, our decision must proceed on the basis that the appellant was suffering from abnormality of mind which substantially impaired his mental responsibility for acts in doing the killing. The abnormality arose from alcohol dependency syndrome. The submissions by Mr Malcolm Bishop QC on his behalf sensibly concentrated on the proposition that the sentence must reflect the acknowledged diminution of his client’s mental responsibilities for his actions. 11. There are two distinct questions for decision. In the absence of any medical disposal (and none is suggested) the first question is whether the case requires a sentence of imprisonment for life under section 225(2) of the 2003 Act or imprisonment for public protection under section 225(3) of the Act as amended by the Criminal Justice and Immigration Act 2008 . Whichever of these orders is appropriate, the second question is the assessment of the minimum term to be served by the appellant before any possibility of his release on parole may arise. That raises questions as to the nature of the link, if any, between the legislative structures introduced by section 269 of the 2003 Act for the determination of the minimum term in cases of murder, and the assessment of the minimum term where the defendant is convicted of manslaughter by reason of diminished responsibility. Imprisonment for life or imprisonment for public protection 12. Section 225 (2) of the 2003 Act provides that if the offence is one attracting possible liability to imprisonment for life and “… (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life.” Section 225(3) , as amended, identifies the conditions in which imprisonment for public protection may be ordered. In the present case, the conditions are met, and the power to impose imprisonment for public protection is available. 13. Mr Bishop founded his general contention on section 143 (1) of the Criminal Justice Act 2003 which requires the court addressing the seriousness of any offence to consider: “…the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause, or might foreseeably have caused.” He argued that the appellant’s culpability was reduced by the substantial diminution in his responsibility for his actions. He drew attention to the advice of the Sentencing Advisory Panel to the Sentencing Guidelines Council, August 2004, in relation to manslaughter, where the Panel acknowledged that sentencing in cases of manslaughter was much more complicated than in cases of murder. He asked us to note the view of the Panel and the Guidelines Council that in manslaughter cases culpability rather than harm should be the primary consideration in determining the sentence. He emphasised that the court should focus on the extent to which the offender was responsible for his acts, otherwise the distinction between murder and diminished responsibility manslaughter would be blurred. The critical distinction does not arise from the consequences of the appellant’s acts – whether his crime was murder or manslaughter, the deceased’s death was an unchanging factor - but in the appellant’s mental responsibility at the time when he committed them. These considerations should lead to an order of imprisonment for public protection rather than imprisonment for life. He reinforced his submission by highlighting the need for the sentence of life imprisonment to be reserved for the gravest cases, and the value of imprisonment for public protection in achieving the objective of public protection. 14. We agree with Mr Bishop that, self-evidently, section 143(1) of the 2003 Act requires the assessment of the seriousness of any offence to address the offender’s culpability and the harm consequent on his actions. However neither consideration is paramount, and more important for present purposes, they are not exclusive considerations. Death is the consequence of every murder. The terms of Schedule 21 of the 2003 Act , to which section 269 requires the court to have regard when making its assessment of the seriousness of the individual case of murder, are now familiar. No detailed repetition is needed in this judgment. However the very fact that a series of paragraphs offer starting points for the minimal custodial sentences – whole life, 30 years, and 15 years, with equally specific provisions for offenders aged under 18 years – demonstrates what every judge knows, that in murder cases although the result – the death of the victim – is identical, the gravity of each individual offence is not. Accordingly we disagree that the assessment of the seriousness of an offence of manslaughter on the grounds of diminished responsibility must be focused exclusively on the defendant’s culpability. 15. Our approach is consistent with the authorities, in particular, R v Chambers [1983] CAR (S) 190 where the various sentencing options then available to judges in cases of diminished responsibility were summarised. Although reference was made to a hospital order if recommended by a psychiatric report and justified, where the defendant constituted a danger to the public for an unpredictable time, the right sentence would probably be life imprisonment. However if the defendant’s responsibility for his acts was so grossly impaired that his degree of responsibility was minimal, then a lenient course would be open, but the length of any determinate sentence depended on the judge’s assessment of the degree of the defendant’s responsibility and his assessment of the time for which the accused would continue to represent a danger to the public. At the time when Chambers was decided imprisonment for public protection was not available. Nevertheless Chambers remains relevant to our decision. This is because the judge concluded that, notwithstanding the acceptance by the prosecution of manslaughter on the grounds of diminished responsibility, what the judge described as a “very substantial amount of mental responsibility remained”. The court did not consider that his observation, and the process of proceeding to sentence on the basis of it, provided any grounds for criticism. Indeed the court decided that the conclusion was right. This approach has not, so far as we are aware, been called into question. 16. R v Bryan [2006] 2 CAR (S) 66 was also decided before the 2003 Act came into force. The court considered the relevant pre-2003 sentencing decisions of this court. Mr Bishop drew attention to the way in which the court approached the appellant’s diminished responsibility when it was clear that the appellant was indeed “severely mentally ill and that the mental illness had a dominant effect in causing him to act as he did” in the peculiarly horrible circumstances of the case. The court’s conclusion was that Bryan’s culpability was “very considerably diminished by his mental illness”. Mr Bishop further asked us to bear in mind that the determinate term in that case was assessed at a total of 30 years which, when halved as required, reduced the minimum term to 15 years. 17. In R v Porter [2007] 1 CAR (S) 115 a sentence of life imprisonment imposed under the 2003 Act in the context of provocation was varied to imprisonment for public protection. “The distinction between a sentence of life imprisonment and a sentence of imprisonment for public protection is not felt until after the offender’s release on licence. As we understand it, the two sentences are treated identically within the prison system but after release a life sentence prisoner remains on licence for the rest of his life, whereas in the case of a prisoner who has served the custodial term of a sentence of imprisonment for public protection, and has then been released after an assessment that it is safe to do so, the Parole Board, after at least 10 years, may direct that the licence be revoked”. Apart from identifying this distinction, the judgment continued with an observation that the court was not “satisfied” that the starting points laid down in schedule 21 of the 2003 Act were “of relevance to the issue of sentencing for manslaughter”. Despite this reference, in a provocation manslaughter case, the court did not directly address, and had no reason to address, the possibility of any link between schedule 21 of the 2003 Act and diminished responsibility manslaughter. However David Clarke J continued that there was: “As yet no guidance…as to the application of s225(2)(b) and to the question whether the seriousness of the offence was such as to justify the imposition of life imprisonment. We can see that it may well be appropriate for cases, particularly where there is a high level of criminal intent, for example, in cases of attempted murder and no doubt in other types of case… ” 18. In R v Kehoe [2008] CLR 728, the defendant was convicted of manslaughter on the grounds of diminished responsibility. Commenting on Porter , the court, presided over by Lord Phillips of Worth Matravers CJ, observed that: “When, as here, an offender meets the criteria of dangerousness, there is no longer any need to protect the public by passing a sentence of life imprisonment for the public are now properly protected by the imposition of the sentence of imprisonment for public protection. In such cases, therefore, the cases decided before the Criminal Justice Act 2003 came into effect no longer offered guidance on when a life sentence should be imposed. We think that now, when the court finds that the defendant satisfies the criteria for dangerousness, a life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself is particularly grave. It is neither possible nor desirable to set out all those circumstances in which a life sentence might be appropriate, but we do not think that this unpremeditated killing of one drunk by another, at a time when her responsibility was diminished, and after she was provoked, can properly be said to be so grave that a life sentence is required or even justified.” The conclusion which follows from this observation is that the mere fact that the case is one of manslaughter on the grounds of diminished responsibility does not preclude a sentence of imprisonment for life. In reality this sentence will be rare in such cases, usually reserved for particularly grave cases, where the defendant’s responsibility for his actions, although diminished, remains high. 19. Naturally, Mr Bishop focused his attention on the feature of Kehoe which is analogous to the present that is, one drunk killing another, but whereas Kehoe was at the lowest level of seriousness for an offence of this kind, by contrast the present case was at the highest level. We have decided, without hesitation, that the striking feature of this offence is not simply that the victim was killed, but he was killed in the course of a prolonged murderous (on the judge’s findings, unprovoked) attack of repeated and utmost ferocity. We accept, of course, that the appellant’s culpability was diminished, but it was very far from extinguished, and his level of responsibility for his actions merits examination in the light of his immediate activities both before the attack began and after it was concluded, and his insight into the need to do what could be done to cover up the fact of the killing and his involvement in it. In our judgment the level of his responsibility was just, but only just sufficiently diminished for the purposes of section 2 of the Homicide Act. As in Chambers, a very substantial element of mental responsibility remained. Finally, the risk represented by the appellant has not yet diminished. While in custody he is not able to obtain alcohol but there is no basis on which we can be satisfied that the alcohol dependency syndrome from which he suffered at the date of his crimes is now permanently cured, and that if and when released, he would not return to his excessive and dangerous drinking habits. 20. In the circumstances of this case, we are satisfied that the appropriate sentence is a discretionary sentence of imprisonment for life. The minimum term 21. There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant’s culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. Specific features of the seriousness of the homicide, for example a double rather than a single killing, or the sadistic killing of a child may be common both to murder and diminished responsibility manslaughter. At the same time the mitigating features expressly identified in schedule 21 extend to what may approximate but not amount to the defence of diminished responsibility and provide an additional connection between the schedule and the defence. Finally, the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high. Accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain. 22. One of the striking features of schedule 21 is well known but not as yet perhaps fully appreciated. Any of the suggested levels of sentence represent the time actually to the served in custody. A thirty year term is therefore the equivalent of a sixty year determinate sentence, and a fifteen year term equivalent to a thirty year determinate sentence. This reality cannot be ignored, and a vast disproportion between sentences for murder and the sentences for offences of manslaughter which can sometimes come very close to murder would be inimical to the administration of justice. At the lowest, this means that the actual sentences imposed in cases of diminished responsibility manslaughter decided before the 2003 Act came into effect should be treated with utmost caution. The decisions may helpfully point to relevant broad considerations, but the actual sentences themselves no longer provide an accurate guide to the level of minimum term sentences to be imposed now. Although we are grateful to Mr Bishop for his careful, detailed analysis of a variety of sentencing decisions, we are unable to accept the broad thrust of the argument that would lead to a vast reduction from the minimum term imposed by the trial judge after the appellant was convicted of murder. 23. We derive some further, indirect support to our approach from the stark reality that the legislature has concluded, dealing with it generally, that the punitive element in sentences for murder should be increased. This coincides with increased levels of sentence for offences resulting in death, such as causing death by dangerous driving and causing death by careless driving. Parliament’s intention seems clear: crimes which result in death should be treated more seriously and dealt with more severely than before. Our conclusion is not governed by, but is consistent with this approach. 24. As a case of murder, the trial judge assessed the minimum term at 18 years. We have not been invited to, and we see no reason to disagree with this assessment. It carefully reflected the essential features of the case as described in this judgment. The minimum term must now be reduced to allow for the level of reduced culpability consequent on diminished responsibility. We shall not repeat the very grave features which led us to conclude that imprisonment for life is appropriate in this case. Bearing in mind that the protection of the public for the future is secured by the sentence of imprisonment for life, the minimum term should be fixed at 13 years.	[ "MR JUSTICE MITTING", "LORD JUSTICE AIKENS", "MR JUSTICE MACKAY", "MR JUSTICE CHRISTOPHER CLARKEand", "MR JUSTICE HOLROYDE" ]	2009_04_02-1887.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/651/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/651	1,080
10360cbdc16768cfc08b3584603a3e7356bd154154f4d9731e13aebba40081d9	[2009] EWCA Crim 2198	EWCA_Crim_2198	2009-10-16	crown_court	Neutral Citation Number: [2009] EWCA Crim 2198 No: 2008/6762/A7, 2009/0377/A7 & 2009/0165/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 16 October 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE McCOMBE MR JUSTICE BURNETT - - - - - - - - - - - - - - R E G I N A v NIGEL GIBBON STUART GIBBON GARY JACKSON - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Compan	Neutral Citation Number: [2009] EWCA Crim 2198 No: 2008/6762/A7, 2009/0377/A7 & 2009/0165/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 16 October 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE McCOMBE MR JUSTICE BURNETT - - - - - - - - - - - - - - R E G I N A v NIGEL GIBBON STUART GIBBON GARY JACKSON - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr C Baur appeared on behalf of Nigel Gibbon Mr R Grey appeared on behalf of Stuart Gibbon Mr M Sullivan appeared on behalf of Gary Jackson Mr A Feest appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE McCOMBE: On 21st November 2008 in the Crown Court at Southampton, before His Honour Judge Boggis QC, the two present applicants, Nigel and Stuart Gibbon, and the appellant Gary Jackson, were re-arraigned on a multi-count indictment charging a number of offences relating to their involvement in the supply of controlled drugs of class A - over a period of years in the case of the two Gibbons and a period of months in the case of Jackson - in the Southampton area. The plea was entered on a day when the case had been listed for mention. This hearing had been arranged because a trial on these charges had begun on 4th November before the same judge who was to sentence the applicants and the appellant. That trial had been aborted on 18th November because it became apparent that a juror had been investigating the case independently through the internet. The jury was discharged and the case was listed for mention and a Goodyear indication was sought by the applicant Nigel Gibbon. The new trial was then fixed for a date in February of the current year. We turn later to the consequences of those arrangements. 2. On 21st November, Nigel Gibbon pleaded guilty to conspiracy to supply a controlled drug of class A (count 1 on the indictment), possessing criminal property (count 2) and three counts of converting criminal property (counts 3, 4 and 5). Stuart Gibbon and Gary Jackson pleaded guilty to the conspiracy charged in count 1. 3. On 26th November 2008, Nigel Gibbon and Stuart Gibbon were sentenced by the learned judge as follows. Nigel Gibbon was sentenced to 16 years' imprisonment on count 1 and 10 years' imprisonment on each of the remaining charges, all the sentences to be served concurrently. That gave rise to a total sentence of 16 years' imprisonment. Stuart Gibbon was sentenced to 12 years' imprisonment on count 1. On 12th December 2008 Jackson was sentenced to nine years' imprisonment. The period served in custody on remand were in each case directed to count towards sentence. A co-accused, Alkis Alkiviadou, pleaded guilty to conspiracy and was sentenced to six years' imprisonment. His case is not before us. 4. On the morning of the original trial, Nigel Gibbon (through counsel) sought from the judge an indication of likely sentence following a plea of guilty, pursuant to the procedure outlined in Goodyear [2005] EWCA Crim. 888 . The judge declined to give such an indication at that stage. 5. At the hearing on 21st November, following the discharge of the jury on the 18th, counsel for Nigel Gibbon again said he was likely to pursue his application for an indication of sentence. In the light of circumstances as they then stood, in particular because no doubt the learned judge had by that stage heard the bulk of the crown case during the aborted trial, he agreed to give such an indication. The indication given was that the sentence at that stage would be no greater than 16 years. We have already mentioned that 16 years was the sentence that was ultimately passed in Nigel Gibbon's case. 6. Nigel Gibbon and Stuart Gibbon now renew their applications for leave to appeal against sentence following refusal of such leave by the single judge. In Stuart Gibbon's case he also applies for an extension of time in which to apply for leave to appeal in circumstances which we shall explain. Gary Jackson appeals against sentence with the single judge's leave. 7. Stuart Gibbon was sentenced in addition on 18th December 2008 to a further concurrent term of eight years for conspiracy to convert criminal property. He does not apply for leave to appeal against that sentence. In those circumstances counsel has explained to us in writing that it seemed prudent to await the outcome of the sentence on 18th December 2008 before lodging an application for leave to appeal against the judge's sentence passed in the previous month. 8. The facts of the case were in outline as follows. The police had observed and listened in to the activities and conversations of Nigel Gibbon. He, it turned out, was the head of a conspiracy to supply cocaine throughout the Southampton and neighbouring areas in a trade which lasted for almost five years from March 2003 to February 2008. The supply of the drugs generated large sums of cash over the years and as a result the main conspirators enjoyed a substantial lifestyle funded entirely by cash. The money raised by the trading in drugs was used by Nigel Gibbon in a number of ways, including the purchase of property and vehicles. Tax records indicated that Nigel Gibbon had not worked or paid tax from 2001 until his arrest in October 2007, and his bank records revealed no regular source of income from any normal salary. His son Stuart Gibbon was, as we shall amplify a little later, treated by the learned judge as his second in command and they used various runners and assistants such as Jackson to further the unlawful trade. 9. Counts 3 and 4, which were as we have said counts of converting criminal property, arose in this way. In late 2005 and early 2006 Nigel Gibbon bought a house in Southampton with a mortgage (that was the subject of count 3). The purchase price was some £250,000 - 75 percent of that being secured on mortgage. It was the Crown's case that the purchase of that property was facilitated by the use of the criminal proceeds of the drug trade. 10. Count 5 concerned a motor vehicle, a Mercedes, that was found parked at that property at the time of the execution of a search warrant on 11th October 2007 and Nigel Gibbon's arrest. It too was said by the Crown to have been bought with drug-related money. 11. Count 4 related to Nigel Gibbon's use of different bank accounts throughout the period of the conspiracy when he deposited cash and made withdrawals. Again it was said the cash came through nothing other than drug trading activity. 12. Count 2, a count of possessing criminal property, arose further from the search on 11th October at the Southampton property where the police found two safes in the house. One in the bedroom contained some £15,000 in cash and a second safe in the kitchen contained some £85,000, also in cash. Among the documentation found at the property during that search were documents which were entitled "football raffle" and "holiday club". Fingerprints and handwriting analysis showed that Nigel Gibbon had been the author of those documents. The football raffle document related to monies received or owed in relation to drugs and a number of names on the list were connected to people known to have links to drug matters. There was also a reference to the co-accused Alkiviadou and revealed a bounced cheque for some £43,000 from Alkiviadou to Nigel Gibbon. That cheque too was found in the search. There was also an entry relating to Jackson regarding a sum of some £11,000 that he was said to owe regarding drugs. The holiday club document related to quantities of drugs provided and supplied. 13. Stuart Gibbon, as we say, was said by the learned judge to be Nigel Gibbon's second in command. He had had a part in adulterating the cocaine that the business supplied with a cutting agent known as Mannitol. Following the fitting of a listening device to Stuart Gibbon's motorcar he was heard (after his father's arrest) explaining to others involved in the trade what had happened and telling them to change telephones so as to avoid police surveillance; he was also recorded as having conversations about getting money together and possibly selling the car, and there was a conversation with an unidentified person regarding keeping lists out of the way of the police, and a further conversation about disposing of the Mannitol. As a result of that conversation the police recovered a large tub, which was labelled as containing Mannitol, from an industrial bin near a supermarket in the area. Stuart Gibbon was arrested at the time he tried to sell the motorcar. 14. Stuart Gibbon provided a basis of plea, on the basis of which he was sentenced and to which we shall return later. In broad, he admitted that he had been involved with the conspiracy for a period of two years only, he had been recruited by his father and acted on the father's instructions during the conspiracy. He was not involved in the bulk purchase of cocaine and he was not involved in the bookkeeping activities. 15. In submissions on behalf of Stuart Gibbon today, Mr Grey has emphasised to us, in circumstances to which we will return, that his basis of plea accepted Stuart Gibbon's involvement in the conspiracy from 12th October 2005 until his arrest on 12th October 2007 - that is the day after the arrest of the father. 16. Jackson's role in the conspiracy was, as we have described, in effect as a runner. He had been involved in the last six months of the trade between April and October 2007. He had built up a drug debt in two ways. He had run up a debt funding his own habit of about £2,000 and had lost a quantity of cocaine which had been entrusted to him by other members of the gang and was regarded as being responsible for restoring to the conspirators the sum represented by that loss. 17. In his basis of plea, on which again he was sentenced, he admitted being involved in the conspiracy for the six months we have mentioned. It was said he ran errands for Stuart Gibbon including the delivery of money. He was aware of Stuart Gibbon's involvement and was present on a number of occasions when the supply of drugs was discussed. He had not been involved in the supply of large quantities but did supply street-type quantities. He accepted that he had been aware of the availability of larger quantities and on occasion provided information relating to the availability and price of drugs. One of the reasons that he became involved in the conspiracy was the fact of the drug debt to which we have already referred. 18. Alkiviadou, who as we say we are not directly concerned with today, was connected to Nigel Gibbon and the conspiracy after the two of them were seen meeting on a date in September 2007 in London and by the discovery of the bounced cheque at the Southampton property. His name was also on the "football raffle" list. Stuart Gibbon had also been heard saying that he was going to meet someone called "Al" in London after his father's arrest. When his home was searched on 31st October 2007 financial documents were recovered. His position, he said, was that he was a property developer and that the cheque found at the Southampton property was related to a property deal with Nigel Gibbon. 19. In a written basis of plea in his case he admitted arranging for the sale of £43,000-worth of cocaine on behalf of another. The money had not been paid to Nigel Gibbon, as it was evidenced by the bounced cheque. He had not physically received the cocaine. The Crown's case was that he had purchased £43,000-worth of cocaine from Nigel Gibbon as part of the overall conspiracy and the Crown could say no more about his position than that. 20. The Crown's case, as can be seen from the facts we have outlined, was that this was a well-organised and sophisticated gang which dealt in large quantities of cocaine over a number of years in Southampton and the surrounding areas. It was headed by Nigel Gibbon with his son as second in command, dealing with the day-to-day organising of the runners and the dealers further down the chain. People like Jackson played various parts at various times and all rallied round to reduce the effect on them all after Nigel Gibbon was arrested on 11th October 2007. 21. The Crown accepted that in terms of turnover, profit and the amount of drugs potentially sold, the conspiracy represented approximately half in quantity of that with which the court had been concerned in a case called Whiteway , to which we shall return shortly. 22. Turning to the antecedents of the applicants and the appellant, Nigel Gibbon was born on 26th June 1956 and is now aged 53. He had nine previous convictions involving 13 offences between April 1976 and January 2001. They included simple possession of controlled drugs, inflicting grievous bodily harm, criminal damage and offences of dishonesty. Stuart Gibbon was born on 12th November 1980. He is 28. He had six previous convictions for 10 offences between August 1999 and November 2001 which included assault on a constable, harassment, threatening behaviour and criminal damage, but no drugs offending. 23. Gary Jackson (the appellant) was born on 19th June 1979 and is now therefore 30. He had one previous conviction for driving with excess alcohol, but nothing else. 24. Alkiviadou was born 5th May 1964. He is now 45. He had one conviction for threatening behaviour. 25. The pre-sentence report before the judge in Jackson's case stated that Jackson acknowledged he was a cocaine user for many years and that he had been asked to hold on to supplies of cocaine for these conspirators being rewarded in cocaine. He had become indebted to them after losing the cocaine to which we have already referred in this judgment. It had been entrusted to him. The probation service reported he was keen to address his misuse of drugs and to return to stability. As far as his background was concerned, the court was told that he worked as a scaffolder for a number of years, he worked as a runner for the conspirators and had been fearful of the consequences of trying to break his link with them. The view expressed by the probation officer was that he was easily manipulated by others. In conclusion, the risk of re-conviction in his case was assessed as medium and the risk of him causing harm to the public was assessed as low. 26. In passing sentence, the judge noted that Nigel Gibbon's involvement in the conspiracy was for almost five years, with that of his son Stuart being two years. The judge took into account Stuart Gibbon's plea and that of Nigel Gibbon, and in Stuart's case that he had been recruited by the father. It was accepted he had not been involved in bulk purchases or in bookkeeping, but he admitted involvement in the financial arrangements. The judge found that Nigel Gibbon had been the head of the gang, as the Crown alleged. He had lived lavishly and £100,000 in cash had been found on a search of his home. The judge treated the pleas of guilty as having been entered on the first day of the first trial and said he would give credit accordingly. Having regard to Whiteway's case (to which we will refer hereafter) he said that after a contested trial the starting point for sentence in Nigel Gibbon's case would have been 18 years which he reduced by 10 per cent to result in the 16 year sentence which he passed. The judge classed, as we have said before, Stuart (the son) as Nigel Gibbon's trusted lieutenant in the operation, but he said he sentenced him faithfully on the basis of his plea. He was lower down in the scale than his father but still played a vital role. 27. Alkiviadou, said the judge, was much lower down the scale than the Gibbons (father and son). His basis of plea was as an intermediary in buying a consignment of cocaine from Nigel Gibbon and he had been lured into the illegal trade because of difficult financial circumstances. He was effectively of good character. He gave him more than the 10 per cent credit for reasons which do not affect the cases before this court. 28. Jackson was sentenced on 12th December and received a sentence of nine years' imprisonment. In his case the judge indicated that he was prepared to give a larger credit than the 10 per cent that he had afforded the Gibbons (father and son) because he had been constrained to enter a late guilty plea, being unable to do so before the Gibbons had entered their pleas. 29. On the present applications and on the appeal, it is argued for a variety of reasons that these sentences, passed in the circumstances that we have outlined, were manifestly excessive. In Nigel Gibbon's case, and in the others by way of a knock-on effect, it is said that the sentence failed to accord with the sentences imposed in this court in the case of Whiteway , properly entitled Attorney General's Reference Nos 99 to 102 (Whiteway and others ) [2005] EWCA Crim. 294 . It is submitted that the case is properly analogous to the present matter both with regard to the stage at which the pleas were entered and the roles of the various conspirators. The offenders there had been sentenced to terms of imprisonment ranging from 12 years for the principal offender down to seven years in the case of others. The Attorney General referred the sentences to this court on the basis that they were unduly lenient and the court held that following a guilty plea at the earliest opportunity it would have expected a sentence of 15 to 16 years for the principal offender, implying perhaps a 22 to 23 year sentence after a contested trial. The court considered that the judge's starting point in that case of 20 years for the principal offender discounted to 12 years was conspicuously over-generous. However, in all the circumstances taking into account also double jeopardy, it decided in its discretion not to increase the sentences. 30. In the present case the Crown conceded, as we have mentioned, that the quantity of drugs involved was no greater than half the quantity involved in Whiteway's case. Counsel properly accepted in argument and in the grounds of appeal that the quantity of drugs is not the only yardstick but, as we say, it is argued that the starting point for sentence should nonetheless have been lower by reference to this case to which the sentencing judge had been referred. 31. For Nigel Gibbon it is also submitted by Mr Baur in helpful submissions to us this morning that the judge was wrong to allow only 10 per cent credit for the guilty plea as the first trial had been aborted through no fault of the accused and the retrial was not due to start until February or March 2009. Thus it is argued that the pleas were not entered as it were at the door of the court but some three to four months before trial, saving a good deal of time and public money. 32. For Stuart Gibbon it is argued that the sentence was excessive because the plea of guilty and the basis on which it was entered. He had not continued with the trade after initial arrest. It was said that his sentence was disparate with those imposed on Jackson and Alkiviadou. His antecedents were relatively minor and there were no previous convictions for drug offences. 33. Those submissions were amplified by Mr Grey on behalf of Stuart Gibbon this morning who emphasised the involvement of this applicant for only two years and recruited into the business by his father, that he had not been involved in bulk purchases and was not involved in the financial documentation. Mr Grey also urged upon us the submission that the learned judge may have mis-assessed the role of Stuart Gibbon in a remark that appears on page 4 of the sentencing remarks. At that stage the learned judge said this: "Stuart Gibbon, you were your father's trusted lieutenant. You assumed responsibility after your father's arrest. I sentence you on the basis of the plea as amended, but whilst lower down the scale, you were still a vital part of the organisation of the gang." Mr Grey submitted that this implied that the learned judge was treating this particular applicant as being involved in the conspiracy in the indicted period up to February 2008, rather than simply up to 12th October 2007, the day after Nigel Gibbon's arrest and the involvement in the period thereafter. We will return to our view of that ground shortly. 34. For Jackson it is argued that the judge failed to give proper recognition to his limited involvement, his personal mitigation and the reasons for his involvement in the first place, his lack of relevant previous convictions and again it is submitted that the learned judge failed to reflect the fact that the case was significantly less serious, it is argued, than that of Whiteway . For Jackson, Mr Sullivan emphasised the following points. That he was only involved for six months up to October 2007, he was a subordinate player, he had no further role after the arrest of Nigel Gibbon on the 11th, only £450 was found in his possession which was traceable to a loan made by his mother and his involvement stemmed from his cocaine addiction and his continued involvement because of his drug debts which we have already mentioned. Mr Sullivan also emphasises Mr Jackson's personal mitigation, his effectively previous good character and the pre-sentence report's acknowledgment of some mental problems deriving from the pressure of his involvement in this drug-dealing enterprise. 35. For Jackson, Mr Sullivan has also raised before us in supplementary grounds the sentences passed on other people involved in this conspiracy who were convicted after trial before His Honour Judge Ralls QC and a jury on 6th April 2009. In particular, it is argued that one of the co-conspirators, Yorke, was sentenced to seven years' imprisonment after that trial. The submission is that Yorke had previous convictions for being involved in the supply of controlled drugs. He was liable to an automatic sentence of at least seven years by statute and he received only seven years as compared to Jackson who received the nine year sentence against which his appeal is brought. 36. Dealing first with the criticism of the discount given for the plea of guilty advanced principally by Mr Baur, in our view there is nothing to be said by way of criticism for discount given. A trial had already started and had proceeded to near the end of the Crown case. The discharge of a jury can occur for many reasons during the course of a contested trial, none of which are the faults of the defendants in the case. However that is merely an interruption of the trial process which by then has begun. The time of the plea, as the name of the hearing implies, is at least at the plea and case management hearing and sometimes more appropriately before that. The discount can be reduced from that point to the door of the trial court. The trial court door opened in this case on 4th November. The pleas were in effect entered in mid-trial and the judge was generous in our judgment to afford as much as 10 per cent discount after 14 days of that trial had elapsed. 37. As for the comparison with Whiteway , counsel, as we have already mentioned in written grounds, rightly accepts that a comparison can only go so far as it cannot be argued that half the quantity of drugs implies that half the length of sentence will be appropriate. The starting point for the main offender in Whiteway was, if we calculate the figures correctly, some 22 or perhaps 23 years after a hypothetical trial. Here the judge would have started at 18 years. This case involved in the case of Nigel Gibbon a five year conspiracy. In Whiteway the activities spanned only 18 months. This case involved the most pernicious types of drugs which were trafficked on a very large scale. Stuart Gibbon was involved for two years. We cannot see that the judge having considered Whiteway , as it was clear from the sentencing remarks that he did, and having heard the bulk of the Crown evidence at trial, can be faulted at bringing the starting point in Nigel Gibbon's case down to the extent that he did. We consider that discount was entirely appropriate. The mitigation was minimal. The result is that the sentence was not excessive and in his case we therefore refuse the renewed application for permission to appeal. 38. We turn again to the case of Stuart Gibbon. The judge, as we say, described him as the second in command. We have already outlined the submission that Mr Grey has made to us today that the judge mis-assessed his role because of a possible attribution to him of further activity up to the end of the indicted conspiracy period of February 2008. We consider, however, that the learned trial judge's assessment was right. Indeed, his involvement as the second in command is thrown into starker light by the very features that Mr Grey emphasises -- his activities recorded in the car and his communications with the co-conspirators trying to cover over the traces of the conspiracy. These made it very clear that his role was indeed as second in command. This extended to significant conversations with the conspirators seeking to hide those traces, to dispose of the Mannitol and dealer lists and so forth. Although that communication lasted little over 24 hours and not up to February 2008, it significantly confirmed his role as second in command. In our judgment the learned judge's assessment of his role was entirely correct and we would refuse his renewed application also. 39. We turn to Jackson. We have already mentioned the points urged upon us by Mr Sullivan which are forcefully and carefully made by him. We are not persuaded, we should say immediately, by the argument based on disparity with Yorke's case. The judge heard the same evidence. He knew of the sentences passed and those that had been dealt with by Judge Boggis and was best able, having heard the trial, to assess what Yorke's proper role was. We do not consider that Judge Boggis' sentence on Jackson can be criticised because another judge on another occasion on differing material in the light of those materials known to him passed a lesser sentence on Yorke. 40. However, we do consider one point tells in Jackson's favour and that is the fact that he was entitled to and got from the judge, as he intended to, a larger discount on sentence than in the case of Gibbon senior and junior respectively. If we were to add back a notional 20 per cent discount, as opposed to a 10 per cent discount, as we think the judge must have done in Jackson's case, it brings the sentence passed on Jackson, in our judgment, rather too close in the hierarchy to that passed on the second in command, Stuart Gibbon. Therefore we consider it was wrong to make the starting point for the sentence that high. Given, as we have explained, the clear role of Stuart Gibbon as the second in command and the much lesser role of this appellant Jackson, we take the view that the sentence of nine years passed on Jackson was indeed excessive. We propose therefore to allow his appeal to the extent of reducing the sentence passed on him from nine years to eight years and allow the appeal to that extent alone. The days spent in custody on remand will continue to count as before.	[ "LORD JUSTICE RIX", "MR JUSTICE McCOMBE", "MR JUSTICE BURNETT" ]	2009_10_16-2125.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2198/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2198	1,081
e37d85ac4707fa5384a8469926094b3636530d88092fa9b09e6487dc9eb624fc	[2010] EWCA Crim 1213	EWCA_Crim_1213	2010-05-28	crown_court	Case No: 200801394 D1 Neutral Citation Number: [2010] EWCA Crim 1213 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Aylesbury Crown Court before Deputy Judge Maher and a jury On the 21 st February 2008 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/05/2010 Before : LORD JUSTICE PITCHFORD MRS JUSTICE RAFFERTY and HHJ GOLDSTONE QC - - - - - - - - - - - - - - - - - - - - - Between : EED Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 200801394 D1 Neutral Citation Number: [2010] EWCA Crim 1213 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Aylesbury Crown Court before Deputy Judge Maher and a jury On the 21 st February 2008 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/05/2010 Before : LORD JUSTICE PITCHFORD MRS JUSTICE RAFFERTY and HHJ GOLDSTONE QC - - - - - - - - - - - - - - - - - - - - - Between : EED Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Francis Lloyd (instructed by Dexter & Port - Solicitors) for the Appellant Amjad Malik QC (instructed by CPS Aylesbury ) for the Respondent Hearing date: 13th May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. This appeal against conviction raises in stark form the question whether it is in the interests of justice, within the meaning of Section 114(1)(d) Criminal Justice Act 2003 to admit in evidence the hearsay statement of a witness who has been warned but has failed to attend to give evidence for reasons personal to herself, and not sufficient to engage the Section 116 gateways. 2. On 21 st February 2008 after a trial at the Aylesbury Crown Court before His Honour, Deputy Judge Maher and a jury, the appellant, ED, was convicted upon the following counts in the indictment: Count 1: rape of his wife’s sister to whom we shall refer as MT, a girl under the age of 16, contrary to Section 1 Sexual Offences Act 1956 . Counts 3 and 4: attempted rape of MT a girl under the age of 16 contrary to Section 1 (1) Criminal Attempts Act 1981 . Counts 5 and 6: indecent assault upon MT, a girl under the age of 16 contrary to Section 14 (1) Sexual Offences Act 1956 . Count 7A: attempted rape of his wife’s second sister to whom we shall refer as RT, a girl under the age of 16, contrary to Section 1 (1) Criminal Attempts Act 1981 . Counts 8, 9 and 10: indecent assault upon RT, being a girl under the age of 16, contrary to Section 14 (1) Sexual Offences Act 1956 . Count 11: indecent assault upon his wife’s third sister, to whom we shall refer as LT, being a girl under the age of 16 contrary to Section 14 (1) Sexual Offences Act 1956 . 3. The appellant received a sentence of 12 years imprisonment upon Count 1 and lesser sentences on the other counts were ordered to run concurrently. Evidence at trial 4. The appellant was married to A. She was the eldest of the four sisters. At the time of trial A was aged 40 and her younger sisters MT, RT, and LT were, aged 27, 27, and 29 respectively. MT and RT were twins. At the end of May 2007 the appellant’s 12 year old son was admitted to hospital with injuries believed to be consistent with a parental beating. LT gave evidence that this incident made her think about a sexual assault which she asserted had been committed by the appellant upon her while she was staying at the home of the appellant and her sister. She decided to tell her mother and contacted her sister RT. She also telephoned an old school friend, to whom we shall refer to as ML. She had, she said, made a complaint to ML about the appellant while still a young girl. All four sisters gave statements to the police. MT, RT, and LT gave accounts of sexual offences committed by the appellant against them between about 1989 and 1995 while they were in their early teenage years. 5. The appellant’s case at trial was that none of the allegations made was true. His wife A wanted him out of their home and out of her life. In about May 2007 she had offered the appellant £50,000 to leave the former matrimonial home and when that failed she enlisted her sisters to concoct false allegations of sexual impropriety by the appellant towards them. It is not necessary for present purposes to descend to the detail of the evidence. We are told by Mr Malik QC who represented the prosecution below that notwithstanding the allegations made in cross-examination, they gave their evidence in a straightforward manner. LT was the third and last of the complainants to be called to give evidence. The defendant’s case had been put to MT and RT in cross-examination. The prosecution wished to adduce evidence which supported the complainants’ insistence that they were motivated only to tell the truth and not to give false evidence at their sister A’s bidding. Application under Section 114(1)(d) 6. Counsel for the prosecution had in his possession two statements from the witness ML to whom LT had turned for help in 2007. The first was dated 10 July 2007. In it ML said that during May 2007 a mutual friend of herself and her old school friend, LT, had telephoned her to inform her that she had passed ML’s telephone number on to LT because LT wished to make contact to discuss something which she had told ML many years before. LT then telephoned ML and asked whether she could remember when they were young and added “you know what I am going to say don’t you?” ML knew that the subject would be a conversation between the two girls when they had been on a bike ride at the age of about 11 or 12 years. LT asked ML if she minded a police officer making contact with her. ML asked if the subject was the bike ride. LT said it was. Shortly afterwards ML was contacted by the police. In her statement ML described the conversation. She and LT were on a bike ride together in High Wycombe. LT had recently spent a holiday with ML and her family. LT said “I have got something to tell you, it’s a secret. I don’t know what to do, E’s touched me” (meaning the appellant). ML told her that she should tell her mother but LT responded that she was worried as “he’s married to my sister”. According to ML she asked LT where E had touched her and she said “He put his hand up my skirt”. In fact the account given by LT at trial was that there was only one indecent assault and it occurred under the duvet on a sofa she was sharing with the appellant. 7. It seemed at first to the judge that the prosecution was seeking to introduce evidence of a contemporaneous complaint made by LT. There were, however, difficulties with such an application made under Section 120(7) Criminal Justice Act 2003 and it quickly became apparent that the real object of the application was to seek the admission of ML’s evidence to rebut the defence allegation of recent fabrication. The object was not to prove the truth of the complaint but to prove that the complaint was made. If such a complaint was made, it tended to undermine the defendant’s case that at the material time his relationship with LT was entirely innocent and normal, and that only after the dispute between himself and his wife did LT’s false allegations against him see the light of day. 8. However, the prosecution did not attempt to produce ML in person to give evidence. On 7 February 2008 ML had made a second statement in which she said this: “I am giving this statement in relation to a trial that I was asked to attend on the 18 th February 2008 at Aylesbury Crown Court. I gave a statement to DC5675 Katie James on the 10 th July 2007 regarding a disclosure that [LT] made to me many years before when we were children. I gave the statement detailing what [LT] and I had discussed and never heard anything from the police again. In September 2007 my partner and I booked to take our two young children away to Butlins in Bognor Regis for a mid-week break. We booked the break for the February half term week in 2008 and were due to be at Butlins from Monday 18 th February until Friday 22 nd February 2008. We paid for the holiday at a cost of £350. I have two young children aged 2 and 4 years. Since booking this holiday, we discovered that I was pregnant with our third child. I am now 28 weeks pregnant and due to give birth on the 28 th April 2008. On the 22 nd January 2008 I received a telephone call from Cathie Boyle who informed me that she was a witness care officer at Aylesbury. She told me that I was being officially warned that I would need to attend Aylesbury Crown Court for the trial of EED starting on the 18 th February. I was very shocked and didn’t know what to say as I had no idea E had been spoken to by the police and absolutely no idea he would be going to court, as I had not been told anything further since giving my statement. I explained that I would not be able to attend on those dates as I was on holiday with my family, but Cathie told me that she would speak to the Crown Prosecution Service and get back to me but if I had been told to attend court I had to go. I was very upset and anxious about this as I didn’t know anything about it and was really looking forward to spending quality time with my family over this period. I then told my partner ... what had happened, and he was extremely upset and angry. It has caused upset between us and has caused me to be very stressed and worried. I do not believe that this is good for me or the baby and feel it is unfair to ask me to cancel plans that I made seven months ago and tell me that I will have to go to court for a trial that I didn’t even know was taking place. I have been waiting for witness care to get back to me for two weeks and have only heard from DC1880 Kylie West in the past few days to give me an update. I am going to be unable to attend court on the dates given.” 9. Mr Malik QC informed us that despite the lack of contact between the witness and the witness care officer, the trial had been fixed for many months. It follows that there was no excuse for the failure to notify the witness only on 22 January 2008 that she might be required to give evidence at a trial commencing less than a month later. As we understand it, the object of Witness Care is to ensure that witnesses are kept informed of progress of the case in which they made be required. That function failed on the present occasion. In the circumstances, Mr Malik took the personal decision that a witness order should not be served upon the witness. She was six months pregnant and a very important family occasion would be disrupted. An application to adduce the evidence of the witness on health grounds was prepared under section 116 Criminal Justice Act 2003 , but Mr Malik chose not to make the application appreciating the unlikelihood of its success. Thus, he invited the judge to admit the evidence of ML in the interests of justice under Section 114(1)(d) . The application was resisted by Mr Samut, counsel for the appellant at his trial. His objection was that he, Mr Samut, should be in a position, either to challenge the making of the complaint or to make to the witness the same allegation of conspiracy or collusion which the appellant was making towards the complainants. Judge’s Ruling 10. The judge, in giving his ruling, rehearsed the background as we have described it. He confirmed that the evidence could not be admitted under section 116(2) and turned to section 114(1)(d) at page 6H of the transcript for 19 February 2008: “This admissibility of hearsay evidence section has the interest of justice gateway which, as we know from the authorities, may be used in appropriate and proper circumstances, either on behalf of the prosecution or indeed the defence where other hurdles are not shown to be satisfied... The interest of justice is a phrase which is not synonymous, either with interest/requirements of the prosecution, or the interest/requirement of the defence. There are a variety of questions which one must pose and of course, inter alia, one must ask what the impact of the statement on the proceedings will be, whether the defendant will have a proper opportunity to deal with or rebut the statement, whether it is likely to be given a disproportionate weight by the jury, and so on and so forth. So the phrase “interests of justice” is as wide as can be. First, is it important in the context of the case for the prosecution to be able to show that LT made a complaint of a sexual nature all those years ago, many many years before the alleged hatching of the conspiracy in 2007? In my view, the answer to that question is clearly yes, if the prosecution can show this to the satisfaction of the jury it is very difficult to reconcile it with what the defence are alleging... The defence ... of course concede that it could not be put point blank to either witness were they here that this is all made up because I repeat the defence was not there. But what has been pointed out, if one goes to page 18 of ML’s statement, is that she does go into what the defence regard as some detail because we read the phrase: “he put his hand up my skirt” and the defence say this is difficult to reconcile with how the witness, LT, as she is recorded in her statement, records matters, in that she talked of making the complaint, but says that she did not go into detail, and the defence say that they would wish to explore this. We have to be realistic, we are looking back here over a considerable period. Each witness, ML and LT, is now adult and grown up with children of their own and one would be astonished if they either related or recollected the complaint, assuming it was made in identical terms and this is a comment which I would probably make to the jury. Is there any reason, on the face of it, not to accept the truth of what ML has said? She is not related to the complainants in this case. She is not related to the defendant. The statement suggests that she was approached out of the blue, apropos of nothing by the police last year. There is no basis for believing or suggesting that she has been got out by LT and although the defence say it is not beyond the bounds of possibility that ML herself has been drawn into this conspiracy and has been prevailed upon to falsely tell the police of a childhood memory, many might regard that as a somewhat far fetched proposition. In any event, it is a proposition that could be urged upon the jury and where such evidence goes in, that is goes in in read form, there is a fairly standard direction which we know is given to the jury about the problems of assessing a written statement and the difficulty which its submission has had as far as the defence are concerned. I stand back from this and ask that elusive question: what do the interests of justice require? There is one witness who can give oral evidence as to this and who could be cross-examined and the defence could put to that witness that she has indeed made up the making of the complaint all those years ago and they could ask her/suggest whether it is not the position that she sought to bolster up this matter by getting at ML in advance in order that she, ML, could falsely report the making of the complaint all those years ago when each of them was small children. Many might regard that as a somewhat far fetched proposition because there does not seem to be, on the face of the papers, any basis for suspecting that the witness from whom we have heard, or the witness from whom we are about to hear, were aware that the defence here was going to be a conspiracy to pervert the course of justice, which is not too high a way of putting it, hatched last year. So in my view, the interests of justice permits this statement to be read to the jury and the prosecution may, therefore, elicit in the shape of a read statement the portions which they have identified. I did suggest to the defence that they may be happier ... if the phrase “he’s put his hand up my skirt” were to be removed, but the defence (I think, for well understandable reasons) having declined this and they would prefer the jury to know of that observation so that they can say the terms of the complaint, as remembered by ML, are not the terms of the complaint as recollected by the witness, and no doubt, urge upon the jury, perfectly properly, that this calls into question both the making of the complaint and the terms in which it was made...” 11. During the lunch adjournment, the judge examined the section further and at 4.07 pm added an addendum to his ruling in which he said: “In particular, the maker of the statement appeared to me to be reliable and the circumstances surrounding the making of the statement seem to be reliable, and so on and so forth, and in challenging the statement the defence also were able to identify some differences between the evidence given orally and the evidence on paper, which will enable them to make adequate comments.” 12. The judge went on to inform counsel that he had reminded himself of two ‘hearsay’ cases, Adams (2007) EWCA Crim 3025 and Sak (2007) EWHC 2886 (Admin) summarised in Issue 1 dated 8 February 2008 of Archbold News. He noted the reference to the unlikelihood that the prosecution would be permitted to take advantage of its own failures by seeking the admission of hearsay evidence under section 114(1)(d) and observed that there were not the many failures there identified in the current case, so he was thrown back on the interests of justice test. Having “gone up and down the check list”, the judge saw no reason why the jury should not be aware of the content of the statement in order to help them with the issue that had been thrown up in the case. Appellant’s Submissions 13. Mr Samut prepared the original grounds of appeal for which leave was refused by the single judge. Counsel who now represents EED in the appeal, Mr Francis Lloyd, argues that ML’s evidence should not have been admitted. It was axiomatic, he said, that the trial must be fair. The wrongful omission of evidence which cannot be challenged is unfair. The judge failed, he submits, properly to analyse the requirements of section 114(2) and, in particular, failed to pay any significant attention to the question raised under section 114(2)(g) “whether oral evidence of the matter stated can be given and, if not, why it cannot”. In fact the judge at the commencement of his analysis identified the problem “as ML is not available to give oral evidence before this jury”. The true position was that ML was manifestly available to give evidence but the prosecution had made a decision not to call her. In these circumstances, and, given the importance of the issue whether a roughly contemporaneous complaint was made to ML, it was simply unfair to the appellant to admit the evidence. Discussion of the Application of Section 114(1)(d) to the Absent Witness 14. Mr Lloyd relies upon the decision and reasoning of this court in Z [2009] EWCA Crim 20 , a constitution of the court over which Stanley Burnton LJ presided. In Z the defendant was also charged with offences of rape and indecent assault under the Sexual Offences Act 1956 , the offences being allegedly committed between 1985 and 1989 when the complainant was aged between 9 and 13 years. The prosecution successfully applied to adduce the evidence of a doctor that in 1993 D complained to him that she had been sexually abused by the defendant when she was a young girl. D herself declined to give evidence since she wanted to put those events behind her. In giving his ruling, the judge treated the application as “routine and straightforward”. This, the court held, was an error. Stanley Burnton LJ recognised that had D given live evidence, there could have been no complaint. The evidence went to establish propensity and tended to correct the defendant’s portrayal of himself as a good family man. 15. However, the court held, there was a lacuna in the judge’s reasoning. Stanley Burnton LJ continued: “18. It can be seen that sub-section (1) comprehensively restricts the circumstances in which hearsay evidence may be admitted in criminal proceedings to those set out in its four paragraphs. Paragraph (d) is the only paragraph having positives substantive effect: the other paragraphs of sub-section (1) simply refer to other provisions or rules of law permitting such evidence to be admitted. Paragraph (d) is unhelpfully drafted. It has been referred to as creating a residual power or as a safety valve; considered in isolation, it might be given a wide or a narrow application. 19. However section 114(1)(d) must be construed and applied in its statutory contact. In particular, in a case such as the present, where the evidence in question is of a statement making an allegation of misconduct, it must be read together with section 116 . That section is narrowly drawn. It is headed “cases where a witness is unavailable”, which would not include the case of D. The conditions for the admission of hearsay under section 116(1) are set out in sub-section (2) ... none of these applied to D. 20. In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare (2006) EWCA Crim 2512 at Paragraph 30: “We think it is important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.” But section 114(1)(d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116 ...” 16. The Lord Justice noted that the trial judge had not sought to test his decision against the criteria set out in section 114(2) . At paragraph 25 he continued: “25... In the present case, the reluctance or apparent but untested unwillingness of D to testify did not justify his submissions. This was a case in which the restrictions on hearsay in section 116 were being circumvented. As we indicated in the preceding paragraph of our judgment, the effect of the admission of this evidence was potentially very damaging; and it was very difficult for the appellant to deal with it other than by a simple denial. We need not consider what the position would have been if D had been served with a witness summons and refused to attend or to testify: that did not happen.” 17. This decision is important because it reinforces the court’s view that it should not countenance the use of section 114(1)(d) to circumvent the requirements of other gateways to admissibility higher up the section 114(1) hierarchy. It is not permissible to nod through hearsay evidence merely because it is convenient to the party seeking its admission and the evidence is of value upon an important issue in the trial. We note, however, that neither the court in Z , nor the court on any other occasion brought to our attention, has ruled that in no circumstances will hearsay evidence be excluded on this ground when otherwise there would be cogent reasons for admitting the evidence in the interests of justice. On the contrary, the terms of section 114(2)(g) read in context with the other paragraphs of section 114(2) suggest that it is contemplated that there may be occasions when evidence, which cannot be given orally for reasons other than those provided for by section 116 , may be admitted. 18. For example, in L (2008) EWCA Crim 973 , (2008) 2 Cr App R18 , the court over which Lord Phillips CJ, as he then was, presided, considered an appeal against conviction for rape by the accused of his daughter in her own flat. The trial judge had admitted under section 114(1)(d) the statement of the defendant’s wife which tended to rebut the defendant’s explanation as to why his semen was found on a towel in his daughter’s flat. The court was not convinced but was prepared to assume that the defendant’s wife was not a compellable witness by reason of section 80 Police and Criminal Evidence Act 1984 . However, the court distinguished between compelling a wife to give evidence and permitting another witness to give evidence of a voluntary statement made by the wife in the past. Section 80 did not act as a bar to the production of the wife’s statement provided that the hearsay passed the interests of justice test set out in section 114(2) . As a matter of fact the wife refused to give evidence. The court proceeded to examine each of paragraphs (a) - (i) of section 114(2) and concluded that the judge had been right to rule that the admission of the wife’s statement was both fair and in the interests of justice. 19. In Adams (2007) EWCA Crim 3025 the court approved the admission of the evidence of a witness under section 114(1)(d) when the witness had failed to appear at court notwithstanding that the prosecution was at fault for failing to ensure his attendance. The evidence was of a technical nature in that it established the defendant’s unlawful possession of ecstasy tablets in a nightclub, technical because, as the recorder elicited from the defence, possession was not to be an issue in the trial. 20. Finally, in Musone [2007] EWCA Crim 1237 , the court over which Moses LJ presided, approved the admission of hearsay evidence under section 114(1)(d) in the following circumstances. A serving prisoner was stabbed to death in his cell. The appellant admitted that he had punched the victim twice but maintained that another man had stabbed him, which explained the incriminating presence of the victim’s blood in the vicinity of the appellant’s cell and on his hand. As the victim lay dying, he uttered, according to the statement of a fellow prisoner, Patterson, “Bushman. Bushman done it” (meaning the appellant). Patterson refused to make a statement under section 9 Magistrates Courts Act 1980 and refused to come to court. He was arrested and at the appellant’s trial for murder he was brought to court but refused to answer questions. The judge ruled that Patterson’s informal statement which constituted double hearsay was admissible under section 114(1)(d) and section 121(1) of the Act. Having considered the trial judge’s examination of the section 114(2) criteria, his decision to admit the evidence was approved. The judge’s analysis had included the reliability and value of the evidence together with the fact that other evidence implicating the appellant was available. 21. Each of these decisions demonstrates, in our view, how limited are the circumstances in which the evidence of an available but reluctant witness may be admitted in the interest of justice. In L and Musone there was a refusal by the witness to give evidence notwithstanding the best efforts of the prosecution. In Adams the evidence did not go to the heart of the dispute between prosecution and defence which was whether the appellant was in possession with intent to supply. We are aware of other circumstances in which evidence has been admitted under section 114(1)(d) when its purpose has been to fill a continuity gap or similar. However, as Lord Phillips reminded us in Horncastle and Others (2009) UK SC14 at paras 15-26 and 53, it is our common law tradition that the defendant is entitled to examine the witnesses against him and only in strictly circumscribed circumstances will a hearsay statement be admitted in the interest of justice. The trial judge is the gatekeeper responsible for the fairness of the trial (see paragraph 38 of Horncastle ), and the examination of the factors set out in section 114(2) and any other relevant factors must be performed with caution when the object is to fill a gap caused by the non-attendance of a live witness on grounds which do not fall within section 116 . Application of Section 114(1)(d) to ML 22. Having examined the judge’s ruling, it seems to us clear that he was right to conclude that the evidence had significant probative value upon an issue of some importance in the trial. Other evidence was available upon the same issue from the complainant herself. The prosecution was in a position to prove the circumstances in which LT’s complaint was made to ML by means of the live evidence of LT herself. It would, as the judge remarked, have been somewhat far fetched to assert that LT was preparing the ground for a false allegation which would not be made until many years later. There was, it is true, no means by which the appellant could make an effective challenge to ML’s evidence that a complaint had been made, but, in the nature of the evidence, neither was he in a position to make an effective challenge to the complainant herself. The reason for this disadvantage was not the absence of ML but the appellant’s own lack of personal knowledge as to what may have passed between them. The judge rightly observed that for the reason given there was limited prejudice to the appellant since any challenge he mounted must be circumscribed by his own lack of knowledge. Furthermore, the admission of the statement enabled the appellant to make extensive use of the inconsistency of account between the two witnesses in an attempt to undermine its truthfulness. 23. However, the learned judge, in our view, made the mistake of assuming that because the witness was not present she was unavailable through no fault of the prosecution. There was no analysis of an important factor which was why, under paragraph (g), the appellant was not in a position to challenge the witness who was making the assertion. While he was in a position to cross-examine the complainant herself, all that was available by way of challenge to the absent witness was comment. In our view, this hearsay evidence should not have been admitted under section 114(1)(d) . The interests of justice were better served by the exclusion of the hearsay evidence. Fairness of the Trial 24. It is necessary, however, to examine the question whether the admission of the statement, in the end, had such an adverse effect upon the fairness of the trial that it called into question the safety of the verdicts. Mr Lloyd accepted that if, as was inevitable, Mr Samut had put his client’s case to LT, she would have responded with the exclamation, “But I complained about it at the time”. Since this would have been an admissible rebuttal of an allegation of recent fabrication, LT would have been permitted to give circumstantial detail of the making of her complaint to her school friend ML. The greater the circumstantial detail she was able to give the more difficult for the appellant became his ability to challenge it. The less impressive his challenge the more likely it would be that the jury would accept the evidence of LT and reject the challenge by the appellant. In the event, the jury were aware of the evidence of a witness who was not before them, for reasons about which they were told not to speculate, that while a complaint was made in the circumstances related by LT, it was a complaint about an assault which was, on the face of it, quite different from that now alleged in LT’s evidence. It seems to us that as the evidence emerged, the appellant was in hardly a worse position than he would have been if the statement had not been admitted. On the contrary, he was now in a position to construct an argument, without having to put that argument to the witness that the reason why the statements differed, was because there had indeed been collaboration between LT and ML as alleged. 25. It may even have been that, faced with LT’s evidence of complaint, Mr Samut would have found himself applying for the admission of the same hearsay evidence in order to provide the appellant with the grounds for an argument to this effect. However, we are simply not in a position to make any assumption what strategy trial counsel would have adopted on instructions from the appellant if faced with the dilemma. 26. We have considered the state of the evidence as it appeared before the summing up. The underlying accusation put forward by the appellant was that A had engineered a conspiracy between the four women. That allegation had been put fair and square to all of them. We have considered the question whether it is a reasonable possibility that, despite the inconsistency between LT and ML, the jury may have been influenced by the hearsay to reject the defence rather than by a judgement that each of the witnesses was telling the truth. It seems to this court that the jury must have founded their decision, not upon a discrete consideration of ML’s statement, but upon a judgment of the reliability of all three complainants and their sister. We have considered how these matters were left to the jury by the trial judge in his summing up. During the course of his summing up, the learned judge made the following observations to the jury: “You will have been assessing for truthfulness and reliability as we have gone along. You judge each witness on his or her separate merits asking the question, I repeat: Were we hearing truthful and reliable evidence from this witness? Apart from the statement which was read to you and upon which I shall give a further direction, you have had the chance to see how the witnesses gave their testimony and how they responded to the many questions which were put to them. This, obviously, will be a help to you in reaching whatever decisions you do reach.” (transcript page 2H-3B). “Now each side can’t be telling the truth here, obviously. Some person, or persons, are lying through their teeth. You do not have to decide each and every point thrown up in the course of the trial but merely such points as bear upon the important decisions that you have to take.” (page 4C). “If you are satisfied that you have heard truthful and reliable evidence, looking at each sister separately, that is quite enough to secure a conviction. No more is required and in many cases no more could realistically be required. All turns on your assessment of the witnesses.” (page 5D) “What you do is consider each witness separately. Is this witness truthful and honest? Is the next witness [telling the] truth and honest? Or so on, judging them on their own separate merits, as you do the defendant, because separate verdicts will be required of you when you return with your decision ...” (page 14E). “In these cases, the defence do not have to identify a reason why complaints are made and sometimes there is no reason, but they have done so here and it for you to consider. As you know, that was the full frontal attack on the four witnesses. In the case of one of the sisters it goes further, it is that she recruited a former school friend of hers to give lying answers to the police, so the defendant if he is or may be right, has the misfortune to be on the receiving end of lying evidence on the part of five people, four in this court and one in the shape of a statement. If you think that is, or maybe true, he is not guilty.” (page 16A-C). “The other matter for you to approach is: Did you hear truthful evidence and is the defendant in effect using his matrimonial difficulties, which admittedly exist, as a convenient peg upon which to attack those who have correctly accused him and is he using the only escape route that he can identify: they are lying. Now lies right at the heart of the decision you have to make as each side said to you. I cannot help you with that because that is why you are here.” (page 16D). “All three girls said to you, and this may be very important in terms of a direction to be given later, [that] although they were aware (a) that the police would need to be involved and (b) that the police would be involved because of something sexual having happened, all three said they did not discuss in detail what had happened. One of the girls .... said she is even uncomfortable talking about it now. Now that all may be lies, it may all be play acting, all part of their attempt to pull the wool over your eyes or you may have been hearing the truth.” (page 18 D-F). 27. Having reminded the jury of the evidence of MT the judge continued: “Now there are a variety of questions to be asked there which may help you. First, I remind you again, truthful and reliable evidence? I express no view on that. That is for you.” (page 24 C). “So what Count 1 requires you to do, which is why I have read the very words of the witness to you, is to ask: truthful and reliable? First hurdle. Then stand back from it and ask, in the light of the description that she gave you: what was that little girl (that mature woman as she now is) describing as having happened to her all those years ago when she was a child?” (page 25 D). “She said that she remembered an occasion, did not know exactly when, when she said to E, the defendant: “I have had enough”. That she was going to tell her mother and the defendant said that everything that had happened was her fault. Now if he said that, that is the most cynical attempt to shift on to a young girl the moral responsibility for what had taken place ... She did not tell her Mum and the next thing was there was a telephone call. E had taken an overdose. He agreed he had taken an overdose. He in his evidence said it was nothing to do with this because none of this happened. It was because he had lost his job and he was depressed and so that is why he took the overdose.” (page 26 C-E). “But in any event, she said that she saw E at the house and he then said to her that it was his fault as to what had happened. Now, again, is that a detail that she has invented or in fact has she captured as best she can the rather messy emotional realities of what was going on at that time?” (page 27 A-B). The judge then turned to the evidence of RT and said: “Again, same question: Has she come to court to tell you wicked lies or was she doing her best to help you with what she recalls happening all those years ago? “ (page 29 H-30A).” “Were you hearing the fears and worries of a child as recollected years later by an adult or are these lying details as part of this put up job?” (page 32 F). 28. As to the evidence of LT and ML, the judge pointed out to the jury that, as to the occasion on which the alleged complaint was made, the oral evidence and the statement were as one but the account of the complaint was different. He pointed out to the jury that the allegation made by the appellant was that LT had invited ML to support a false story. If that was the case “it makes one’s blood runs cold”. The jury was warned that the defence had not had the chance to challenge ML. It had not had the chance to see her. It had not had the chance to observe her as she gave her evidence. These were obvious disadvantages. If the defence had had the opportunity it would have been put to ML that she had come to prop up LT’s story. The judge directed the jury that if it thought LT was, or may have been lying, her evidence disappeared. If, on the other hand, it thought she was telling the truth, then it would need to consider the differences between the complaints described: “Are the defence right that there are differences because this is a concocted story last year, and ML has not quite accurately remembered what she was told? She has not stuck to her script, my words. She has wandered off script in the way that blows the gaff. Or are the prosecution right that here is a good example of what happens when people are looking back over a number of years trying to recall what was said?” (page 39 H-40A). 29. The judge pointed out that if indeed LT, as she said, had had nothing very much to do with her friend for a number of years it might be surprising, and a risk, if she was then to make the proposition suggested on behalf of the appellant. He made clear that he had made a comment but it was a matter for the jury to debate and decide. Having reminded the jury of the evidence of all three complainants and the defendant’s wife, the judge continued: “Let’s look at these girls. Are the defence right, or may the defence be right, that they have put their heads together at the behest of their sister and concocted this false story? If so, the evidence of all of them is worthless, not guilty.” (page 45 H-46A). 30. In the course of his summing up the judge remarked that although the allegation of recent fabrication was made to each of the witnesses, it was unsupported by any detail. When he gave evidence, the appellant said only that he was on good terms with the complainants. They were welcome visitors at his house. There had been difficulties in his marriage, but he and his wife had attempted a reconciliation. Things went dramatically wrong and his wife offered him £50,000 to leave the house. It was his view the evidence given in court was all made up by the sisters to help A. 31. We observe that the disputed hearsay evidence would not have been admitted, except on the application of the defence to prove a previous inconsistent statement, unless the appellant had chosen to make an accusation of conspiracy. We are satisfied that a consideration of the issue of the truthfulness of the hearsay evidence was largely subsumed in the jury’s principal task of which it was reminded by the judge time and again, namely to judge the truthfulness of the complainants themselves. It is clear from the verdicts of the jury that they believed all four women. We consider it most improbable, in the light of the use Mr Samut was able to make of the inconsistent statement of ML, that the statement had any material effect upon that decision. It is much more probable that the jury convicted the appellant in spite, rather than because, of its contents. The account given by the appellant was barely support for the allegations put to the witnesses in cross-examination and it seems to us overwhelmingly probable that the jury simply believed the complainants and disbelieved the appellant. It follows that in the result, while we are satisfied that the statement should not have been admitted in evidence under section 114(1)(d) in the first place, it did not have such a prejudicial effect upon the nature and conduct of the defence that the safety of the verdicts was affected. Accordingly the appeal is dismissed.	[ "LORD JUSTICE PITCHFORD", "MRS JUSTICE RAFFERTY" ]	2010_05_28-2407.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1213/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1213	1,082
050130b02ee7f05e2b718a67e7ccc30b1445c149e05080bda838cb679ced2d56	[2008] EWCA Crim 1587	EWCA_Crim_1587	2008-07-02	crown_court	No: 200703746/B3 Neutral Citation Number: [2008] EWCA Crim 1587 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 2nd July 2008 B e f o r e : LORD JUSTICE MAURICE KAY MRS JUSTICE COX DBE THE RECORDER OF NOTTINGHAM (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - R E G I N A v JOHN MCCARRY - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited	No: 200703746/B3 Neutral Citation Number: [2008] EWCA Crim 1587 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 2nd July 2008 B e f o r e : LORD JUSTICE MAURICE KAY MRS JUSTICE COX DBE THE RECORDER OF NOTTINGHAM (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - R E G I N A v JOHN MCCARRY - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - - J U D G M E N T 1. The Recorder of Nottingham: On 1st September 2006, in the Crown Court sitting at Maidstone before His Honour Judge Nash, this applicant pleaded guilty to possessing a controlled drug with intent to supply. On 10th October 2006 he was sentenced to a community order of two years with a supervision requirement of 18 months and an unpaid work requirement of 150 hours. 2. He had put in a basis of plea which for the purposes of sentencing the prosecution did not dispute. Significantly, however, both the prosecution and the judge were aware that at the time of sentence a not insubstantial sum of money had been found at the applicant's home following his arrest for this offence. The judge in his sentencing remarks specifically stated: "I will deal with whether or not the money found in your possession was from a legitimate source on some future occasion." 3. The facts of the offence very briefly are these. On 17th December 2005 the applicant was approached by police officers in a shopping centre in Kent. He ran away but was caught and detained. Amongst his clothing were several wraps of cocaine in small plastic bags collectively within a larger plastic bag. In his car there were further small empty plastic bags. The cocaine weighed some 14.3 grammes. He was also in possession of £1,000 in cash. 4. In the event, Judge Nash did not deal with the money found in his possession on some future occasion. That was left to Judge MacDonald QC on 20th June 2007. He was met with a preliminary submission that because the prosecution had accepted the basis of plea of the applicant, that he was distributing drugs only to those within his social circle, it was submitted that it was not appropriate for the court to go on to consider a confiscation order at all. The submission, that the basis of plea effectively precluded the making of a confiscation order, was rejected by Judge MacDonald. He found that the Crown did not expressly concede before the sentencing judge that any of the applicant's account of the matter was necessarily true. They simply accepted that the primary facts that they could prove to the requisite standard were consistent both with the applicant being a commercial dealer or the version of events he put forward in his basis of plea. No Newton hearing was held and the applicant was sentenced on his basis of the facts, which no doubt explains the sentence which he received. 5. The judge was then referred to the authorities, in particular the cases of Lunnon [2004] EWCA Crim 1125 and Lazarus [2004] EWCA Crim 2297 . The essential distinction between these two cases is that in Lunnon , when the defendant was sentenced, the Crown specifically agreed the basis of plea put forward, that he had not been at the heart of the conspiracy and, significantly, that he had no previous involvement in drug trafficking at all. This court decided that in those circumstances a confiscation order was effectively precluded, because in those circumstances there would be a risk of serious injustice. 6. In the case of Lazarus the basis of plea actually conceded involvement in drug activity during the six months prior to the charges to which Mr Lazarus had pleaded guilty, but the basis of plea was entirely silent as to the position during the six years prior to the commencement of the proceedings. This court held, as is now well established, that a confiscation order is not limited to the proceeds of the offence which is charged. The effect of the legislation is that a relevant conviction opens a confiscation enquiry into property passing through the defendant's hands during the previous six years. This court also pointed out that the confiscation scheme is subject to rules quite different to those governing the laying of charges on an indictment. In paragraph 20 of the report Hughes J, as he then was, said this: " Lunnon and this case are perhaps salutary reminders that some care needs to be taken by the Crown when considering proffered bases of plea. In some cases the Crown may be in a position to make the kind of express acknowledgment that was made in Lunnon , that the indicted offence is the defendant's first involvement in relevant crime, and to do so knowing that that acknowledgment will be carried forward into confiscation proceedings. In other cases, and we suspect in the majority, the Crown may be able to say no more than that for the purposes of sentence it does not and cannot dispute a particular assertion made by a defendant, but that it cannot say what information may arise in any subsequent confiscation proceedings." 7. That principle has recently been upheld by this court in the case of Mark Green [2007] EWCA Crim 1248 . In paragraph 35 David Clarke J, who gave the judgment of the court, pointed out that -- without going into the details of Green which we do not propose to do so -- that Green was indistinguishable from Lazarus . The basis of plea in Green related to a specific period between March 2001 and September 2003. It said nothing about any earlier period and the Crown did not agree that the appellant had not been involved in drug trafficking during the period between July 2000 and March 2001. In those circumstances, to make the statutory assumptions in relation to property passing through the appellant's hands prior to March 2001 was not itself inconsistent with the basis of plea and did not for that reason give rise to a serious risk of injustice. 8. That effectively was the decision of Judge MacDonald in this case. He found that this case was indistinguishable from the case of Lazarus . The basis of plea was entirely silent as to the applicant's activities in the six years prior to the commencement of the proceedings. Having given his ruling, the applicant did not dispute that the assumptions applied and the judge accordingly seized by way of confiscation the £33,500 or so that he was found to have in his possession. 9. In the judgment of this court, the approach of Judge MacDonald cannot be faulted. It was correct and entirely in accordance with the authorities. This application is therefore refused.	[ "LORD JUSTICE MAURICE KAY", "MRS JUSTICE COX DBE" ]	2008_07_02-1566.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1587/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1587	1,083
52ae5c78b2249861c140c522fd683f192b3ff7bd4684a84728298e3f9a764789	[2012] EWCA Crim 86	EWCA_Crim_86	2012-02-03	crown_court	Case No: 201106761 A6 Neutral Citation Number: [2012] EWCA Crim 86 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE WOOLWICH CROWN COURT HIS HONOUR JUDGE CRAWFORD LINDSAY QC T20117304 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2012 Before: LADY JUSTICE HALLETT DBE MR JUSTICE IRWIN and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between: R Appellant - v - ZEPHEN ROLLINGS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 201106761 A6 Neutral Citation Number: [2012] EWCA Crim 86 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE WOOLWICH CROWN COURT HIS HONOUR JUDGE CRAWFORD LINDSAY QC T20117304 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2012 Before: LADY JUSTICE HALLETT DBE MR JUSTICE IRWIN and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between: R Appellant - v - ZEPHEN ROLLINGS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr E Garnier QC HM Solicitor General & Mr L Mably for the Attorney General (instructed by The Crown Prosecution Service ) for the Appellant Miss A Kettle-Williams (instructed by J B Wheatley Solicitors ) for the Respondent Hearing date: 25 January 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Hallett: 1. On 6 July 2011, at about 12.30 pm police officers from the Southwark Drugs and Firearms unit were preparing to execute a search warrant at a flat in Brockley, south London, the home of offender’s girlfriend when they became aware that the offender was outside in a mini-cab. The officers approached the cab, and detained the offender. 2. He was wearing a small leather bag over his shoulder. The bag was searched. Inside, the police found a handgun wrapped in a yellow dust cloth. The serial number had been removed. It was a .357 Magnum calibre Smith and Wesson revolver with a six-shooting swing out cylinder in full working order. In the cylinder were two Federal Hydra-Shok .38 special calibre cartridges and three .357 magnum calibre PMP cartridges. The ammunition was live and, on test firing, the bullets were found to mushroom on impact. They were what are commonly known as “dumdum” bullets, a particularly dangerous kind. 3. The offender was arrested and cautioned. He said: ‘Can you do me a favour? Please don’t tell my girlfriend.’ When asked whether the gun had been at her house, he replied: ‘No, well only this morning.’ Later that day he was interviewed under caution in the presence of his solicitor. The offender made no comment to all material questions. He was then charged. Subsequent DNA analysis of a swab taken from the gun produced a full DNA profile which matched that of the offender. The probability of such a match in the event that the DNA on the gun was from someone other than the offender was in the order of one in a billion. 4. The offender has a number of previous convictions, a reprimand and a warning. In 2005, he was reprimanded for a public order offence and warned for theft. In 2006, he was convicted of criminal damage, and given a referral order. In 2007, he was convicted of possessing cocaine and MDMA with intent to supply, and sentenced to 18 months’ youth detention. In 2008, he was convicted of driving without insurance and fined. In 2009, he was convicted of possessing cocaine and made the subject of a community order. 5. On 9 September 2011, he appeared at the Woolwich Crown Court at a plea and case management hearing. He pleaded guilty to one count of possessing a prohibited weapon, contrary to section 5(1)(aba) of the Firearms Act 1968 (Count 2), and one count of possessing prohibited ammunition, contrary to section 5(1A)(f) of the same Act (Count 3). He pleaded not guilty to one count of possessing a firearm with intent to endanger life or to enable another to do so, contrary to section 16 of the FA 1968 (Count 1). On the morning of the trial, 10 November 2011, he sought a ‘Goodyear indication’. Ms Kettle-Williams representing him placed the facts and proposed basis of plea before the judge His Honour Judge Crawford Lindsay QC. 6. The judge issued the necessary warnings about the possibility of a Reference by Her Majesty’s Attorney General. He then indicated that the maximum sentence he would impose was in fact the minimum sentence he was bound to impose, (pursuant to the Firearms Act 1968 as amended), absent exceptional circumstances, namely 5 years’ imprisonment. The offender was re-arraigned on Count 1, and pleaded guilty on the basis that he had possession of the firearm and the ammunition with the intention of enabling another to endanger life. 7. Prosecuting counsel opened the facts. Ms Kettle-Williams agreed with the judge that there was little she could add to what had already been said during the ‘Goodyear indication’ proceedings. She was not pressed to explain the circumstances in which the offender intended that the person to whom he supplied the gun might endanger life. With no further ado, the judge sentenced the offender to 5 years’ imprisonment on Count 1, 5 years concurrent on Count 2, and 3 years concurrent on Count 3. The total sentence was therefore 5 years’ imprisonment. A period of 125 days was ordered to count as time served as part of the sentence under section 240 of the Criminal Justice Act 2003. Her Majesty’s Solicitor General Edward Garnier QC has applied for leave to refer the sentence to this court as being unduly lenient. We give leave. 8. The Solicitor General put the following aggravating features before us for our consideration. i. The offender was found in possession of a gun and live ammunition. ii. The ammunition was loaded into the gun. iii. The ammunition was of a type which expanded on impact. iv. The offender was in possession of the prohibited items in a residential area. 9. He suggested the following mitigating features are present: v. The offender pleaded guilty. vi. The gun was not discharged. vii. The offender does not have previous convictions in relation to firearms offences viii. The offender is a man of a relatively young age. He was 23 at the time of the offences . However, Mr Garnier also observed that the plea to count 1 was entered on the day of trial and the evidence of his possession of the firearm and ammunition may properly be characterised as overwhelming. 10. A number of decisions relating to sentencing in firearms offences were put before us. We shall mention just three. We begin with Tony Avis and others 1998 2 Cr App R (S) 178 in which Lord Bingham CJ observed at page 181: “The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all the facts and circumstances relevant to the offence and the offender, and it would be wrong for this court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions: (1) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. …..Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use. (2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be. (3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence. (4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.” 11. Having reviewed the hierarchy of firearms offences he concluded at page 186: “ Where there are breaches of sections 4, 5, 16, 16A, 17(1) and (2), 18(1), 19 or 21, the custodial term is likely to be of considerable length, and where the four questions suggested above yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate.” 12. In Attorney General’s Reference Nos 58-66 of 2002 [2003] EWCA Crim 636 the court conducted a review of a number of decisions (including Avis ) on the appropriate level of sentence to be imposed for possession of firearms and ammunition with intention to endanger life. At paragraph 48 of the judgment the court concluded that “in a contested case simple possession of a firearm together with ammunition with intent to endanger life merits a sentence of between seven and eight years.” 13. We turn finally to the most recent decision on this topic brought to our attention: AG ref no 43 of 2009 (Craig Bennett); R v Grant Wilkinson 2010 1 Cr App R (S) 100. Lord Judge CJ, giving the judgment of the court, observed: “2 . The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community. “3. The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed.” 14. Further, Lord Judge specifically endorsed the continued value of the series of questions posed by Lord Bingham in Avis . We shall now pose those questions in respect of this offence and this offender. The answers are mostly adverse to him. The weapon was a genuine firearm loaded and deadly. The ammunition was particularly dangerous. There was no lawful use for the gun. The offender was not simply a custodian. He intended to supply the loaded gun to a fellow criminal or criminals who required it for their criminal enterprise. The offender has not informed the court of the nature of the enterprise and we shall avoid speculation. Suffice it to say the consequences were potentially extremely grave for the victim or victims of the offence. It is fortuitous that the police stepped in when they did. He is no stranger to the courts. On the positive side, the offender is still relatively young and does not have an established record of committing firearms offences. 15. Mr Garnier provided background information to explain why it was his contention that the courts should treat those who trade in illegal firearms severely, possibly as severely as those who actually use them to commit an offence. He informed us that there is a limited supply of firearms which are moved around the criminal fraternity in such a way that several crimes may be committed with one gun. Those involved in the supply chain of weapons play a pivotal role in keeping violent criminals in business, with all the risks that this entails for the public. He also suggested that the sentencing regime as it relates to the use of firearms has moved on considerably since the decision in Attorney General’s Reference Nos 58-66 of 2002 . In addition to Lord Judge’s remarks in Wilkinson , there has been the introduction of the minimum 5 year term for possession of a firearm and the introduction of a 30 year starting point for offences of murder involving the use of a firearm. Thus, had this gun been used to kill, as was always possible given its lethal nature, the murderer would have been looking at the equivalent of a 60 year determinate term. Given the dangers to the public, the prevalence of gun crime and the need for deterrent and punitive sentencing, to which Lord Judge referred in Wilkinson , Mr Garnier submitted the sentencing range for offences of this gravity has increased significantly. We agree. 16. Given those developments, there can be no argument that the sentence of 5 years’ imprisonment imposed on Count 3 for the offence of possession with intent was unduly lenient. Arguably, terms of 5 and 3 years’ imprisonment were also unduly lenient for the offences of simple possession of the weapon and the ammunition (Counts 2 and 3). In the light of our decision on Count 1, we do not need to decide the point. Counts 2 and 3 were alternative charges to Count 1 and had the offender pleaded guilty to Count 1 at the outset, they would have been left on the file. In normal circumstances, the judge may well have imposed no separate penalty on those counts. Here the judge may have felt constrained by the fact that Count 2 was also subject to a minimum term (absent exceptional circumstances). Counsel did not address him or us on whether exceptional circumstances existed on Count 2 by virtue of the fact it was an alternative charge. We are not in a position, therefore, to take this aspect of the case further. Accordingly, we shall not disturb the sentences imposed on Counts 2 and 3. 17. To her credit Ms Kettle-Williams accepted that we would find, as we have, that the sentence of 5 years’ imprisonment is lenient, but, in her helpful and succinct submissions, she urged us not to interfere with the sentence or to limit any increase in the term. She placed reliance on and emphasised the mitigating features put before us by Mr Garnier to which she wished to add the principle of ‘ double jeopardy’. 18. Her task was always going to be an uphill one. It should be remembered that the 5 year minimum term is a minimum term not a “mandatory” term (as prosecuting counsel at one stage described it in the court below) nor is it a “starting point” (in the sense used by the Sentencing Council) as the judge described it. It certainly should not have been the finishing point. This was a case of possession of a loaded firearm with intent. The gun was loaded with particularly dangerous ammunition. The consequences of the offender’s actions, as we have endeavoured to explain, were potentially lethal. 19. The offender had little option but to plead guilty to possession of the weapon and the ammunition, given the circumstances of his arrest and the DNA evidence. Given the nature of the bullets loaded in the gun some may think he had little option but to plead guilty to the more serious offence. This he did belatedly. However, we are prepared to proceed on the basis he would be entitled to credit of 10 % for his plea of guilty to the more serious offence entered as it was on the day of trial. We bear in mind that this not the first time the offender has been sentenced on these matters, but also that he was warned by the judge of the possibility of this Reference. Balancing all the aggravating and mitigating factors of the offence and offender, in our judgment the very least sentence we can impose today is one of 10 years imprisonment. We quash the sentence of 5 years imprisonment on Count 1 and substitute for it a sentence of 10 years. Time on remand will count towards the sentence as before.	[ "LADY JUSTICE HALLETT DBE", "MR JUSTICE IRWIN", "MR JUSTICE NICOL" ]	2012_02_03-2925.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/86/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/86	1,084
0f294598a5e589938b7a1bfc2a53b81b99efb7898146e2e61a20d6da9c9823bc	[2005] EWCA Crim 1984	EWCA_Crim_1984	2005-07-26	supreme_court	Neutral Citation Number: [2005] EWCA Crim 1984 Case No: 2004/07335/D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM STAFFORD CROWN COURT (HIS HONOUR JUDGE SHAND) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 26 July 2005 Before : LORD JUSTICE MAURICE KAY MR JUSTICE FIELD and SIR JOHN ALLIOTT (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : R - and - JENESON - - - - - - - - - - - -	Neutral Citation Number: [2005] EWCA Crim 1984 Case No: 2004/07335/D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM STAFFORD CROWN COURT (HIS HONOUR JUDGE SHAND) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 26 July 2005 Before : LORD JUSTICE MAURICE KAY MR JUSTICE FIELD and SIR JOHN ALLIOTT (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : R - and - JENESON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Rex Tedd QC on behalf of the appellant Mr Drew on behalf of the Crown Hearing date : 5 July 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. This is the appeal of Colin Jeneson against conviction by a jury in the Crown Court at Stafford on the 25h November 2004 on five counts of indecent assault on a male (counts 1, 2, 3, 6, and 9); two counts of buggery (counts 4 and 5); and one count of assault with intent to commit buggery (count 10). On the same day the appellant was sentenced by the trial judge, HHJ Shand to the following terms of imprisonment, all of which were concurrent: count 1 – three years; count 2 – four years; count 3 – four years; count 4 -- eight years; count 5 -- eight years; count 6 -- six months; count 9 -- four years; and count 10 – seven years. 2. The appellant was acquitted by the jury on one count of indecent assault (count 7). The prosecution offered no evidence and the jury were ordered to find the appellant not guilty one count of indecent assault on a male. In relation to a further count of indecent assault the judge directed that the jury find the defendant not guilty. A further count of buggery was allowed to remain on file, only to be proceeded with by leave of the court. Three counts of buggery and four counts of indecent assault on a male were stayed as no pleas had been taken. 3. The charges the appellant faced were founded on allegations by a number of men who many years before had been pupils in children’s homes where the appellant had been a teacher. The homes in question (and the relevant periods of time) were: Kingswood Assessment Centre in Bristol (“Kingswood”) (July 1967 – July 1969); the Druids Approved School in Staffordshire (“Druids Heath”) (July 1969 – July 1972); and the Tennal Assessment Centre, Harbourne in Birmingham (“Tennal”) (August 1972 – 1977). 4. It was the prosecution case that the appellant deliberately targeted boys in his care at work. He often befriended them at the start and then moved on to stroking or touching their legs and then their genitals. He would then indecently assault them (masturbation and oral sex) or bugger them. In some cases the incidents were isolated and in others they became part of a long-term abusive relationship. Aside from counts 6 to 10, which represented individual incidents, the other counts were samples of lengthier courses of conduct. Consent was never an issue as the victims were all under sixteen years of age. 5. None of the complainants came forward spontaneously or at the time. They were all contacted by police during widespread investigations into a range of children homes. The first allegations were made in 1999. The appellant was arrested by DC Potts, in early 2003 when he visited England from Norway as a result of these investigations. He had gone to live in Norway in 1977 having married a Norwegian woman whom he met whilst on a one year sabbatical at Newcastle University. In Norway the appellant had had twin daughters and had taught for nine years before joining a major computer company where he worked for the last 18 years. 6. Counts 1 to 7 involved allegations of sexual abuse whilst the appellant was teaching at Druids Heath. The complainants were Raymond Greenfield (counts 1, 2 and 3 -- indecent assault), Ricky Hoare (counts 4 and 5 – buggery); John Budgeon (count 6 – indecent assault) and Tommy Cadman (count 7 – indecent assault). 7. Raymond Greenfield admitted that he had psychiatric problems. He testified that when he was a pupil at Druids Heath a man whom he knew as “Colin” would take him to his (Colin’s) bedroom and touch his penis. On one occasion he was made to masturbate the appellant; on other occasions he gave the appellant oral sex; and on another occasion the appellant touched his penis in the boot room. 8. The witness Ronald Rowland said that on one occasion he saw Raymond Greenfield giving oral sex to the appellant in the kitchen area in the Annex. Rowland then started “acting the goat” and asked another boy who was nearby, Dicky Harrison, “Do you want to suck my cock?” The appellant walked in and caught him saying this and took him before the headmaster, Mr. Bright, saying that Rowland had made sexual allegations against him. Bright said that nothing like this happened in his school and Rowland did not know what he was letting himself in for. This scared Rowland and Harrison and they withdrew their allegations. 9. Since his time at Druids Heath, Ricky Hoare had changed his name to Ricky Ford. Ricky Ford alleged that the appellant indecently assaulted and buggered him on frequent occasions in the science classroom (count 4) and in the appellant’s bedroom that was situated in the annex (count 5). Ricky Ford had had a bad record since the age of ten. At the time of the trial he was 45 years old and was serving a seven-year prison sentence for burglary. The records from Druids Heath reveal that Ford left in 1973, a year after the appellant. He had absconded form Druids Heath on a number of occasions; he insisted that this happened on more than the four occasions documented. He did not accept the results of a psychological assessment completed in 1973 which concluded that he suffered from a gross personality disorder and fantasies. In 1999, in the course of an investigation into offences at children’s homes, the police visited Ford when he was a serving prisoner. At this point he said that it was another member of the staff, Mr. Greensill, who had sexually abused him. It was only in 2003 that he first implicated the appellant. In evidence he stated that Greensill had started sexually to abuse him two months before the appellant had started to abuse him. Since leaving Druids Heath, he had not discussed the sexual abuse he had suffered as he wanted to put it behind him; he felt that no one would believe him. 10. He described his science teacher as being in his mid twenties to early thirties and approximately six foot two inches tall, light hair – possibly light brown, with a slim build. He also noted that the appellant usually wore jeans and a t-shirt. He recalled the appellant driving a flash sports car – an Interceptor-- and moving from the main building to live in the annex. He clearly remembered that it was the science teacher who was the abuser. 11. In respect of count 4 Ford testified that the first occasion on which the appellant abused him was on a school open day and summer fete. He was at the front of the school when the appellant asked him to go to the science classroom as he wanted to speak to him. The blinds to the classroom were partly down and the appellant closed them completely and then locked the classroom door. As Ford stood in front of the desk, the appellant placed his hands all over his body on the outside of his clothes. He started at the top and then worked his way down before placing his hands into his short-trousers, feeling Ford’s penis and asking, “Is it nice?” Ford did not resist as he feared repercussions. The appellant continued to touch Ford’s penis and then bent him over the desk and buggered him. He told Ford to say nothing or there would be repercussions. This conduct was often repeated on subsequent occasions. 12. In respect of count 5 it was Ford’s evidence that his dormitory was located in the annex where the appellant lived and the appellant would approach him at about 6.00pm, sometimes with Greensill and other times alone. Once in the appellant’s bedroom, the door was locked, and the appellant would remove Ford’s clothes, touch his penis and then bend him over the bed and bugger him. This would last anywhere between thirty minutes and one hour. When the appellant had finished he would send Ford downstairs and say, “Did you enjoy yourself? Don’t say anything.” The appellant would give Ford jelly tots sweets which he loved. On the first occasion that he went to the appellant’s bedroom nothing occurred; the abuse only started on the second visit. Ford described the appellants’ bedroom as containing one double bed, two wardrobes and two chests of drawers. There were lots of boxes with clothes in them that made the room look like an Oxfam shop. The sexual abuse in the bedroom lasted for between one year and eighteen months and occurred once a week. Ford testified that he told Greensill he was being abused by the appellant but was informed that, “ Mr. Jeneson wouldn’t do a thing like that, he’s my friend,’ and so he kept it bottled up. The abuse ended when he left Druids Heath; he thought that when he left the appellant was still there. 13. A former Druids Heath pupil called Keith Price also gave evidence in respect of counts 4 and 5. He said that he had a wonderful time at Druids Heath. Neither the appellant nor Greensill ever bothered him. He slept in the annex and remembered that the appellant had a room at the top of the annex which had a sloping ceiling. On four occasions he visited the appellant’s room to watch “Match of the Day” on television on a Saturday. There were no other boys there; sometimes the appellant was there and other times not. He also saw several boys including Ford and John Manley go up to the appellant’s room. In cross-examination he conceded that he had only seen the boys go to the top floor of the annex, but he insisted that he saw them going into Greensill’s flat. 14. Count 6 relates to a single incident that occurred in Wales when the appellant took a group camping. The complainant, John Budgeon, had a criminal record dating back to 1967 and ending in 1997. He described himself as “a kid off the rails” and as an adult “a man who had done a lot of bad things in the past.” He confessed that he now had a drink problem and admitted that he could not remember the names of the other teachers. Before speaking to the police in 1999 he had only told his partner of the sexual abuse that he had experienced at Druids Heath. In 1999 he made a statement to the police in which he said that the name of his assailant was Jennings or Jenkinson but he stated that they did not use staff surnames; instead he referred to his assailant by his nickname which was Jelly Tots . In his statement he remembered that his assailant had a nice sports car, possibly a red Triumph. 15. Budgeon testified that the appellant felt his penis during some horseplay on a beach at Lland, in Wales where the boys from Druids Heath were taken on holiday every year. Budgeon admitted to not having any recollection of the context. He also remembered being approached by the appellant, after being with him in his car and the appellant telling him, “Do to me what you do to Mr. Larkin.” He added that Mr. Larkin was a member of staff and everyone new that Mr. Larkin had singled him out for special treatment, although Mr. Larkin did not sexually abuse him and there was no suggestion that he did. 16. The complainant in respect of count 7 (indecent assault) was Tommy Cadman. Cadman had a history of offending as a juvenile and as an adult; however his last conviction was in 1983. He attended Druids Heath and slept in the annex for approximately six months. He accepted that he was weak willed and attention seeking; however he would not accept that he was manipulative. He was first interviewed by the police in 2004. In evidence, he said that when the appellant transferred from Tennal to Druids Heath he took him with him. He described the appellant as then being about 30 years old, near six foot, of medium build with jet black hair and a local West Midlands accent. He also remembered a red sports car, possibly a Jaguar or an MGB. He said that the appellant’s nickname was Concorde due to his big nose. He remembered being taken to swimming with three other boys in the appellant’s red sports car when he was approximately 9 ½ years old and in his first year at Druids Heath. The appellant would stop along the way and take each boy alone into the woods, whilst the others waited by the car. On this occasion the appellant took Cadman approximately 100 to 150 yards away from the car and attempted to fondle his penis without warning. Although it was over his jeans and lasted for only a couple of seconds he described it as not being accidental. Cadman broke free from the appellant’s grasp and fell to the floor. The appellant chased him and hit him on the back of the legs with some twigs. This was painful and lasted for about five minutes. The appellant told Cadman that if he said anything he would be in trouble. 17. Count 8 was stayed by the judge as an abuse of process. 18. Counts 9 and 10 relate to incidents that occurred whilst the appellant was employed at Tennal. The complainant, Carl Greenaway, was a prolific offender as a juvenile, but had no convictions as an adult. Previous reports on Greenaway describe him as a pathological liar without conscience or compassion although he denied that this was a fair assessment of him. He did not tell his parents about the sexual abuse as he did not want them to be upset and he felt that no one would believe him. 19. He described the appellant as being about 5 feet 9 inches with darkish hair, in his twenties and a smoker. He was a gentleman when he first met him. He remembered that the appellant lived on site. He described him as often wearing a suit and tie. 20. In respect of count 9 (which was a specimen count) Greenway testified that the first occasion the appellant asked him to masturbate him occurred in the appellant’s flat. The appellant put his arm around him, took his penis out and asked Greenway to masturbate him, which he did, albeit reluctantly. Greenaway was forced to perform this activity on the appellant on about ten further occasions and often the appellant would ejaculate and use tissue or a handkerchief to clean up. On half of these occasions the appellant would remove his clothes and the clothes of Greenaway. On about four occasions the appellant would wake Greenway from his sleep in the dormitory and take him back to his room. 21. Greenway said that the appellant would visit Greenaway’s parents at their home. He remembered that the appellant drove a camper van (a green A40 van and on another occasion he had borrowed an orange DAF). On one occasion he remembered seeing the appellant putting his arms around his two younger brothers. At that point he asked the appellant to take him for a ride in his van to take him away from his brothers. He preferred that he suffered rather than his brothers. On six or seven occasions the appellant took Greenaway down country lanes in his van. On a few of these occasions they were both naked and Greenaway would have to masturbate the appellant on the double pull-out bed in the camper van. Even after Greenaway left Tennal, the appellant continued to visit him for a month afterwards. 22. In cross-examination Greenaway denied initiating any sexual activity or pushing the appellant onto the bed. He also denied ever telling the appellant that he had been a gay prostitute in London. He had never been a prostitute and had only ever been to London on one occasion on which he had been arrested by the police. 23. In respect of count 10, Greenaway testified that on one occasion the appellant told him to pull his legs up towards his chest as he lay on his side on the bed in the camper van. The appellant then held Greenaway’s hips and tried to put his penis into Greenaway’s anus. Greenaway said that it hurt and told the appellant to stop, which he did. 24. Greenway stated that the abuse only stopped after he saw the appellant in a blue Volvo which he had told Greenaway his wife had brought. He told him that his wife lived in Sweden or Norway. 25. Count 12 was withdrawn from the jury after the close of the prosecution case on the ground that it was not clear on the evidence that the complainant, Paul Boardman, had been under 16 years at the time of the alleged indecent assaults. 26. The appellant submitted that there was no case to answer on counts 4 and 5 because of the unreliable nature of Ford’s evidence. The judge ruled, however, that counts 4 and 5 could go to the jury. The correctness of that ruling is one of the grounds of appeal that has been argued before us. 27. In giving evidence in his defence, the appellant said that he had never abused any boy. He had never had any sexual activity with any of the complainants. In 1977 he finished work at Tennal and went to live in Norway with his wife. It was only in 2003 when he voluntarily returned to the UK that he was arrested. When he was interviewed he was tired and confused. He insisted that he only had one room in the annex, up the winding wooden stairs on the second floor. His window faced the neighbours’ garden. When he was interviewed he told the police that could not recall the names Ronald Rowland and Dicky Harrison. He denied Greenfield’s allegations and denied Rowland’s allegations that he had seen Greenfield giving the appellant oral sex and had been taken before the headmaster, Bright, by the appellant. 28. However, despite what he said to the police in interview, and despite challenging Rowland’s account through his counsel in cross-examination, in evidence the appellant admitted to taking Rowland to the headmaster, Mr. Bright, regarding a sexual matter. He said he had seen Rowland taunting another boy in the washing up area saying “Go on, do it to me like Jeneson did it to me,” and this had led him to believe that Rowland had been trying to make out that he had been sexually assaulted by the appellant. He described Rowland as a troublesome character. When asked why he had denied taking Rowland to the headmaster he replied that he had only recalled the incident in the last twenty-four hours. 29. The appellant described Ford as the most deceitful liar and manipulator that he had ever come across. The appellant lived in the same flat throughout his time at Druids Heath. He did not have any keys to the education block as such. He would have to obtain them from another member of staff, although he admitted that he would not need a reason to obtain them but the fact would be noted. The venetian blinds in the science block were only on the road side and the doors had panels of glass, half the way up and they faced the fields. If he had been away from the fete for 45 minutes that fact would have been noted and Ford would have reported as an absconder. 30. He never had a double bed in his room and he did not have chests of clothes like an Oxfam shop He had never taken pupils to his bedroom. If Keith Price had watched Match of the Day in his room it would have been in a group, but he did not remember it happening. Neither Greenfield nor Price ever came to his room on their own. 31. The appellant denied any sexual activity between himself and John Budgeon. There was frequent physical contact between staff and the boys in a good natured way and if there had been some horseplay there may have been some accidental contact, but he could not remember that occurring. 32. The appellant did not agree with Cadman’s description of him. He did not have a West-Midlands accent or black hair; nor did he smoke. He confirmed that he was the science specialist and that his nickname was Jelly Tots as he handed out sweets at Bingo. He denied giving the boys sweets on any other occasions. At the weekends he took a maximum of three people in his car to swim. His MGB sports car would not have been able to accommodate more than three boys and himself. He would only be the lone member of staff if there were staff shortages. He denied all of Cadman’s allegations against him. He could not remember a single occasion on which the boys were split up as described by Cadman. 33. The appellant admitted to meeting Greenaway’s parents and socialising with them. Even though he drove a VW camper van at the time he was never alone with Greenaway, as another boy, Salisbury, who lived close by, was always present. He would take both of them out and their trips would not last more than one hour. He denied putting his arm around the younger brothers of Greenaway. He never had any sexual interest in Greenaway; there was never any sexual activity in the camper van. He never owned or borrowed a DAF or A40 van. He only acquired a navy blue Volvo in January – June 1977, after he married his wife. They took it to Norway in August 1977. The appellant stated that he never saw Greenaway again after the summer of 1974 and certainly never told him that he was married or that he drove a Volvo. 34. In cross-examination he said that he was shocked to be approached sexually by Greenaway, but he did not report it. At the time he was very naïve and did not realise the gravity of the situation; he had a close pastoral relationship with Greenaway, even after he left. He admitted that he did not visit the home of any other boy. 35. The appellant called as a witness Brian Keith Greensill who had taught at Druids Heath from 1965 to 1973 and was the warden of the annex in his last three years there. It was Greensill who Ford said was his abuser when he was first interviewed by the police in 1999. In the course of the trial it was discovered that Greensill was living in Turkey and he arranged to return to England to give evidence. Before giving evidence he had been arrested and interviewed by the police about allegations made against him by a number of complainants, some of who were not witnesses at the appellant’s trial. 36. Greensill testified that in the last two to three years before he left they introduced a night watchman scheme in the annex. If a child’s bed was empty, a senior member of staff was informed. He recalled that the appellant moved straight into the annexe accommodation on the top floor. He also recalled that the appellant’s nickname was Jelly Tots. He said that the appellant was hard working and got on well with the boys. He described Ford as being a very attention-seeking boy who was dishonest. He remembered Raymond Greenfield as being a lad of low intelligence. He got to know Greenfield’s mother well and there was never a complaint by Greenfield about sexual behaviour against the appellant. If Rowland had made an allegation against the appellant, Greensill, as warden, would have wanted to know about it; it would almost certainly come out at a staff meeting. He did not recall ever hearing of such an incident involving the appellant. There were frequent trips for boys who stayed at the school at weekends. When a minibus was not available the staff would use their own vehicles. “Wide games” such as hide-and-seek were often played with children going into the woodland of a limited certain area to hide their movements. 37. Greensill was cross-examined about numerous allegations of sexual abuse being made against him by former boys at Druids Heath. He denied all the allegations. He also denied coming to give evidence for Jeneson to protect his own back. The manner of the cross-examination of Greensill is a further ground of appeal that was advanced on behalf of the appellant. 38. At the conclusion of the case for the defence, the appellant submitted to the learned judge that none of the surviving allegations was capable of supporting any of the other allegations and as such the standard similar fact direction would not be sufficient: accordingly, the learned Judge would have specifically to identify for the jury which evidence was capable of supporting a particular allegation. The learned judge rejected this submission, being of the view that the proposed direction would be to invade the function of the jury. He was prepared, however, to make it plain to the jury that certain matters were so tenuous in their similarity that they should not be regarded as similar fact evidence or supportive of any of the allegations. This ruling by the judge and the way in which he directed the jury on similar fact have also been the subject of attack in this appeal. 39. We propose to deal with the grounds of appeal in the order in which they relate to the sequence of events at trial. Submission of No Case to Answer 40. As we have said, at the conclusion of the case for the prosecution, Mr Tedd QC submitted to the judge that there was no case to answer in relation to the counts in the indictment where Ricky Ford was the alleged victim. These counts, 4 and 5, were the only ones charging buggery. The submission was made by reference to the second limb of Galbraith , 73 Crim App R 124 at page 127 on the basis that there was some evidence “… but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.” 41. In such a case, Lord Lane CJ stated: “(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.” 42. Mr Tedd also refers to Smolenski , The Times, 28 May 2004, in which Lord Woolf CJ observed that in cases of historic sexual abuse the trial judge should exercise careful scrutiny to see whether the case is safe to be left to the jury. 43. Mr Tedd draws attention to the following features of Ford’s evidence. (1) The alleged offences occurred about 32 years before the trial. (2) The first complaint made by Ford was on 12 November 1999. It was that he had been sexually abused at Druids Heath not by the appellant but by Greensill “who was the only member of staff who did these things to me”. (3) He did not make any allegation about the appellant until 2003. (4) There were significant inconsistencies between the 1999 complaint, the 2003 complaint and Ford’s evidence at trial. (5) Ford has a bad criminal record much of which relates to deceptions of the elderly and vulnerable. At the time of giving evidence he was serving a sentence of seven years or more. (6) Ford suffered a serious brain injury in 1997. (7) He stated in evidence that the abuse at the hands of the appellant continued until he (Ford) left Druids Heath. In fact it was common ground that the appellant left Druids Heath about a year before Ford did. (8) Ford’s allegations of violent buggery went considerably beyond the nature of any allegation by any other complainant. (9) Apart from the possible impact of similar fact evidence, there was no supporting evidence in relation to Ford’s allegations. The evidence of Keith Price cannot be said to support Ford to any significant extent. 44. Having referred to these shortcomings in Ford’s evidence, Mr Tedd submits that a perusal of the transcript suggests that the judge did not exercise the “very careful scrutiny” required by Smolenski . At the conclusion of Mr Tedd’s detailed submissions to the trial judge Mr Drew said: “… in general terms, my response to my learned friend’s submissions is simply this: these are all matters for the jury. Would your Honour like me to take it any further than that?” 45. The response of the judge was: “Not at the moment, unless there is something else up Mr Tedd’s sleeve … Well, I will say it: it is a matter for the jury, isn’t it?” 46. The judge indicated that he would direct the jury in a way which drew attention to the good character of the appellant and would juxtapose it with the bad character of Ford and others. The judge was faithful to this in his summing-up. He referred to Ford as having been described in his youth as a person “with a scant recognition of the difference between right and wrong”. He referred to Ford’s life of dishonesty and to the brain damage sustained in 1997. He added: “You may think as a matter of common sense and common fairness you would approach [his] evidence with the utmost care and circumspection and you may think that, in the absence of any supporting evidence for his allegations, it would be dangerous to convict Mr Jeneson upon the basis of his evidence.” 47. He referred to the evidence of Keith Price in that context and summarised it fully at a later point. 48. Ford was a witness with obvious shortcomings. The criticisms of his evidence made by Mr Tedd are – and are conceded by Mr Drew to be – valid. However, in our judgment it cannot be said that the judge was wrong to leave counts 4 and 5 to the jury. He had of course seen Ford give evidence. It is implicit in his response to the submission that, notwithstanding the identified shortcomings in his evidence, the judge did not consider Ford to be beyond credibility on essential matters in the eyes of a properly directed jury. It is true that the ruling of the judge was informal and extremely brief. However, we do not consider it possible that this very experienced judge did not have the Galbraith test fully in mind. We have the clearest impression from the transcript that this was a case in which counsel and the judge knew each other well and had complete trust in each others’ knowledge of basic principles without the need for them to be spelt out. Whilst we do not commend this as a blueprint for articulating important rulings, in this particular case and on this particular issue we do not have any concern that the judge may not have applied the correct test. Mr Tedd seeks to derive support from the recent case of Gallo [2005] EWCA Crim 242 in which an appeal was allowed on the ground that the judge had not properly dealt with a submission of no case to answer. Kennedy LJ said (at page 23): “We recognise that, in giving a ruling against a submission of no case, a judge will want to avoid appearing to have formed a view in relation to contentious issues. But we do believe that, in this case , the submission merited a more analytical response than it received. We are inclined to the view that, if the judge had undertaken that analysis, he might well have been driven to the same conclusion as this Court.” 49. However, the significant feature of that case is that the inconsistencies and inadequacies of the complainant’s evidence related to the very matters that formed the subject of the indictment and the immediately surrounding circumstances. Moreover, on a close analysis of the brief ruling by the trial judge, there was at least a danger that the judge had misdirected himself as to the appropriate test. We are satisfied that Gallo is readily distinguishable. We find ourselves unable to say that the judge in the present case erred when he rejected the submission of no case to answer. The Cross-examination of Greensill 50. This ground of appeal was not included in the grounds of appeal which were submitted to the single judge. Mr Tedd has explained that this was an error on his part. Mr Tedd now describes Greensill as “the principal defence witness”. His importance was that he denied the allegation of Ford that he (Greensill) had sexually abused Ford. Greensill also gave evidence the thrust of which was to discredit some of the other complainants. In addition he attested to the good character of the appellant. His very appearance as a witness at the trial was unusual. It was only after the trial had started that the defence (with the assistance of the prosecution) traced Greensill to Turkey where he was living and working. He voluntarily returned to England and surrendered to the police who arrested and interviewed him. He was not charged although at the time he gave evidence he was on police bail pending further enquiries and a decision. We are told that since the appellant’s trial a decision has been taken not to prosecute Greensill. 51. The cross-examination of Greensill occupies some 20 pages of transcript. It began with questions of background matters including the layout of the premises at Druids Heath and some of the practices and procedures. The controversial part of the cross-examination occurred when Mr Drew questioned him about his arrest and the allegations that had been made against him. In an initial short passage, Greensill confirmed an allegation of buggery which had been made by Ford, a similar allegation by Manley and allegations of indecent assault by Cadman and Cave. Neither Manley nor Cave had been witnesses in the prosecution of the appellant. The cross-examination did not stop there. The judge gave Greensill a second warning that he was not obliged to answer any questions if to do so might incriminate him. Mr Drew proceeded to question him about the details of the allegations made by the persons who had made statements. It is apparent from the transcript that Mr Drew had those statements at the time. In the event, Greensill denied all the allegations. He denied further allegations in relation to one or two other named but absent persons. At the end of the cross-examination, Mr Drew put to Greensill that the allegations were serious, a proposition with which Greensill agreed. In a passage which lacks clarity Mr Drew was suggesting to Greensill that he had an interest in giving evidence in support of the appellant, namely that if the appellant were to be acquitted that would be advantageous to Greensill in relation to any decision to prosecute or any prosecution of himself. That appears to have been the import of the questions. They certainly did not attract assent to the proposition. 52. Immediately after Greensill withdrew, Mr Tedd made some submissions to the judge in the absence of the jury. He sought to persuade the judge that, in view of Greensill’s denials, there was no evidence that had emerged which was adverse to his credit and, in the circumstances, the jury ought immediately to be told to disregard the allegations. Mr Drew did not accept that the cross-examination went simply to credit. He explained the reason why he had asked the questions, namely in order to provide a basis upon which to assert the partiality of Greensill. Mr Tedd then said: “The jury are no doubt perfectly entitled to have in mind that there are untested allegations made against Greensill and that, because of that, that’s a matter that he may have in mind when he is considering the tack that he takes in his evidence before them. That’s a perfectly fair point. I don’t seek to shut my friend out from that. But that, in my submission, is the limit of it.” 53. The judge came to the conclusion that a consensus had emerged between counsel and, when the jury returned to court, he immediately spoke to them about the cross-examination of Greensill. He observed that Greensill was not on trial; that he had been called as a witness and, as with any other witness, opposing counsel was entitled to test his evidence in cross-examination so as to question his credibility. The judge then observed that Greensill had denied all the allegations. He added: “That really is an end of the matter as far as the truth of those allegations is concerned. The prosecution cannot … start calling all these people whose names have been bandied around … to set up a mini trial of Greensill.” 54. He added that the allegations had been put in as a means of challenging credibility. He then referred to the approach of Mr Drew at the conclusion of the cross-examination and represented the view of the prosecution in this way: “They are saying ‘Look, Mr Greensill, you have come here with a motive to give evidence in support of Mr Jeneson and to discredit these various people who are making allegations against you and you have a motive for doing that in order to spike their guns in any possible trial in the future of Mr Greensill.’ Whether there will be such a trial or not we don’t know. He has not even been fully interviewed yet. But that may or may not be a good point made by the prosecution. Its certainly a point they’re entitled to make. Whether it’s a good point or not … will be a matter for you in due course.” 55. The judge then said that it was a matter for the jury whether they believed his evidence, adding “Is he a witness of truth? Has he a motive for coming to give evidence in support of Mr Jeneson, which might not be true? That’s the issue. That’s the only issue.” 56. In the course of his summing-up the judge returned to the matter, saying: “The prosecution … are perfectly entitled to put those matters to him and to attack his credibility but they are bound by his answers of denial. The prosecution … put it in this way … : the prosecution say to Mr Greensill ‘Look if these allegations are being made against you by people like [Ford], you have an agenda to ensure that Mr Jeneson is acquitted to protect your own back.’ … He says ‘That is not so. I have come of my own free will to give evidence.’ He gave evidence, of course, having been warned that he could refuse to answer any question that might incriminate him. You will have to make of his evidence what you will.” 57. Mr Tedd now makes the following submissions about the cross-examination of Greensill. First, he submits that, as a matter of principle, unproven allegations of criminal conduct should not be put in cross-examination to either a defendant or to a witness. Secondly, there was nothing which the judge could have said in his summing-up which could have remedied the destructive impact of such material. Thirdly, what the judge did say to the jury did not go anywhere near far enough. Fourthly, the unfairness was exacerbated by the fact that, unknown to the jury, the absent complainants had substantial criminal records which undermined their credibility. For example, Manley is a convicted killer who is presently confined to a special hospital. 58. There is a long line of authority justifying the proposition that, at common law, a defendant ought not to be asked about unproven allegations. In Maxwell v DPP [1935] AC 309 , at page 320, Viscount Sankey LC said: “The mere fact that a man has been charged with an offence is no proof that he committed the offence. Such a fact is, therefore, irrelevant; it neither goes to show that the prisoner did the acts for which he is actually being tried nor does it go to his credibility as a witness. Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases, because, if allowed, they are likely to lead the minds of the jury astray into false issues; not merely do they tend to introduce suspicion as if it were evidence, but they tend to distract the jury from the true issue – namely, whether the prisoner in fact committed the offence on which he is actually standing his trial. It is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined.” 59. The speech of Viscount Simon LC in Stirland v DPP [1944] AC 315 , 324, is to like effect. In the exceptional circumstances governed by section 1(F) of the Criminal Evidence Act 1898 , circumstances may arise in which a defendant can be cross-examined about unproven allegations. However, that is nothing to the point in the present case. Mr Tedd rightly observes that the principle illuminated by Maxwell is one which, at common law, applies not only to defendants but also witnesses. This is best illustrated by the case of Edwards [1991] 1WLR 207 where the question was whether police officers could be cross-examined about outstanding disciplinary matters. Lord Lane CJ said (at page 216B-D): “This is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the court should exercise its discretion. The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses’ reliability, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he represents himself to be, but bearing in mind on the other hand the fact that a multiplicity of complaints may indicate no more than what was described before us as the ‘bandwagon’ effect. We do not consider that it would have been proper to suggest to the officer in the present case that he had committed perjury or any other criminal offence by putting to him that he had been charged but not yet tried. Nor do we think that complaints to the Police Complaints Authority which have not been adjudicated upon would properly be the subject of cross-examination.” 60. Mr Drew accepts that these authorities establish that it is impermissible to cross-examine a witness about unproven allegations simply in order to discredit him. However, he submits that that is not what occurred in the present case. Although the judge appears to have treated the cross-examination as going simply to credit, in fact Mr Drew had made clear that its purpose was to establish partiality on the part of Greensill. It mattered not whether the allegations were true or false. What was being suggested was that the very existence of the allegations provided a motive for Greensill to give untruthful evidence in the trial of the appellant so as to assist his own cause which was still under investigation and might be expected to result in prosecution. Mr Drew accepts that credibility and partiality may be inextricably linked. However, he submits that it would have been wrong and unfair to the prosecution if he had not been permitted to explore the possibility of partiality on the part of Greensill. To all outward appearances, Greensill was a respectable witness with no axe to grind. If the matter had been left there the jury would not have been able to consider his evidence from a realistic perspective. 61. In our judgment, these submissions of Mr Drew are well founded. It was made clear to the jury at the conclusion of the cross-examination and again in the summing-up what the purpose of the cross-examination had been. That purpose did not depend upon whether the allegations against Greensill were true or false. As to that, the judge directed the jury that the prosecution were bound by the denials. We take the view that it was no less appropriate for Mr Drew to cross-examine Greensill with a view to establishing that he had an ulterior motive for giving evidence supportive of the appellant than it would be for counsel to cross-examine any witness about the possibility of any ulterior motive, whether it be personal animosity, pecuniary interest or anything else. Thus, provided that it is made clear that the denied allegations must not be assumed to be true, there was a proper basis for the cross-examination. 62. The question then becomes one of whether the judge gave the jury sufficient direction as to how they should approach the cross-examination. To the extent that the judge seemed to consider that the cross-examination went only to credit, he was not entirely correct. However, that did lead him to direct the jury that the prosecution was bound by the denial of the allegations. Ultimately, both in the aftermath of the cross-examination and again in summing-up, the judge made it clear what the proper purpose of the cross-examination had been. To leave the matter on the basis of “You will have to make of his evidence what you will” may not have been enlightening. However, we are satisfied that the directions as a whole would have not have caused the jury to misuse the cross-examination and what it yielded. Moreover, we regard it as not insignificant that, at the time, Mr Tedd conceded that cross-examination of the type that occurred in order to explore partiality was permissible. 63. In our judgment, the cross-examination was not inappropriate, given its objective. Its objective was sufficiently explained by counsel and by the judge and, in the circumstances, it cannot give rise to any sustainable ground of appeal. The situation was an unusual one and, as it unfolded, it undoubtedly gave rise to difficulties for both counsel and for the judge. We do not consider that the responses of any of them gave rise to anything which affects the safety of the convictions. Similar Fact Evidence 64. In a nutshell, the third main ground of appeal contends that in his summing-up the judge adopted an oversimplified approach to the question of similar fact evidence. In a case of this sort, it is inevitable that issues would arise as to the extent to which the evidence of the individual complainants might support the evidence of others. The mere fact that several counts were being tried together and were founded on the evidence of a number of different witnesses did not by itself determine whether evidence on any one Count was admissible upon any other: see Ludlow v Metropolitan Police Commissioner [1971] AC 29 . Essentially, Mr Tedd’s submission is that the judge abdicated his responsibility and left to the jury not only the question of what was supportive as between Counts but also the prior question of what was capable of being so supportive, the latter being within the sole province of the judge. The classic statement of the modern law is that of Lord Mackay of Clashfern LC in DPP v P [1991] 2AC 447 , at page 462D-E: “When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence.” 65. In the present case, having directed the jury that each count in the indictment must be considered separately, the judge said: “Now, in a case such as this, having said that, it is not always possible or indeed always right to consider each count in watertight isolation from every other count. The prosecution in this case say to you that you should not look at these charges in watertight isolation and that some sort of pattern emerges. Now, sometimes such patterns – lawyers call them similar fact evidence – can be of assistance to the jury. Sometimes what witness A says about himself may be capable of giving support to similar allegations made by witness B about himself. But approach it with great care, members of the jury, and this is my direction of law to you. Firstly, do not be tempted to use the evidence of witness A, whoever it may be, in support of witness B unless you are sure in the first place of the evidence of witness A being truthful and accurate. Secondly, you should only use the evidence of witness A in support of allegations made by witness B if the evidence of witness A is genuinely independent from the evidence of witness B and, therefore, you must ask yourselves are you sure that A and B haven’t put their heads together to make false allegations against the defendant. If you are not sure of that, the mutual support of A and B is of no value whatsoever and you must ignore it. You’ve got to be sure that there was no collusion, no collaboration of that kind before you consider whether the evidence of witness A may indicate that witness B was telling the truth or indeed vice versa. Thirdly you’ve got to ask yourselves this. If there are similarities, is it reasonably possible that the two people independently making the similar allegations that you’ve heard could be independently lying or mistaken? If you think that’s incredible, then you may well be satisfied that B was speaking the truth if he is talking of matters similar to the allegations made by A. In considering that question you must consider two important aspects of the evidence. Firstly, the degree of similarity between the accusations. The greater the degree of similarity, the more likely it is that independent witnesses are speaking the truth. You may think it would be a remarkable coincidence if they hit upon the same lies or made the same mistakes as to matters of detail. On the other hand, the less the degree of similarity, the less weight should be given to their evidence. Secondly, quite apart from that deliberate putting heads together to concoct a false story, that I have already talked about, you’ve got to ask yourselves whether A and B may have been consciously or unconsciously influenced in their evidence through hearing of the complaints made by others and, if you think it’s possible that they or any of them may have been influenced in making the accusation at all or in the detail of their evidence in that way, you must take that into account in assessing what weight, if any, you give to the evidence.” 66. The judge then went on to give some illustrations. For example, he instructed the jury that if they were not sure as to the truthfulness of Ford’s evidence, “There is no way you should contemplate using [Ford’s] evidence in support, for instance, of the allegations by Greenaway of an assault with intent to commit buggery, even if there are similarities.” As to the possibility of collusion, the judge provided a specific example. 67. Turning to the question of the degree of similarity, the judge said: “I’ve talked about it in general terms but let’s look how it relates to this case. Please, members of the jury, don’t just throw all the evidence into a great big melting pot and say ‘Well, there you are, its all very similar, we can convict across the board.’ That would not be appropriate at all. If you are sure of the evidence of witness A as to certain facts, consider carefully and individually specific aspects of A’s evidence that may support the evidence of B as part of a pattern over and beyond the possibility of mere coincidence. Let me direct you as to this as a matter of law, members of the jury. What is not capable of being corroborative cross-supporting evidence in that way is a general propensity to homosexual conduct. If you’re sure that Mr Jeneson did have a homosexual relationship of some sort with one of the boys, that of itself should not be used against him in respect of any other boys.” 68. The judge then reminded the jury of aspects of the evidence which the prosecution contended bore the hallmark of similarity. He added: “Now analyse carefully to what extent there is sufficient similarity for you to adopt this cross-fertilisation … You’re not entitled to rely on similarities if they are very vague and tenuous; it must be fairly specific. Then, members of the jury, as an example of that, one has Budgeon being touched on the beach, allegedly. If you are sure of that, that would not be supportive of allegations of [Ford] or Greenaway as to buggery or attempted buggery.” 69. Finally, on this issue, the judge took the example of the allegations of Ford and Greenaway. He said: “What if you are sure about Greenaway’s evidence? Can that be used as indirect evidence in support of the allegations of [Ford]? Well, apply the tests I’ve indicated. Ask yourselves whether you’re sure of Greenaway’s evidence. Are you sure that there was no collusion between them? Are you sure that the similarities are sufficiently clear to go over and beyond the possibility even of mere coincidence? There are differences of course; Greenaway says ‘It happened in the camper van when I was at Tennel’, [Ford] says it happened in the science room and in private accommodation at Druids Heath. But there are similarities. Its for you to decide whether they are sufficient to say there is at least indirect evidence to support the allegations made, for instance by [Ford].” 70. Mr Tedd complains that this approach omits the crucial stage of the judicial filter. He submits that, in relation to each complainant and each count, it was incumbent upon the judge to decide as a matter of law what was capable of being supportive evidence and to direct the jury accordingly before leaving them to decide whether it was in fact supportive. Mr Drew submits that there was a great deal of similarity as between the allegations of the different complainants. They were all young boys at the time, they were under the care of the appellant and resident in his school house. The allegations relate to a relatively short period of time. There was a discernible pattern of grooming leading to a form of special friendship and then to touching, followed by greater intimacy and more intensive sexual activity. Whilst there were differences in location that was neither surprising nor significant. Read as a whole, the directions amounted to instruction that the evidence of Budgeon was not capable of being supportive in relation to the evidence of Ford but that, in relation to all other complainants, the evidence was capable of cross support. Alternatively, to the extent that some complainants, particularly Ford and Greenaway, were making allegations of a graver kind, that in itself did not mean that there could be no cross support as between the evidence of them or either of them and the evidence of the complainants who were making less serious allegations. 71. We have given the rival submissions careful consideration. From a purist point of view, it may be that the judge ought to have carried out a “capability” exercise in relation to each complainant and each allegation. However, one has to assess the usefulness of that in the context of the particular case. The directions, much of which we have quoted, formed a substantial part of the summing-up. We take the view that it would have been unhelpful to the jury if the judge had proceeded with the purist exercise which Mr Tedd submits was essential. It would have taken up a disproportionate part of the summing-up. What was essential was that the directions assisted the jury sufficiently to ensure that they did not make inappropriate use of the evidence of any one witness to support the evidence of another. He gave clear directions on the need to be sure as to the truthfulness and accuracy of a supporting witness and of the absence of collusion. He gave an appropriate direction on similarity. He illustrated his directions with examples from the evidence. One of them was to contrast the evidence of Budgeon with that of Ford and Greenaway. 72. In our judgment the approach of the judge was pragmatic, fair and helpful. We do not consider that the convictions are unsafe as a result of his decision not to embark on the minute dissection which Mr Tedd advocates. We apprehend no danger that the jury treated as similar fact evidence that which was unproven, significantly dissimilar or the result of collusion or collaboration. We reject this ground of appeal. Other Matters 73. In the original grounds of appeal, Mr Tedd sought to advance other matters which, in the event, the single judge did not give leave to argue or Mr Tedd himself concluded that, standing alone, they could not affect the safety of the convictions. These included, in particular, the suggestion that the judge ought to have acceded to an application to discharge the jury after the Counts in relation to two complainants had been withdrawn from the jury, together with a submission that, looking at the case in the round, the convictions are unsafe. We are wholly unimpressed by these further submissions, whether looked at individually or cumulatively with each other and with the three main grounds of appeal. Conclusion 74. It follows from what we have said that, in our judgment, these convictions are safe and the appeal must be dismissed. We thank and pay tribute to both counsel for their able and helpful submissions.	[ "LORD JUSTICE MAURICE KAY", "SIR JOHN ALLIOTT" ]	2005_07_26-565.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1984/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1984	1,085
6259304afa836233c4deea77d8f1fb5c1db0ee400c64addc389d6b8d92b2d4bc	[2024] EWCA Crim 338	EWCA_Crim_338	2024-03-26	crown_court	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 pers	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. 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Neutral Citation Number: [2024] EWCA Crim 338 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202302424/A4 Royal Courts of Justice Strand London WC2A 2LL Tuesday, 26 March 2024 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE CALVER THE RECORDER OF SHEFFIELD (His Honour Judge Jeremy Richardson KC) REX V HENRY HENDRON __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR J TALBOT appeared on behalf of the Applicant MR P STOTT appeared on behalf of the Crown _________ J U D G M E N T THE RECORDER OF SHEFFIELD : Introduction 1. The facts of this case are unique. It is to be hoped that remains the case. 2. The applications in this case have been referred to the full court by the Registrar. 3. First, there is before the court an application for an extension of time in which to seek leave to appeal against sentence. The period of extension sought is eight days. We have considered the matter and the reasons advanced for the modest extension of time. The appellant was experiencing certain difficulties at the outset of his period in custody. We consider those difficulties to be a reasonable justification for the slight delay. We grant the necessary extension of time. 4. Second, we have considered the Grounds of Appeal. We propose to grant leave to appeal against sentence on grounds 1 and 2, but refuse leave on the remaining grounds. The argument today has very properly concentrated on grounds 1 and 2. Accordingly, we have treated this hearing as the hearing of the appeal on grounds 1 and 2 and an application for leave on the remaining grounds. 5. We have been assisted this morning by Mr Jack Talbot on behalf of the appellant (as he now is) and Mr Phillip Stott on behalf of the Crown. The Crown Court Hearing 6. The appellant is Henry Hendron. He is aged 42 years. 7. On 17 March 2023 in the Crown Court at Woolwich before His Honour Judge Gumpert KC, upon re-arraignment, the appellant pleaded guilty to three counts of Intentional Encouraging or Assisting the Commission of an Offence, contrary to section 44 of the Serious Crime Act 2007 (counts 2, 3 and 4) and a single count of Possession of a Class A Drug, contrary to section 5(2) of the Misuse of Drugs Act 1971 (count 5). A pre-sentence report was sought. Sentence was adjourned. 8. The appellant had pleaded not guilty to the indictment at the plea and trial preparation hearing. His pleas were changed before the date of trial. 9. On 13 June 2023 in the same Crown Court the appellant appeared for sentence before His Honour Judge Jonathan Mann KC. The judge permitted a one-fifth (20 per cent) reduction due to the guilty pleas and the stage at which they were entered. The appellant was sentenced to a total of 14 months' imprisonment. All other appropriate consequential orders were made. The sentences on the individual counts were as follows: count 2, 14 months; count 3, 14 months concurrent; count 4, 14 months concurrent; count 5, two months concurrent. The learned judge was of the view a sentence of 14 months' imprisonment reflected overall criminality. The judge correctly considered whether to suspend the sentence. He decided the offending was too serious to warrant anything other than an immediate sentence of imprisonment. Two Unusual Features of the Case 10. The two features of this case which are both unusual and very serious are these: (1) This criminality was perpetrated by a member of the Bar who had in the past been convicted of drug-related crimes but had not been disbarred for that conduct. Consequently he was permitted to continue in practice as a barrister. (2) The individuals from whom he was encouraging to supply drugs to him, were prisoners on remand, both of whom were being represented by the appellant in criminal proceedings. 11. The more detailed circumstances of the offending are as follows. The Facts 12. The appellant was called to the Bar in November 2006. In 2005, 2007 and 2010 he was convicted of driving with excess alcohol and was fined as well as disqualified from driving on each of those three occasions. In 2016 he appeared at the Central Criminal Court and was made the subject of a community order embracing unpaid work and supervision in respect of his guilty pleas of possession of class B and class C drugs with intent to supply. It is right to observe the partner of the appellant died in circumstances referable to this criminality. The appellant was not disbarred in respect of any of those matters. 13. Counts 2 and 3 relate to one offender called Arno Smit who was on remand at His Majesty's Prison Belmarsh in London. Count 4 relates to another offender called “Ezra White” (his real name appears to be Ezra Levi Benson) who was also on remand at the same prison. The essence of the criminal conduct of the appellant in these counts is that he was representing them as a lawyer at the time, and he sent text messages to encourage each of them to supply him with drugs. Counts 2 and 3: Encouraging the supply of crystal methamphetamine and gamma-butyrolactone 14. Counts 2 and 3 relate to a series of communications between a WhatsApp account for a number attributed to the appellant and another number ending in 0223 recovered from a further mobile telephone. The person whose number ended in 0223 was attributed to Arno Smit. 15. The appellant had represented Smit as a lawyer on a number of occasions. Smit had requested the services of the appellant as his lawyer when Smit was arrested and detained at Charing Cross Police Station in London. 16. On 29 March 2022 the appellant appeared at Woolwich Crown Court to represent Smit in relation to a bail application. When the appellant was arrested he was at the Visitors Centre at His Majesty's Prison Belmarsh on his way to act as the legal representative for Smit in an interview. 17. The relevant messages of 25 September 2021 read as follows. Smit to the appellant: "Please transfer me £100 for the night." 18. The appellant replied: "You gave me 2 grams of T and 30ml G". 19. Further: "Your name is coming up 'John Smith' BTW. Every criminal calls themselves 'John Smith' I have a Romanian gangster built like a street fighter and indeed is a cage fighting national champ but was a genuine gangster into serious organised crimes across various jurisdictions. Anyway, he changed his name by deed poll to 'John Smith'. It's what they do, they think they obtain some sort of anonymity by safety in numbers name?" 20. Smit to the appellant: "£60 for T and £15 for water. Cavejet – £25." 21. The appellant replied: "Just transferred to you £100 sorry for the delay, which was initially caused by your delay. Just made transfer, yours HH." 22. Two days later at 2.50am the appellant sent a message to Smit saying: "Are you up? Can I swing around in 20 minutes to buy one T and some G?" 23. Smit's reply was: "Yes give me eta". 24. A drug expert for the prosecution indicated that "T" in this context is short for "Tina", which is another name for methamphetamine (a class A drug) and that "G" and "Water" refers to gamma-butyrolactone (a class C drug). Count 4: Encouraging the supply of crystal methamphetamine 25. The appellant had a contact saved on his phone as "Ezra White". This individual is in fact Ezra Levi Benson. The messages date from 2020. Benson was a lay client of the appellant as a lawyer. 26. On 12 August 2020 the appellant sent White a message saying: "Oi oi, can I get a gram off you today please? I just sent you 50". 27. White replied: "Hi, yes what time?" 28. The appellant then said: "PS do you have any sleeping pills?" 29. White said: "Yes I do. You must not send any cash at all to me Henry please allow me. Do you need anything else?" 30. Three minutes later, White said: "You sent it! I will return in cash: when I see you. I have zopiclone and diazepam." 31. On 22 December 2020 at 11.30 pm the appellant sent to White: "Can I swing by nowish? I'm outside could I also get half a GT?" 32. "G" is short for GBL and "T" is short for methamphetamine. 33. “Ezra White” was another client of the appellant. There were other text messages between them indicating a professional lawyer/client relationship. 34. On 17 June 2020 the appellant sent a text to Ezra White saying: "Good news, I think I've got you off with a caution". 35. On the same day the appellant represented Ezra Levi Benson, in his real name, at an interview at Holborn Police Station where he was issued with a caution. The appellant also represented Ezra Levi Benson in an interview in November 2020 following his arrest whilst in possession of crack cocaine and crystal methamphetamine. Count 5: Possession of crystal methamphetamine 36. The home of the appellant was searched on 3 May 2022. Police officers found traces of crystal methamphetamine. In a chest of drawers alongside other drug paraphernalia there was a plastic container containing 15 milligrams of crystal methamphetamine inside three colourless grip-seal bags. The fingerprints of the appellant were found on the outer surface of the container. The Grounds of Appeal 37. The appellant settled his own grounds of appeal. However Mr Talbot has refined and perfected those grounds of appeal. We are grateful to him for doing so. These can be distilled as follows: 1. The sentencing judge used the wrong sentencing guidelines. 2. The sentence was manifestly excessive. 3. Defence counsel failed to mention material matters. 4. Undue weight was given to the plea of Smit. 5. The judge should have recused himself, the appellant having lodged a formal complaint against him ahead of the sentencing hearing. 6. The judge strayed into the role of the appellant's professional regulator. 38. Mr Talbot in both his written submissions within the grounds of appeal and in his oral submissions today has concentrated, rightly in our judgment, on grounds 1 and 2. He has relegated the other grounds of appeal. We can deal with the remaining grounds summarily. Grounds 3, 4, 5 and 6 – Application for Leave to Appeal 39. In relation to ground 5 the Registrar has undertaken an investigation and has discovered that the appellant lodged a complaint about the judge with the JCIO on 14 December 2022. The JCIO summarily dismissed the complaint. The judge was not informed of the complaint. Consequently the judge was not aware that the complaint had been made at the time he passed sentence and it was not drawn to his attention. He was only made aware of this fact after the application for leave to appeal against sentence had been lodged. There is absolutely nothing in that ground of appeal. 40. Nor is there anything in grounds 4 and 6. The guilty plea of Smit had nothing to do with this case and the judge did not take it into account. There is not a shred of material to demonstrate the judge was in any way acting in a manner akin to a professional regulator. He was however perfectly entitled to take into account the serious aggravating feature of the case that the appellant was a barrister and acting in a professional capacity when the crimes were perpetrated. 41. It is submitted in relation to ground 3 that defence counsel (who was not Mr Talbot) did not mention a specific point of mitigation which he had been instructed to place before the judge relating to aspects of the representation of Smit by the appellant. The appellant has waived privilege and we have read the statement and comments of counsel in the court below, between paragraphs 13 to 20 of his response. The conduct of counsel was wise and sensible in relation to this aspect of the case. Had the points of mitigation, which the appellant wanted to advance, been put before the judge, they would have further served to demonstrate and accentuate how the appellant was acting at the relevant time as the lawyer of Smit. Counsel was right not to pursue that line of mitigation. That ground of appeal is misconceived. 42. We refuse leave to appeal on grounds 3, 4, 5 and 6. Submissions on Grounds 1 and 2 – The Appeal 43. We have granted leave on grounds 1 and 2. Mr Talbot has very properly conceded that the central issue in this case is whether the total sentence of 14 months' imprisonment was manifestly excessive. 44. At the outset he submitted the appellant was, in effect, singled out because of his professional status as a barrister. He contends that any other offender in a similar position to the appellant who was not a professional lawyer would not have been prosecuted for this offence and might have been prosecuted for a lesser drug-related crime. 45. We disagree. The decision to prosecute for a particular crime is not a matter for the court. That is the province of the Crown Prosecution Service and, subject to an application in respect of abuse of process on proper grounds, which was not advanced in this case and could not be, we reject this submission without hesitation for one moment. We can quite see why the evidential test was met and why the public interest test was also met in this case. 46. The much more sensible argument relates to the approach to sentencing of the judge and whether the judge utilised the Definitive Guideline of the Sentencing Council on Drug Offences properly. Mr Talbot has indicated there appears to be very limited assistance by way of reported authorities on how sentencing should be approached for an offender who is prosecuted under section 44, when he is a drug addict who seeks to purchase a small amount of an illegal drug for personal use from someone he knows or believes will supply him that drug. 47. The prosecution has submitted the judge should view the drug offences guideline on supply and then make appropriate adjustments. 48. The approach of the judge is exemplified by this passage in the sentencing remarks: "I have approached sentencing in this case by looking to the underlying offence because it seems to me that that is what Parliament must have intended. And, of course, the underlying offence in counts two, three and four is the supply of drugs to street users, and so it is plain to me that the facts of this case are that I should concern myself with the guidelines dealing with supplying drugs. But, of course, those guidelines and that finding need to be ameliorated by the particular facts in this case." 49. The judge went on to set out his view as to the aggravating features of the case and the mitigation as advanced before him, including reference to a psychological report. He continued: "I have decided that the most appropriate sentencing guideline for this case are the supply guidelines, lesser role Category 4. That has a starting point of 18 months with a range of community order to three years. It seems to me that that is the lowest supply guideline I can look to and, in my judgment, it is the most relevant for this case." 50. The judge then imposed the individual sentences we have set out and the overall sentence of 14 months. It is also right to say that he carefully and succinctly weighed whether he should suspend the sentence by reference to the guideline on the imposition of custodial sentences. He concluded that he could not as this was too serious for that course to be taken. 51. It is contended by Mr Talbot the appellant should not have been treated in a manner akin to a drug dealer or someone concerned in the supply of drugs when the offender has sought to procure the drugs for personal use. 52. This morning Mr Talbot has made a number of submissions to amplify and expand his written submissions. He has directly drawn attention to the division between the wider public importance of grounds 1 and 2 and the other grounds which are personal to the appellant. The main thrust of his argument today related to whether the total sentence was manifestly excessive, but he correctly accepted the fact that the appellant was a practising barrister is an aggravating feature. Mr Talbot additionally sought to draw a distinction between ordinary supply to a third party and encouraging another to supply drugs to the one doing the encouraging. In consequence, argues Mr Talbot, the judge fell into error and passed a manifestly excessive sentence. 53. Furthermore, we are grateful to Mr Stott for his written submissions. He has emphasised the factual difference in the case of Reeve and this case. He has also emphasised the breach of responsibility by a barrister is why this case is so serious. Analysis 54. We now turn to our view of the matter, having reflected on the submissions of counsel. We approach the matter from first principles. 55. First, it is right to observe there are no guidelines of the Sentencing Council for an offence under section 44 of the Serious Crime Act 2007. The gravamen of that crime is the fact that an offender has committed an act which is capable of encouraging or assisting the commission of an offence and the offender intended so to do. By reference to section 58(3) of the 2007 Act, the offender is liable to the same maximum penalty of the "anticipated or referenced offence". In other words the maximum sentence of the crime which he encouraged another to commit. It would therefore be a difficult, if not impossible, exercise for the Sentencing Council to devise a crime-specific guideline given the variability of maximum sentences. 56. Second, the task of the sentencing judge is therefore to make appropriate reference to the guideline of the Sentencing Council for the crime which was encouraged by the offender and make suitable adjustments depending on the factual matrix before the court. Plainly, if there are no sentencing guidelines, appropriate decisions of this court will be the focus of attention. 57. Third, we emphasise that the precise factual matrix must govern the use of the relevant guideline and the applicability of it will always be a matter for the judgment of the court. It is a useful commencement of the voyage of discovery; it is not necessarily the destination. 58. Fourth, it is the criminal conduct which the offender encouraged or assisted which is the core of the crime and that must be, in our judgment, the driving force for sentence in a case of this kind, subject to aggravating and mitigating factors. 59. Fifth, the general guidelines of the Sentencing Council covering over-arching principles is of importance, where the court must view the culpability of the offender and the harm caused by him. 60. It is our judgment the judge was correct to view the supply guideline as the key to sentencing in this case. The appellant plainly encouraged the two men in prison, whom he knew to be drug peddlers, to supply him with drugs. He thus encouraged supply of drugs. The fact it was to himself was a factual matter of potential importance but not in relation to the guideline to be utilised to commence the search for the right sentence. The judge in this case placed the case in Category 4 for the lead offending and determined the role was analogous to a lesser role, giving a starting point of 18 months' imprisonment up to three years' imprisonment. 61. We have been referred to a number of authorities in written submissions in respect of section 44 and section 46 of the 2007 Act. We simply call attention to them without the need to refer to them in any detail: Omar Sadique [2013] EWCA Crim 1150, Reeve [2018] EWCA Crim 2015, Rowlands [2019] EWCA Crim 1464 and Simpson [2023] EWCA Crim 734. In all of the cases there was reference to the guideline for sentencing for the offence which was assisted or encouraged by the offender. The most relevant for present purposes might be thought to be Reeve which was a case where leave to appeal was refused in respect of an immediate sentence of imprisonment of 31 weeks upon a police officer who encouraged the supply of drugs from another police officer. We note the judgment in that case given by McGowan J sitting with Stuart-Smith J (as he then was) was upon an application for leave to appeal and not an appeal. 62. It is our judgment that the above regimen is the appropriate way in which to approach these cases (see paragraphs 54 to 59 supra). The application of that approach to this appeal 63. There was a very thorough pre-sentence report before the sentencing judge and we have read it with great care. It is unnecessary to recite portions of it. Furthermore, there was a psychological report before the judge. We have considered that too. In that report the following passages appear. First, at paragraph 53. "Mr Hendron presented as a chaotic, excitable and agitated man. Whilst not unpleasant, he could be irritable and impatient at times and it was necessary to repeatedly encourage him to follow my direction and not go off topic.. Although extremely verbose, he managed to convey his opinion and was largely coherent and articulate. I was not of the opinion that he was trying to manage my impression of him." 64. At paragraph 56, the following is found: "Concerning personality functioning and structure, Mr Hendron's responses suggested he was a high-spirited, volatile individual, who can present as manic and uncontrolled. Anti-social conduct and an avoidance of warmth was apparent, although I wondered whether an underlying fear of independence and reliance on others the source of this was. Hostility, self-absorption, grandiosity and a lack of social conscience were also present. His profile indicated that he sought attention at a rather extreme level, most likely in an attempt to secure approval from others, and could be perceived as intrusive and impetuous by those around him." 65. The psychologist did not favour PTSD as a viable diagnosis. She recommended further work to ascertain whether the appellant suffers from any form of bipolar disorder. 66. In our judgment the situation is clear: (1) The appellant encouraged two criminals to supply him with drugs in two counts concerning class A drugs and in another count a class C drug. Plainly the lead offending related to the class A drugs. It was not a single occasion offence involving one type of drug. (2) In consequence the court was required to consider the supply of drugs guideline. (3) It was appropriate to place the appellant in the lesser role category because the supply which was being encouraged was just to one person in this case. In this regard it was right to adapt the guideline to meet the facts of this unusual case. The individual quantities of drugs were inevitably small. (4) The crime the appellant was encouraging was a class A drug in category 4 where the offender was in a lesser role; at least that is what could be proved. (5) The starting point is 18 months' imprisonment with a range from a high level community order to a three-year sentence. (6) The offending took place three times, albeit one count related to a class C drug. (7) The principle of totality coursed through the entirety of the sentencing exercise so that a just and proportionate total sentence was achieved which represented the overall criminality by reference to the Totality guideline of the Sentencing Council. (8) The court was perfectly entitled to commence its search for the correct sentence at the level of 18 months' imprisonment. Given the circumstances it would have been permissible to have started higher. (9) The fact the appellant had relevant previous convictions elevated the sentence. (10) The fact the appellant was acting in his capacity as a professional lawyer representing the two criminals from whom he hoped to secure the drugs, thus he encouraged them to supply him, was a very serious aggravating factor. (11) There was the mitigation of the psychological state of the appellant by way of back drop and the other personal mitigation. That served to reduce the sentence before consideration of the guilty plea which might be thought to be the most potent aspect of mitigation. 67. Complaint is made that the sentence on count 5 was excessive in any event. It was a concurrent sentence and was part and parcel of the drug addicted way of life of the appellant. Had it stood alone we have little doubt the appellant would have been sentenced differently. However, as it is, it did not stand in isolation, it was a concurrent sentence and had to be considered as part of the entire criminality calling for sentence. 68. In the result, we do not consider a sentence of 18 months' imprisonment to be in any way outside the range open to the judge in this case before consideration of the reduction in sentence because of the guilty plea. It seems to us that that was the very least sentence which could be imposed in this case following a trial, having regard to all the very serious aggravating factors which we have identified, as did the judge below. It is hard to conceive of a more serious situation in a crime of this kind for a lawyer to seek to procure illegal drugs for himself from a criminal whom he is representing. The judge was entirely right to allow a reduction of one-fifth (20 per cent) by reason of the plea and the stage at which it was entered. This produced a sentence which would have been a little over 14 months. The judge was right to round down that figure. It is self-evident the judge had appropriate regard to the principle of totality. 69. We also cannot fault the judge in his approach to the question whether the sentence should be immediately served or suspended. The judge plainly had regard to the principles in the guideline to which we referred earlier. This case involved a sequence of brazen serious criminal conduct involving a lawyer seeking to procure drugs for himself from a person he was representing in proceedings. A sentence of immediate imprisonment was demanded in this case and was appropriately imposed by the judge. No other sentence could possibly be justified. 70. We emphasise, this has nothing to do with professional regulation or discipline. The disbarment of the appellant is for the professional disciplinary body of the Bar, as it was before in 2016. We expressly make no observation about what should or should not be done to maintain the professional integrity of the profession and what professional sanction should be imposed for bringing the profession into disrepute. This court is solely concerned with the sentence imposed for the criminality of the appellant; nothing more and nothing less. Conclusion 71. The sentence here is not excessive, still less manifestly excessive in all the circumstances. 72. In the result we extend time for the application to be made by eight days; we grant leave to appeal against sentence on grounds 1 and 2 only; but we refuse leave on the remaining grounds of appeal against sentence. 73. We have treated this hearing as the hearing of the appeal. 74. We dismiss the appeal. MR TALBOT: My Lord, may I please put this on the record. After your Lordship started the judgment I received an email from the appellant. He said that he had only just seen the emails indicating the date of the hearing and the time of it. He asked me if it was not too late, and it plainly was, to seek an adjournment on the basis that he had been ill and secondly, and these are the words he used, "for an opportunity to put in further grounds of appeal in relation to conviction". I do not make any application in those terms. Obviously the judgment has been given. I will convey the court's decision to him. LORD JUSTICE WILLIAM DAVIS: If he wants to appeal against his conviction, which would be a bold move, he of course is entitled to seek leave to do so, together with the relevant long extension of time. MR TALBOT: I thought it prudent to put it on the record. LORD JUSTICE WILLIAM DAVIS: Thank you very much indeed. 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]	[ "LORD JUSTICE WILLIAM DAVIS", "MR JUSTICE CALVER" ]	2024_03_26-6102.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/338/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/338	1,086
33e875ee8a6f3f95dd9a723c859e98cca120582ab0e6988593713c5aa9026da7	[2006] EWCA Crim 2006	EWCA_Crim_2006	2006-08-10	supreme_court	Neutral Citation Number: [2006] EWCA Crim 2006 Case No: 2005/6146 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT HER HONOUR JUDGE STEELE Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/08/2006 Before : LORD JUSTICE LATHAM THE HON MR JUSTICE IRWIN and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R - and - ANDREW BRIAN TINSLEY - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Neutral Citation Number: [2006] EWCA Crim 2006 Case No: 2005/6146 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT HER HONOUR JUDGE STEELE Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/08/2006 Before : LORD JUSTICE LATHAM THE HON MR JUSTICE IRWIN and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R - and - ANDREW BRIAN TINSLEY - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Anne Whyte instructed by Stephensons 10-14 Library St, Wigan) for the Crown Mr Michael E Wollf (instructed by the Registrar of the Court of Appeal ) for the Appellant Hearing dates : 6th July 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: 1. On the 10 th November 2005 in the Crown Court at Liverpool before Her Honour Judge Steele, the appellant was convicted of two counts of indecent assault. He was subsequently sentenced to a concurrent term of five years imprisonment. He appeals against that conviction with leave of the single judge. 2. The appellant is the uncle of the complainant. During the relevant period, the complainant was between the ages of 6 and 7; and the appellant was a regular baby sitter when his sister, the complainants mother, was out at work. The period in question was between 1995 and 1997. As a result of allegations of sexual abuse made by another relative of the appellant, but not involving any allegations against the appellant, the complainant eventually alleged that she had been sexually abused not only by the appellant, but also by her grandfather, that is the appellants father, and her step-grandfather whom the appellants mother had married after she and the father had divorced. 3. The police were informed; and the complainant gave a video interview on the 17 th December 2005 in which she made detailed allegations against all three men. The appellants father was arrested and interviewed in January 2006. In his interview he admitted the allegations made against him by the complainant. He was charged with offences of indecent assault; but died before the matter reached court. On the 26 th September 2005, the step-grandfather pleaded guilty to four counts of indecently assaulting the complainant. The appellant denied the allegations. 4. At trial, the prosecution sought to put the contents of the grandfather’s interview before the jury pursuant to the provisions of section 114 or 116 of the Criminal Justice Act 2003 . The judge, in her ruling said as follows: “I take account of all the matters to which my attention is directed under section 114(2) . The circumstances in which that statement were made and reliability of the evidence of the making of the statement would certainly appear to be as absolute as one might expect, taped interview in a police station. I do consider that that statement is relevant and that there is probative value in that statement. It has been argued before me that that is not permissible, not because of matters which are raised in section 114 , but because under section 116(1)(a) had Brian Tinsley been alive that particular evidence would not have been admissible as oral evidence. I look at the wording of 116(1)(a) that reads: “Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter.” It does not say admissible in respect of a particular count or counts. It does not say admissible in respect of the crucial point of the prosecution. It says “admissible as evidence of that matter”. Plain English must in my view interpret that sub-section that that matter refers to the contents of the statement.” 5. As far as the conviction of the grandfather was concerned, the prosecution sought to place that before the jury pursuant to the provisions of section 74 of the Police and Criminal Evidence Act 1984 . As to that, the judge said: “Again, balancing probative value against any prejudice I am satisfied that the scales come down, as it were, in favour of the probative value, and in any event the jury would be directed as to the limits on that assisting them as to the guilt or innocence of the defendant. I will do the usual direction.” 6. In fact the only direction that the judge gave in relation to this evidence was in the following terms: “I must make it clear that those admissions relate to matters affecting the grandfather and the step-grandfather. There is no evidence that this defendant knew of any abuse that was going on, and of course the admissions of abuse post-date his interview with the police.” 7. Before us, Mr Wolff, on behalf of the appellant, submits that the two rulings made by the judge in relation to the evidence of the grandfather, and the conviction of the step-grandfather were wrong in law; and he further submits that the judge, in any event, failed to give the jury any help as to the use that they should put those pieces of evidence. His fundamental point in relation to the admissibility of the evidence is that it is not relevant to any issue in the case, which he submits is a pre-condition to its admissibility under any of the statutory provisions relied upon by the prosecution. The sole purpose of the evidence was to bolster the complainants credibility on the basis that the jury could more readily believe the complainant in relation to her allegations against the appellant because her allegations against her grandfather and step-grandfather were true. 8. Miss Whyte, on behalf of the Crown, submits that credibility being an issue, the evidence which she sought to adduce was directly relevant to that central issue in the case and accordingly the evidence was admissible, so far as the grandfather was concerned, under both section 114 and section 116 of the 2003 Act , and as far as the step-grandfather was concerned, section 74 of the 1984 Act . She further submitted that the evidence was in any event admissible under the provisions of section 100 of the 2003 Act , as being important explanatory evidence. She has referred us to paragraph 9.43 of the Law Commission Report (No 273) on Evidence of Bad Character in Criminal Proceedings, which reads as follows: “9.42 As we explained in relation to bad character evidence to be adduced against defendants, some character evidence is not strictly speaking probative in that it does not of itself prove any fact, but it is nevertheless significant in making other evidence comprehensible. Some evidence about people other than defendants may serve this kind of purpose in a trial, and we therefore recommend that leave may be given to adduce evidence of the bad character of a person other than a defendant if it has substantial explanatory value. 9.43 Thus for example in a case of intra-familial abuse, it was not only abusive behaviour by the defendant on occasions other than that charged which was valuable in explaining the case as a whole to the jury, but also abusive behaviour by other members of the family.” 9. That, she submits, is the explanation for the provisions in section 100 of the 2003 Act , as to which the explanatory note provides as follows: “360. The term “explanatory evidence” is used to describe evidence which, whilst not going to the question of whether the defendant is guilty, is necessary for the jury to have a proper understanding of other evidence being given in the case by putting it in its proper context. An example might be a case involving the abuse by one person by another over a long period of time. For the jury to understand properly the victims account of the offending and why they did not seek help from, for example, a parent or guardian, it might be necessary for evidence to be given of a wider pattern of abuse involving that other person.” 10. Dealing with her submissions under section 100 first, the difficulty Miss Whyte faces is that she did not ask for the evidence to be admitted pursuant to that section. If she had, she would have had to serve appropriate notice and the judge would have had to consider with care the provisions of section 100(2) which provides: “For the purposes of sub-section (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.” 11. We do not rule out the possibility that a court might consider the evidence relating to the grandfather and the step-grandfather to be important explanatory evidence. But, in the light of the fact that the judge was not asked for leave to admit this evidence, as section 100(4) requires, it would be wrong for us to approach this appeal on the basis the judge would have been prepared to admit this evidence under section 100 . 12. Turning therefore to the basis upon with the judge did admit the evidence, the question we have to answer is a stark one. It does not, in our view, depend upon the provisions of section 114 or 116 of the 2003 Act , or indeed section 74 of the 1984 Act . The question is whether evidence that a complainant has made allegations against people other than the defendant which are true is relevant to the determination of any issue between the complainant and the defendant. Section 114(3) makes it plain that the general Common Law rules as to relevance as a precondition to admissibility remain applicable. Under section 116(1)(a) , the statement by the witness who is unavailable has to be “admissible” if the statement were given orally. Admissibility, as we have just indicated always has as its precondition relevance. As far as section 74 of the 1984 Act is concerned, that again refers expressly to the fact that the evidence of a conviction has to be “admissible”. 13. The general principle is that for evidence to be admissible as relevant, it must be logically probative (or disprobative) of a fact in issue between the parties. The question is therefore, what was it that the Crown intended to prove by putting this material before the jury? The fact that both the grandfather and the step-grandfather admitted abusing the complainant could not possibly be relevant, in itself, to the issue of whether or not the appellant abused the complainant. There was no suggestion that the appellant was involved together with either the grandfather or the step-grandfather in their activities with the complainant. It follows that the only purpose for which the material could have been put before the jury was to establish that because she had told the truth in relation to her grandfather and step-grandfather, the jury could be satisfied that she was telling the truth in relation to the complainant. But the mere fact that the complainant has told the truth on other occasions, even if in the same context, cannot be logically probative of the facts that she alleges in relation to the appellant. Whilst it is tempting to say that it is relevant in the sense that the complainant’s credit was “in issue”, that, in our judgment, cannot open the door to evidence being called simply in order to support the argument that the witness is a credible witness. It is, in effect, a form of “oath helping”, which has never been permissible as a ground for admitting evidence. 14. Whatever might have been the position had the prosecution sought to put the material before the jury under section 100 , therefore, the rulings of the judge were wrong in relation to the applications under section 114 of the 2003 Act and section 74 of the 1984 Act . The appeal must be allowed on that basis alone. In fact, the Crown frankly conceded that there was a further difficulty, namely the judge, although indicating she intended to, did not give to the jury any assistance as to how they could or should use this material. That of itself might not have been fatal to the convictions. But for the reasons we have given, the appeal must be allowed and a re-trial ordered in the terms that we indicated at the time of the hearing.	[ "LORD JUSTICE LATHAM", "SIR RICHARD CURTIS" ]	2006_08_10-904.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2006/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2006	1,087
f0546964797e6e0ae1003715e66f466af788f1ab716292e05db26011fa8e6394	[2014] EWCA Crim 1027	EWCA_Crim_1027	2014-05-21	crown_court	Case No: 201303146 A7, 201303147 A7, 201304072 A7, 201303034 A7, 201303074 A7, 201303019 A7, 201302943 A7, 201303148 A7, 201303042 A7, 201303036 A7, 201303020 A7, 201304985 A7, 20130308 A7, 201303067 A7, 201303420 A7, 201303073 A7, 201303021 A7, 201304188 A7, 201303144 A7, 201304207 A7 Neutral Citation Number: [2014] EWCA Crim 1027 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL His Honour Judge Aubrey Q.C. T2012 8062/8073/8092/8095/8098 Royal Courts of Jus	Case No: 201303146 A7, 201303147 A7, 201304072 A7, 201303034 A7, 201303074 A7, 201303019 A7, 201302943 A7, 201303148 A7, 201303042 A7, 201303036 A7, 201303020 A7, 201304985 A7, 20130308 A7, 201303067 A7, 201303420 A7, 201303073 A7, 201303021 A7, 201304188 A7, 201303144 A7, 201304207 A7 Neutral Citation Number: [2014] EWCA Crim 1027 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL His Honour Judge Aubrey Q.C. T2012 8062/8073/8092/8095/8098 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE BLAKE and MR JUSTICE GREEN - - - - - - - - - - - - - - - - - - - - - Between : CHRISTOPHER MARK WELSH (JUNIOR) CHRISTOPHER MARK WELSH (SENIOR) MARK ANTHONY SHIELDS CHRISTOPHER AMOS JAMES EDMONDS BRIAN WOODS STEVEN TYNAN DAVID ALAN McIVER STEVEN WOOD CHRISTOPHER RILEY KEVIN MICHAEL O’SHEA LIAM CLOTWORTHY JAMES JOHN WELSH KENNETH FLETCHER KEVIN THOMAS JACKSON ANTHONY DENNIS BREEN DAVID PAUL CHAMBERS ABRAHAM SALIM MARTIN FEELEY ALEXANDER CALDWELL Appellants & Applicants - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Francis Fitzgibbon Q.C. for Christopher Welsh junior Mr Damian Nolan for Christopher Welsh senior Mr Brendan Carville for Mark Shields Mr Eric Lamb for Christopher Amos, Brian Woods, Steven Tynan, David McIver, Abraham Salim,Steven Wood Mr Daniel Travers for James Edmonds Mr Michael Bagley for Christopher Riley, Kevin O’Shea, Liam Clotworthy, James Welsh, Kenneth Fletcher, Kevin Jackson, Anthony Breen, David Chambers Mr Tyrone Smith for Martin Feeley Mr Martin Reid for the Crown Hearing date : 7 May 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. Between 13-20 May 2013, in the Crown Court at Liverpool, His Honour Judge Aubrey Q.C. sentenced a total of thirty men for their parts in a wide ranging conspiracy to supply drugs of class A (heroin and cocaine) in truly massive quantities. Sixteen of those sentenced now appeal against sentence with the leave of the single judge and four renew their applications each of which had been refused; two require extensions of time. At the start of this judgment, it is appropriate to pay tribute to the care and detailed consideration given to this case both by the judge and by Openshaw J (who considered 19 of the applications for leave to appeal): their work has made our task very much easier than it would otherwise have been. We have also been much assisted by counsel on both sides and, in particular, by Mr Martin Reid for the Crown who has brought focus to the generic points that have been argued. 2. It is appropriate to start with an overview of the case. Operation Blenheim was a police investigation into an organised crime group in Liverpool which supplied large quantities of Class A drugs to crime groups in Glasgow for onward distribution. The conspiracy involved the use of a number safe houses in Liverpool to store and mix drugs. The drugs were packaged using hydraulic presses and metal moulds. Some of the drugs seized were of high purity, close to importation. Automatic Number Plate Recognition evidence and telephone evidence showed that between September 2011 and October 2012, the conspirators made 111 trips to Glasgow to supply drugs, adulterants and collect cash. In total, 23 kg. of Class A drugs (19 kg. of heroin, 4 kg. of cocaine and 1 kg. of ‘crack’ cocaine) along with 107 kilograms of adulterants with the potential to realise drugs with a street value of £6.7 million were seized during the course of the conspiracy. However, if the seizures were representative, indications were that the couriers transported between one and two kilograms of Class A drugs as well as adulterants on each trip. In view of the number of trips made it could be inferred that overall the conspiracy involved quantities of Class A drugs in excess of 100 kilograms worth between £100 million and £200 million. 3. As with any case of this nature, the role and responsibility of the offenders ran from the organisers, making vast profits from the operation through to those at the bottom of the chain of organisation, who, although knowingly involved in a conspiracy, were engaged upon it only peripherally. It was the task of the judge to have regard to s. 143 of the Criminal Justice Act 2003 and, when determining the appropriate sentence for each offender, to consider both culpability and harm. At the same time, s. 125(1) of the Coroners and Justice Act 2009 required the court to follow any relevant sentencing guideline unless it was contrary to the interests of justice to do so: in that regard, the definitive guideline for drug offences (effective for all those sentenced on or after 27 February 2012) was clearly of the highest relevance. 4. Although a number of the appellants and applicants have individual issues to raise, in the main, the substantive arguments advanced on this appeal concern the applicability of the guideline concerning supply of a controlled drug, its relationship with the guideline for importation, the extent to which a sufficient distinction was drawn between those at the centre of the conspiracy and others and the impact of personal mitigation. We will deal with these issues generically before considering the detail of each of the appeals and applications that have been argued before us. The Definitive Guideline 5. Although the judge considered that the definitive guideline did not strictly apply to offences of conspiracy, it is clear from R v McCalla [2012] EWCA Crim 2252 and R v Khan [2013] EWCA Crim 800 that it does. Not only would it be anomalous for commonplace criminal activity to be inside or outside of the guideline depending on the way in which the charge had been framed, as Treacy LJ went on to observe (at para 27): “[M]uch of the language within the guideline with its reference to differing roles, influence on others in a chain, links to original source, operational or management functions, involvement of others in the operation, awareness and understanding of the scale of the operation, and performing a limited function under direction is entirely consistent with an activity which could be charged as a multi-offender conspiracy.” 6. Furthermore, the structure of the guideline is specifically designed not as a rigid framework with mutually exclusive characterisations of behaviour, but rather as providing a range of identifying characteristics to assist the judge to place a particular offence within the range of such offences and thereby to facilitate consistency of approach to sentencing. Such a framework works equally well for offences of conspiracy as for any substantive offence. As Hughes LJ explained in R v Healey [2012] EWCA Crim 1005 (at para 9): “It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one or the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations.” 7. That is not to say that the judge’s approach to sentence in this case has been undermined by his error in that regard. The judge used the descriptors within the guideline (for leading, significant and lesser roles) for the purposes of distinguishing between the roles played by different offenders and, thus, in fact, correctly used the guideline. He also went on to observe that, in relation to heroin and cocaine, the highest category of harm identified an indicative quantity of drug upon which the starting point was based as 5 kg, accurately identifying the rubric to the guideline which makes it clear: “Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender.” 8. As for the relationship between the offence of supplying a controlled drug and importation (or, in either case, conspiracy to commit the offence), it is argued that, as a matter of principle, it is appropriate to ensure that the highest sentences are reserved for the latter offenders: in R v Tourh [2009] EWCA Crim 874 for (among other offences) conspiracy to supply a controlled drug of class A, a sentence of 25 years imprisonment was reduced to 22 years for that reason (articulated at para 43). Whether or not this observation can be elevated to the status of a principle, we doubt that it has any practical application to cases which fall to be considered under the guideline which has identical starting points in relation to both offences for leading and significant roles at category 1 and only marginally reduces the starting point (by one year) for a lesser role in relation to a supply offence. 9. It may be that the culpability at the very highest level is increased when the complexities of arranging importation are taken into account but we doubt whether leading and significant roles in the most structured, persistent and heaviest supply cases (of which this is an example) merit such a distinction. In any event, the definitive guideline identifies the circumstances in which leading, significant and lesser roles can be determined irrespective of the quantity of drug involved and the guideline is careful to identify the use to which indicative quantities can be put. As for weight itself, Hughes LJ in R v Boakye [2013] 1 Cr App R (S) 2 , page 6, [2012] EWCA Crim 838 explained that the weights which determine the categories are not thresholds but indications of the “general region” of weight that goes into the relevant category: “it is not exclusively an arithmetical process”: see para. 39. Insufficient Distinctions in sentence 10. A large number of appellants argue that the judge failed adequately to reflect the relative culpability of the offenders with a sufficiently wide range of sentences. Judge Aubrey certainly referred to the principle of parity commenting that in cases of this nature there was bound to be an element of “crowding or bunching” as to length. The word “crowding” comes from R v Brookhouse [2004] EWCA Crim 3471 in which, having analysed a large number of cases concerned with importation, the court recognised (at para 66): “20 years is clearly justified on the authorities for an important, but secondary, participation in large scale importation of class A drugs. You do not receive, for the reasons which we have indicated, sentences above 30 years, although they might be possible. In between those two points have to be fitted quite a large number of disparate people who clearly are more involved than those who might receive 20 years, but less involved than those who might not receive 30 years. We seem to have a crowding of this kind in the present case.” 11. In Attorney General's Reference Nos 99-102 of 2004 [2005] Cr App R(S) 82, a 20 year starting point was said to be at the bottom of the bracket for a major organiser of wholesale distribution within this country and, again in the context of importation, Scott Baker LJ in R v Farman Ali [2008] EWCA Crim 1855 made the point (at para 22) that “once the … 20 to 30 year bracket is reached, there is a considerable amount of bunching of varied circumstances”. 12. In our judgment, these observations do no more than reflect the inevitable position which a judge has to confront when seeking to differentiate the role and responsibility of a large number of offenders in the context of the most serious crime in which regard it has to be borne in mind that the penal consequences of conviction extend beyond a custodial term but also include confiscation of the proceeds of crime. Where (as here) quantities exceed category 1, so that sentences of 20-30 years might come into play as explained in the rubric to the guideline, it is an exercise of judgment to scale up the corresponding sentences for those at the bottom rung of leading along with significant and lesser roles in such a way that fairly reflects not only the part played by the offender then being sentenced but also his comparative significance within the offending as a whole. Given the limit beyond which a sentence for this type of offence does not normally extend, it is not surprising that at the highest levels, sentences on different offenders will be nearer to each other than might otherwise be the case. 13. Arguments about failure to differentiate either at all or sufficiently between different offenders have to be treated with care for other reasons. The approach of the court may be no more than an enunciation of the fact that once the potential harm is sufficiently substantial, different offenders might demonstrate their culpability in different ways, thereby justifying what may be similar sentences. 14. Insufficient distinction between offenders is another way of putting the argument that two identical sentences do not reflect similar criminality. In granting permission to appeal, Openshaw J considered it arguable that: “the judge made no sufficient distinction between the sentences passed on [the] three or four principal offenders and the others, who were – or may have been – in an altogether different league of offending.” He went on to suggest that if those sentences were reduced, the judge’s “hierarchy of criminality” would be unpicked such that the differences between the principal offenders and the others is not sufficient to reflect their different roles. In reality, this is the gravamen of these appeals and requires consideration of the facts in each case and, in particular, the offenders immediately under the principal leaders or organisers. Having said that, as Mr Martin Reid for the Crown observes, the starting points for the 30 offenders (all of whom fell to be sentenced for the same single count), assessed before discount for guilty pleas, ranged from 7½ years to 25 years, excluding the discounts made for those with very poor health. 15. As Moses LJ explained in R v Coleman & Petch [2007] EWCA Crim 2318 , we recognise that the test articulated in R v Fawcett [1983] 5 Cr App R (S) 158 (whether right thinking members of the public would consider something had gone wrong with the administration of justice) provides little guidance as to the circumstances in which it is thought appropriate to reduce an appropriate sentence to reflect the position of a co-defendant upon whom a ‘quite inadequate’ sentence has been passed (to use the phrase in R v Stroud [1977] 65 Cr App R 150 at 154 where an appeal against the first sentence was dismissed). All that it is appropriate to say is that the court must look at the overall sentences passed and consider whether the judge has failed as a matter of principle or in the reasonable exercise of his discretion to reflect the comparative criminality of the offenders: that this court might have made a slightly greater distinction is neither here nor there. Antecedents and Personal Mitigation 16. The definitive guideline proceeds on the basis that the starting point is fixed without reference to past record; reflecting s. 143(2) of the Criminal Justice Act 2003 , prior convictions, particularly if relevant in nature, constitute an aggravating factor. On the other hand, prior good character and lack of previous convictions or relevant convictions may reduce the seriousness of the offence or reflect personal mitigation. Other relevant factors include remorse, a willingness to address offending behaviour and personal circumstances. These last features can obviously play a significant part in the determination of sentence at the lower end of the ranges: for crime as serious as that involved in these cases, however, the part that they can play is very much more limited. 17. The judge underlined the gravity of all drug supply offences and did not need to emphasise the degradation and human misery that drugs cause to those who ingest them, their families and the wider community (impacted not least because of the increase in crime committed to pay for their acquisition). Equally, involvement in serious crime impacts on the offender and his aspirations and is likely to create the type of pressure that family members have articulated in letters submitted to the judge and seen by the court. 18. Unfortunately for the families concerned, the offender has brought these difficulties upon himself and they join the list of those adversely affected by his criminality: these issues can have little impact on the overall sentence for the most serious crime. In Boakye (ibid) the Court addressed an argument focusing upon the impact of custodial sentences upon the families of the defendant, and in particular upon children. Hughes LJ observed (at para. 32) that the position of children in a family might be a relevant consideration in sentencing but that: “it will be rare that their interests could prevail against society’s plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so”. The same principle applies here. The interests and concerns of the families of the defendants can be of little significance at the most serious levels of criminality. The Principals 19. Christopher Welsh junior, Christopher Welsh senior and Michael Shields were identified by the judge as the principals in the conspiracy: he assessed the appropriate sentences respectively for each as 25 years, 23 years and 22 years and, having allowed for their guilty pleas at the first reasonable opportunity, he passed sentence upon them of 16 years 8 months, 15 years 4 months and 14 years 8 months imprisonment. Openshaw J refused the first two men leave describing the sentences as deliberately severe but proportionate to the scale of offending and their leading role; Burton J refused Shields leave on the grounds that there was no basis for challenging the judge’s assessment of the hierarchy or the sentence imposed. Each renews his application. 20. The roles can be shortly outlined. Christopher Welsh junior, now aged 35, was the head of the organisation. He was able to source large quantities of high purity drugs from his father Christopher Welsh senior, Shields and others. He used some 43 unregistered pay-as-you-go mobile telephones during the course of the conspiracy. He was in regular contact with the couriers whom he employed to deliver drugs and with the conspirators at the Scottish end. He was seen with other leading figures. He went to meetings in Glasgow. He attended safe houses. He continued to direct operations when abroad in Spain, Greece and Egypt. 21. Welsh junior had seven previous appearances before the Court which included a conviction for possession with intent to supply cocaine and conspiracy to supply a Class C drug in 2005 for which he was sentenced to a total of 57 months imprisonment. A letter which he had written acknowledged the harm done and the judge noted the steps that he had taken in custody to improve himself. 22. His father, Christopher Welsh senior is 56 years of age and was at the head of the organisation working alongside Shields but subordinate to his son whom he supplied with large quantities of drugs. His address was used to store and mix drugs. He gave drugs hidden in gift bags to couriers. On 8 October 2012 Tynan gave him a bag which he took to his address. Police searched his address. The bag contained ½ kg. of cocaine. Police also recovered 5 kg. of heroin, packaging, gloves, tapes and scales. The street value of the drugs was over £1.3 million He had nine previous court appearances and in 2007 had been sentenced to 3 years’ imprisonment for two offences of being concerned in the supply of controlled drugs. His daughter’s letter showed the tragic consequences of drug dealing on innocent people; the judge also noted his medical condition. 23. Michael Shields (who is 46 years of age) was also at the head of the organisation with Christopher Welsh senior but subordinate to Christopher Welsh junior whom he supplied with large quantities of drugs. He met with other leading figures. He attended meetings in Glasgow. He attended safe houses. The judge concluded that he played a leading managerial role, close to but less significant than that of Welsh junior or senior, although five previous appearances with convictions for possession with intent to supply cannabis and supplying cocaine (leading to a total a sentence of 5½ years imprisonment) aggravated his position. The judge noted that he, also, had made progress while in custody and assisted other prisoners having become a ‘listener’. 24. In this court, Mr Francis Fitzgibbon Q.C. for Welsh junior argued that although the case fell into the 20+ years category, there were no features of sophistication or business acumen such as to justify a sentence before discount of 25 years. The case was nowhere near the type of case involving importation of large quantities of drug. Furthermore, the principals were jointly responsible and should not have received different sentences. Counsel for the other two principals adopted the argument that the starting point was too high; for Welsh senior, it was also submitted that the sentence passed on him should have been the same as that passed on Shields. 25. We agree with the single judges who considered these applications. This was criminality on a monumental scale and it is beyond argument that the rubric in the guideline issued by the Sentencing Council justified a starting point well in excess of 20 years. This is not least because of the quantity of drugs involved together with the repeated nature of the offending (which continued after the police had demonstrated their interest in the operation by intercepting and seizing drugs) and the enormous sums of money potentially involved. Indeed, had the judge lifted the sentences before discount for guilty pleas by a further period of a year or so specifically to reflect the relevant previous convictions, that would not have made the sentences wrong in principle or manifestly excessive. As for the differentiation between the three men, that judgment was entirely within the proper exercise of the judge’s discretion. Although we would have extended time to appeal where appropriate, these applications for permission to appeal are all refused. Leading roles below the principals 26. The judge placed the appellants Christopher Amos and James Edmonds at the next level of culpability below that of the principal organisers. He concluded that both played leading roles in the conspiracy describing Amos as the trusted lieutenant of Welsh junior and Edmonds as his right hand man. Given the argument advanced that the judge failed to draw a sufficient distinction between these offenders and the principals, we outline the facts in a little more detail. 27. Amos was involved throughout the period of the conspiracy. He was arrested on 18 October 2012. He lived at 16 Vesuvius Street Kirkdale, an address that featured on numerous dates during the conspiracy and where meetings related to the conspiracy took place. He made a total of 14 trips to Glasgow both as a courier and for other business connected with the conspiracy that the judge concluded was in a directing role. He allowed his premises to be used for the storage and mixing of drugs and was responsible for moving drugs around the vicinity and collecting bags from two safe houses. 28. On 5 November 2011 he was stopped in a Renault motor vehicle registered to James Welsh and was arrested in possession of a mixer, scales, a mould for a drugs press, gloves and adulterant all found in the boot of the vehicle. No action was taken at the time but subsequent examination revealed traces of cocaine on the mixer, scales and mould. The experience of arrest did not deter his subsequent substantial participation in the conspiracy. 29. On 18 April 2012, David McIver attended Amos’s address at Vesuvius Street where he met Welsh junior and an exchange of bags took place. McIver was later arrested and found to be in possession of 3.25 kg. of heroin, 1.25 kg. of cocaine and £90,390 in cash. Undeterred by this seizure, Amos was present at a meeting at Vesuvius Street on 30 May 2012 between Welsh junior and Fletcher, before the latter departed for Glasgow with a bag that the prosecution contended contained drugs. Fletcher met both men at the same address on his return. Fletcher also went to Vesuvius Street on 1 June 2012 after handing a package to another conspirator that was found to contain 1 kg. of cocaine. There was other evidence of Amos performing acts relating to the conspiracy on 12 June, 15 June, 20 June, 2 August, 12 September, 20 September and 26 September 2012. 30. Following his arrest in October 2012, his home address was searched; 3 kg. of adulterant, 64 gms of heroin, and a drugs press that tested positive for heroin were found. If mixed with heroin the adulterant would have a potential street value of £240,000. A search of two addresses that Amos had been observed attending on a number of occasions revealed: at 2B Kirk Street (the home of Woods), 5.75 kg of heroin and 1.1 kg. of cocaine and, at Joshua Close, 2 kg. of adulterant with a potential street value of £180,000 if mixed with heroin. 31. Amos was 28 at the time of sentence, of effective good character, a family man with a fiancé and children, and his parents and grandmother asked for leniency in the light of his progress in prison in turning his life around after an addiction to drugs that he said in interview led to his involvement. As against that the judge was satisfied that he was a leading player throughout the conspiracy giving instructions to others as well as receiving them from those above him. He rejected the account that the drugs found at his home were only there for his personal use. 32. Likewise, Edmonds was a leading player in the conspiracy and extremely close to Welsh junior. He regularly changed mobile phones used in connection with offending and when Welsh was abroad, other conspirators would contact Edmonds in his absence. He made a number of visits to Glasgow: on 18 January he went there with Amos and James Welsh; he was there again in February and on 7 March was again in Glasgow with Amos, Welsh Junior and James Welsh. He visited the home address of couriers and other conspirators and on 10 April he went to the home address of Welsh senior with Welsh junior and McIver, before travelling once more to Glasgow with Welsh junior. 33. On 18 April Edmonds had meetings with Welsh junior and McIver when bags were exchanged. McIver was arrested later that day and 2.25 kg. of heroin and 1.25 kg. of cocaine were seized. 34. On 24 April Clotworthy was arrested at Carlisle railway station with 1½ kg. of heroin and 15 kg. of adulterants; Edmonds was texting him that day, clearly connecting him to that particular intended distribution. The judge further noted evidence of a number of occasions of visiting couriers and other conspirators including Tynan and Woods, in connection with drug deliveries in May, June and September. On the 8 October Edmonds visited Tynan’s address at Abingdon Road with Welsh junior with a particular bag that Tynan gave to Welsh senior later that day; Welsh senior took it to a safe house where 5 kg. of heroin and nine empty packets used to wrap one kg. blocks of heroin were recovered. 35. Edmonds was aged 33 at the time of sentence and although he had previous convictions none was drug related or treated as aggravating this offence and he had no previous experience of custody. The judge took into account a moving letter written by his mother. 36. For both Amos and Edmonds the judge indicated that the starting point after a trial would have been 20 years and with full discount for a plea of guilty this lead to a sentence of 13 years 4 months. If the sentences on Welsh Junior and the other principals are not to be reduced, the sole point taken is that the difference in starting point between 25, 23 and 22 years respectively was insufficient to distinguish between the distinct and lesser roles of these appellants in the conspiracy. Further, each of the principal conspirators had significantly aggravating previous convictions for supply of class A drugs, a factor absent from the cases of both these appellants. 37. Our conclusions on the appropriate sentences for leading roles in a conspiracy of this scale have already been noted above. Both these appellants were well placed to understand the scale and effect of the criminal activity they were involved with and remained undeterred throughout. If the indicative quantity had been a single supply of 5 kg. of class A drugs a starting point after trial of 12 years would have been appropriate; the judge scaled up this starting point having regard to the 23 kg. actually recovered and the reasonable estimate of at least 100 kg. distributed during the course of this conspiracy. We cannot accept the submission that a starting point of 20 years was manifestly excessive. As we have explained, the judge accurately noted that for offending of this scale to be fitted into the range between 16 and 30 years there is bound to be some bunching in distinguishing between the level of culpability of leading players. 38. The best point made to us is that there was insufficient discount having regard to the absence of aggravating previous convictions by contrast with the principals. However, despite the absence of previous relevant convictions and the presence of personal mitigation, we cannot conclude that in the last analysis the sentences were either wrong in principle or manifestly excessive for the following reasons:- i) In our view the principal characters were fortunate not to have their starting points increased by reference to their convictions. This is not a case where that factor leads to a justified sense of grievance or any injustice. Significant distinctions have nevertheless been made between the classes of offenders and those more seriously involved have received sentences of two to five years longer. ii) The trial judge took considerable care in finding the different levels of culpability between the leading players below the principals and to interfere with these sentences on this ground would lead to an inappropriate distortion in what we otherwise consider to be appropriate structure and sentences. iii) Any reduction that we might otherwise have been minded to make on this ground would not have been for a significant period and would thus fall to be disregarded as not justifying interference by this court where a starting point of 20 years was otherwise appropriate: in short, these sentences are neither wrong in principle nor manifestly excessive. Substantial roles in Liverpool 39. Brian Woods is the uncle of Welsh junior. He was aged 51 at the time of sentence and had nine previous convictions but none that were found to aggravate this offending. He lived at 2B Kirk Street and his role was to allow his flat to be used for storing drugs and facilitate meetings between the conspirators. The judge referred to four occasions between 12 June and 2 August 2012 that concerned Tynan and his premises in collection of drugs with a view to delivery in Glasgow. 40. The judge sentenced him in accordance with his basis of plea that he allowed his premises to be used for storage in return for payment but concluded that his role was a significant one and involved the retention circulation and storage of a vast amount of controlled drugs. He was arrested on 18 October and a search of his premises revealed 5.7 kg. of heroin and 1.1 kg. of cocaine with a potential street value of £1.1 million. 41. The judge identified a starting point for Woods after trial of 18 years, scaling up the starting point of 10 years for supply of an indicative amount of 5 kg; giving full credit for a plea, a sentence of 12 years was imposed. 42. The judge also took an 18 year starting point for Steven Tynan and David McIver. Tynan was 37 at the time of sentence and was lightly convicted with no previous experience of a custodial sentence. His role was again assessed to be a significant one in the conspiracy and concerned storage of drugs, adulterants and cash. He lived at Abingdon Road Liverpool where a number of significant meetings of conspirators had taken place as has already been noted. In his sentencing remarks the judge identified seven occasions between 18 April and 16 October when Tynan was either seen to deliver bags to fellow conspirators or present when bags were taken to and from his home address. 43. On the last of these occasions on 16 October, one of those to whom Tynan had handed a bag travelled to Glasgow and when the home of the ultimate recipient was searched 1.1 kg. of heroin and 3 kg. of adulterant were recovered with a potential street value of £203,000 along with £16,120 in cash. 44. When Tynan was arrested on 18 October, 50 kg. of adulterant were recovered: if mixed with class A drugs, it would generate a street value of drugs of approximately £2.8 million; £2,000 in cash was also seized. An address at Victoria Settlement that Tynan had visited in July 2012 was found to contain 2.76 kg. of heroin and 446 gms. of cocaine with a total street value of £492,000. 45. David McIver was also assessed to have played a significant role in this conspiracy between December 2011 and his arrest on 18 April 2012 has already been noted. He was 58 and of previous good character. Telephone analysis revealed that he had used at least six mobile phones for the purposes of the conspiracy revealing an understanding of tactics used by criminal groups to avoid surveillance of their activities. He was in regular contact with leading members of the conspiracy including Welsh Junior, Welsh Senior, Shields, Amos and Edmonds as well as other significant figures such as Tynan, Woods, and Riley and the couriers Clotworthy, Breen and Jackson. 46. The judge identified a number of occasions in January and February 2012 (when messages were sent to other conspirators) to support the conclusion that McIver played a significant role and was trusted by others to store and handle large amounts of cash and drugs and to keep close contact with couriers. 47. On 9 March 2012 McIver was in constant touch with Breen who was arrested that day in possession of heroin and cocaine with a street value of £162,000 but also 20 kg. of adulterant that could result in drugs with a street value in the range of £1.4 to £2 million. Undeterred by this arrest, McIver was with father and son Welsh and Edmonds a month later on 11 April when premises used for the storage of drugs were visited and bags were seen to be brought out. On the 18 April he had met Welsh Junior and Edmonds at the home of Amos before going on to Tynan’s address. On his arrest, class A drugs with a street value of £775,000 were recovered along with adulterants and £90,390 in cash was recovered in his car or at his home. 48. Our conclusions on the appeals of this group of appellants follow from what we have said about the appeals of Amos and Edmonds. The judge’s rate of scaling up from the starting point was consistent with that used for the appellants who ranked higher in the scale of culpability. The two year distinctions made on account of role were reasonable and reflected a coherent sentencing structure even though the opportunity for any wider distinction was constricted because of the bunching feature noted by the judge. There is no basis for a submission that the distinction between these appellants and Amos and Edmonds was insufficient so as to make the sentences manifestly excessive; all of the comparators were either of good character or their bad character did not aggravate their offending. Other significant roles in Liverpool 49. Steven Wood was 31 at the time of sentence and lightly convicted with no previous experience of custody. He lived with the sister of Amos at a Liverpool address that featured in the conspiracy until the 28 July 2012 when a search warrant was executed and there was found 1.56 kg. of heroin, 917 gms of adulterants and a 10 ton press used to compress drugs and adulterants. The drugs had a street value of £180,000 and there was evidence that the press had been used to compress heroin. He was another trusted member of the conspiracy who had made 14 visits to Glasgow as a courier and, following a Newton hearing, the judge was satisfied that on the vast majority of occasions such occasions, he was delivering drugs of between one and two kg. per delivery. In addition, he had permitted his house to be used by others for the mixing and preparation of drugs. The judge identified evidence of a number of occasions when drugs were brought to his premises or by him to others and was satisfied that he was not a mere ‘gofer’, but played a significant role with knowledge of the conspiracy albeit for a shorter period than others. The starting point after trial would have been 15 years but giving full credit for his guilty plea the sentence was one of 10 years. 50. Christopher Riley was 43 at the time of sentence. He had no drug related convictions and had made progress on remand. He was assessed to be a significant and active member of the conspiracy between January 2012 and 17 October 2012 when he was in contact by mobile phone with Welsh junior, Shields, Amos, Edmonds; towards the end of this period he was in contact, almost daily, with Woods. The judge noted that he changed his phone following the arrest of McIver. His particular role was mixing or bashing of drugs at one location Victoria Settlement and his basis of plea that the quantities processed ranged between 20 and 30 kg. was accepted. £2,000 cash was recovered from his home address on arrest. The judge concluded that the role undertaken was a significant one and scaled up from the 10 year starting point to 16 years resulting in a sentence with full credit for a plea of 10 years and 8 months. 51. We cannot accept the submission that, even if the sentences on those more culpable than him were to be maintained, this sentence was manifestly excessive for his role in the conspiracy. The duration of his involvement, his persistence despite the arrests of others, and the senior members of the conspiracy that he was in contact with all amply justified the judge’s conclusions as to role and his place in the sentencing structure. 52. The judge’s starting point for Kevin O’Shea was 17 years and a sentence of 11 years and four months was imposed giving full credit for a plea. He was a courier who visited Scotland on 20 occasions on drugs related business; the judge assessed that he had delivered between 20 and 40 kg. of class A drugs. He was close to Welsh junior and had attended his wedding in Mexico. He was 28 at the time of sentence and, in his case, there was the aggravating factor of a conviction in March 2006 for possession of heroin with intent to supply for which he sentenced to three years imprisonment. For reasons explained by this court in Boakye (above) a worldly-wise courier who engages in the conspiracy on repeated occasions and for significant periods can be treated as playing a significant role. His appeal depends entirely on the outcome of those who ranked more senior to him and for the reasons already given, it is dismissed along with the other appeals. 53. Liam Clotworthy was a courier who travelled to Scotland on 18 occasions between September 2011 and April 2012 delivering drugs and collecting cash. He used no fewer than nine mobile phones in connection with this activity until his arrest on 24 April 2012 that terminated his involvement in the conspiracy. The judge took a staring point in his case of 16 years for his role as courier. The scale, persistence and nature of his activities entitled the judge to conclude that his was a significant rather than lesser role and the distinction with O’Shea was marked by a reduction of one year in the starting point. He was 30 years of age at sentence and had a previous conviction and a sentence of 30 months imprisonment for robbery that was not assessed to aggravate this offence. 54. The sentence imposed of 8 years and 4 months imprisonment was carefully calculated to reflect the fact that, on 13 July 2012, before he was charged with this conspiracy, he had been sentenced to a term of 6 years imprisonment for the possession with intent to supply arising from the arrest and seizure of drugs in April 2012. This sentence for a single act of possession with intent was before the full scale of his criminality was known about. In his case also, the judge properly structured the sentence for the relevant role and comparable culpability and the outcome was not wrong in principle or manifestly excessive and his appeal is also dismissed. 55. James Welsh was sentenced in accordance with his basis of a plea which was to the effect that he was recruited to act as a courier and was not a family member or relative of Christopher Welsh senior or junior. That basis of plea did not specify upon on how many occasions that Welsh acted as a courier or the extent of his involvement. The judge observed, however, that it could be proved, that he had travelled to Scotland on 8 occasions between January and July 2012: this assessment was not challenged. Thus, the judge concluded that he was “a trusted courier” who was “very close to many others up the chain and with whom [he] would frequently travel to Scotland”. Furthermore, whether or not a member of the family, he was sufficiently close to Christopher Welsh senior and junior that he was invited to attend the latter’s wedding in Mexico. He was 26 years of age when sentenced and had two prior convictions for simple possession of controlled drugs. 56. Noting that this would be his first custodial sentence, the judge assessed the appropriate sentence prior to discount as one of 12 years imprisonment which is at the upper end of the guideline for Category 1 (where the median quantity is 5 kg.). His plea of guilty resulted in the sentence being reduced to 8 years imprisonment. There is no basis upon which it can be said that his sentence was wrong in relation to any other defendant, whether playing leading role or otherwise. 57. Kenneth Fletcher travelled to Scotland on 15 occasions. Having first visited Glasgow in December 2011, on 25 July 2012, he was arrested upon his fifteenth trip at Carlisle railway station when he was in possession of just under 2 kg. of heroin. The judge recorded that upon occasions he attended meetings with Welsh junior and with Edmonds. When he was arrested the drugs in his possession had a street value of £280,000 with a purity of approximately 24%. He was sentenced upon the basis that he was a courier and to the Judge it was “apparent” that he was a “very trusted courier and close to many other conspirators”. Accordingly he played a “very significant part” within the conspiracy. 58. At the time of sentence, he was 51 years of age and in the past had received a short sentence of imprisonment. His previous convictions included simple possession of controlled drugs. He was sentenced to a term of imprisonment of 15 years reduced to 10 years in the light of his guilty plea. Given the extent of Fletcher’s role as a courier, the amount of drugs carried personally and the overall quantity of drugs supplied pursuant to the conspiracy, in our judgment, the judge was entitled to increase the starting point from that would which normally result for a offender playing a significance role in a category one offence. No arguable issue based upon disparity arises. 59. Kevin Jackson was sentenced upon his basis of plea which was that he was a courier between November 2011 and April 2012 and had undertaken these duties in order to satisfy a cash debt owed to another participant in the conspiracy. The basis of plea further recorded that Jackson received £1,000 for his work which he used to repay his council tax arrears. No claim was made as to the number of occasions upon which he acted as a courier but, in his sentencing remarks, the judge recorded that Jackson travelled to Scotland upon 8 occasions during which he met with others within the conspiracy including Welsh junior. 60. Jackson was 60 years of age as of date of sentence. He had a previous conviction of nearly 30 years vintage but the judge ignored this and treated him as a man of good character. He was sentenced upon the basis he was a courier but he accepted that Jackson was not as close to some of the other conspirators as certain other defendants were. The judge also accepted that Jackson departed the conspiracy voluntarily in April and there was no suggestion he held in his possession “dirty drugs” phones: not surprisingly in the light of the circumstances, the judge concluded that Jackson played a “significant role”. 61. Jackson was sentenced to 10 years imprisonment reduced to 6 years and 8 months to take account of the early plea. The starting point for this sentence was precisely that which appears in the Definitive Guidelines for an offender playing a significant role in a Category 1 offence. The judge was clearly entitled to take such a starting point in his case. The starting point for Jackson’s sentence was 15 years lower than that set out for Welsh junior. It was 5 years lower than that imposed upon Kenneth Fletcher who made 15 trips to Glasgow. The sentence was a proper one and is not unlawful by reason of disparity or otherwise. 62. Anthony Breen was sentenced upon the basis that he was a courier. He went to Glasgow on 18 occasions to deliver drugs and adulterants and to collect money. He did so frequently by train giving an appearance of respectability when, as it was said by the judge, “it was anything but”. He used at least 5 dirty phones and was, in the view of the judge, heavily involved and played a “very significant role” in September 2011 at the outset of the conspiracy until March 2012. 63. He had been arrested on 9 March 2012 at Preston railway station in possession of 1 kg. of heroin (with a value of £162,000) and 20 kg. of adulterants. When mixed together, the street value of the saleable result would have been between £1.4 – £2.0m. In relation to this specific quantity, he pleaded guilty to a supply offence and, on 12 June 2012, was sentenced to a period to 4 years imprisonment: the judge rightly concluded that, bearing in mind the seizure of the quantity of drugs in question, this was “a merciful sentence”: it was undeniably below that identified as appropriate in the guideline. Although he was in regular contact with Welsh junior and he was, so found the judge, “a close and trusted courier”, he was not charged upon that occasion with the wider conspiracy. 64. When he came to be sentenced for his role in the wider conspiracy, he was 47 years of age and, at that point, he had been in custody for 14 months and served the equivalent of a 28 month sentence which the judge recorded had to be reflected in the sentence which was then to be imposed. Based upon his participation, and his “very significant role” (involving quantities far in excess of category 1 of the definitive guidelines), the judge assessed an appropriate sentence for the offence as a term of 16 years imprisonment which, following discount for the early plea, was reduced to a sentence of 10 years and 8 months. It was further reduced, to a sentence of 8 years and 4 months, to take into account the portion of the sentence already served. 65. This sentence may be compared with that of O’Shea who made 20 trips to Scotland and was sentenced upon the basis of a 17 year starting point. The starting point was 9 years lower than that imposed upon Welsh Jnr. It was a perfectly proper sentence. 66. David Chambers (32 at the date of sentence) travelled to Scotland on just 2 occasions on 9 th and 16 th October 2012. The evidence suggests that he couriered 1.1 kg. of heroin and 3 kg. of adulterants. The value of the drugs was £203,000. On 26 th October 2005 he had been sentenced to a period of 14 months imprisonment for the possession with intent to supply of Class A controlled drugs. The judge concluded that this aggravated the seriousness of his offence. The sentence imposed upon was one of 9 years imprisonment reduced to 6 years to take account of the guilty plea: it is entirely consistent with the guideline and the other sentences: this appeal is also dismissed. 67. Abraham Salim was sentenced in accordance with his written basis of plea. During the first half of 2012, he was working as a self-employed courier working lawfully; his services were advertised mainly by word of mouth from existing customers. On 20 June 2012, he agreed to take a parcel from Liverpool to Glasgow for a person he knew only as a Mr Fairhurst. By the time he took possession of the parcel, he realised that the contents were drugs but he asserted that he did not know the precise nature or class of the drugs. He was told that the details of the delivery address would be provided to him when he was approaching Glasgow and was to receive a fixed fee of £200 for the delivery. He had no financial interest in the drugs as his role was simply as a courier. 68. He also stated that he was told by the consignor that the parcel contained “wood” which he understood to be cannabis resin though he was aware that the description might not have been true and that there was a risk that the drugs might be Class A. He was arrested on the same day on the M6 near Lancaster. The parcel in fact contained 1 kg. of heroin and 2 kg. of paracetamol which was to be used as the adulterant. The drugs were valued at £140,000. The purity was between 25 and 28%. 69. The judge remarked that his basis of plea afforded him only limited mitigation; he was satisfied that Salim was not “a gullible man”. Nonetheless, the judge explained that he would be sentenced upon the basis of his limited involvement relating to 1 kilo of heroin and 2 kilos of adulterants in circumstances were the adulterants would have been used to bulk up the drugs in order to maximise profit. 70. Salim was then 34 years of age and in 2002 had received a sentence of 54 months imprisonment for conspiracy in respect of offences of dishonesty. Because of the different nature of the offending, the judge concluded that this did not aggravate the seriousness of the offence. He assessed the appropriate sentence to be 7½ years which was reduced to 5 years imprisonment to take account of the guilty plea. This sentence was at the very lowest level of sentences imposed, was within the range of sentences set out in the definitive guideline. It might be considered severe but it is neither wrong in principle nor manifestly excessive. The Scottish Conspirators 71. The defendant Feeley entered a plea on a written basis in which he accepted that he had been invested with a significant degree of trust and had acted as a “front of house” in Glasgow for those running the Scottish end of the conspiracy thereby limiting their exposure to the chances of detection. He also acknowledged his prolonged involvement in the conspiracy. He then contended (accepted by the judge for the purposes of sentencing) that he had handled 10 – 20 kg. of class A drugs. 72. It is clear from the facts presented to the court that Feeley was responsible for receiving drugs and adulterants couriered to him from Liverpool and in delivering cash to couriers to be returned to Liverpool. He was therefore intimately involved with the conspirators on both sides of the operation. It is also clear from the evidence that in accordance with his role he met regularly with the Liverpool and the Scottish conspirators including those operating at very senior level. 73. The judge correctly approached sentence on the basis that Feeley was “more than a courier”. He was very active throughout the conspiracy and thereby played a “very significant role”. He was involved between December 2011 and October 2012 during which 84 trips occurred between Liverpool and Scotland, albeit that is was not suggested that he was involved in receiving or paying for the drugs for each of the trips: other drugs retailers will also have been acquiring the product. The judge was, however, satisfied that he received “substantial quantities of drugs from Liverpool couriers, quantities far in excess of those envisaged in the guidelines”, albeit difficult to quantify the precise amount. Feeley’s significant role meant that “vast quantities of Class A drugs would ultimately end up on the streets in Scotland”. The judge concluded that Feeley went into the conspiracy with his eyes wide open and stayed in the conspiracy with his eyes remaining wide open for 10 months. It was accepted that he was “front of house” but not an organiser or a dealer. He was “worldly wise”. 74. Feeley was 28 years of age when sentenced with no prior relevant convictions: supporting references were particularly impressive. The judge concluded, however, a substantial custodial sentence was required to reflect the extent of his involvement within the conspiracy. The judge correctly described the role of Feeley as significant for the purpose of the definitive guideline and identified the appropriate sentence as 17 years (comparable to the starting point of O’Shea who travelled from Liverpool to Glasgow as a courier on 20 occasions) but 1 year less than the 18 year sentence imposed upon Tynan who played a significant role at the Liverpool end of the conspiracy. Taking account of the guilty plea, the sentence was reduced to 11 years and 4 months 75. On his behalf, Mr Tyrone Smith Q.C. argued that there is a disparity between the sentencing imposed upon Feeley and that imposed upon Thomas Wallace. Wallace was a lead purchaser in Glasgow buying wholesale in order to sell on as a commercial dealer. The judge was unable precisely to assess how much had passed through his particular hands but concluded that it was “substantial” and significantly more than the quantities envisaged in the guidelines. He was aged 45 as of the date of sentence and only lightly convicted. He was sentenced to 19 years imprisonment reduced to take account of his guilty plea to 12 years and 8 months. No criticism can be made of the judge in this regard: he was best placed to judge the relative positions of Feeley in relation to the others within the conspiracy and, in particular, that his position was only slightly less serious than that of Wallace bearing in mind the role and responsibilities he undertook. 76. Fully recognising that the recipient of drugs in Glasgow is in a different position to those distributing more widely from Liverpool, responsible only for the quantity actually received, notwithstanding the positive aspects of his character, the extent of this criminality (and the ‘front of house’ role) demonstrates that the sentence imposed which was neither wrong in principle nor manifestly excessive. 77. Alexander Caldwell was a conspirator based in Scotland. By the time the judge came to the sentence Caldwell he was the 29 th defendant to be sentenced by the court. In consequence the judge clearly had in mind the position of Caldwell relative to that of others within the conspiracy. 78. Caldwell had been in regular contact with Christopher Welsh Jnr throughout the operation of the conspiracy. The judge found that Caldwell’s involvement was similar to that of Feeley. Caldwell did not initially make any detailed admissions and a Newton hearing was held in consequence of which various adverse findings were made against him. The judge concluded that the role of Caldwell was akin to that played by Feeley, less than the role played by Wallace but more than the roles played by couriers. The judge also conducted a comparative exercise of Feeley as against Caldwell and concluded that the involvement of Caldwell was for a slightly shorter duration than that of Feeley. Caldwell was 24 years of age at the date of sentence. The judge imposed a sentence of 15 years imprisonment reduced to 11 years and 3 months giving an appropriate (25%) reduction for the guilty plea and the Newton hearing. The sentence was entirely appropriate. Conclusion 79. This sentencing exercise called for a detailed consideration both of the facts and the approach to sentencing in this area: that is exactly what it received. Although we would have been prepared to extend time to those who have sought to renew applications for leave to appeal had there been any merit in the underlying appeals, there is not. In the circumstances, the applications for extensions of time, for leave to appeal and the appeals are all dismissed.	[ "His Honour Judge Aubrey Q.C.", "MR JUSTICE BLAKE", "MR JUSTICE GREEN" ]	2014_05_21-3423.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1027/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1027	1,088
ebb02fc469a4a3d4c63b49544b3b3776f64eebdbb17c80c5b9b61cb5e747c16e	[2009] EWCA Crim 188	EWCA_Crim_188	2009-02-03	crown_court	Case No: 200801583/D1 Neutral Citation Number: [2009] EWCA Crim 188 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 3 February 2009 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE TREACY MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - R E G I N A v MARK PHILIP DIXIE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street Lo	Case No: 200801583/D1 Neutral Citation Number: [2009] EWCA Crim 188 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 3 February 2009 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE TREACY MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - R E G I N A v MARK PHILIP DIXIE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Non-Counsel Application - - - - - - - - - - - - - - - J U D G M E N T 1. Mr Justice Treacy: This applicant is Mark Philip Dixie. He renews his application for leave to appeal against conviction having been refused leave by the single judge. 2. The applicant was convicted of murder on 22 February 2008 at the Central Criminal Court after a trial. The circumstances lying behind his conviction are dreadful. On 24 September 2005 the deceased, Sally Anne Bowman, a young woman aged 18, went out for the evening with her sister. During the course of that evening she met an ex-boyfriend. At the end of the evening he saw her walk to her home at an address in south Croydon. That was at about 4.00 am. Several residents in the street where Miss Bowman lived heard screams at about 4.20 am and a man was seen acting furtively in the vicinity of her house. At 6.30 am a neighbour saw something unusual, went to investigate and discovered Miss Bowman's dead body lying there near the street. 3. The applicant had spent the evening of 24 September with friends. He was in the general south Croydon area and he was familiar with the street where Miss Bowman lived. He had in fact previously lived only a few doors away from her home. 4. Miss Bowman had been savagely attacked. She suffered ten stab wounds, including one to the right side of her neck, two through the abdomen and a fatal wound which had severed the right carotid artery. There was evidence of defensive injuries on both arms and bite marks upon her body. 5. Forensic scientific analysis revealed a DNA profile in semen which matched that of the applicant taken from swabs around Miss Bowman's private parts. Moreover, there was a further identification of a DNA profile relating to the applicant found on swabs taken from Miss Bowman's neck. 6. The applicant was arrested in June 2006. He answered no comment to all questions put to him in interview. 7. At the trial the Crown sought to introduce evidence of bad character related to two particular matters. First of all, the applicant's convictions in 1988 for indecent assault and assault occasioning actual bodily harm and, secondly, to adduce evidence that the applicant was a DNA match for semen found in the victim's underwear following the stabbing and rape of a student in Australia in 1998. He had not been tried in relation to this latter matter. 8. Those applications were opposed. The Recorder of London at a pre-trial hearing ruled that both incidents could be admitted to show a propensity to violence in the circumstances of sexual assault. The former ruling, that is the ruling in relation to the 1988 incident, was reconsidered by the trial judge as the Recorder had given leave for such reconsideration to take place. It was argued that the differences between the 1988 events and the age of those matters meant that the 1988 incident did not show a relevant propensity. The judge disagreed. He ruled that nothing had changed since the Recorder's ruling, and, accordingly, the 1988 incident was admitted as being relevant to the issue of propensity. 9. Those 1988 convictions arose from a complaint by a woman who encountered this applicant in a block of flats. He blocked her way as she attempted to leave a lift. He punched her in the eye and grabbed her in the throat as she began to fall. He stood close to her, apparently fumbling with his penis, saying, "Please, please, I really need this." She agreed to leave the building with him in order to avoid further violence and during the process of doing so he rubbed his knee up and down her leg, lifting her skirt. Eventually she managed to escape. In relation to that matter the applicant was arrested. He denied involvement with those offences but eventually pleaded guilty and was sentenced to a total of six months' youth custody. 10. At his trial he gave evidence accepting that he had hit the victim causing injuries to her face. He said that was because of a remark she had made to him and that there was nothing of a sexual nature involved. He explained away his plea of guilty to the offence of indecent assault by saying that he thought if he did not plead guilty to that offence he might be charged with causing grievous bodily harm. 11. In the trial relating to the murder of Miss Bowman the Crown case was that this applicant had brutally stabbed Miss Bowman and then had sexual intercourse with her after her death. They relied on evidence of this applicant's bad character to show that he had a propensity to commit offences involving violence in order to achieve sexual gratification or heighten it. 12. The defence to the allegation of murdering Miss Bowman was that this applicant had come across her semi-clothed body while out walking. He had then taken the opportunity to have sexual intercourse with her, thinking that she was drunk and had passed out. He claimed that he had only realised she was dead during the course of sexual intercourse when she did not react to his biting. Accordingly he panicked in order to cover his DNA, which he realised he had deposited, and put cement dust in her vagina and mouth. 13. The issue at the trial was whether the jury were sure that it was this applicant who had murdered the deceased. The jury were indeed sure. It is not surprising, in our view, given the specious nature of the account which he put forward to explain away his actions having failed to give any account at all to the police when questions were put to him. 14. He persists in grounds of appeal against conviction before this court alleging that the judge was in error in permitting the bad character evidence in relation to the 1988 assault to be adduced. The argument is that the circumstances of the 1988 assault were different, in the sense that they involved a relatively minor sexual assault, and did not show, and were irrelevant to a propensity to commit murder. 15. We have considered the rulings made in the court below. It is plain to us that both the Recorder of London and the trial judge were alive to the relevant features of the lapse of time since 1988, the age of the applicant at that time and the less serious circumstances of that matter. In our judgment, they gave those factors appropriate weight, and, in our judgment, their conclusion, namely that the evidence of the 1988 incident was admissible, was neither demonstrably wrong nor unreasonable. 16. We have reviewed the prominence given to the matter during the trial. We do not find that this episode took an unduly prominent place in the case. Once the applicant had sought to explain away his guilty pleas to the 1988 matter in evidence-in-chief, it was inevitable that his account of what had happened then and his reasons for pleading guilty would be tested in cross-examination by prosecuting counsel. We find nothing, having read the transcript of what took place, which suggests that matters were taken beyond what was appropriate in all the circumstances. 17. It is also suggested that prosecution counsel's closing speech laid undue emphasis on the 1988 matter. We have reviewed that and find that it was fair and accurate and did not contain inappropriate emphasis on the topic. 18. The summing-up on the issue was fair and accurate and that cannot give rise to any comment. Indeed, none is made. 19. We have shortly before this hearing received further papers from this applicant in which he asserts two further matters of appeal. He asserts that the jury were misled by the Crown in respect of photographic evidence. He asserts that the media coverage of this matter prevented him from receiving a fair trial. He has also attached a number of papers, apparently derived from the internet sites, together with comments of his own and materials which appear to have been available to him and his legal team at the time of the trial. None of those matters, raised under the cover of a letter to this court dated 23 January 2009, avail this applicant in any way. 20. This application is entirely without merit and the renewed application is refused.	[ "LORD JUSTICE STANLEY BURNTON", "MR JUSTICE TREACY", "MRS JUSTICE SLADE DBE" ]	2009_02_03-1803.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/188/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/188	1,089
fb3dd83c4d1596bee12ca36ad78ac62c09b36b122244e98821ff39a0ed440278	[2010] EWCA Crim 926	EWCA_Crim_926	2010-04-29	crown_court	Neutral Citation Number: [2010] EWCA Crim 926 Case No: 2008/04602/B2 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM TEESIDE CROWN COURT His Honour Judge Fox QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2010 Before : LORD JUSTICE LEVESON MR JUSTICE TREACY and MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - DECLAN PAUL APPLEBY Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr An	Neutral Citation Number: [2010] EWCA Crim 926 Case No: 2008/04602/B2 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM TEESIDE CROWN COURT His Honour Judge Fox QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2010 Before : LORD JUSTICE LEVESON MR JUSTICE TREACY and MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - DECLAN PAUL APPLEBY Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Andrew Robertson QC & S Mallett (instructed by CPS ) for the Appellant Tim Roberts QC & R Turton (instructed by Brown Beer Nixon Mallon Solicitors ) for the Respondent Hearing dates : 22/04/2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson: 1. At the conclusion of the hearing of this appeal, we announced that it would be dismissed for reasons which would be given later. We now give those reasons. 2. Between 28 July 2008 and 11 August 2008, at the Crown Court at Teeside, this appellant, Declan Paul Appleby, and Scott Fullam stood trial for the murder of Ronald Sharples before the Recorder of Middlesbrough, His Honour Judge Fox QC. The appellant was convicted of murder but the jury could not agree in relation to Scott Fullam. A retrial was fixed for 23 February 2009; on that occasion, he pleaded guilty to manslaughter which plea the prosecution accepted. 3. On 23 June 2009, both young men came to be sentenced. Appleby (who was 17 at the time of the killing) was sentenced to be detained at Her Majesty’s pleasure, Judge Fox initially ordering that he serve a minimum term of 9 years. On 3 July he varied that term to one of 6 years; on 18 th December 2009, however, on a reference by the Attorney General, that period was increased by this court back to 9 years: see [2009] EWCA Crim 2693 . Fullam was sentenced to a term of 30 months detention in a young offender institution: a reference in relation to that sentence was withdrawn although the Lord Chief Justice remarked (at paragraph 43) that Fullam may have been fortunate. 4. Following his conviction, the appellant pursued an appeal against conviction on the grounds, among others, that the judge should have acceded to a submission of no case to answer. After the prosecution accepted a plea to the lesser offence of manslaughter from Scott Fullam, the grounds include a challenge to the basis on which the prosecution was mounted. It is put that the case before the trial judge was that both defendants were joint principals attacking the deceased virtually simultaneously with a common intention of causing him at least really serious harm; had the concession which the prosecution made in accepting the plea of Fullam that this was not the case and that the defendants did not share the same intention, it could materially have affected the approach of the court to the question of joint enterprise with the result that the conviction for murder is unsafe. 5. The single judge having refused to do so on all grounds, the full court was persuaded to grant leave to argue both the submission of no case to answer and the impact of the subsequent developments although the court made it clear (per Moses LJ) that permission would not have been granted on the ‘no case’ point alone and that focus would be better concentrated on the contention of “change of tack”. In the event, in the light of the authorities, Mr Tim Roberts QC (who appeared for the appellant in this court as he had at the renewed application for leave and the trial) said that he did not intend to pursue the point which had attracted the court to grant leave and concentrated entirely on the argument that the trial judge should have withdrawn the case from the jury at the close of the prosecution. In the circumstances, partly because Mr Roberts sought to use some of the arguments on the latter point to support his submission that the judge should have withdrawn the case and partly in deference to the concern expressed by the full court, we deal with both aspects of the appeal. The Facts 6. On 31 December 2007, together with his wife, and some friends and family, Ronald Sharples (then 52 years of age) went out for the evening. They were all celebrating the arrival of New Year. The deceased and his wife returned home shortly before midnight. Once home, they lit celebratory fireworks in the garden. The noise of the fireworks startled their dog which ran out into the street. The deceased went to find the dog, followed by his wife and one of their friends, Angie McGee (who was very drunk). Eventually the dog was found, and at about 2.00 am, the three were making their way home. Their route took them through a residential street, Inglewood Avenue, where Appleby and Fullam, with another young man, Thomas Ruecroft, were on their way to a party in the vicinity. They had also been drinking heavily although Ruecroft played no part in what was to happen. 7. The precise sequence of events is not entirely clear, and the reason why the trouble began is equally uncertain. Because of some remark made to them, it seems that Angie McGee described the group of young men as “chavs” and that Fullam reacted aggressively to the perceived insult and, at one point, seemed to be raising his hand as if to punch McGee. The deceased, Mr Sharples, tried to restrain Fullam and calm things down. There was then something of a fracas, the detail of which is far from clear although the deceased was punched in the stomach by Fullam and fell into the garden of an adjacent house. Neither the prosecution nor the defence suggested that the deceased had been acting in an aggressive way, or that Fullam punched him in self defence. 8. Mrs Sharples went to summon help from her nearby home. But in the meantime, the deceased himself got to his feet and the fight continued. The appellant went to assist Fullam (who was slightly built). The prosecution case was that the appellant and Fullam jointly attacked the deceased with the appellant delivering a martial arts type of high kick to the upper part of his body and Fullam pushing or punching him to the ground. Suffice to say the deceased fell to the ground, landing forcefully, and striking the back of his head on the pavement. He suffered a fractured skull and irreversible brain damage such that he was pronounced dead at 3.00 am on 1st January 2008. The defence case on behalf of the appellant was that he had punched, but not kicked, the deceased, that the punch which he delivered did not cause the deceased to fall to the ground and that thereafter he had withdrawn from the attack entirely before the infliction of the fatal push or blow. 9. Before outlining the evidence which was adduced in relation to the fight, it is worth setting out some of the other, unchallenged, evidence in the case. The first and most important evidence came from the pathologist. Apart from the fatal fracture of the skull, specific areas of important further injury were noted. They included an injury to the right eyelid and cheek with fragmentation of the underlying bone, associated by the pathologist with a punch, or more likely, a kick or stamp. There was a fracture of the laryngeal cartilage, which would have required a forceful blow, again more likely to be administered by a kick rather than a punch, and an injury to the left cheek; in addition, there was bruising and abrasions to his face. There is no suggestion that these injuries were caused after the deceased had finally fallen to the ground: indeed, during argument, Mr Roberts conceded that the evidence demonstrated that the deceased had received serious injuries consistent with one or more kicks which could only have been inflicted by Fullam or the appellant. 10. The police evidence was also unchallenged. Having attended the scene, despite the attempts to detain them, both the appellant and Fullam ran away. Later that day, they attended the police station where they were arrested. The account then given by the appellant was that he was walking ahead of Fullam, when he turned to see the deceased holding Fullam by the throat so he went to help. In fear that he would be punched by the deceased, the appellant admitted that threw the first punch, asserting that it was not a “proper punch”. He left the scene because there were parties to attend, and he “didn’t fancy being locked up at New Year”. 11. The comment about being “locked up” may echo evidence given by Alan Griffiths, a local householder who had been awakened by rowdiness; he did not see any violence although he heard a loud bang and went outside to see a man lying on the roadside with three young men together, one of whom was calm, the other two “had some form of adrenaline and excitement”. His evidence was summarised by the judge in this way: “I told these three to wait and the middle sized one spoke to me because I’d asked what it was about, and he said that Mr Sharples, not using his name but indicating the man who was on the ground, had hold of the smaller one by the throat, ‘and so we dropped him’, and the taller one’ he said, ‘to my right’ was saying, “I could go to prison for this”. This was a remark to himself as I was walking over to the man on the ground. He heard this youth say that and he also heard the smallest of the three [whom it was common ground was Fullam] saying ‘He was strangling me’.” 12. Not surprisingly having regard to the amount of alcohol that had been consumed by most of those involved in this incident on the ground, the accounts which were provided were vague and, in parts, contradictory. Thus, Angie McGee could only recall screaming for help and for her husband. Christine Sharples (who was sober) had been present at the initial altercation, when her husband had remonstrated with a short boy who had become angry and raised his arm when Angie had called him a dick-head after he had said something to her. She said the boy thumped her husband in the stomach causing him to fall on his bottom although he then got up; one of the boys gave her a cuddle for the new year and she went home seeking help, returning after ten minutes by which time her husband was lying in blood. 13. Those who attended in response to the request made by Christine Sharples for help included Steven McGee: that evening he had drunk about seven pints. When he arrived, his wife had hold of the shortest male, saying “This is the one that’s hit Ronnie”. He dragged her away from him while that youth was shouting “So you want some?” waving a vodka bottle about. As he was pulling her to the other side of the road, “there was a bit of a melee and then I saw what seemed to be a shove, a push” by that youth causing Ronnie to fall to the floor with “a big thud”. He later said that it could have been a kick. He said that he did not see a Bruce Lee type kick, saying when it was put to him that there was no suck kick “Not that I saw”. He agreed that only one of the lads seemed angry but also made it clear that prior to the police being called “everything was a blur”. 14. Another of the rescuers was David Sharples (the brother of the deceased) who had also drunk seven pints of lager. He ran to the scene in front of Steven McGee but he slipped and fell. He then passed his brother who, at that time was not being attacked and was upright. He turned his attention to the lads, some 12 feet away, but, still running, slipped so that one knee was on the ground. He got up and went to grab one of the youths. He put up his hand to restrain him and as he did so, the youth stepped back and put his own hands up saying “It’s got fuck all to do with me. What are you doing?”; he repeated that it had nothing to do with him and said that his name was Paul. While this was happening, Steven McGee was talking to a second youth and he heard that there was a bit of a melee or distraction or scuffle over his left shoulder but he did not see what happened. 15. Paula Sharples, the wife of David Sharples, arrived in her car; she saw a “small boy” push the deceased at chest level vigorously causing him to fall “just like a deck of cards”; this was while she was still in her car. She then jumped out of the car and went to the deceased who was unresponsive and flat on his back. She then went across to her husband who was talking to three boys; she recounted the same conversation as her husband. She told them that she had not had a drink, would recognise all three and that they were calling the police. It was then that the tall boy held up his hands and said “It’s got nothing to do with me. I’ll give you my name now”; she was given the name Paul and recollected a surname with the word “apple” in it – whether Appleton, Appleforth, Appleby, she did not know. 16. Marie Leadbeater was staying at a friend’s house in Inglewood Avenue and had gone to bed when she heard shouting outside. Looking out of the window, she saw two groups arguing. She saw a man running towards the youths, saying words to the effect “Stop it” or “Calm down” to two lads. She said that at one point she saw the taller of the two give this man (whom later in her evidence she called Ron, having at one stage heard one of the woman call him by that name) “quite a high kick” in an area she later identified as top chest level to just underneath the chin. Ron went back a bit but did not fall. She appreciated that it was a serious fight and did not want her daughter to witness it so she looked away to attend to her and when she looked back she saw Ron go back forcefully and land on his back. She thought there was a gap between the two of events of “a minute, a minute and a half, I don’t know, not long”. The two lads who were then stood over were the same two that had been fighting with him; there was a third boy but she remembered nothing about him. It was put to her in cross examination that she was mistaken about the kicking and punching but she said that she was 100% sure and also sure that she saw him go to the floor. 17. Paul Maguire was at the home of his ex-wife looking directly onto Inglewood Avenue. He had drunk three pints that evening and was “all right” and heard banging from Inglewood Avenue. He opened the window and looked out and saw a “little lad” doing all the shouting among four or five people. He put his head back in and then a couple of minutes later looked again when he saw the lad make a movement with a clenched fist at shoulder level and then a person came down Inglewood and performed a Kung Fu type up to chest or neck level; he moved back a bit and then heard a crack. When he looked again, the man was laid out. He told his ex wife to get an ambulance. There were three people around – the man on the ground, the short man (also described as a little lad) and the man who did the kicking motion. There was another lad and could have been a woman although he was not sure. Later, he heard a woman shouting at the little lad. He did not identify the appellant. 18. When cross examined, Mr Maguire believed that the total length of time that he had observed from the window as “a few minutes each time”. He thought the kick had been delivered by a young lad wearing what looked like dark clothing “cause it went that fast”, who had run from Inglewood Avenue. It was put to him that he had described the kicker as having been “all in black”; he was sure that there was a kick and he did not simply see someone slipping. 19. Mr Roberts argued before the Recorder that there was no basis for holding the appellant responsible for any push which Fullam may have given the deceased and which caused death. The judge appreciated the contradictions in the evidence (which he did not consider surprising having regard to the consumption of alcohol) but, having eliminated Thomas Ruecroft (on the basis that nobody had suggested that he had done anything) noted the appellant’s admission of striking the deceased and the evidence both of the extent of the injuries and of the “deliberate and hefty kick”. Rejecting the submission, he said: “There is reason to infer that if Mr Sharples was kicked or was struck by the defendant, Appleby, then it was the defendant, Fullam, subsequently who delivered the fatal violence. ... Such here is the ambit of place and time, including description of high kicking to the chest, neck, chin area and the involvement of these two defendants, that there is material which is capable of giving rise to an inference, certainly first of all on the part of the kicker, that on that person’s part there was an intention at least to cause serious injury... ...It may be extremely difficult for the jury to sort out the truth of who did what, where and how closely in time different things happened. It may be very difficult for them and then, having done that, to draw inferences as to intent, as to disassociation, if there was any and the like but none of that is my function. Where feet and hands are used aggressively by more than one young man in a relatively small compass of space and time then, if that situation upon examination excludes self defence, then it is unlawful and each young man is responsible for the actions of the other. I express it in that way because it is not for me so to decide.” 20. Mr Roberts submits to this court that the evidence of Paul Maguire of a flying Kung Fu kick felling the deceased was contradicted by David Sharples, Paula Sharples and Steven McGee who confirmed that the deceased was standing up when they arrived to assist him. His fall was caused by a push (in respect of which Fullam was identified as responsible) not a kick. Further Marie Leadbeater’s evidence was that although one of the youths launched a kick at the deceased, it did not cause him to fall over; she did not see what caused him to fall but it happened up to about 1½ minutes after the kick. Neither did she describe a running jump and Kung Fu kick and, although a high kick, it was not the same as that described by Mr Maguire. Her account was different to that of Paul Maguire because it was her evidence that the deceased ran across to the youths to get them to calm down. He submits that no jury could reasonably and lawfully treat Mr Maguire’s evidence as identifying the appellant as the perpetrator of such a kick, ignore the evidence that it was Fullam’s push that caused death and convict the appellant of murder. He also relied on the evidence of David Sharples that the appellant had ceased to offer any threat of violence before the push that caused death (which on the evidence of that witness was while he was talking to the appellant). 21. For the Crown, Mr Andrew Robertson QC argued that the prosecution case was that the deceased was jointly attacked by Appleby and Fullam in a joint enterprise of spontaneous violence that erupted on the spur of the moment after a rude exchange with Angie McGee. The injuries revealed that Mr Sharples had been subjected to serious blows and there was evidence which the jury could accept that the “small one” (Fullam) pushed him so that he fell suffering a fatal injury while, as part of the same joint attack, a taller one had kicked him at a point very close in time. Appleby had admitted using violence, had recognised that what he had done was unlawful (by what he said and by his running away) and, by his previous convictions, had shown a propensity to violence. He argued that although David Sharples spoke of a conversation with the appellant having passed his brother who was then upright, his wife, Paula, was clear that she saw her brother in law felled while she was still in the car and described the conversation (which was clearly the same one spoken of by her husband) as having occurred after she had alighted, seen Ron flat on the ground and then gone over to her husband and the appellant. 22. In our judgment, it is simply insufficient to focus on the undoubted inconsistencies between the witnesses, seeking to describe what happened at the end of New Year’s Eve celebrations in a fast moving incident at night. Focus must first be placed on the undeniably serious injuries which Mr Sharples suffered which, discounting the push which caused him to fall, must have come from two substantial and serious blows (to ignore the other bruises and abrasions which the pathologist described). Given that these blows were each more likely to have resulted from a kick or stamp than a punch, and the evidence that Mr Sharples was kicked (by witnesses who could not have known the nature of his injuries however inconsistently they might describe the manner of their infliction), the agreed lack of involvement of Ruecroft and the other circumstances, in our judgment the judge was right to conclude that there was a case to answer in relation to joint participation in an attack. It was open to the jury to conclude that the fact that Appleby said that it was nothing to do with him before the final push, if that is what happened, was not sufficient thereby to dissociate himself from the attack of which he had been part or the consequences of the final blow. Neither the single judge nor the full court believed that the failure to withdraw the case was, in reality, properly open to challenge: we agree. Subsequent Developments 23. As part of his argument that Judge Fox should have stopped the case at the conclusion of the prosecution case, Mr Roberts advanced the uncertainty expressed by the judge when he came to pass sentence. The judge put the matter in this way: “Now, whether it was your high kick or other blow, Appleby, which indirectly caused Mr Sharples’ death, for the immediate cause was his head striking the pavement, or whether it was your push Fullam, cannot confidently be ascertained. It was one or the other but it would be wrong, therefore, to say it must have been the one or ther other as against either of you…” 24. The judge’s assessment of the facts for the purpose of sentence must, of course, follow the verdicts of the jury but it is not to be construed as affecting the jury’s approach to the determination of guilt. That is to be derived from the summing up which identified the way in which the case was left to the jury in a manner that attracted no criticism either as to the law or on the facts. These directions are best summarised in the Route to Verdicts which were placed before the jury and were explained by the Judge in this way: “1. Are we sure that Mr Sharples died from falling and striking his head on the ground as a result of some deliberate physical force whether a kick, a punch or a push as opposed to stumbling and falling accidentally? If you are not sure, then both not guilty. If so 2. Are we sure that force was delivered unlawfully by one or the other of the defendants? If you are not so sure, if you think it may have been, whether one or the other acting in self defence as I have explained it to you, both are not guilty. But if you are sure both on (1) and (2) that it was deliberate physical force which was unlawful then if so 3. Are we sure that it was delivered in the course of a joint attack by both defendants and not after one or the other had disengaged from it, or in the force that caused Mr Sharples to fall was not ... of a fundamentally different kind to that which the defendant contemplated? If you are sure that it was a joint attack without disengagement and without fundamentally different conduct which was unexpected by the other, then taking each defendant in turn 4. Are you sure that the defendant intended either to kill or to cause really serious harm of injury? For such a defendant, if you are sure of each of those things, then he is guilty of murder and so should your verdict be. If you are not sure you ask yourselves: Are we sure he at least realised a risk of some harm or injury to Mr Sharples? If you are sure of that, then guilty of manslaughter 5. Goes back to Question 3, because if you are not sure that it was a joint attack without disengagement or a fundamentally different type of behaviour then take each defendant in turn. Are we sure ... that he delivered the fatal force? Never mind how. Are we sure he delivered it? And if yes to whichever defendant you are asking that question about, are we sure he intended either to kill or cause really serious harm or injury? If you are, that defendant is to be found guilty of murder. If not, then ask the next question: are we sure he at least realised a risk of some harm or injury? If so, guilty of manslaughter but if neither, simply not guilty.” 25. It is important to underline that the route postulated by these directions was a joint attack upon Mr Sharples with the intention accompanying that joint attack to be separately identified in a defendant found to have participated in that joint attack. The case was not left to the jury on the basis of R v Powell, R v English [1999] 1 AC 1 namely that it was sufficient if the relevant defendant participated in a joint enterprise realised that the participant who inflicted the fatal blow might intend to kill or cause serious bodily injury. The judge’s observations while passing sentence do not detract from this analysis and do not impact on the correctness of his decision at the close of the prosecution case. 26. With that background, we move shortly to the re-trial of Fullam. Before the judge, Mr Richardson QC (who then prosecuted) made it clear that at the first trial the allegation had been one of joint enterprise. In explaining why the Crown were willing to accept a plea from Fullam to manslaughter, he said: “It has to be said at all stages that if the conduct of Fullam had stood alone in this episode, that is to say a punch or push, had that been the only conduct involved, he would never have been charged with murder. It would have been a case of manslaughter. However, the Prosecution case was that he was part and parcel of a joint attack upon Mr Sharples and his conduct, in contrast to Appleby’s was a push or a punch. ... It happened very rapidly on any analysis and there can be no doubt at all, certainly as a result of the jury’s verdict, that Appleby was the man who did the high kick and almost certainly caused the serious injuries to the neck and facial area of Mr Sharples. Fullam’s conduct, once the fatal incident, so to speak, had started in the very short space of time in which it did was either to push or to punch ... [T]his ... in no way compromises the position in relation to Appleby because although there was a joint attack that cropped up very, very rapidly, it is possible for two separate individuals doing two separate things as part and parcel of a joint attack to have separate intentions and plainly the intention of Appleby, as the jury so found, was to cause really serious injury.” 27. When the sentence was opened on 26 June 2009 in the presence of both Appleby and Fullam, in the absence of Mr Robertson, Miss Sarah Mallett opened the matter in this way: “On 23 February, when Fullam changed his plea to guilty of manslaughter, we decided to accept that guilty plea and not seek a murder conviction. That decision followed consultation with Mrs Sharples and with the police. ...[T]he accounts given by the eye witnesses at the trial gave their separate recollections of what had occurred and, given the willingness of Fullam to accept responsibility for what he did and the inevitable difficulties caused by a re-trial, the prosecution decided to accept the plea as tendered ... I ... do simply wish to record ... that when we accepted the guilty plea of Fullam to manslaughter it did not in any way undermine the way we put the case against Appleby, that his conduct intended to cause Mr Sharples really serious injury ... [W]e maintain still that it was a joint enterprise but that the level of intent in relation to each of the two defendants was separate.” 28. In his skeleton argument (but not repeated before us), Mr Roberts argued that although the prosecution at the trial alleged that both defendants were joint principals attacking the deceased virtually simultaneously with a common intention of causing him at least really serious harm, the prosecution had since accepted that this was not the case and that Appleby and Fullam did not share the same intention. He went on that had this concession been made at trial, it could have materially affected the court’s approach to the question of joint enterprise and would seriously have undermined their case for convicting the appellant of murder because the jury would have been less likely to hold the appellant liable for murder on the basis of his prior non-fatal acts of violence, whatever intention accompanied them. It would also have enhanced the appellant’s case that the fatal push was delivered after the cessation of any such joint enterprise. 29. Against the background of that primary submission, it is necessary to consider how this type of problem has previously been approached. In R v Hui Chi-ming [1992] 1 AC 34 , the situation arose the other way around. The principal offender struck the deceased with a pipe causing fatal injuries. Two other participants in the attack (without weapons) pleaded guilty to manslaughter and the principal offender was convicted of manslaughter. The appellant and another youth were also alleged to be participants; both were indicted for murder. The other youth admitted manslaughter but the appellant refused to plead guilty to manslaughter although the prosecution was prepared to accept such a plea. Following a trial, he was convicted of murder as a party to a joint enterprise in which the principal had murdered the deceased. The principal’s acquittal of murder was not admitted into evidence. The Privy Council upheld the judge’s ruling as to the admissibility of principal’s acquittal for murder. Although, as Lord Lowry observed, “a serious anomaly” had occurred, there was ample evidence to support the conviction and the prosecution of the defendant for murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of process. 30. That decision was cited in R v Petch & Coleman [2005] EWCA Crim 1883 [2005] 2 Cr App R 40 which concerned circumstances nearer to the present case. The appellants and two others (who had fled the jurisdiction) were alleged to have been party to a joint enterprise to find and inflict serious violence upon the deceased. The case was conducted on the basis that the principal offender (referred to as Bam Bam), responsible directly for the final act of violence which caused death, was one of the absent defendants. Both appellants were convicted of murder. When Bam Bam was returned to this country following extradition proceedings, his plea to manslaughter was accepted on what leading counsel for the Crown described as a “pragmatic basis”: he blamed Petch for the serious violence and the only witness as to Bam Bam’s presence was one whose evidence, at the first trial, was described by the trial judge as containing a number of weaknesses and inconsistencies, such that had it stood alone in relation to another of the defendants (who was subsequently acquitted), that case would have been withdrawn from the jury. This court rejected an appeal against the conviction based upon the Crown’s change of approach. 31. In expressing the conclusions of the court, Pill LJ made it clear: 46. At the trial of the appellants, the verdicts of murder were properly reached …. For relief to be provided in this court, by way of substituting a conviction for manslaughter for one of murder, and imposing a determinate sentence, the verdicts would have to be quashed and that can only be done if they were unsafe ( Section 2(1) Criminal Appeal Act 1968) . The disparity of sentences imposed at the subsequent trial arising out of the same events does not affect the safety of the convictions of the appellants. Neither, in our judgment, does the conduct of the prosecution at the later trial, even if the prosecutions arose out of the same events. The prosecution took pragmatic decisions to accept pleas to manslaughter at the later trials, for reasons they have given. The acceptance of Bam Bam’s plea to manslaughter on the basis that they were not confident that in June 2003 a jury would reach a verdict of guilty of murder does not cast doubt upon the verdicts upon the appellants on the evidence at their trial in March 2002. 47. The approach in Hui Chi-ming plainly supports that conclusion in our judgment …. The charge of murder against the present appellants could not be called an overcharge and there was ample evidence to support the convictions. The prosecution’s alleged lack of consistency, resulting from pragmatic considerations, which has resulted in an anomaly different from, but in its way as striking as, that in Hui Chi-ming, does not open the door to a finding that the verdicts upon the appellants were unsafe. The law does not permit the court to take an overall view of the situation retrospectively and, in the interest of even-handedness, to declare the convictions of the appellants unsafe.” 32. Petch & Coleman is one if not two stages beyond the present case. In that case, at the trial of the appellants, the Crown alleged that Bam Bam was the principal offender; when Bam Bam was tried, he fell to be dealt with on the basis that he was not. Thus, the court was driven to pass sentence on a basis that was not consistent with the approach at the appellants’ trial. In the present circumstances, the approach of the Crown has remained entirely consistent: it has always been alleged that this appellant used unlawful force with the intention of inflicting serious bodily harm. Additionally, in this case, the jury tried both this appellant and Fullam: in circumstances in which the jury could not reach a majority verdict in relation to Fullam, they were sure of the appellant’s participation in a joint enterprise in circumstances that he intended really serious harm. 33. Although there seems to be an anomaly between the position of this appellant sentenced to be detailed with a minimum term of 9 years and Fullam with a determinate sentence of 30 months, this anomaly is a consequence of the fact that, as a result of the different intent that the participants to this joint enterprise had, they were convicted of and sentenced for offences of very different gravity. The possibility of this difference was postulated by Judge Fox in the way in which he directed the jury and could have arisen, without any possibility of complaint, if the jury had returned the verdicts for which the two men fell to be sentenced. In any event, even if the two men had fallen to be dealt with on different bases of fact, that was a consequence of the offences for which they fell to be sentenced and does not affect the safety of the appellant’s conviction. Thus, Mr Roberts was right to not to pursue it. 34. Having rejected the challenge to the decision of the judge that there was a case to answer and agreed that there is no basis for concluding that, because of the approach of the prosecution to the re-trial of Fullam, this appellant’s conviction is unsafe, the appeal was dismissed.	[ "LORD JUSTICE LEVESON", "MR JUSTICE EDWARDS-STUART" ]	2010_04_29-2371.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/926/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/926	1,090
64e82309dfd94363e4e98496c94547ec5519928096ec7c740b73939ae2c583ca	[2009] EWCA Crim 2130	EWCA_Crim_2130	2009-10-08	crown_court	Neutral Citation Number: [2009] EWCA Crim 2130 Case No: 2008/6419/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 8 October 2009 B e f o r e : LORD JUSTICE KEENE MR JUSTICE BLAIR HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the CACD) - - - - - - - R E G I N A v MARCUS MCAULEY - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC	Neutral Citation Number: [2009] EWCA Crim 2130 Case No: 2008/6419/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 8 October 2009 B e f o r e : LORD JUSTICE KEENE MR JUSTICE BLAIR HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the CACD) - - - - - - - R E G I N A v MARCUS MCAULEY - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - Mr B Hayhurst appeared on behalf of the Appellant Miss M Currie appeared on behalf of the Crown - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: On 24th October 2008 at Inner London Crown Court, before His Honour Judge Campbell, the appellant changed his plea to guilty of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988 . On 14th November 2008 he was sentenced by the same judge to 26 weeks' imprisonment suspended for 12 months with a supervision requirement of 12 months. He now appeals against both conviction and sentence by leave of the single judge. 2. The change of plea to which we have referred came about because of a ruling by the judge and it is that ruling which forms the basis of the appeal against conviction. 3. Section 139 makes it an offence to have an article with a blade or which is sharply pointed in a public place, subject to an exception which is immaterial for present purposes. But subsection (4) of that section provides a defence. It reads: "It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place." That is a defence which a defendant has to establish but the burden on him is to prove it simply on the balance of probabilities. 4. The defence statement in the present case indicated that the appellant accepted that he was carrying a knife on the date in question, 7th May 2008, and that it was in a public place but that he would contend that he had a good reason for carrying it. The good reason was that he had been seriously attacked on 19th January 2008 in Soho by a particular man, by whom he had then been approached on 2nd May 2008 at Brixton Tube Station and by whom he had then been threatened. The defence case statement went on to say that the appellant understood this man to have been out on bail as at May 2008 and that "as a consequence following the incident on 2nd May 2008 Mr McAuley took the knife with him on 7th May as he was travelling through Brixton, an area he knew his assailant frequented, and was in fear of his assailant and that he might be attacked by him." 5. The prosecution's witness statements indicated that it was in the South London area that the appellant had been stopped and searched by the police and the knife found. The record of interview showed that he had told the police that he was carrying the knife having been stabbed and threatened by a man. The man was on bail and the appellant had seen him on at least one occasion. 6. The appellant was arraigned at the Crown Court on 24th October 2008 and initially he pleaded not guilty. But the judge drew counsel's attention to this court's decision in the case of Bown [2003] EWCA Crim. 1989 , [2004] 1 Cr.App.R 151 , where it was held that it is for the judge to decide whether as a matter of law the evidence is capable of amounting to the defence of having a "good reason" for having a bladed article in a public place. The court in Bown had drawn a distinction between whether the evidence is capable of being seen by the jury as a good reason and whether, if it is so capable, it in fact amounts to a good reason, the latter being a question for the jury to determine - see paragraph 16 of that case. 7. In the present case the judge in effect invited submissions straightaway on the basis of the defence case statement without the calling of any evidence. Proceeding on the basis of the facts as set out in that defence statement, namely that the appellant had been seriously assaulted in January and then on 2nd May (five days before his arrest) had been threatened by the same assailant outside Brixton Tube Station (an area he knew the assailant frequented), the judge ruled that fear of attack in those circumstances could not amount to a "good reason" under section 139(4) . He added: "If this was a good reason, knife carrying could be carried out by virtually anybody in the Brixton area." And so he indicated that the jury would be told, if it went to a jury, that this did not amount to a defence in law. In the light of that ruling the appellant changed his plea to one of guilty without any jury having been sworn. 8. Mr Hayhurst on behalf of the appellant submits that the judge was wrong so to rule and that the defence of good reason should, after the calling of evidence, have been left to the jury. He refers to some authorities decided under the Prevention of Crime Act 1953, section 1 , the offensive weapon provision, which is a section containing a statutory defence of "reasonable excuse". The defence of "good reason" under the 1988 Act has been held to be akin to that of "reasonable excuse" under the 1953 Act , despite some degree of academic criticism of such an approach - see Emmanuel [1998] Crim.L.R 347 where this court held that the judge should have left a defence of good reason under the 1988 Act to the jury where the defendant said that he had the knife for self-defence following an incident half an hour earlier. Again, in cases like Jolie [2004] Cr.App.R 44 this court has seen no distinction between "good reason" in the one statute and "reasonable excuse" in the earlier one (paragraph 18). 9. This leads Mr Hayhurst to submit that the decision in Evans v Hughes (1972) 56 Cr.App.R 813 , a decision on section 1 of the 1953 Act , is nonetheless relevant in the present case. There the Divisional Court presided over by the then Lord Chief Justice held that it could be a reasonable excuse that the person with the offensive weapon was anticipating an imminent attack and so carried the weapon for his own defence. The court went on to add that the Act was not intended to sanction the permanent or constant carrying of a weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. The threat must be, it was said, an imminent particular threat. 10. It is now contended on behalf of the appellant that the judge here ought to have allowed the jury to determine whether there was in the circumstances of this case such a threat and consequently a good reason. Mr Hayhurst emphasises that, although the original attack had been back in January, that attack had been a serious one and the threat of a further attack by the same man had been made only five days before the appellant had been found with the knife. He refers to and relies on also the House of Lords' decision in Wang [2005] UKHL 9 . 11. For the Crown, Miss Currie submits that the judge was entitled to rule out the possibility of a defence of "good reason". She contends that there was no good reason here and she draws our attention to a number of other authorities which have held, following Evans v Hughes , that a mere concern about being in a violent neighbourhood does not amount to a good reason for carrying a knife or a reasonable excuse for carrying an offensive weapon. She also suggests that if the defence had not liked the judge's ruling they should have pressed to call evidence before a further ruling was given by the judge. 12. It seems to this court that, from the authorities already referred to, it could amount to a "good reason" under section 139(4) if the appellant was carrying the knife for his own protection and that he could show on the balance of probabilities that he was in fear of an imminent attack. The judge's ruling here amounts to saying that the facts as he understood them to be could not as a matter of law amount to a fear of an imminent attack. 13. That may be, at first sight, an understandable conclusion but we bear in mind what was also said in Bown at paragraph 18, namely that a court should be slow to rule that the evidence is, as a matter of law, incapable of amounting to the defence under section 139(4) . The words "good reason" are both very general words and very ordinary ones, being words which Parliament must have intended would normally be applied and interpreted by a jury or other fact-finding tribunal such as Justices. The reference in Evans v Hughes to "imminent attack" does not write those words into the statute and it remains for a jury to determine how imminent, how soon, how likely and how serious the anticipated attack has to be to constitute a good reason for possession of the bladed article. It may be that a threat five days beforehand from an earlier assailant would be held by a jury not to suffice, but we do observe that in the Evans v Hughes case the Divisional Court was not prepared to interfere with the Magistrates' decision that there was a reasonable excuse where the defendant had been attacked seven or eight days earlier and remained in fear. The Divisional Court did indeed say that this was a "borderline" case, but it did indicate by its decision that it was open to the Magistrates to find that it was a reasonable excuse. 14. In those circumstances it seems to us that it could have been properly open to a jury, properly directed, had the facts proved to be what the judge assumed them to be, to decide that "good reason" under section 139(4) had been shown. We conclude therefore that it was wrong in this case for the judge to rule as he did and thus to deprive the appellant of the possibility of establishing such a defence, even though we accept that the evidence in favour of the defence may have been thin. 15. In any event, we would also add that it would normally be wise in such cases for a judge not to rule before hearing the evidence, because that evidence may turn out to be to some extent different from and certainly more detailed than that suggested in the documents. The evidence may turn out to be more in a defendant's favour or possibly in the prosecution's favour, but it will usually be better to hear the evidence and then to rule (if appropriate) whether the evidence is capable at law of being held by a jury to amount to a "good reason". 16. In the circumstances we have set out it follows that the judge's ruling here in our view was wrong and that the appellant is entitled to have his conviction quashed as being unsafe. It follows that this appeal is allowed. 17. Is there any application by the Crown? 18. MISS CURRIE: We would be asking for a retrial, my Lord. 19. LORD JUSTICE KEENE: Do you want to say any more about why that is appropriate in this case? 20. MISS CURRIE: Because knife carrying is considered to be very serious and because of the very large increase in knife carrying it is in the public interest that all these matters be tried and determined in a court of law. 21. LORD JUSTICE KEENE: He got a suspended sentence, did he not, with a supervision requirement of 12 months? 22. MISS CURRIE: Yes. 23. LORD JUSTICE KEENE: The supervision requirement of course has already effectively taken place, has it not, because this was November last year when it was imposed? 24. MISS CURRIE: Yes. 25. LORD JUSTICE KEENE: Of course the more serious element in the sentence was the suspended prison sentence. 26. MISS CURRIE: Yes. 27. LORD JUSTICE KEENE: What do you want to say about a retrial, Mr Hayhurst? 28. MR HAYHURST: Only on the more serious element, the suspended sentence, again that was for six months for 12 months which again would expire in November so we are nearing the end of that as well. Bearing in mind the age of this matter, going back to May of last year and in essence the amount of time that it has taken for this matter to be listed at this court, I would say that-- 29. LORD JUSTICE KEENE: You mean that virtually eleven months have now passed? 30. MR HAYHURST: Yes. 31. LORD JUSTICE KEENE: Do you want to say anything further about that, Miss Currie? 32. MISS CURRIE: It is regrettable that it has not been dealt with earlier, I suppose, than this. It means it has dragged on for a considerable period of time. 33. LORD JUSTICE KEENE: That may be, but we have to deal with the situation as it is and not as perhaps one would ideally like it to be. 34. MISS CURRIE: That is right, my Lord. But in fact it will not be listed very early either because if it goes back to Inner London they are listing now for next July. 35. LORD JUSTICE KEENE: Thank you very much. (Pause) No, Miss Currie, I am afraid we do not think it is appropriate that there should be a retrial in this case, bearing in mind that the appellant has in effect served 11 out of the 12 months period, both in relation to supervision and the suspension of the sentence. So there will not be a retrial here.	[ "LORD JUSTICE KEENE", "MR JUSTICE BLAIR", "HIS HONOUR JUDGE ROGERS QC" ]	2009_10_08-2100.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2130/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2130	1,091
75db4175b6b94e019528c75b5e0781467b8ee4283f9a7a67ba0521a6313d665a	[2023] EWCA Crim 297	EWCA_Crim_297	2023-03-07	crown_court	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 pers	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: 2022/03048/A1 Neutral Citation Number: [2023] EWCA Crim 297 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 7 th March 2023 B e f o r e: LORD JUSTICE BEAN MRS JUSTICE FARBEY DBE MR JUSTICE CHAMBERLAIN ____________________ R E X - v - HYZAIFAH KHAN ____________________ 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) _____________________ Ms I P Rawat appeared on behalf of the Appellant ____________________ J U D G M E N T ____________________ MRS JUSTICE FARBEY: 1. On 14 February 2022, in the Crown Court at Aylesbury before HHJ Sheridan, the appellant (then aged 20) pleaded guilty to two counts of possessing a controlled drug of Class A with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971. The counts related to the supply of cocaine and heroin respectively. On 30 May 2022, in the same court, the appellant was sentenced by Ms Recorder Hunter QC to three years' detention in a young offender institution on each count. The sentences were ordered to run concurrently with each other. Appropriate ancillary orders were made. He appeals against sentence by leave of the single judge who also granted an extension of time of 111 days. The Facts 2. On 15 February 2021, at around 3.55 pm, police officers on duty in the Aylesbury area noted two suspected Class A drug users standing by an alleyway. The appellant was seen to walk towards them. When the appellant noticed the vehicle in which the police officers had been travelling, he turned and began to walk quickly away in a different direction. One of the police officers got out of the vehicle, approached the appellant and identified himself as a police officer. The appellant ran away. 3. While running, the appellant spat out a clingfilm wrap which was later analysed and found to contain one wrap of crack cocaine and one wrap of heroin. The appellant was also seen to throw an item under a car, which was found to be a bag containing 15 individual wraps of heroin. 4. The appellant was apprehended by the police and was found to be in possession of a mobile phone (which had been ringing at the time) and £455 in cash. He was arrested and, on arrest, he stated that he had never done this before and that he hated himself. The police subsequently found a further bag with 20 wraps of crack cocaine weighing approximately 3.5 grams under the car where the heroin wraps had been thrown. 5. The appellant's mobile phone was seized. It contained messages indicative of the appellant dealing in Class A drugs. The messages indicated that he had sold 11 deals of heroin and 12 deals of crack cocaine, which was consistent with the £455 that had been found in his possession. The total value of the drugs that had been seized was £740. 6. The police attempted to search the appellant's address but he had given a false address. By the time his real address had been ascertained, it was considered too late to carry out a search. 7. The appellant was 20 years of age at the date of sentence. He was of previous good character. Sentencing Remarks 8. In her sentencing remarks, the Recorder applied the relevant sentencing guideline. She took into consideration that the appellant had been in possession of a phone containing tick lists in the sense of financial figures noted next to individual names in a list of contacts. We would add that there were other notes on the phone that related to amounts and pricing of heroin and cocaine. The Recorder noted that the appellant was dealing in two different drugs; he had concealed the drugs in his mouth; and he had given a false address. 9. In relation to culpability under the guideline, the Recorder concluded that in light of his conduct the appellant must have known something of the scale of the operation and that he had had more than a limited role. In relation to harm, the offences fell within category 3 of the guideline because the appellant was a street dealer. The starting point for a category 3 "significant role" offence was four years and six months' detention. The category range was three years and six months to seven years' detention. 10. The Recorder took into consideration the mitigating factors but concluded that the seriousness of the offending would have led to a sentence of four years' custody after a trial, which she reduced by 25 per cent to three years for the appellant's guilty pleas given at the plea and trial preparation hearing. The Grounds of Appeal 11. In her written and oral submissions, Ms Rawat (who did not appear below) submitted that the judge was wrong to treat the appellant as having had a "significant" as opposed to a "lesser" role. None of the factors indicating a significant role was present; whereas all of the factors indicating a lesser role applied. In particular, the appellant had performed a limited function under direction and had been engaged by pressure or coercion. 12. Ms Rawat submitted that the judge had failed to give proper weight to mitigating factors. She emphasised the appellant's young age at the date of the offending (19 years) and his previous good character. During the significant period between the commission of the offences (February 2021) and his first appearance in the Magistrates' Court (January 2022), he had committed no further offences. He had agreed to supply the drugs to pay off a debt he had incurred through his cannabis use. He had stopped taking drugs and worked hard in his father's car mechanics' business in the period after his arrest. He had expressed considerable remorse. He suffered from ongoing psychological problems in the form of low mood, stress and anxiety. He had been assessed in the pre-sentence report that was before the Recorder as posing a low risk of re-offending and a low risk of harm. 13. Ms Rawat contended that the Recorder had made an error by applying a 25 per cent discount for the guilty pleas: the appellant had indicated his pleas at the earliest opportunity at the Magistrates' Court and was entitled to a one-third discount. 14. Finally, Ms Rawat maintained that the sentences on each count ought to have been suspended; the decision to impose immediate detention was wrong in principle. Discussion 15. The appellant was caught with a tick list and other drug-related information on his phone. As the Recorder emphasised, he resorted to sophisticated methods of covering up what he was doing. On his own account, he had become involved in the supply of Class A drugs to pay off his drug debt, and so had an expectation of significant financial advantage. These are all factors that point to more than a limited role under the guideline. 16. The written Grounds of Appeal described how the appellant had been threatened with serious bodily injury if he did not sell drugs. Ms Rawat accepted that this account of pressure and coercion, which would suggest a limited role, was not advanced in mitigation before the Recorder. Nor is it reflected in the account of the offence which the appellant gave to the Probation Service when he was interviewed for the purposes of a pre-sentence report. We give it little weight. 17. For these reasons, we see no reason to interfere with the Recorder's conclusion that the appellant had a significant role. There is rightly no challenge to the Recorder's assessment of harm as category 3. The Recorder's categorisation of the offending cannot be criticised. 18. In reaching her overall sentence, the Recorder took into consideration the strong mitigation, particularly the appellant's previous good character, for which she gave a six month discount. However, the Recorder was sentencing the appellant for two offences relating to different Class A drugs. The seriousness of the offences meant that he could expect a lengthy sentence. We see no error in the Recorder's approach or in her overall conclusions. 19. The Recorder did not have the psychological or prison reports that we have considered. While we recognise that the appellant suffers from a degree of stress and anxiety, and while we have given careful consideration to what his mother told the court, we are not persuaded that the sentenced passed by the Recorder was excessive. 20. The documents show that the appellant did not indicate guilty pleas in the Magistrates' Court but he did indicate that he would likely plead guilty in the Crown Court on a written basis of plea. This court has held that for the purposes of determining the appropriate reduction in sentence, an indication of a guilty plea must be an unequivocal indication. An indication of a likely plea is not enough: see R v Plaku [2021] EWCA Crim 568 , [2021] 4 WLR 82 , at [17]. The discount of 25 per cent was unimpeachable. 21. Given that the sentence exceeded the two year maximum that may attract suspension, the Recorder was bound to pass a sentence of immediate detention. 22. In summary, despite Ms Rawat's helpful submissions, the sentence imposed by the Recorder was neither excessive nor wrong in principle. Accordingly, this appeal is dismissed. _____________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________	[ "LORD JUSTICE BEAN", "MRS JUSTICE FARBEY DBE", "MR JUSTICE CHAMBERLAIN" ]	2023_03_07-5599.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/297/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/297	1,092
2686ddcd6a39e0d0da274bd87428c68b6099f48115acb3e5477126d0c5694792	[2008] EWCA Crim 2771	EWCA_Crim_2771	2008-11-11	crown_court	No: 200802939/A8 Neutral Citation Number: [2008] EWCA Crim 2771 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 11 November 2008 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE BEATSON HIS HONOUR JUDGE JACOBS (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - R E G I N A v DARREN MURRAY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internati	No: 200802939/A8 Neutral Citation Number: [2008] EWCA Crim 2771 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 11 November 2008 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE BEATSON HIS HONOUR JUDGE JACOBS (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - R E G I N A v DARREN MURRAY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Miss J Seaborne [solicitor advocate] appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. Judge Jacobs: On 5 March 2008 at Sheffield Crown Court this appellant pleaded guilty to a single count alleging conspiracy to steal parcels and contents belonging to the Royal Mail Group Limited. On 9 May 2008 he was sentenced to a term of three and a half years' imprisonment. 2. He appeals that sentence by leave of the single judge. 3. The appellant, who is now 41 years old and of previous good character, had been employed by the post office for about ten years. He worked as a night supervisor at the Rotherham Parcel Force depot where he worked alongside his co-defendant, Nicholas Busby, who was employed as a customer service provider. Busby was sentenced to a term of two and a half years' imprisonment. 4. It was discovered that a large number of parcels had gone missing from the depot between November 2006 and November 2007. The appellant and Busby had found a method of circumventing the scanning system which was designed to keep track of such parcels. The parcels believed to contain high value electrical goods, such as PlayStations, mobile phones and digital cameras, were targeted. Both men were responsible for removing parcels and taking them to an employee carpark from whence they were driven from the depot. As a result of these thefts close circuit television was installed catching the appellant in the act of stealing a number of parcels. 5. The goods were being sold by Busby through his eBay account. A total of £39,000 was received. That money, which had obtained from innocent purchasers, did not represent the true value of the goods, which was likely to be significantly higher, but the prosecution cannot make any firm calculation. 6. When the appellant was arrested and searched a package was found in his coat pocket. He claimed it must have been planted. A search of his house revealed 23 further stolen items. 7. The appellant in interview made qualified admissions that he had stolen between 15 to 20 parcels over a period of two months. He said that he had received about £2,000 from Busby as his share of the proceeds. 8. The appellant was a man of previous good character. He was unable to give any clear reason for the commission of this offence. He accepted some degree of responsibility for his part for the offence but not an equal part with Busby. 9. The grounds of appellant make reference to the case of R v Trevor Clark [1998] 2 Cr App R(S) 95. That case set out revised sentencing figures for theft from employers taking into account the effect of inflation. Thefts of between £17,500 and £100,000 would merit two to three years on a trial. 10. In this particular case, however, there are other matters to consider. This was a case of theft of Royal Mail. In the case of R v David Reid (1992) 13 Cr App R(S) 645, which concerned the theft of mail by a high grade postman, this court emphasised the gravity of such offending. As the court said, there is undoubtedly, as a number of cases show, a distinction between theft by a postman and a theft by, for example, employees from a business. The latter only damage their employer. Thefts by post men cause alarm, disappointment and perhaps distress among members of the public who expect to receive registered letters and parcels which are stolen. These views were reiterated in the recent unreported case of R v Andrew Johnson [2006] EWCA Crim 3023 . 11. The issue in this case is, having taken into account the gravity of the appellant's behaviour, which quite clearly goes beyond those simple factors set out in R v Trevor Clark , but taking into account the fact that he did plead guilty and pleaded guilty at the section 51 hearing, which is the earliest opportunity, although he did seek at one stage a trial of issue right until the day of the trial of issue, but taking into account his age, his good character, the fact that he had not served a sentence of imprisonment or been convicted in any way before, and his willingness shortly after his dishonesty was discovered to seek further employment, whether this court could reduce that sentence from the three and a half years which was passed. This court has come to the conclusion, taking into account all those factors, this sentence was manifestly excessive. The sentence will therefore be reduced to one of two years and nine months' immediate imprisonment. To that extent this appeal is allowed.	[ "LORD JUSTICE MOORE-BICK", "MR JUSTICE BEATSON", "HIS HONOUR JUDGE JACOBS" ]	2008_11_11-1714.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2771/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2771	1,093
6ebb4e1c548220f907f12698b5d19f1aef0033ec4122638be5810debd405b81b	[2008] EWCA Crim 840	EWCA_Crim_840	2008-04-03	crown_court	No: 200703222/C4 Neutral Citation Number: [2008] EWCA Crim 840 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 3rd April 2008 B e f o r e : LORD JUSTICE PILL MR JUSTICE FORBES MR JUSTICE BLAIR - - - - - - - - - - - - - R E G I N A v ADAM FEDEE - - - - - - - - - - - - - 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	No: 200703222/C4 Neutral Citation Number: [2008] EWCA Crim 840 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 3rd April 2008 B e f o r e : LORD JUSTICE PILL MR JUSTICE FORBES MR JUSTICE BLAIR - - - - - - - - - - - - - R E G I N A v ADAM FEDEE - - - - - - - - - - - - - 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 K Monteith appeared on behalf of the Appellant Mr A Walker appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. Mr Justice Forbes: On 4th November 2005, in the Canterbury Crown Court on an indictment containing 17 counts, this appellant pleaded guilty on rearraignment to 12 counts of facilitating the acquisition, retention, use or control of criminal property contrary to section 328(1) of the Proceeds of Crime Act 2002 (hereafter " the 2002 Act "). The counts in question were counts 6 to 17 inclusive. On 5th December 2005 he was sentenced to concurrent terms of four years' imprisonment on each count. On 20th December 2006 a confiscation order was made pursuant to the terms of section 6 of the 2002 Act in the sum of £53,745.98 to be paid within six months with 19 months' imprisonment in default of payment. Counts 1 to 5, which charged the appellant with a further five similar offences contrary to section 328(1) of the 2002 Act , were ordered to remain on the file on the usual terms. 2. The appellant now appeals against the confiscation order by leave of the single judge. 3. The brief facts are these. The appellant had been involved in an attempt to ship 12 stolen cars to Africa and the West Indies during the period 13th July 2004 to 26th August 2004. The various counts on the indictment represented in turn the stolen vehicles that were recovered by police officers from containers that had been prepared for shipping by the appellant. The appellant admitted that he suspected that the cars loaded into those containers had been stolen. The vehicles involved were almost exclusively high value luxury cars; in the main BMW and Mercedes. They were to be shipped, two at a time, in 40 foot containers by the appellant from Felixstowe and Portsmouth. In most cases the vehicles had been stolen from the owners' premises during the course of burglary in which the vehicles' keys were taken so that the vehicles could be driven away without any damage. However, in other cases owners were actually robbed of their cars whilst driving them. It was accepted, however, that the appellant never suspected or believed that the cars in question had been stolen as the result of violent crime. 4. There was a written basis of plea that was accepted by the Crown, in part, in the following terms: "2. The defendant had a legitimate business as an exporter of goods, cars, household items et cetera to the locations overseas. Agreed. 3. Between 13th July 2004 to 26th August 2004 he attempted to export 12 cars as per the indictment. These cars were stolen and as such represented the proceeds of another person's crimes. Agreed. 4. The defendant suspected that the cars represented another's benefit from the crime and the defendant entered into an arrangement to export the cars which he suspected would facilitate the control of the car by another. Agreed. 5. He never suspected or believed that the cars were the result of violent crime. Agreed. 6. Although the defendant realised that the cars were of high value, he never realised that they were worth so much and did not have a physical or mental record of the cumulative value that the 12 cars represented. Not agreed. 7. The only money that the defendant received as a result of the export of these cars was the amount that was paid to him in line with his normal rates. Not agreed. 9. The defendant has no relevant previous convictions. Agreed." 5. It is to be noted that in the written basis of plea there is no indication by the appellant as to either the identities or the numbers of other persons involved in this criminal enterprise. 6. Once the vehicles had been stolen it was the appellant who arranged for their export out of the United Kingdom, using the cover of the legitimate export business that he ran from his home address at 885 Romford Road, Manor Park, London E12. It was the appellant who arranged to purchase containers from London Container Services of Rainham, Essex. The containers were then delivered to his yard at Billet Road, Romford. The appellant would then prepare a standard shipping note for each shipped container and arrange for the container to be taken to the docks and shipped overseas. 7. At the confiscation hearing the judge concluded, correctly, that the total value of the vehicles, namely £273,400, was the benefit accruing to the appellant from his criminal conduct: see the terms of the 2002 Act . It was common ground between the parties that the appellant's realisable assets amounted to £53,45.98 and that this, therefore, represented the recoverable amount. 8. In the course of the confiscation proceedings the judge queried whether the fact that all the vehicles had been recovered would satisfy the payment of the benefit figure and thus result in the non-imposition of a confiscation order. However, the prosecution pointed out that the appellant had not given value for the benefit and submitted that the 2002 Act was enacted to ensure that a defendant paid for the benefit he had received in committing the offences in question. The prosecution argued that the fact that the property had been recovered was entirely beside the point and that the appellant had to pay for the fact that he had been involved in a crime which brought him a benefit of £273,400. 9. The prosecution submitted that if the appellant had the requisite assets he would be required to pay that amount in full. The prosecution accepted that the appellant's realisable assets amounted to £53,745.98 and argued that the confiscation order should be made in that amount. In short, it was submitted that once the judge had determined that there had been a benefit in a specified figure, he had no further discretion in the circumstances of this case and was obliged to make the confiscation order. 10. It is to be noted that it is common ground that section 6(6) of the 2002 Act was not in play in this particular case. Under that subsection the court's obligation to impose a confiscation order becomes a power if the court believes that any victim of the conduct had at any time started or intended to start proceedings against the defendant in respect of the loss, injury or damage sustained in connection with the conduct. Mr Walker made it clear that it was common ground that that particular subsection was not in play. Accordingly, the judge was under a duty under the terms of the 2002 Act to make the order that he did. 11. However, on behalf of the appellant Mr Monteith submitted to the judge that in the circumstances prevailing the imposition of a confiscation order was not fair and it did not serve the legislative purpose. He contended that no order should be made. Further, he submitted that there appeared to be no authority that would prohibit the judge from refraining to make an order, or, if an order was to be made, from setting a zero confiscation order. 12. In our judgment, Mr Monteith's submissions to the judge were plainly wrong, having regard to (inter alia) the decisions of this court in cases such as R v Wilkes [2003] EWCA Crim 848 and R v Farquhar [2008] All ER (D)140, judgment delivered on 11th March 2008. 13. In the event, the judge ruled that under the terms of the 2002 Act the court was not entitled to take into account the fact that the vehicles had been recovered. In a short ruling the judge said this: "A considerable time has been spent today in relation to the question of the recoverable amount in respect of these confiscation proceedings. The assumption that the court has made is that the benefit accruing to Mr Fedee in relation to his criminal conduct is the value of the motor cars that he was involved with -- the value amounts to a total of £273,400. The vehicles were all recovered. This court has no discretion to offset the value of those recovered motor vehicles when considering the recoverable amount. Mr Monteith urges upon this court that the legislation -- namely the Proceeds of Crime Act 2002 -- would in fact allow the court to adjust the benefit sum to zero. Mr Walker for the Crown effectively says that the court has no such power. This is draconian legislation and the court must follow that legislation to the letter and the intentions of Parliament, and therefore having found that the benefit is £273,400 and the recoverable amount is in the agreed sum of £53,748.98, then an order in that sum must be made, and so I make such a confiscation order." 14. Although the judge had expressed his ruling in a very succinct form, he was plainly correct as consideration of the cases of Wilkes and Farquhar make clear. 15. On behalf of the appellant Mr Monteith originally submitted in his written grounds of appeal that the judge had erred in imposing the confiscation order in question. It was submitted that the judge had originally wished to impose a confiscation order in a zero amount, but had then concluded that the legislation was draconian and must be followed to the letter with the result that he imposed the confiscation order in question. Mr Monteith originally submitted that the imposition of the confiscation order was contrary to the judge's initial intention and/or the legislative purpose of the 2002 Act . He also submitted that it was contrary to Article 1 of the European Convention on Human Rights and/or was unfair and oppressive. Accordingly, the judge should not have imposed any confiscation order at all, or, at the very least, should have made it a zero amount. 16. At the very outset of today's proceedings, and in the light of the authorities, and, in particular, Wilkes and Farquar (see above), Mr Monteith very properly conceded that there was no substance in that ground and abandoned it. 17. He took a similar course with regard to the second ground that he had originally put forward, which was as follows. It was submitted that the judge had erred in finding that the benefit figure was £273,400. Mr Monteith originally suggested that the prosecution had relied on the value of the cars contained within the various counts on the indictment, but it was Mr Monteith's original submission that the correct figure for the benefit should have been something that reflected the amount actually received by the appellant as the result of his involvement in the export of the cars in question. According to Mr Monteith, the amount in question that he was paid was in line with his normal rates in such matters. Again, as we have already indicated, in the light of the authorities Mr Monteith very properly abandoned that ground of appeal which is plainly wrong. 18. However, Mr Monteith did put forward a final ground of appeal, which was that the judge had erred in not apportioning the benefit between those who must have been involved in the offence and the appellant. Mr Monteith contended that the benefit in a case such as this should be apportioned between those who are clearly involved. The apportionment, he submitted, should directly relate to the benefit actually received and that such an approach is both fair and just. In the course of his submissions he made it clear that he would wish to have this hearing adjourned to await the outcome of an appeal currently before their Lordships' House in the case of May, Lawrence, Fowles, Bravard and Stapleton [2005] EWCA Crim 97 . However, Mr Monteith was unable to identify any particular aspect of that case which would be of assistance in the submissions that he put forward to this court in general terms with regard to this ground of appeal. 19. In our judgment, whether their Lordships' House adopts a different approach with regard to apportionment between defendants to that which currently applies, which is to the effect that there is no such right to apportionment, the difficulty facing Mr Monteith is that it would have been quite impossible for the judge to have carried out any such exercise as a way of dealing with the matter. In our judgment what Mr Monteith was seeking to argue was, in effect, a way of finessing the result of the judge's conclusion with regard to the benefit established for the purposes of the Act and the consequential order with regard to the realisable recoverable amount. 20. However, as we have just observed, the judge could not have carried out any such apportionment, in any event, because there was no information whatsoever with regard to the numbers or identities of any other persons involved in the criminal enterprise. In our judgment it is wholly unsatisfactory to suggest, as Mr Monteith did, that the court should approach the matter on the basis that there must have been others involved, that their involvement was likely to have been more significant than the appellant's and that the appellant's contribution to the overall recoverable amount and/or the benefit should be measured by the amount that he claimed to have received for having carried out his part in the criminal enterprise. 21. We are entirely satisfied that there is no substance in that submission. We do not consider that it is necessary to adjourn these proceedings to await the outcome of May and Others in their Lordships' House. Mr Monteith was unable to identify any particular aspect of that case which might result in a ruling by their Lordships to his client's advantage. We are satisfied there is nothing in this ground of appeal. 22. Accordingly, for all those reasons, this appeal is dismissed. 23. MR MONTEITH: My Lord, could I just mention this? In fact the money hasn't been paid. I imagine pending the appeal it hasn't been. I rise to see whether further time can be allowed for the confiscation order to be met? 24. LORD JUSTICE PILL: Mr Walker, what do say about that? 25. MR WALKER: My Lord, I have no instructions as to the position of the payment under the order hitherto, but I can't object to some further time being given. 26. LORD JUSTICE PILL: What I have been told on other similar occasions is that those instructing you do have regard to the need to give further time. 27. MR WALKER: Yes, my Lord. 28. LORD JUSTICE PILL: But the time has elapsed, has it, under the original sentence? 29. MR MONTEITH: My Lord, six months was given to pay, so, yes. 30. LORD JUSTICE PILL: How long are you asking for? 31. MR MONTEITH: Could I try your Lordship's patience too much, but could I ask for another six months, please? 32. LORD JUSTICE PILL: Mr Walker? 33. MR WALKER: Don't object, my Lord. ( Pause ) 34. LORD JUSTICE PILL: Yes, the circumstances are rather different. I am told he is present. The appellant is not in custody, so he will have had time to make contingent arrangements. 35. MR MONTEITH: My Lord, I don't want -- 36. LORD JUSTICE PILL: The original sentence would be based on the fact that he would have been in custody during the period concerned. 37. MR MONTEITH: I don't want to be unkind to the appellant because he is here. 38. LORD JUSTICE PILL: He is here? Do you want to take instructions? 39. MR MONTEITH: Can I say before I do that in my experience it would be prudent, in my respectful submission, to allow the six months, just knowing the appellant. 40. LORD JUSTICE PILL: Yes. ( Pause ). Anything further? I saw you speaking to who I believe to be your client. 41. MR MONTEITH: I apologise for turning my back. Part of the money is in a solicitor's account. That was always known to the Crown. There is a further amount, it seems to be around £10,000, that causes more difficulty, as I understand it from my brief conversation. In those circumstances, in my respectful submission and for other reasons, it seems, I hope prudent, to allow six months, or as close to it as the court can. ( Pause ) 42. LORD JUSTICE PILL: Three months from today's date. 43. MR MONTEITH: Thank you very much. 44. LORD JUSTICE PILL: In default of which the alternative takes effect. Thank you.	[ "LORD JUSTICE PILL", "MR JUSTICE FORBES", "MR JUSTICE BLAIR" ]	2008_04_03-1444.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/840/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/840	1,094
1c8eccb573f864fccbed88d9023e2590ef276666ea8c4686b7df1e7ff4ebbd6c	[2004] EWCA Crim 1620	EWCA_Crim_1620	2004-05-21	crown_court	No: 200304607/5243/B2 Neutral Citation Number: [2004] EWCA Crim 1620 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 21st May 2004 B E F O R E: LORD JUSTICE BUXTON MR JUSTICE NEWMAN MRS JUSTICE RAFFERTY - - - - - - - R E G I N A -v- CHRISTIAN THOMAS BROWN AND JASON GRANT - - - - - - - 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	No: 200304607/5243/B2 Neutral Citation Number: [2004] EWCA Crim 1620 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 21st May 2004 B E F O R E: LORD JUSTICE BUXTON MR JUSTICE NEWMAN MRS JUSTICE RAFFERTY - - - - - - - R E G I N A -v- CHRISTIAN THOMAS BROWN AND JASON GRANT - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T MACKINNON appeared on behalf of BROWN MR P B HUMPHRIES appeared on behalf of GRANT MR J W WILLIAMS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE BUXTON: The two appellants, Christian Thomas Brown and Jason Grant, were convicted in the Crown Court at Blackfriars before His Honour Judge Martineau in July 2003 for aggravated burglary and sentenced to periods of four and five years' imprisonment respectively. 2. The background to the case was that they allegedly committed the offence in the company of a co-defendant, a man called Jeffs. The matter arose from a complaint being made to the police that a young girl, who we do not need to identify further than as the sister of Mr Jeffs and Mr Brown, had been assaulted by two brothers called Lauren and Daniel Steventon, encouraged by other of their brothers. 3. In the early hours of a morning on a date in March 2003 the appellants, together with Mr Jeffs, went to a flat in London. They gained entry and demanded to know from the occupants, that is to say two of the Steventon family and a man called Mr Walji, where they could find the three other Steventons, Mark, Daniel and Warren. It was alleged that Mr Jeffs was carrying a knife, Mr Brown had a red handled hammer and Mr Grant wearing driving gloves. They had socks on their hands. Their manner was threatening and intimidatory. Mr Grant and Mr Jeffs searched each room in the flat while Mr Brown stood there with them. 4. Mr Warren Steventon was at the address. He was able to telephone the police before the people visiting saw him. Police attended and seized the knife and the hammer. 5. The prosecution case was the appellants, acting jointly, entered the address as trespassers intending to inflict grievous bodily harm upon the three Steventon brothers. 6. The defence was that the appellants did not expect the three Steventon brothers to be at the address and had no intention of inflicting physical harm on anybody. The weapons that they carried and the gloves and other paraphernalia were intended to protect themselves against the Steventons' Staffordshire bull terrier dog should it become aggressive. The reason for the visit at that hour was, apparently, to enquire as to the whereabouts of the Steventons. 7. The only matter of which complaint is made is this. At the commencement of the trial the prosecution applied for a ruling that Adela Steventon and Warren Steventon should give their evidence behind screens under the provisions of section 17 of the Youth and Criminal Evidence Act 1999. Mr Walji did not wish to give his evidence behind screens. After he had given evidence an application was made that Leigh Steventon should give evidence behind a screen in addition to Adela and Warren Steventon. The judge ruled in favour of those applications in each instance. 8. In his ruling the judge said, clearly having taken account of the requirements of section 17, this: "... I am satisfied that the quality of evidence given by them is likely to be diminished by reason of fear or distress. That is to say that the mere sight of the defendants will increase the fear and distress that they are likely to suffer anyway -- assuming, of course, that their account is true -- in recollecting the events the of night in question. ... The nature of the alleged circumstances here were very frightening indeed, because it is alleged that at 1.30 a.m. these three defendants gained access to the flat where the witnesses lived, and Mrs Adela Steventon, as I understand it, would be the tenant of this council flat ... Two of them were armed, one with a knife and one with a hammer and they are out to get the sons of Adela Steventon, that is to say Mark, Daniel and Warren.... I do not think that they knew what [Warren] looked like and did not realise in the time available when they saw him that he was in fact one of [the persons] they were wanting to see, and they uttered persistent threats of violence." 9. The judge held that those circumstances fell clearly within the requirements of section 17(2)(a) of the Act; that is to say, the nature and alleged circumstances of the offence to which the proceedings relate. He clearly had that section in mind because he drew attention to it in his ruling. 10. Complaint is made on two grounds. First, that the application for the giving of evidence behind screens should not have been granted at all; and, secondly, that, if it were granted, inadequate guidance was given to the jury as to the implications of such a step. We take the first of those complaints first. There are a number of elements in it. 11. The first is that there was a distinction between Mr Walji, who did not want to give evidence behind screens, and the others who did, and allowing the latter to do so in those circumstances would indicate to the jury that there was something exceptional about giving evidence behind screens and the evidence of those persons who gave it. 12. We cannot accept that submission. Provided the jury were correctly instructed as to the implications of the use of screens, a matter to which we will come later, it cannot possibly be the case, as my Lord, Newman J, pointed out in the course of argument, that the fact that a witness gives evidence without screens requires all the rest to do so as well. The lack of reason in that argument is, we think, plain to see. 13. Secondly, it is complained that there was nothing special about this case: the witnesses were not particularly vulnerable, they were not young, they were not the victims of rape, they did not fall into one of the categories where screens are characteristically used. 14. The judge, however, ruled, having heard the evidence and understanding the nature of the prosecution case, that they fell within a particular section of the Act as we have already indicated. It was a matter for him to determine whether that was so. It was essentially a matter for his discretion and judgement to decide whether the justice of the case, fairness to the defendants and, we might add, fairness to the witnesses, whose interests have now to be taken into account under the provisions of the European Convention on Human Rights, required or permitted him to allow them to give evidence in the way that he did. This case is far away from one in which the Court would interfere with that discretion. 15. Secondly, complaint is made that the applications were made late, which indeed they were. They were not made 28 days before the trial as is envisaged in Rule 2 subrule (4) of the Special Measures Directions Rules 2002, and in those circumstances the court was required to be satisfied that the applicant was unable to make the application in accordance with that Rule under the provisions of rule 4(2)(b). Complaint is made that the judge did not refer to rule 4(2)(b) and did not express himself as satisfied under its terms. 16. It is hardly surprising that the judge did not refer to rule 4(2)(b) because we have no reason to think that anyone mentioned the Special Measures Directions to him. He can hardly be criticised, therefore, for not reciting satisfaction as to a matter of which no complaint was made before him. Even if that were not the case, however, we do not accept that the provisions of Rule 4(2)(b) are mandatory, in the sense that if they are not complied with it is not possible for the judge to give the relevant direction. In our judgement they are directory, and the principal reason why they are there is that Special Measures Directions Rules apply to all special measures, including, in particular, the giving of evidence by video recording. There are obvious reasons why it is desirable that the latter applications should be made well in advance in those cases. It is much less obvious why it should be necessary for there to be a 28 day lead-in, if we may use that expression, when screens are going to be used. 17. If, of course, there was any significant handicap to the defence by a late application, whether in terms of section 4(2)(b) or otherwise, then the judge would have to take that very carefully into account. But we are not satisfied that there was any handicap. The prosecution relied on insulting and threatening remarks that had been made to one of the witnesses, and we are told that a statement was produced relevant to that. However, the judge in fact did not base his ruling on that. He did not indeed refer to the alleged threats to one of the witnesses, but, as we have said, placed his judgement, as he was entitled to, solely on section 17(2)(a). 18. As to the question of the direction to the jury, the judge did not include a direction in his summing-up. What he did was to say, before the first of the witnesses gave evidence, this: "Members of the jury, the position about screens is this; it is now commonplace for screens to be set up in a serious case and this is plainly, on any view, a serious case. The allegation here is very serious. Whether it is true or not is what you are here to decide, but if it is true it is obviously a serious case and Parliament has enacted a few years ago that a witness may elect to give evidence from behind screens and that is what this witness and her daughter, Leigh, and her son, Warren, have also elected. As you know, Mr Walji elected to give evidence without screens. It is a matter entirely for each individual witness, but, members of the jury, what you must not do is to allow it to prejudice you in any way at all against the defendants or any of them. It is a procedure laid down by Parliament. Parliament has given the opportunity, some witnesses take advantage of it, some do not." 19. In our judgement that was an appropriately low key but very clear direction to the jury setting out the circumstances of the matter; and, we will add, carefully, but without giving undue emphasis to it, explaining the different position of Mr Walji. It was entirely suitable for the occasion. 20. As to it not being repeated in the summing-up, Mr McKinnon says it was an absolute rule that the judge should repeat the direction in the summing-up, even if he had given a warning of the sort that we have indicated before the witness gave evidence. 21. We cannot agree with that. It is an argument that is purely formalistic. The question is whether effectively the judge has got across to the jury the essential matter of the use of screens and the conclusions that they should draw and not draw from it. That is much more likely to impress itself on the jury if it is given at the time that the witnesses give evidence than if it is repeated at a later date in the summing-up. Indeed, for the judge to revert to it might in some circumstances give the matter more emphasis, derogatory to the defendants, than it deserves. We cannot therefore accept that submission on the part of Mr McKinnon. True it is, as he says, that the learned section 31 judge drew attention to the absence of a warning in the summing-up, but we are satisfied that she was not aware when she said that of the earlier warning given by His Honour Judge Martineau, because that was not referred to, as it should have been in the grounds of appeal. It was only drawn to our attention by the prosecution. 22. In these circumstances, therefore, we think there is no force in either of the limbs under which this appeal is advanced. Both of them were matters for the judgement and discretion of the judge. He discharged his discretion in an entirely correct way. These appeals are dismissed. ( Submissions made on behalf of the appellant Brown in relation to an appeal against sentence ) 23. LORD JUSTICE BUXTON: We have already given judgment in a conviction appeal in relation to the present appellant, Mr Christian Brown. The outline facts of the case can be drawn from that judgment. We do not repeat them. As we have already indicated, Mr Brown incurred a penalty of four years' imprisonment from the learned sentencing judge. 24. Submissions are made that that should be reduced to some extent on a variety of bases. First, the role played by Mr Brown, which was less, it is said, than those of some of his co-accused and also personal mitigation in terms of age, previous good character and his commendable behaviour when he has been in prison. 25. We fear that we are not persuaded by any of those submissions. The learned judge heard a trial of this case and formed a very clear view of what the three men together had been embarked upon. It is relevant to read out his summary of his view of the case. He said this: "You burst, the three of you, into someone's home at half past one in the morning, a place where people were asleep in their beds, including a four year old boy, two of you armed with weapons; a murderous combat knife and a heavy claw hammer. Your behaviour in that flat was, I am quite satisfied, utterly terrifying. I am quite sure, happily, that no injuries were caused to the people who you were seeking and were not there. There were no physical injuries, but I am quite sure there has been some psychological impact. I note from the evidence it would be very odd if there was not. I note from the evidence that all three, that is to say, as I understand it, Warren Steventon, his mother, Adela, and his sister, Leigh, were all shaking with, I should accept, shock and fear when the police arrived and Leigh was reduced to tears in this courtroom when recollecting the events of that night. Of course again, that ordeal she suffered in having to give evidence about it would have been avoided if you had pleaded guilty. That is always the best mitigation but not available to you here, and I dread to think what would have happened if the Steventon brothers had in fact been there, which the jury, by their verdict, was satisfied is what you expected." 26. He then said that only a custodial sentence could be justified. 27. Then he said this to Mr Brown: "... you are clearly the youngest and have a previous good character, which you have now lost and you will never have again, but you are entitled to a bit of credit for that good record and your age." 28. He sentenced him to four years' imprisonment instead of five or six years imposed on the co-accused. 29. Mr McKinnon pressed us with the case of Daniel [2000] 2 Cr App R(S) 184, when events somewhat similar to this took place and a sentence of four and a half years' imprisonment for aggravated burglary was reduced to two and a half years. 30. We do not find that case of any help to us. There are two reasons for that. The first is that although the Court in the first paragraph of its judgment stated that the appellant had been "convicted" of aggravated burglary, it appears from the last paragraph that he in fact pleaded guilty, because Dyson J said: "It seems to us that the sentence of four and a half years on a guilty plea was significantly too long." Mr Brown, as the judge pointed out, does not have the benefit of that mitigation. 31. Secondly, however, the Court in Daniel appears to have accepted submissions made to it on Mr Daniel's behalf that the case was unusual because he himself had been significantly injured in a previous event, that he had entered the homes of the victims not intending to cause harm to them, and that it was not a preplanned attack. 32. None of those matters were true in our case. In his sentencing remarks, as we have already indicated, the judge made it quite clear that he found, first of all, that the entry had been in order to search for the Steventon brothers with violent intention upon them if they were there; and, secondly, that this was a planned, to use the vernacular phrase, mob-handed piece of violence engaged in by the three men together, in the course of which it is difficult, or impossible, to attribute different roles to them. 33. As the judge said, this was a disgraceful case, involving concerted intervention in someone else's house of a vigilante or family dispute nature. It is the sort of conduct that the courts will not tolerate. The judge was quite right to impose severe punishment on these men. He gave Mr Brown as much credit as he properly could in the light of his offence in setting his sentence at four years. This appeal is dismissed. 34. MR HUMPHRIES: My Lord, although there is no further appeal pursued on behalf of Mr Grant, may I make application for his solicitors to have a representation order in their favour? Your Lordships will be aware, I hope, that they prepared the grounds of appeal following the defendant's letter to them as they did not have an appropriate advice on appeal from counsel, and they have been invaluable to me, as I did not appear below, in letting me know what information had been disclosed by way of antisocial contracts. They have also dealt with correspondence from the defendant about his appeal when he has written directly to them. 35. In my submission this is an unusual case. Albeit they did not have an order, they have in fact been quite reasonably put to some work, and I would invite your Lordship to allow their costs to be taxed. 36. LORD JUSTICE BUXTON: Wait a minute. What are they claiming for? 37. MR HUMPHRIES: The preparation of two briefs to me, answering letters from the defendant about the progress of his appeal and, of course, as I say, initially they actually prepared the grounds of appeal that were submitted, the typed grounds that were submitted. 38. LORD JUSTICE BUXTON: Did they act at trial? 39. MR HUMPHRIES: Sorry? 40. LORD JUSTICE BUXTON: Did they act at trial? 41. MR HUMPHRIES: I believe they were the solicitors instructed at trial but they had agents acting at Blackfriars Crown Court. 42. LORD JUSTICE BUXTON: Doesn't their legal aid for the trial cover the preparation of the appeal? 43. MR HUMPHRIES: I made an enquiry with the office at the Court of Appeal earlier this week and was told it wouldn't cover work done in preparation of the appeal because legal aid had been granted only for counsel. It may cover the grounds that were drafted, but once legal aid is thereafter granted to counsel -- 44. LORD JUSTICE BUXTON: Well, the judge gave an order for counsel only. 45. MR HUMPHRIES: Yes. 46. LORD JUSTICE BUXTON: And that is the normal order. 47. MR HUMPHRIES: Yes. Counsel would, of course, normally have some experience of the case, having dealt with it in the lower court. 48. LORD JUSTICE BUXTON: I am afraid we don't -- if counsel changes for any reason we don't allow public funds to take notice of that. I think what you had better do is get clearer as to what your solicitors are claiming to have done that was not covered by their legal aid order at the trial. If they think they have got grounds for applying for a further representation order over and above that they can apply to the Registrar. 49. MR HUMPHRIES: Thank you very much. 50. LORD JUSTICE BUXTON: Thank you.	[ "LORD JUSTICE BUXTON", "MR JUSTICE NEWMAN", "MRS JUSTICE RAFFERTY" ]	2004_05_21-246.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1620/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1620	1,095
746438e7851974ab9f14470993d7a3c44245961c68f99df7f91f6abfa1b057d4	[2010] EWCA Crim 98	EWCA_Crim_98	2010-02-05	crown_court	Case No: 2009/5004/D5 Neutral Citation Number: [2010] EWCA Crim 98 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT HH Judge Stow QC T20070857 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/02/10 Before : LORD JUSTICE PITCHFORD MR JUSTICE PENRY-DAVEY and THE RECORDER OF LONDON - - - - - - - - - - - - - - - - - - - - - Between : London Borough of Croydon Applicant - and - Michelle Shanahan Respondent - - - - - - - - - - - - - - - - - -	Case No: 2009/5004/D5 Neutral Citation Number: [2010] EWCA Crim 98 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT HH Judge Stow QC T20070857 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/02/10 Before : LORD JUSTICE PITCHFORD MR JUSTICE PENRY-DAVEY and THE RECORDER OF LONDON - - - - - - - - - - - - - - - - - - - - - Between : London Borough of Croydon Applicant - and - Michelle Shanahan Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms. Francesca Levett (instructed by DMH Stallard LLP ) for the Applicant Mr. Rossano Cifonelli for the Respondent Hearing dates : 26/01/2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. On 14 September 2009 the respondent faced trial upon a three count indictment at Croydon Crown Court before HHJ Stow QC and a jury. She was charged that: Count 1 between 24 June 2004 and 12 December 2006, she dishonestly failed to notify the London Borough of Croydon of a change in circumstances that she knew would affect her entitlement to housing benefit and council tax benefit, namely that she was in receipt of income through remunerative employment that commenced on or about 24 May 2004. Count 2 , similarly she failed to notify the London Borough of Croydon that she was in receipt of working tax credit from 28 May 2004. Count 3 , similarly she failed to notify the London Borough of Croydon that her child tax credit had increased from 28 May 2004. Each of these charges was laid under section 111A (1A) Social Security Administration Act 1992 which provides; “(1A) a person shall be guilty of an offence if – a) there has been a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant social security legislation; b) the change is not a change that is excluded by regulations from the changes that are required to be notified; c) he knows that the change affects an entitlement of his to such a benefit or other payment or advantage; d) and he dishonestly fails to give a prompt notification of that change in the prescribed manner to the prescribed person.” 2. At the close of the case for the prosecution the respondent’s counsel, Mr Cifonelli, made a submission to the trial Judge that there was no case to answer upon counts 2 and 3. The learned Judge acceded to the submission. Counsel for the prosecution, Miss Levett, informed the Judge of the prosecution’s intention to appeal the ruling. The trial proceeded upon count 1 only and the jury returned a verdict of not guilty on that count. It is not the intention of the applicant to seek a re-trial but it is submitted that the issue of law raised is a matter of some importance which requires clarification. The applicant seeks leave under section 58 CJA 2003. 3. It was established in evidence that the respondent first claimed housing and council tax benefit on 19 November 2001. She renewed her applications on 24 September 2002 and 3 November 2003. The respondent was a single woman who cared for her young child and was unable to work. In her application of 3 November 2003, the respondent declared her income as: i) Child benefit £17.55 per week; ii) Family credit £34 -£36 per week; iii) Maintenance payments for the benefit of her son £484.34 per month. 4. On 24 May 2004 the respondent started work for Parkwood Leisure Centre and in that employment earned between £953.92 and £1331.32 per month gross. Her first payment was received on 24 June 2004. On 25 May 2004 the respondent notified HMRC that she had commenced full time employment. A consequence of her employment was that she was entitled to receive an increase in her child tax credits from £1991.04 per annum to £4027.94 per annum and she became entitled for the first time to working tax credit in the annual sum of £1841.52. The increase in child tax credits and the entitlement to working tax credits took effect on 27 May 2004 and the respondent was notified of them on 28 May 2004. 5. The prosecution was conducted by London Borough of Croydon whose case was that it had received no notification from the respondent of any change in her circumstances. As a result the respondent continued to receive housing benefit and council tax benefit. Croydon was first advised that overpayments had probably been made in about October 2006. After initial enquiries housing benefit and council tax benefit were suspended as from 30 December 2006. By that time the respondent had received £9,370.53 in housing and council tax benefit to which she was not entitled. Of that amount £933.65 represented council tax benefit which was, as an accounting exercise, simply added to her liability for council tax for inclusion in the next bill. The remaining sum, £8,436.88, was treated as an overpayment to the respondent and the applicant demanded repayment by notices given periodically thereafter. 6. The respondent was interviewed under caution on 6 February 2007. She maintained that she had declared her employment to Croydon by means of a telephone conversation. She volunteered during the course of the interview that she had also received an increase in child tax credit and had received working tax credit. Until that moment, Croydon asserted, it was unaware of the receipt of tax credits. Following the interview but before receiving confirmation of the respondent’s tax credit awards from HMRC, the applicant wrote to the respondent notifying her of the overpayment of benefit and of her right of appeal. The overpayment referred to was “income from employment” which, of itself was sufficient to remove the respondent’s entitlement to receive housing benefit and council tax benefit between 24 May 2004 and 13 December 2006. The respondent did not appeal against the demand for repayment. 7. The argument addressed to the Judge on behalf of the respondent at the close of the prosecution case concerned the effect of the notifications of overpayment. Each of the notifications declared that, by reason of income from employment, the respondent’s entitlement to housing benefit had been reduced to zero. It was submitted that it was plain the receipt of earned income was itself sufficient to extinguish the respondent’s entitlement to receive housing and council tax benefit. It followed that an additional and contemporaneous failure to disclose the receipt of working and child tax credits was immaterial to the respondent’s entitlement to housing and council tax benefit. Since the sums received by way of tax credits had no effect upon the respondent’s entitlement to housing and council tax benefits (it remained at zero), its payment and increased payment did not amount to “change of circumstances” which the respondent was required to notify. Furthermore, if the entitlement was unaffected by receipt of tax credits, the respondent could not have “known” that the change effected her entitlement. 8. In his ruling the learned Judge summarised Mr Cifonelli’s submission, referred to the practicalities of the trial, and made brief reference to previous decisions of the Divisional Court and Court of Appeal, concluding that they did not provide him assistance on the facts of the present case. He continued: “Neither help me with the issue I have to decide in this case, which is whether or not it could be said that the receipt of working tax credit and increase in child tax credit not only should have been notified but was sources of income which she knew affected her entitlement of housing benefit and council tax benefit. The fact remains that in both these cases, the Court was concerned with the single source of income and not the interplay between three different sources of income. The first major source of income triggered the whole of the obligation to repay benefits to which she was not entitled. Had this been a case where the defendant had received a separate source of income in addition to her remuneration which had nothing to do with her remuneration, for instance a receipt of annuity, bestowed upon her by a wealthy relative, I can see the force of the argument that both of those sources of income should be regarded, not only collectively, and both constituted receipt of an income which disentitled the claimant to the relevant benefit. It matters not to which particular benefit the Council attached the obligation to repay as a result of the non-disclosure. However this case is somewhat different to that. In my view, there is a clear relationship between the obtaining of the job by the defendant at Parkwood Leisure and the receipt by her of the working tax credit and the increase of the child tax credit. Plainly there is a relationship between the receipt of earnings arising from her job, and the increase in child tax credit, triggered by her job and the income from it, to which she would not be entitled to except from her job. It seems to me as a matter of reality and common sense that the correct approach is to look first at the receipt of the remuneration arising from the job, as it was the job which has given rise to the three sources of income. Of course, I accept that the money coming in by working tax credit and child tax credit did not come from the Council but from Her Majesty’s Revenue and Customs. That indeed appears to have been the general approach of the Council in this case. They made a claim for repayment to the defendant originally by letter dated 20 February 2007 which is at tab 81, claiming repayment of overpaid housing benefit as a result of income. That was before they received the letter from the HMRC of 22 March 2007, tab 89, dealing with the receipt by the defendant of working tax credit and the increase in child tax credit. But it is right to point out that thereafter, on 26 March 2007 and 10 April 2007, they repeated effectively their original demands for the payment of £8,436.88 arising from the non-disclosure of the receipt of earnings. The fact remains that the additional receipt of working tax credit and child tax credit did not add to the obligation to repay benefit. Had there been an additional obligation to repay, as a result of receipt of working tax credit and child tax credit, it could be said it was a change that “affected her entitlement” to housing benefit and council tax benefit, but that is not the case here. In the context of criminal offences one should construe the legislation, where there is ambiguity, in favour of the defendant and it strikes me, at the end of the day, that it is unrealistic on the facts of the case to keep in counts two and three in circumstances where they do not add at all to the obligation to repay triggered by her job. Indeed it might confuse the jury as it might be difficult for them to decide the question as to whether or not the receipt of those benefits was a change affecting her entitlement to the benefit. It strikes me, if on the facts of this case the receipt of the working tax credits and increase in child tax credit did not add at all to the obligation to make a repayment already triggered by the remuneration from work, it is difficult to see how it could be said that the defendant knew the changes arising from the receipt of the working tax credit and increase in child tax credit affected her entitlement to the benefits. At the end of the day, and not without considerable hesitation, I conclude that Mr Cifonelli’s principle submission is correct and I should withdraw counts 2 and 3 so that the trial proceeds solely on count 1.” 9. The Court has not before, to our knowledge, considered the issue whether a claimant for housing and council tax benefits is obliged under s.111A(1A) to disclose all sources of income when any one or more of them would have been sufficient under the regulations to extinguish the entitlement to receive the benefit. One of the cases drawn to the attention of the trial Judge was Passmore (2007) EWCA Crim 2053 ; [2008] 1 Cr App R 12 , in which the Court of Appeal (Criminal Division) was required to examine the meaning of section 111A (1A) in somewhat different factual circumstances. There, the appellant had formed a company in September 2000 but had failed to disclose that fact to the benefit authority. He was convicted of an offence. The appellant’s ground of appeal was that an obligation to report a change of circumstances only arose if that change would cause a difference in the computation of the claimant’s entitlement to benefit. The respondent argued that “a change of circumstances affects a person’s entitlement to benefit if it is something that a benefit officer would properly wish to know in order to compute or check that person’s entitlement to the relevant benefit, whether or not at the end of such enquiries and computations as the benefit officer carried out the amount of entitlement was found to be the same”. Toulson LJ, delivering the judgment of the Court, noted that the meaning of the word “affecting” in paragraph (a) had been considered by the Divisional Court in King v. Kerrier District Council [2006] EWHC 500 (Admin) . He said: “11…..That case arose from a decision of the Truro Magistrates' Court which convicted the appellant of two offences under section 112(1A) [for relevant purposes in identical terms] . According to the case stated, the magistrates found that the appellant either knew that there had been a change in circumstances which affected her entitlement to benefit, or closed her eyes to the obvious, but they went on also to find that the lack of information from the appellant “ could have” affected the amount of benefit paid. 12 In allowing the appeal Newman J. said at [7]: “It has been submitted, in my judgment correctly, that if the magistrates had merely concluded that the lack of information from the appellant could have affected the amount of benefit paid, it must follow that despite their stated conclusion to the contrary, they could not have reached the conclusion to the criminal standard of proof that the change in circumstances had affected the appellant's entitlement to benefit.” 13 He then went on to set out the question, which had been stated for the opinion of the High Court, as being: “ The prosecution having conceded that before the justices could convict they had to be satisfied that the change of circumstances which the defendant failed to notify would have affected her entitlement to benefits, whether the justices were right to convict in view of their finding that the change of circumstances could have affected her entitlement for benefits.” 14 Newman J. said that in his judgment the answer to the question was plainly no. He added at [9]: “ … [P]roof of the offence [under section 112(1A) ] requires more than the possibility that the change could have affected the benefit.” 15 Miss Roberts submits that that decision was per incuriam and wrong because it proceeded on a wrong concession. In this case that was the approach taken by the trial judge. He said, in giving a ruling on the interpretation of section 111A(1A) before he came to sum up, as follows: “He [that is counsel for the defendant] relies on the case of King v Kerrier District Council [2006] EWHC 500 (Admin) . This was a case where a concession was made before the justices that they could only convict if they were satisfied that the change of circumstances, which the defendant failed to notify, would have affected her entitlement to benefit. That concession is not made in this case. In the case of King, the concession having been made, it is unsurprising that the Divisional Court found the magistrates who had only made a finding that the information not reported could have or might have affected the benefit, said that was not good enough and they should not have convicted.” 16 We find it difficult to identify what is said to be the material erroneous concession. The concession quoted from the question posed in that case for the opinion of the court was that: “Before the justices could convict they had to be satisfied that the change of circumstances which the defendant failed to notify would have affected her entitlement to benefits.” 17 That language reflected and repeated the wording of the statute itself, which uses the term “a change of circumstances affecting any entitlement to any benefit”. The question is what is the meaning and effect of those words. The Divisional Court plainly read the words in the sense contended for by the appellant in the present case, namely that the change of circumstances must have made a difference to the amount of benefit which the recipient was entitled to claim in order for it to be characterised properly as a change of circumstances affecting his entitlement to benefit. 18 A decision of the Divisional Court is not binding on this court, but it is of persuasive authority. Moreover, we agree with it. We think that the meaning advanced by the appellant is the natural and ordinary meaning of the phrase. Further, if we were in serious doubt about that matter, we remind ourselves that this is a penal statute. It is a well established principle that if a penal statute is reasonably open to rival constructions it should be construed in the defendant's favour.” 10. Toulson LJ proceeded to compare the punitive provisions of section 111A (1A) with the civil recovery provisions of part 10 of the Housing Benefit (General) Regulations 1987 (SI 1987/1971) . Regulation 75 provided: “(1) subject to paragraph (2), if at any time between the making of a claim and its determination, or during the benefit period, there is a change of circumstances which the claimant….. might reasonably be expected to know might affect the claimant’s right to the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office.” 10. The Court noted that regulation 75 was drawn more widely than the section which created the criminal offence. Toulson LJ further observed: “…. It is interesting to compare and contrast the express language of regulation 75 with the interpretation which the prosecution ask this Court to put on section 111 (1A) by way of reading into the section words which are not there. The prosecution’s argument requires the Court to read the words “change of circumstances affecting any benefit” as not limited to a change of circumstance which would make a difference to the amount of the benefit, nor even limited to a change of circumstance which a person in the claimant’s position ought to realise might make a difference to the computation of their benefit. It extends to disclosure of anything which might cause a benefits officer to make enquiries in order to satisfy himself or herself as to the claimant’s entitlement to benefit. So we are asked as a process of interpretation to read in a duty enforced by criminal sanctions more extensive than the expressed duty imposed by regulation 75 which carries only a civil sanction. This would go beyond the ordinary process of statutory construction. For these reasons we reject the prosecution’s argument on the construction of the section.” 11. There are, it seems to this Court, two possible interpretations of section 111A (1A)(a). In its context of entitlement to benefit and other social security payments or advantages, the word “affecting” could mean “resulting in a change to an entitlement” or, alternatively, “touching upon” or “relevant to” an entitlement, in other words “capable of resulting in” a change to an entitlement. The implication of the first construction would be that an entitlement to any benefit, payment or advantage will only be affected by a change of circumstances if that change would, upon the assessor’s application of the regulations, make an actual difference to the amount of benefit, payment or advantage receivable by the claimant. If this is the correct interpretation, the Judge was right to conclude that the respondent was obliged only to disclose a change of circumstances sufficient to extinguish her benefit. The result of the second construction would be that an entitlement to benefit would be affected by a change of circumstances if that change was of a nature which was capable, depending upon the assessor’s application of the regulations, of making a difference to the right to receive the benefit, payment or other advantage. Upon this interpretation, since income of any sort from any source was capable, subject to the assessor’s calculation upon application of the regulations, of affecting the right to receive benefit, the Judge would have been wrong to rule that the receipt of tax credits did not “affect” the respondent’s entitlement. 12. We reject Miss Levett’s argument, advanced on behalf of the applicant, that there may be a distinction to be drawn between extinction of an entitlement to housing and council tax benefit and the assessment of an entitlement at zero. She submitted that while receipt of earned income might have the effect of reducing a claimant’s benefit to zero, that may not mean that an entitlement to benefit was extinguished. It may depend upon other of the claimant’s personal circumstances. It may therefore be that the receipt of tax credits would “extinguish” the entitlement to benefit while the receipt of earned income alone may not. This was a novel argument, not raised in Miss Levett’s skeleton argument, and it was unsupported by evidence. 13. Upon the principal issue of construction, Miss Levett concedes that Passmore is unhelpful to her argument but she submits its facts are distinguishable from the circumstances faced by the trial Judge. In Passmore the appellant had done nothing which was capable of affecting his entitlement to benefit since forming a company could have had no effect upon it. On the facts of that case only income earned as a result of carrying on business would have had a notifiable effect. Miss Levett submits that the proper interpretation of the section is to be gleaned by a consideration of the benefits system. The respondent was in receipt of benefits on the factual basis that she was receiving the sums set out in her claim of 3 November 2003, that she was a single parent caring for a child and that she incurred expense in caring for her child. While the event which triggered her relevant change of circumstances was her employment which, in turn, entitled her to receive additional income by way of tax credits, it was the receipt of the total of these sums which amounted to the change of circumstance and not any one of them, even if, had she disclosed her earned income, that earned income would have been sufficient by itself, as it turned out, to extinguish the right to receive benefit. It was not the respondent’s employment which alone which constituted the change of circumstances but each of the new sources of income resulting from that employment. The question whether a claimant “knows” within the meaning of subsection (1A)(c) that the receipt of tax credits affected an entitlement to benefit was a matter for evidence, as was the issue of dishonesty under subsection (1A)(d). 14. In response Mr Cifonelli submitted that upon a natural interpretation of sub paragraph (a), supported by the reasoning of the Court in Passmore , if the claimant disclosed her employment and earnings from that employment sufficient, as the overpayment notices demonstrated, to extinguish the right to receive housing and council tax benefit, there could be no further obligation to disclose additional sources of income which would have no effect upon the calculation. 15. Miss Levett pointed out that this is not a case in which (i) having disclosed her earned income, (ii) the respondent was notified that her entitlement to benefit had been extinguished, and (iii) the respondent thereafter failed to give notification of the receipt of tax credits. If the disclosure of earned income had resulted in the cessation of benefit payments, the later receipt of further income by way of tax credits would not have been capable of affecting the respondent’s entitlement so that no obligation of further disclosure would have arisen. Here, however, the changes of circumstances all occurred between 24 and 28 May 2004 and all of them were capable of affecting the respondent’s entitlement to benefit. Miss Levett submitted that the judge was mistaken to place emphasis upon repayment notices issued over two years after the entitlement had ceased. 16. There is no doubt that the receipt of increased tax credit is a notifiable change of circumstances. In Eyeson v Milton Keynes Council (2005) EWHC 1160 (Admin) the Divisional Court held that working families’ tax credit was a source of income which may generate a change of circumstances under section 112(1A) (as inserted by section 16(3) of the Social Security Fraud Act 2001) . It does not seem to us that the Judge was right to distinguish between a tax credit payable in consequence of employment and an annuity payable independently of an employment. There is, in principle, no difference between the two since they both amount to income capable of affecting an entitlement to housing and council tax benefit. The fact that tax credits became payable as a consequence of the respondent’s employment did not, in our view, change their nature as income and, therefore, a change of circumstances in their own right. 17. We are bound by the decision and the reasoning in Passmore. A change of circumstances will not “affect” an entitlement to benefit unless upon computation the entitlement to benefit would be altered by the change. That is the effect of the first construction described earlier in this judgment at paragraph 12. However, as at May and June 2004 any one of the respondent’s new sources of income would have made a difference to the computation. The unchallenged evidence of Croydon’s investigator, Gail Campbell (Transcript, Bundle page 7, page 29-30) was: “If someone’s income is less than their applicable amount, then they would be entitled to maximum benefit because their income does not meet their needs. If someone’s income exceeded their applicable amount, then there would be no entitlement to maximum benefit and the higher the income went above the applicable amount, then the less benefit they would be entitled to receive….The income affects the rate of benefit.” Each of the elements of the respondent’s increased income, either alone or in tandem, would have made a difference upon computation to the respondent’s entitlement to benefit. Each, therefore, “affected” the respondent’s entitlement to benefit and was notifiable under section 111A (1A)(a) of the 1992 Act . We do not consider that it was open to the judge to rule that there was no case to answer upon counts 2 and 3 simply by reason of the theoretical (on the prosecution’s case) position that if the respondent had notified Croydon of her employment and earned income her entitlement to benefit would have been, as two years later it was, computed at zero. At the time the change of circumstances occurred each of the new and increased payments received “affected” the respondent’s entitlement to benefit. 18. In our judgement, the judge was in error when finding that the respondent’s employment was the only change of circumstances “affecting any entitlement...to...benefit”. That was to assume that the respondent had or might have, as the jury later found, notified Croydon of her earned income. At the close of the prosecution case the evidence was that respondent had notified Croydon of none of these changes. 19. However, it was the judge’s further conclusion on the evidence before him that counts 2 and 3 added nothing to the case for the prosecution. The issue joined in count 1 was whether the respondent, as she said in interview, may have telephoned Croydon to notify them of her income from employment. If the jury concluded that she had or may have done, then in respect of counts 2 and 3, there would have been no obligation to notify Croydon of the receipt of tax credits since, under the construction of section 111A (1A)(a) approved and confirmed in Passmore , they would, on further computation, have had no effect upon the entitlement to benefit; the entitlement would already have been extinguished by the notification of earned income. If, on the other hand, the jury were to convict of count 1, it would add nothing to the respondent’s culpability that she had also failed to notify Croydon of her tax credits because the count 1 failure alone would have been enough to extinguish the entitlement to benefit. As the judge observed, there were good practical case management reasons for confining the jury’s consideration to count 1. He could have achieved the same result by discharging the jury from reaching verdicts on counts 2 and 3. We have no criticism of the judge for his pragmatic approach to those counts. 20. Accordingly, we grant leave but dismiss the appeal and order the acquittal of the respondent upon counts 2 and 3.	[ "LORD JUSTICE PITCHFORD", "MR JUSTICE PENRY-DAVEY" ]	2010_02_05-2260.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/98/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/98	1,096
9a3df6c822fb33e2f900d075e99d866fa95945fa4b45744595efe39481f2a9db	[2019] EWCA Crim 1109	EWCA_Crim_1109	2019-06-19	crown_court	Neutral Citation Number: [2019] EWCA Crim 1109 No: 201704067/B4-201704070/b4-201704357/B4-201704596/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE SIMLER DBE MR JUSTICE JACOBS R E G I N A v DURRELL GOODALL REANO WALTERS TREY JACOB WILSON Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400	Neutral Citation Number: [2019] EWCA Crim 1109 No: 201704067/B4-201704070/b4-201704357/B4-201704596/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE SIMLER DBE MR JUSTICE JACOBS R E G I N A v DURRELL GOODALL REANO WALTERS TREY JACOB WILSON Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. 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Mr J Harrison QC & Mr R Simons appeared on behalf of the Applicant Goodhall Mr D Josse QC appeared on behalf of the Applicant Walters The Applicant Wilson did not attend and was not represented J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: Abdul Hafidah, aged 18 at the time of his death, was a member of a street gang in the Moss Side area of Manchester known as the "Rusholme Crips". There was a history of tit-for-tat violence between that gang and a rival gang in the Moss Side known as "AO". Each of the gangs was fiercely territorial. On 12 May 2016 Hafidah deliberately went into territory which AO members treated as their own. He was seen by AO members and was chased through the streets. He was knocked down by a car driven by one of his pursuers, severely beaten and, as he lay on the ground, he was stabbed in the neck and left to die. 2. A detailed police investigation resulted in 13 young men being charged with murder. Because of the obvious impracticability of trying all 13 together, an order was made, on the application of the prosecution and without opposition by any defendant, for there to be two separate trials. In the first trial, four of the accused were convicted of murder and three of manslaughter. Those convicted of murder included Devonte Cantrell, who inflicted the fatal stab wounds and Nathaniel Williams, who drove the car which struck the deceased. At the second trial, these three applicants were convicted of murder. One of their co-accused entered an acceptable plea to manslaughter, another was not proceeded against by the prosecution, and a third was acquitted of both murder and manslaughter. 3. All those convicted of murder in the two trials were sentenced to the form of life sentence appropriate to their respective ages. In relation to these three applicants, differing minimum terms were specified by Openshaw J, the learned judge who had presided over both trials. The minimum terms were 16 years in the case of Durrell Goodall, aged 19 at the time of the murder and now aged 22; 20 years in the case of Reano Walters, aged 18 at the time and now aged 21; and 18 years in the case of Trey Wilson, aged 17 at the time of the murder and now aged 20. 4. All three applied for leave to appeal against conviction. Walters also applied for leave to appeal against sentence. Those applications were refused by the single judge (Langstaff J). The applications are now renewed to the Full Court. In the case of Wilson, application is also made for a necessary extension of time of 22 days. 5. It is sufficient for present purposes to summarise the facts briefly. In doing so we shall refer to persons by their surnames only. We intend no disrespect by doing that. 6. Hafidah received a call on the afternoon of his death from a phone which the judge was satisfied was controlled by a member or supporter of AO. Minutes later, all of the accused were gathered in the area of Westwood Street, in the heart of the territory which AO members regarded as their own. The judge was satisfied that all of those who were convicted at the two trials were members of, or at least affiliated to, AO. 7. Some of the accused were in two cars, one of which was a Vauxhall Corsa, driven by Williams with Walters as a passenger. Hafidah was spotted by one or more of the accused. He ran across a street. Both cars turned and followed him. They stopped briefly at a junction, and passengers including Walters got out. They ran in one direction, others went in different directions, it being the prosecution case that they were splitting up in order to increase their chances of catching Hafidah. 8. A group led by Goodall, and including Cantrell and Wilson, moved off more or less together, initially walking and then breaking into a run. Cantrell was wearing a shoulder bag, the prosecution case being that the murder weapon (a knife) was in that bag. Hafidah concealed himself for a time behind an advertising hoarding. He then emerged and ran along Moss Lane East. He was pursued by a number of the accused. One of them was the applicant, Wilson, who stopped to pick up the remains of a broken umbrella for use as a weapon. Another of the accused threw a hammer at Hafidah but missed. Hafidah tried unsuccessfully to get into passing cars to escape. He was eventually struck by the Corsa driven by Williams which caused him to fall to the ground. Once on the ground he was kicked and punched by a number of the accused before Cantrell inflicted the fatal stab wounds. The broken umbrella was found close to the body. 9. None of the three applicants made any comment in interview. At trial, and in the presence of the jury, Goodall and Wilson pleaded guilty to manslaughter. Those pleas were not accepted and the trial proceeded. The applicants made little, if any, challenge to the evidence given by prosecution witnesses. Goodall gave evidence to the effect that AO was a music group not a street gang. His case was that he had joined in the pursuit of Hafidah and had assisted or encouraged others to cause some injury to Hafidah but had not intended that Hafidah should be killed or seriously injured. 10. Wilson similarly gave evidence to the effect that AO was a rap group not a street gang. He admitted that he had taken part in the chase and that "on the spur of the moment", he had picked up the broken umbrella. He denied any intention to kill or cause serious injury and denied that he had struck Hafidah with the umbrella or taken any part in the attack carried out by others. He said he had seen the attack, including the fatal stabbing, and had then run away. 11. Walters gave evidence to the effect that he was not a member of any gang. He denied playing any part in either the pursuit or the attack and denied seeing the events which we have summarised. 12. Walters had himself been run over by a car some nine days before the murder of Hafidah. In text messages describing that incident, he said that the car which knocked him down had been driven by "some Libyan kid". Most of the members of the Rusholme Crips were of Libyan or Somalian heritage. 13. In each of the two trials the judge gave directions as to the law of joint enterprise, about which no criticism is or could be made. The convictions of the seven accused in the first trial were adduced in evidence in the second trial. The judge gave a firm direction that those convictions were not evidence against any of the accused in the second trial. 14. The ground of appeal against conviction, raised by all three applicants, is that each of their convictions of murder is inconsistent with the convictions of manslaughter returned against three of the accused in the first trial. In written submissions on behalf of Goodall, a particular comparison is drawn between him and two of those convicted of manslaughter at the first trial, namely George and Neish. It is submitted that the evidence and issues relating to those three accused were essentially the same, and that no reasonable jury could have found George and Neish not guilty of murder whilst concluding that Goodall was guilty of murder. 15. It is acknowledged, in the light of the decision of this court in R v Fanning [2016] EWCA Crim 550 ; [2016] 1 WLR 4175 , that in circumstances in which reliance is placed on inconsistent verdicts, the burden is on an appellant to satisfy this court that no reasonable jury, who had applied their mind properly to the facts of the case, could have arrived at the combination of verdicts which were in fact returned. It is however submitted that Goodall was not at the forefront of the chasing group, did not join in the attack and had left the area of the attack before Cantrell inflicted the fatal stab wounds. The conclusion which the jury in the second trial must have reached, namely that Goodall was encouraging or assisting others, is said to have been wholly inconsistent with the way the jury in the first trial treated George and Neish. 16. On behalf of Walters, written submissions made similar comparisons between the evidence against him and the evidence in the first trial against those convicted of manslaughter. It is acknowledged that separate trials of persons charged with the same offence may properly be ordered, and it is accepted that no objection was made to the order in this case that the accused should be divided into two trials in the interests of fairness and efficiency. It is however submitted that when separate trials are ordered a risk of inconsistent verdicts arises. It is argued that in this case the verdict against Walters is inconsistent with some of the verdicts in the first trial. 17. It is similarly submitted, in written grounds put forward on behalf of Wilson, that the order for separate trials has, in this case, resulted in inconsistent verdicts. It is submitted on the evidence that Wilson did not play a leading role in the attack, nor was he at the forefront of the attack, whereas all three of those convicted of manslaughter in the first trial are said to have been more heavily involved in the incident than was Wilson. It is submitted that the two juries must have taken "a fundamentally different approach to the case" and that there is no sensible basis on which the juries could have come to "such different conclusions on the central issue of intention of the respective defendants". 18. The written submissions have been developed orally today by Mr Harrison QC, on behalf of Goodall, and Mr Josse QC, on behalf of Walters. We are grateful to both of them. Wilson has not been represented at this renewed application and in his case the court has proceeded on the basis of a paper application. It is however important to emphasise that to a very substantial degree all three applicants make common cause on the issue which lies at the heart of their proposed appeal against conviction. We have proceeded on the basis that a point successfully made on behalf of any one of them will assist each of the other two. Nor has there been any appearance today on behalf of the respondent, although we have had the assistance of a detailed written respondent's notice. 19. In Fanning the court was concerned with a number of cases in which the verdict of a jury, against a single defendant, was said to have been inconsistent with one or more other verdicts in the same trial and therefore unsafe. Having considered a number of previous cases the court made clear that the correct test in such a case was that originally stated by Devlin J (as he then was) in the unreported case of R v Stone (1954): "When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand." 20. Thus an appellant seeking to argue that the verdicts in a single trial are so inconsistent as to render one or more convictions unsafe, faces a heavy burden. 21. In the present case however, the applicant's ground of appeal is based upon differing verdicts, returned by different juries, in different trials, in which inevitably the evidence was in some respects different. 22. Such a situation was considered in relation to one of the appellants in the case of R v Andrews Weatherfoil Ltd (1972) 56 Cr App R 31. The court said: "As long it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Such a result may be due to differences in the evidence presented at the two trials or simply to the different view which the juries separately take of the witnesses... where the verdicts are returned by different juries, the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it. The verdict 'Not Guilty' includes 'Not Proven'. We do not therefore accept [counsel's] submission that inconsistent verdicts from different juries ipso facto render the Guilty verdict unsafe. If, as will usually be the case, the evidence of the two trials was significantly different, this not only explains the different verdicts but also defeats the claim that inconsistency alone renders the Guilty verdict unsafe." 23. It is relevant to note that those observations were made in the context of the court's dismissing an appeal against conviction by an appellant called Sporle, who had been convicted of corruptly accepting emoluments from one Smith. Smith was separately tried at a different time and was acquitted of corruptly offering the emoluments to Sporle. Thus, two juries had separately considered what might be regarded as two sides of the same coin. The court was nonetheless satisfied that Sporle's conviction must stand, noting that the jury in his case had heard Sporle's evidence and that there was no suggestion that evidence favourable to Sporle had been given in Smith's trial but not given in Sporle's trial. 24. In the present case similarly, the jury in the second trial heard the evidence of all three applicants. It is submitted by Mr Harrison that in one respect part of the evidence against Goodall emerged more favourably to him in the second trial than the evidence given at the first trial. But no applicant suggests that the second jury did not hear favourable evidence which had been heard by the first jury. 25. In the current edition of Archbold at paragraph [7-72] it is said of the decision in Andrews Weatherfoil Ltd that in practice the onus cast upon an appellant will be "an almost impossible one to discharge" because inevitably there will be a difference in the evidence, however similar the evidence may be, against two persons jointly charged with an offence but separately tried. 26. In the present case no challenge is or could be made to the order for separate trials. We think it important to emphasise that point. One of Mr Josse's oral submissions was to the effect that the differing verdicts might, if anything, be less troubling if they had been returned by a single jury which had considered all the evidence against all of the accused, whereas in the events which have happened he submits there is a lingering concern that the two juries approached their respective tasks differently. We see no basis for that concern, both juries having been similarly directed as to the legal principles and there being no reason to doubt that each of the juries properly gave separate consideration to the evidence against and for each of the accused whose cases they were considering. Furthermore, it seems to us that the logical conclusion of the argument is that there never could be separate trials of persons accused of involvement in the same crime, however lengthy or unworkable a single trial of all of them might be. 27. Each of these applicants was fairly tried. In each case there was undeniably evidence on which the jury could properly convict. It is, in our view, unarguably the case that the evidence heard by the juries in the two trials differed significantly. In this regard, it suffices to point out that the jury in the second trial heard the evidence of these three applicants but did not hear the evidence of an accused who gave evidence in the first trial. 28. In addition, whilst the respective juries in the two trials of course heard evidence about the actions of all those accused of involvement in the murder, they were focused on the evidence relating to those who were on trial before them and not on the evidence related to those who were not. The first jury did not know that Goodall and Wilson would plead guilty to manslaughter before the second jury, thereby admitting some involvement in the relevant events. Thus, submissions seeking to compare the evidence against one of these applicants with the evidence against one of those convicted of manslaughter in the first trial, face the insuperable obstacle that they are not comparing like with like. 29. In those circumstances, it is, in our judgment, simply impossible to argue that there is such inconsistency between the manslaughter convictions in the first trial and the murder convictions in the second trial as to render the convictions of the applicant's unsafe. We entirely agree with the observations to that effect made by Langstaff J when refusing leave to appeal on the papers. 30. As we have indicated, no applicant suggests that, on the evidence heard by the jury in his trial, the jury were not entitled to convict him. Thus, if the second trial alone is considered, each applicant must concede that his conviction is safe. It is not, in our judgment, arguable that any of the convictions are rendered unsafe because a different jury, hearing different evidence about different accused in a different trial, found some of them not guilty of murder but guilty of manslaughter. 31. We do not go so far as to say definitively that there can never be circumstances in which such an argument might succeed, because we cannot foresee all possible circumstances in which the point may be raised. But we are satisfied that if the point ever were to be arguable, the circumstances would have to be truly exceptional. 32. Although the point is not covered by direct authority other than Andrews Weatherfoil Ltd, and one more recent case in which that decision was cited, we do not accept the submission that leave to appeal should for that reason be granted. We regard that as an indication that an applicant relying on a suggested disparity of this sort will very rarely, if ever, be able to mount an arguable case. 33. We should add that in the respondent's notice detailed submissions are made as to features of the evidence against each of the applicants which, it is said, would, in any event, defeat grounds of appeal based on alleged inconsistency of verdicts. It suffices to say that we see considerable force in those written submissions. It is not however necessary for us to deal with them in any detail because, as we have indicated, the applicants have simply failed to put forward any basis on which it could properly be argued that their convictions are unsafe by reasons of inconsistency with verdicts reached by another jury in another trial. 34. If we had come to any different view about the merits of the ground of appeal against conviction, we would have been willing to grant Wilson the necessary extension of time, the relevant delay being comparatively short and a satisfactory explanation having been given. As it is, however, no useful purpose would be served by extending time. For those reasons the application for an extension of time and the applications for leave to appeal against conviction fail and are refused. 35. We turn to consider Walters' renewed application for leave to appeal against sentence. In his sentencing remarks Openshaw J expressed very clearly the gravity of this offence of murder. He properly considered schedule 21 to the Criminal Justice Act 2003. He identified a number of aggravating features, including the facts that the murder was in furtherance of gang feuding, the chase was undertaken by many members of the gang acting together, at least one of whom had a hammer, and in addition to Cantrell at least one other had a knife. The judge was sure that all those who had been convicted knew that another or others had a knife or knives. He emphasised that in an incident of this kind, "numbers really do count" because the more people who attacked Hafidah, the more likely it was that he would be overcome and the less likely it was that anyone would intervene to protect him. The judge observed that this was a public display of force intended to show the power of the AO gang. There had been a prolonged chase over the course of about 10 minutes, crossing one of Manchester's principal arterial roads during rush hour in the sight of many passers-by. He said: "Abdul Hafidah was left for dead in the middle of the road, thereby causing great distress and anguish to the eyewitnesses and, I might add, to the outrage of the community and indeed to the City. Their conduct displays an arrogance and ruthlessness characteristic of the membership of street gangs which impose a strict code of silence upon its members." 36. The judge took, as his starting point, a minimum term of 25 years in accordance with paragraph 5A of schedule 21 for those aged over 18, saying that in his judgment: "... everyone who participated in that final attack must have known and intended that the hunt for and chase of Abdul Hafidah would result in his death or serious injury by a weapon brought to the scene by one of them, so as to engage Paragraph 5A and a starting point of a minimum term of 25 years for those over eighteen at the time..." 37. He noted that the only substantial point of mitigation was the young age of the offenders, but added that none of the accused was immature or easily influenced and all knew exactly what they were doing and the consequences which would follow. Having conducted both trials, he observed that none of the accused had yet shown any regret or remorse for what they had done, though he recognised that their attitudes may change over time. 38. The judge noted that Walters was only 18 at the time of the murder and had no convictions or cautions. The judge had read a number of testimonials written on the applicant's behalf. However, he took into account that Walters had a personal grievance against members of the rival gang, having recently been run over, and that he was "one of the most active gang members during the search". By way of illustration the judge referred to the fact that Walters had jumped out of a moving car in order to pursue his chase on foot. The judge was further satisfied that at the end of the chase Walters had followed Hafidah back across the road and joined in the final joint assault. The judge said: 39. "I accept that he personally did not have a weapon, and he may not have known that Devonte Cantrell had the knife, but he knew perfectly well that others had deadly weapons; indeed he admitted that in evidence. He must have joined in and continued in this attack knowing and intending that someone would use a deadly weapon to cause at least some really serious injury." 40. The grounds of appeal against sentence are that the judge erred in taking a starting point pursuant to paragraph 5A rather than paragraph 6 of schedule 21, and further erred in concluding that the applicant had joined in the final assault. It is submitted that in all the circumstances the minimum term of 20 years was manifestly excessive. 41. In support of the first of those submissions, it is argued that in the passage which we have just quoted, the judge acknowledged that Walters may not have known that Cantrell had the knife. It is argued that for the purposes of paragraph 5A the relevant weapon is that which is used to kill. In those circumstances, it is submitted that paragraph 5A did not apply to this applicant. 42. We are unable to accept that submission. Paragraph 5A applies to an offender who took a knife or other weapon to the scene intending to commit an offence or have it available to use as a weapon and used that knife or other weapon in committing the murder. There is therefore no doubt that paragraph 5A applied to Cantrell who inflicted the fatal stab wound. The judge was correct to say that paragraph 5A also applies to a joint participant who, though not personally responsible for the fatal injury, participated in the murder with the intention that the victim would be killed or seriously injured by a weapon brought to the scene by one of the attackers. We reject the submission that paragraph 5A could only apply to a joint participant who, in addition to having that intention, correctly predicted which of his co-accused would inflict the fatal injury with which weapon. 43. Nor can we accept the submissions made in support of the second ground of appeal. Having presided over both trials, the judge was in the best possible position to assess the role and culpability of the individual defendants. In his sentencing remarks, both in his account of the overall circumstances of the pursuit and murder and in the passages dealing specifically with this applicant's case, he identified the key features of the evidence against Walters. We are satisfied that on the evidence he was unarguably entitled to reach the conclusion he did. 44. We have considered anxiously, particularly having regard to the applicant's young age, whether there is any other ground on which it can be said that the minimum term was manifestly excessive in length. We are satisfied that there is none. Young though he was, this applicant played an important part in what was a dreadful murder, with many aggravating features. It is apparent that in dealing with the many accused whom he had to sentence, the judge carefully discriminated between them in determining the necessary length of the minimum term in each case. In Walters' case he correctly identified the starting point, correctly assessed the aggravating and mitigating factors and was clearly entitled to reach the conclusion he did. There is no ground on which it can be argued that the minimum term which he imposed was manifestly excessive. 45. For those reasons, grateful as we are to counsel, the renewed application for leave to appeal against sentence fails and is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE HOLROYDE", "MRS JUSTICE SIMLER DBE", "MR JUSTICE JACOBS" ]	2019_06_19-4631.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1109/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1109	1,097
5d50f40b572a5c943f68b7daa7e4177337e794444e9f1587f80d5a32a5a6d2ca	[2013] EWCA Crim 1150	EWCA_Crim_1150	2013-07-05	crown_court	Case No: 2012/021639 Neutral Citation Number: [2013] EWCA Crim 1150 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT HH Judge Gold QC T2011/7020 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE OPENSHAW and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Omar Sadique Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 2012/021639 Neutral Citation Number: [2013] EWCA Crim 1150 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT HH Judge Gold QC T2011/7020 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE OPENSHAW and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Omar Sadique Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Mansfield QC and Mr G P King for the Appellant Mr A Walker for the Crown Hearing dates : 11 th June 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. On 21 February 2012 in the Crown Court at Maidstone before His Honour Judge Gold QC and a jury Omar Sadique was convicted of assisting in the supply of controlled drugs of class A and class B contrary to s.46 of the Serious Crime Act 2007 ( the 2007 Act ). He was sentenced to 8 years imprisonment. Appropriate forfeiture orders were made. 2. The case against the appellant was that his national distribution business was used to supply cutting agents like benzocaine and lignocaine to drug dealers and to distributors of cutting agents. These were misused for the purposes of criminal drug supply. Of itself possession of these chemicals was not unlawful, and they could be lawfully sold. The appellant’s defence was that he ran a legitimate business dealing in chemicals which he was perfectly entitled to supply, and he had no idea that they were being sold or supplied for misuse as cutting agents in the drugs trade. However, no business records, client lists or delivery records were ever discovered or produced. It has not been suggested that the verdict of the jury, as it applied to the facts of the case, is open to criticism. The issue in the appeal against conviction is directed to the ambit of s.46 of the 2007 Act . 3. Before considering the indictment on which the appellant was eventually convicted, we must begin by noting that in the first indictment, dated 4 May 2011, he was indicted with a number of counts of supplying class A drugs in the form of cocaine and a further count of supplying class B drugs in the form of amphetamine. This indictment included in count 5: “Statement of Offence Encouraging or assisting offences of class A or class B drug supply believing one or more will be committed, contrary to s.46 of the Serious Crime Act 2007 . Particulars of Offence Omar Sadique … between the 1 st day of January 2009 and 6 th day of July 2010 together with other persons unknown did an act, namely the supplying of chemicals and pharmaceutical agents, which act was capable of assisting the commission of one or more offences of supplying class A controlled drugs, namely methylamphetamine, and/or supplying of class B controlled drugs, namely amphetamine, and they believed that one or more of those offences would be committed and that their act would assist in the commission of one or more of those offences.” In these particulars of offence the drugs for criminal supply were identified, but the chemical and pharmaceutical agents were not. 4. The indictment was amended in July 2011. Count 1, replacing former count 5 alleged “Statement of Offence Assisting in the supply of class A or class B controlled drugs, contrary to s.46 of the Serious Crime Act 2007 . Particulars of Offence Omar Sadique and … between the 1 st day of January 2009 and the 8 th day of June 2010, did an act, namely the supply of benzocaine, lignocaine, hydrochloric acid, sulphuric acid and other chemicals and pharmaceuticals as cutting agents, which was capable of assisting one or more offences of supplying/being concerned in the supply of class A or class B controlled drugs, believing that one or more of those offences would be committed and that their act would assist in the commission of one or more of the said offences.” This count identified the cutting agents, and the crimes which were encouraged or assisted, but not the particular drugs which were produced by use of the cutting agents. This second indictment included a number of further counts, which need no attention. 5. During the course of a preparatory hearing for trial it was submitted on behalf of the appellant, and his co-defendants, that s.46 of the 2007 Act was incompatible with Article 7 of the European Convention of Human Rights. It was too vague and uncertain, and accordingly the count should be stayed as an abuse of process. After the judge rejected the argument that it was “not possible” to arrive at a workable and intelligible interpretation of s.46 , this court upheld his ruling. S.46 was neither vague or uncertain. It properly complied both with Article 7 of the ECHR, and was consistent with domestic jurisprudence summarised in R v Rimmington [2006] 1 AC 459 . The court also rejected a submission that the count was bad for duplicity, observing that in the light of the primary legislation (to which we shall come shortly) the argument was “hopeless”. The court then went on to analyse what were described as the ingredients of a s.46 offence, and the occasions when the offence should be charged, and if so, the terms of the relevant count. (See R v Sadique and another [2011] EWCA 2872.) It is perhaps worth emphasising that this analysis was not necessary for the decision, and that the issues being addressed were procedural rather than substantive. 6. In order to understand the observations of the court, we must first turn to the relevant statutory provisions. 7. S.44 provides: “Intentionally encouraging or assisting an offence (1) a person commits an offence if- (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or insist its commission. (2) but he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.” 8. S.45 of the 2007 Act provides: “Encouraging or assisting an offence believing it will be committed A person commits an offence if (a) He does an act capable of encouraging or assisting the commission of an offence; and (b) He believes – (i) that the offence will be committed; and (ii) that his act will encourage or assist its commission”. 9. Two distinct offences are created by these sections, both directed to encouraging or assisting the commission of an offence. The legislation then creates a third distinct offence. 10. S.46 of the 2007 Act provides: “Encouraging or assisting offences believing one or more will be committed (1) a person commits an offence if – (a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and (b) he believes – (i) that one or more of those offences will be committed (but has no belief as to which); and (ii) that his act will encourage or assist the commission of one or more of them. (2) it is immaterial for the purposes of sub-section (1)(b)(ii) whether the person has any belief as to which offence will be encouraged or assisted. (3) if a person is charged with an offence under sub-section 1(…) (a) the indictment must specify the offences alleged to be the “number of offences” mentioned in paragraph (a) of that sub-section; but (b) nothing in paragraph (a) requires all the offences potentially comprised in that number to be specified. (4) in relation to an offence under this section, reference in this Part to the offences specified in the indictment is to the offences specified by virtue of sub-section (3)(a).” Self evidently this third distinct offence is directed against lending encouragement or assistance to the commission of one or more offences. 11. S.47(1) adds an important ingredient to s.46 by providing: “If it is alleged under s.46(1) (b) that a person (D) believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is sufficient to prove that – (a) one or more of a number of acts would be done which would amount to the commission of one or more of those offences; and (b) his act would encourage or assist the doing of one or more of those acts.” This provision bears directly on the focus suggested by Mr Mansfield on the terms of s.46(1) (b)(i). “(but has no belief as to which)”. 12. S.47(5) adds for consideration that: “In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence – (a) … (b) if the offence is one requiring proof of the particular circumstances or consequences (or both), it must be proved that – (i) D believed that, were the act to be done it would be done in those circumstances or with those consequences; or (ii) D was reckless as to whether or not it would be done in those circumstances or with those consequences”. 13. In accordance with s.49(2) D may also face multiple counts charged under s.44 or s.45 , as appropriate, even if these would flow from a single act of encouragement or assistance. 14. We note s.57(4) of the 2006 Act which provides: “For the purposes of this section, an offence is an alternative offence if – (a) it is an offence of which on a trial on indictment for the specified offence, an accused may be found guilty; or (b) …” and 15. S.58 provides for the penalties on conviction. S.58(1) provides: “Penalty. Sub-sections (2) and (3) apply if – (a) … (b) a person is convicted of an offence under s.46 by reference to only one offence (“the reference offence”) (3) in any other case (that is other than murder) he is liable for any penalty for which he would be liable on conviction of the … reference offence.” Importantly, S.58(4)-(7) deals with the problem of the defendant convicted under s.46 in the context of more than one offence, by providing that the maximum sentence available on conviction must be addressed by reference to the offence which has the longest term. 16. In an article published in Archbold News, issue 9 November 2008, Professor John Spencer and Professor Graham Virgo presciently anticipated some of the problems to which this legislative structure would give rise. “Having three new offences where only one would do creates complications not just in theory but in practice too, because it enabled defendants to argue that they have been charged with the wrong one: and so, in future, we can expect a body of case-law not only about what each of these offences means, but about what the relationship between them is”. 17. It is hardly surprising that Professor Ormerod and Mr Fortson greeted the legislation with equal lack of enthusiasm. In the Criminal Law Review for 2009 at p. 389 they addressed Serious Crime Act 2007 - Part 2 Offences by observing that it was “questionable whether all of these tortuously difficult offences in ss.44-46 are even necessary”. Referring specifically to the offence created by s.46 they observed that this is “the broadest, most complex and most controversial of the new offences. It is introduced to deal with the problem encountered in secondary liability where D gives assistance and D is aware that P is likely to commit one of a number of offences, but is unsure which. For example, D drives P to a public house, being unsure whether P is likely to commit robbery, murder, explosives offences or offences against the person”. The example was a direct reference to a situation which arose in DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350 HL. 18. We can now return to the observations made about s.46 in R v Sadique. After reciting the relevant legislative provisions, the court observed that s.46 “should only be used when the prosecution allege that D’s act is capable of encouraging or assisting more than one offence”, and continued that “… the indictment need only specify two offences and could specify any number greater than two”. The court then explained s.46 in the context of a case in which it was alleged that the count in the indictment specified offence X, punishable by life imprisonment, Y, punishable by 14 years imprisonment, and Z, punishable by 10 years imprisonment. In that context the court observed that: “ section 46 should only be used, and needs only to be used, when it may be that D, at the time of doing the act, believes that one or more of either offence X, or offence Y or offence Z will be committed, but has no belief as to which of one or ones of the three will be committed”. In the case of a trial involving these issues, the court agreed with the prosecution that it “would be better practice to have a separate s.46 count for X, Y and Z, and indeed went on to say “that there should always be separate counts if D pleads not guilty” adding, however, that the failure to do so (that is to produce separate counts) “would not of itself affect the safety of the conviction”. On this basis the observations of the court were directed not to issues of substantive law, but to process. 19. According to Professor Virgo, Encouraging or Assisting More Than One Offence (Archbold Review, March 13 2012) the effect of the judgment, which was addressing the issue of vagueness and uncertainty has, “if anything made the offence vague, uncertain and effectively redundant”. The offence in s.46 was rendered “practically obsolete”. In issue 3 dated 12 April 2013 of Archbold News – “Enough is Enough” Professor Virgo returned to the impact of the decision which, he suggests: “…drives a coach and horses through the s.46 offence, bears out my concerns about the drafting and comprehensibility of the legislation, which has made the task of the senior judiciary very difficult in making sense of the law … The effect of their (the judges’) decision is to render that offence otiose. Since each contemplated offence must now be charged as a separate count, the defendant can only be convicted if he or she believed that a specific offence would be committed; that is the same as the conditions for conviction under s.45 . It follows that a defendant who contemplates a number of offences being committed but does not believe any specific crime would be committed, cannot be guilty of assisting or encouraging an offence. That is an unfortunate restriction on the ambit of liability and will cause problems in future …”. 20. The problem, if we may say so, rightly identified by Professor Virgo arises, as it seems to us, from the starting point in the reasoning of the court, found at paragraph 49 of the judgment. “D cannot be convicted of count 1 (the other ingredients being satisfied) unless at the time of doing the act: (a) Either (i) D believes that X will be committed; or (ii) D believes that one or more of the offences specified in the indictment (X, Y and Z) will be committed but has no belief as to which; and (b) D believes that his act will encourage or assist the commission of X; and (c) D believes that X will be committed with the necessary fault for X.” 21. We are concerned that in this analysis it appears that a reference to the offence created by s.45 of the Act has been included as an ingredient of the offence created by s.46 . In this paragraph of the judgment (a)(i) “D believes that X will be committed;” repeats the precise language in s.45 (b)(i) that D believes that the offence will be committed. S.45 , of course, is directed to “an offence” or “the offence”. However the entire thrust of s.46 is directed to the encouragement or assistance of offences in the belief that one or more of a number of offences will be committed. As the offences created by ss, 44, 45 and 46 are distinct offences, we have concluded that the foundation for the analysis was flawed, and that we are not bound by obiter observations of the court directed to procedural matters relating to the indictment rather than the full ambit of the offence. Indeed, if the purpose of the judgment was to render the offence in s.46 otiose or its effect was to drive “a coach and horses through the s.46 offence” this should and would have been addressed head on for what it would have been, that is, a decision which effectively dispensed with an offence newly created by statute. 22. At the end of the judgment the court observed: “To avoid the problems which would arise if the indictment were not split into two counts, one for class A drugs and one for class B drugs, we hope that the indictment will be amended”. Perhaps this observation underlines that the court was seeking to do no more than to indicate a practical approach to assist in the better management of the forthcoming trial rather than provide authoritative binding direction. 23. The indictment was redrafted in accordance with these observations. However when the matter returned to the Crown Court, Judge Gold was concerned that the new draft did not represent the best way of managing the trial. He first wondered whether the better approach would be a single count, which would then be followed by an effective “special verdict”. Having considered this possibility with counsel, he accepted that this approach had been rejected by this court, and that he was required to be faithful to the decision. However in view of the concerns he expressed, the prosecution amended the indictment again. 24. The Statement of Offence in count 1 now alleged “Assisting in the supply of controlled drugs class A and B” (our emphasis); The particulars of count 1, alleged: “Omar Sadique … between the 1 st day of January 2009 and 8 th day of June 2010, supplied various chemicals to others, such supply being capable of assisting two or more offences of supplying/being concerned in the supply of controlled drugs of both class A and B, believing that such offences would be committed and that such supply would assist in the commission of one or more of those offences”. Count 2 alleged “Assisting in the supply of controlled drugs class A”; count 3 alleged “Assisting in the supply of controlled drugs class A or B” (our emphasis) and count 4 alleged “Assisting in the supply of controlled drugs class B”. The particulars of each offence were in identical terms save that the particulars in each count accurately reflected the Statement of Offence with which it was linked. 25. Judge Gold satisfied himself that the amendment, although involving an “expansion” in the number of counts, could cause no prejudice to the defendant, not least because it would only be possible for him to be convicted on one of the four counts, as the judge put it “depending on the view that the jury takes of the class of drugs that the defendant had in mind at the time the chemicals were supplied”. He also rejected the suggestion that any defendant would suffer any prejudice because the specific chemicals were not named in the indictment. None has been suggested. 26. In due course, when summing up, the judge directed the jury that before they could convict the defendant of any of counts 1-4 they must be sure that “1. D was involved with supplying chemicals to one or more other persons; 2. Such supply was capable of assisting in the onward supply of class A or B drugs; 3. D believed at the time of supply that the chemicals would be used in the onward supply of class A or B drugs; and 4. D believed that the supply of chemicals would assist in the commission of that onward supply”. With a minor and irrelevant change, the oral directions to the jury were to similar effect. The appellant was convicted on count 1, that is by reference to class A and class B drugs. 27. Mr Mansfield founded his submission on the observations made by Professor Virgo in 2012 that s.46 was at risk of becoming redundant. Indeed Mr Mansfield suggested that its survival was limited to the cases where the defendant had no belief as to which of one or more of the offences (in the language of s.46 ) would be committed. He underlined the words in sub-s.(1)(b)(i) “(but has no belief as to which)”. He emphasised the importance of recognising as an essential ingredient of this offence that in accordance with sub-s.(1)(b)(i) the defendant must believe that one or more of the offences “will” be committed and that the defendant’s actions “will” encourage or assist in their commission. This is not a question of possibilities. The language of the paragraph is not “may” or “might”, but “will”. 28. The argument continued that the count on which the appellant was convicted was bad for duplicity. Mr Mansfield suggested that in place of the four counts of an offence contrary to s.46 of the 2007 Act , the indictment should have contained two separate counts of offences under s.45 of the Act , one directed to class A drugs, and the second to class B drugs. If necessary a very large number of separate s.45 specimen counts to cover each of the cutting agents as each was linked to the relevant class A or class B drug would be appropriate. 29. Mr Mansfield submitted that an indictment drafted in these ways would avoid confusion and convolution, and provided a sufficient level of specificity both for the purposes of the trial, and eventually the sentencing decision. It would have been an accurate reflection of the Crown’s case that the appellant was assisting drug dealers in the supply of both class A and class B drugs. Specific s.45 counts would have encouraged the particularisation of the class A or B drug which was being produced by the use of the relevant chemical, and with this material, focus could be directed to the question whether the appellant believed that there would be a supply of that drug following the provision by him of the chemical. 30. As we have already explained, the 2007 Act created three distinct offences. It is not open to the court to set one or other of them aside and the legislation must be interpreted to give effect to the creation by statute of the three offences. It may well be that the common law offence of inciting someone else to commit an offence was less complex. It may equally be that the purpose of the legislation could have been achieved in less tortuous fashion. Nevertheless these three distinct offences were created by the 2007 Act , with none taking priority over the other two. S.46 creates the offence of encouraging or assisting the commission of one or more offences. Its specific ingredients and the subsequent legislative provisions underline that an indictment charging a s.46 offence of encouraging one or more offences is permissible. 31. This has the advantage of reflecting practical reality. A defendant may very well believe that his conduct will assist in the commission of one or more of a variety of different offences by another individual without knowing or being able to identify the precise offence or offences which the person to whom he offers encouragement or assistance intends to commit, or will actually commit. As Professor Virgo explains in his most recent article, the purpose of the s.46 was “to provide for the relatively common case where a defendant contemplates that one of a variety of offences might be committed as a result of his or her encouragement”. We entirely agree. 32. DPP v Maxwell [1978] 1 WLR 1350 provides a clear example of how the s.46 offence should operate. Maxwell was a member of the Ulster Volunteer Force who agreed to drive his own car and lead a second car containing three or four other men to a remote public house. Having guided them to the scene, he drove slowly passed the public house, and then returned home. The car containing the gang of men stopped, one of the occupants got out, and ran towards the public house, where he threw a pipe bomb containing explosives into the hall way. As it happened the attack failed. He was convicted as an accomplice of doing an act with intent to cause an explosion by a bomb, and with possession of a bomb, both offences contrary to the Explosives Substances Act 1883. On appeal to the House of Lords it was submitted that Maxwell could not properly be convicted of aiding and abetting the commission of these crimes because he did not know the form the attack would take, or of the presence of the bomb in the car containing the gang. 33. The appeal was dismissed. Maxwell could properly be convicted of aiding and abetting the commission of these offences provided he contemplated the commission of one of a limited number of crimes by the principals and intentionally lent his assistance in the commission of such crimes. It was irrelevant that when he lent his assistance Maxwell did not know which of those particular crimes the principal intended to commit, or indeed the precise target or weapons which the gang would use. In short, save that the broad purpose of the gang he led to the site was encompassed in the concept of terrorism, Maxwell did not know (or believe) which particular offence that gang was intent on perpetrating. 34. In our judgment the ingredients of the s.46 offence, and the ancillary provisions, and s.58(4)-(7) in particular, underline that an indictment charging a s.46 offence by reference to one or more offences is permissible, and covers the precise situation for which the legislation provides. Before the appellant in the present case could be convicted, the jury had to be satisfied that (a) he was involved in the supply of the relevant chemicals and (b) that, if misused criminally, the chemicals were capable of misuse by others to commit offences of supplying or being concerned in the supply of, or being in possession with intent to supply class A and/or class B drugs. None of this would be criminal unless it was also proved (c) that at the time when the relevant chemicals were being supplied, the appellant believed that what he was doing would encourage or assist the commission of one or more of these drug related offences and (d) that he also believed that this was the purpose, or one of the purposes, for which the chemicals would be used by those to whom he supplied them. If those ingredients were established, as the chemicals could be used for cutting agents for class A drugs or class B drugs, or both, it was not necessary for the Crown to prove that he had a specific belief about the particular drug related offence which those he was encouraging or assisting would or did commit. 35. So far as the defendant in Maxwell’s position was concerned, s.46 remains apt to cover the encouragement or assistance he offered, not only when the explosive device was actually thrown (when he might equally have been convicted as an accomplice) but also if the plans were not brought to fruition, because of a sudden change of plan so that the device was hurled at a police officer rather than thrown into the public house, or even if the presence of a large number of police officers at the locality led the terrorist gang to drive away without any explosive being thrown at all. 36. In our judgment count 1 of the indictment was appropriately charged and fell within the proper ambit of the s.46 offence created by the 2007 Act . It was not bad for duplicity, nor defective for uncertainty. It achieved the objective of every count in any indictment, that is, to give sufficient indication to the defendant of the criminal conduct alleged against him. 37. We now turn to Mr Mansfield’s second ground of appeal, that the summing up was flawed. He suggested that the judge’s directions meant that it was sufficient to justify a conviction if the jury believed that an offence arising from the supply of unlawful drugs might be committed by others. 38. In his directions the judge did not expressly refer in to the phrase in s.46(1) (b)(i), “but has no belief as to which”. These words have to been seen in the context of s.46(1) (b) that it is an essential ingredient of the offence that the defendant must believe that one or more offences would be committed. The effect of the words so heavily relied on by Mr Mansfield underlines that the offence is directed to precisely the situation where, notwithstanding that the defendant is unable to identify which of one or more specific offences will be committed, he believes nevertheless that one or more offences will indeed be committed. 39. The context for the judge’s directions was that there was no dispute whatever that the appellant was involved in the supply of chemicals to others, and that what he supplied was capable of assisting in the manufacture of class A or class B drugs for sale. The main issue at trial was whether at the time when he supplied the chemicals he believed that they would be used to assist in the commission of drug related offences, that is the manufacture of class A or class B drugs for onward supply. In that context the jury was directed: “If you are sure that D believed that any of the chemicals that they (his company) were involved in supplying were to be used to assist in the onward supply of class A or class B drugs then D has committed the offence”. The jury was further directed that if satisfied that the ingredients of the offence were proved, that they should consider which of the four counts would properly reflect their findings about the nature of the drugs that the appellant believed that his activities would assist. If they were sure that he was assisting in the supply of both class A and class B drugs, he would be guilty of count 1, and the remaining counts did not remain further consideration. If he was acquitted of count 1, they would then move to count 2; if sure that he was assisting in the supply of class A drugs only, then counts 3 and 4 should be left. If they were unsure in relation to count 2, they should move to count 3. This required them to address the question whether the appellant believed that he was assisting in the supply of either class A or class B drugs, but if they had reservations about this count, they should then turn and consider count 4, a count limited to class B drugs alone. In context, this represented sensible management designed to achieve a fair trial, and verdicts which correctly reflected the jury’s conclusions based on their assessment of the evidence. 40. The appellant was properly convicted of this offence. The appeal against conviction will therefore be dismissed. Sentence 41. We were invited to consider sentence. So far as the appellant is concerned, he was convicted in assisting in the supply of both class A and class B drugs. He did so in the face of an earlier warning that the chemicals must not be misused for these purposes. The business was prolific. Chemicals were delivered nationwide for many months. He played a significant part in the proliferation of drugs. 42. Mr Mansfield asked us to bear in mind that the appellant’s business had been legitimate at the outset, and that he was a man of good character, from a hard working family. We have reflected on these considerations, but we agree with the judge that this was a serious case of its kind. The appellant used the front of his legitimate business to conceal his major involvement in the supply of drugs. The case had proceeded as a trial. The sentence was not excessive. The application is refused.	[ "MR JUSTICE OPENSHAW", "MR JUSTICE GRIFFITH WILLIAMS" ]	2013_07_05-3216.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1150/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1150	1,098
0e6d9c355bc542183a363108df1fea13cf93fd7dd8a3443fbbabb8b2b44b9b08	[2009] EWCA Crim 468	EWCA_Crim_468	2009-03-17	supreme_court	Neutral Citation Number: [2009] EWCA Crim 468 Case Nos: 2009/00479/A5 & 2008/05127/A4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURTS AT MIDDLESEX GUILDHALL and CHELMSFORD Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2009 Before : LORD JUSTICE THOMAS MR JUSTICE PENRY-DAVEY and JUDGE RADFORD - - - - - - - - - - - - - - - - - - - - - Between : (1) NNAJI (2) JOHNSON (RT) Appellant - and - REGINA Respondent - - - - - - - - - - -	Neutral Citation Number: [2009] EWCA Crim 468 Case Nos: 2009/00479/A5 & 2008/05127/A4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURTS AT MIDDLESEX GUILDHALL and CHELMSFORD Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2009 Before : LORD JUSTICE THOMAS MR JUSTICE PENRY-DAVEY and JUDGE RADFORD - - - - - - - - - - - - - - - - - - - - - Between : (1) NNAJI (2) JOHNSON (RT) Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Hearing date: 17 March 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : 1. There are before the Court two appeals which demonstrate the continuation of significant problems which arise out of the change of the law brought about in April 2005 by the implementation of s.240 of the Criminal Justice Act 2003 . That section imposes an obligation on the Judge, when passing sentence, to make a specific direction as to the number of days the offender has spent in custody on remand in connection with the offence or related offence which should count as part of the sentence to be served. Prior to the bringing into force of s.240 , s.67 of the Criminal Justice Act 1967 had provided that time spent in custody on remand should count automatically towards a custodial sentence, but the number of days to be counted was calculated administratively without judicial involvement. S.240 did not change the broad principle that time on remand should count (though it gave the court a new power to direct that some or all of the time should not count), only the way the calculation should be done. It became a judicial decision and not an administrative process. The avowed purpose of this section was to bring clarity and transparency to the process of sentencing and in particular to the effect of any particular sentence. 2. It became apparent shortly after the bringing into force of s.240 that problems had arisen in relation to the difficulties in making an accurate calculation at the time of sentence. These were considered by this court in R v Norman [2006] EWCA Crim 1792 . This court made clear that in passing sentence a Court could only properly meet its obligations if it was provided with reliable information (see paragraph 7 of the judgment). If inaccurate information was provided, the only power the Crown Court had to correct it was under s.155 of the Powers of Criminal Courts (Sentencing) Act 2000 but that power had to be exercised within 28 days. This court made clear at paragraph 50 vi) that if subsequently it was agreed that the direction given under s.240 had misstated the number of days, and more than 28 days had elapsed since the sentence was imposed, the procedure to be followed was to appeal. “If the period for which the direction has been given is wrong, and both parties agree, but more than 28 days have elapsed since the sentence was imposed, the application for leave to appeal should so state, in which event, on receipt of confirmation of that agreement from both the prosecution and the defence, the matter will be remitted by the Registrar direct to the Court for it to correct the mistake. He will not normally make a representation order for that purpose. The court will then hear the application as the appeal; and the appellant will be informed that as no purpose would be served by his attendance the Court will assume that he does not intend to exercise his right to do so unless informed to the contrary within 28 days. But that will only apply where the mistake has been to the detriment of the appellant.” It was made clear that in cases where the judge had failed to give a direction, it was the responsibility of counsel to bring the matter to the attention of the judge. If that did not happen, the same procedural mechanism as set out in the case of a mistake should be used. The reference to 28 days is to section 155 Powers of Criminal Courts Act 2000 – often misleadingly referred to as the ‘slip rule’. The period during which the Crown Court can correct an error in sentencing is now 56 days: Criminal Justice and Immigration Act 2008 section 47 and Schedule 8, paragraph 28, which applies to sentences imposed after 14 July 2008. But as will be seen, section 155 will not always provide the solution to problems of this kind, and there is a better solution, which appears not to be well enough known. 3. In accordance with the Norman procedure there are now two appeals before this court. 4. In the first appeal, Nnaji, i) The appellant after pleading guilty was sentenced at the Crown Court at Middlesex Guildhall on 1 November 2005 to 8 years imprisonment for a drugs offence. The appellant had spent time in custody on remand, but no direction was made under s.240 . The Crown advocate failed to draw this omission to the attention of the judge. ii) Three years and 40 days later in December 2008 this appellant sought leave to appeal out of time on the basis a direction of 106 days, being the time spent in custody on remand, should have counted towards his sentence and that there were no grounds in the case such as to warrant disallowing credit. It is the appellant’s case that he did not realise the mistake at the time as neither his legal representatives nor the prison service had told him of the error. iii) It appears that he made attempts to obtain legal advice thereafter, but some of that advice was wrong. One firm of solicitors advised an application for leave to issue judicial review which they did only to find that leave was rightly refused. iv) On receipt of the application, the office of this Court had to make enquiry of HM Prison Service and the CPS as to the time on remand and whether they agreed with the figure put forward. They did so. It is common ground that 106 days had been spent on remand and should therefore have counted against the sentence of 8 years. We grant leave to appeal. v) Therefore, in accordance with the decision of this Court in Norman , we allow the appeal to the extent of directing that 106 days spent by the appellant on remand should count towards sentence. The sentence is therefore 8 years, less 106 days on remand. 5. In the second appeal, Johnson i) The appellant was convicted on 13 July 2007 at the Crown Court at Chelmsford on two counts of possession of heroin with intent to supply. He was sentenced to four years imprisonment on each count, the sentences being concurrent with each other. A direction was made under s.240 that 81 days on remand should count towards sentence. That direction was made after enquiries had been made as to the correct number of days. ii) One year and 43 days later, in June 2008 the appellant sought leave to appeal on the basis that the correct time on remand which should have counted against his sentence was 130 days. The advice accompanying the appeal stated: “5. Prior to the conclusion of the sentencing of the appellant there was some confusion regarding the number of days the appellant had spent on remand recorded by the prison service, the matter was adjourned so that both the Crown and the defence could make further enquiries. 6. Following efforts made by Counsel for both the Crown and the appellant, in conjunction with the clerk of the Court who had called both Harlow and Stratford Magistrates Court, a figure of 81 days was thought to be the correct figure.” iii) It appears that in June 2008, HM Prison Chelmsford wrote to the appellant’s former solicitors identifying further days during which it appeared the appellant had been in custody. On the basis of that letter the appellant’s notice of appeal calculated the additional days at 130. There was correspondence with the CPS who calculated the number of days as 123. iv) Extensive enquiries were then undertaken by the office of this Court. In the course of those enquiries the prison service initially stated that the correct number of days should have been 49, but on re-checking they came to the view they should be 84. The position arrived at as a result of the work of this Court is that the period is 84 days calculated as follows: a) 4 September 2006: the appellant was remanded into custody. b) 9 October 2006: he was released on bail (that date was taken from the prison and defence records though the CPS records had a date three days earlier). c) 11 April 2007: the appellant breached his bail conditions and was remanded into custody. At the same time he started serving a sentence of 45 days for non-payment of fines. d) 25 May 2007: the sentence of 45 days having been concluded on 24 May 2007, the appellant was remanded for a second time in connection with the offence. v) In the light of this information, therefore, leave to appeal was granted by the single judge and the matter referred to us. We allow the appeal to the extent of varying the amount of time on remand to count from 81 to 84 days. The sentence is therefore 4 years, less 84 days spent on remand. 6. These two cases illustrate the continuation of the problems arising out of s.240 . Attempts have been made to try and deal with the problems: i) A group under the chairmanship of HH John Samuels QC working closely with HMCS and the Home Office (which then had responsibility for prisons) devised a form in relation to the number of days spent on remand which should be completed and agreed prior to sentence. It is not perhaps surprising that despite the introduction of this form errors of calculation are made, often because information is incomplete. ii) Guidance as to a means of overcoming the need to appeal was given in R v Gordon [2007] EWCA Crim 165 (also reported [2007] 1 W.L.R. 2117 ; [2007] 2 All E.R. 768 ; [2007] 2 Cr. App. R. (S.) 66; [2007] Crim. L.R. 402; (2007) 151 S.J.L.B. 264; Times, February 13, 2007) by Sir Igor Judge, then President of the Queen’s Bench Division, at paragraph 47: “We have re-examined the decision in Norman in the light of the Annesley principle [ (1975) 62 Cr App R 113 ] and in particular the observations of the Vice President at paragraph 50 (ii) of the judgment. The starting point is that any mis-statement of the number of days credit to which a defendant is entitled would almost invariably be the product of administrative error. We see no reason why the judge cannot use language making clear that he is directing that the defendant should receive credit for the full period of time spent in custody on remand, (or any particular part of that period), that on the basis of the information currently before him the relevant period is X days, but if this period proved to be based on an administrative error, on being informed, the court would order an amendment of the record for the correct period to be recorded. Approaching the problem in this way, the number of days to be credited may properly be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges. If of course there were any continuing issue about the number of days, the case would have to be re-listed for a judicial decision in open court. Again, the corrected order should be listed and pronounced in open court. Arrangements like these would not fall foul of the 28 day rule.” Despite the extensive reporting of this decision, it appears that courts are not adopting the formulation suggested in an attempt to mitigate the problems caused by s.240 . 7. If the Judge does not, when sentencing, use the formulation suggested in Gordon in relation to time on remand, then where errors have occurred, in cases such as the two we have considered today, very significant costs are incurred. i) This court incurs cost of enquiries made by this office, obtaining transcripts of the judgment and the cost of this hearing. An estimate made at the request of this court is that the costs are in the region of £1,300 in the case of Johnson and £800 in the case of Nnaji. ii) The Crown Court will incur costs associated with lodging the form and finding the papers, particularly where the case is old. iii) HM Prison Service incurs costs in making enquiries and in re-calculating the sentence. iv) The Legal Service Commission incurs the costs of payment to counsel for drafting the grounds of appeal. v) The CPS (which this Court always consults) incurs the cost of retrieving the papers from storage, making enquiries and writing to this court. It is estimated that each enquiry costs the CPS about £100. 8. As a result of further changes introduced by s.22 of the Criminal Justice and Immigration Act 2008 , time spent on curfew, if the curfew is for more than a certain number of hours, will count as time on remand for half the time of the curfew. It is apparent that obtaining this information will add to the complexity of these calculations for the trial court and no doubt, if the calculation is not made correctly when the matter is before the trial court, will add significantly to the complexity of trying to resolve the matters in this Court. 9. We appreciate that every effort has been made to try and reduce errors in making the correct calculation at the time of the sentence, but experience has shown that there are greater practical difficulties in eliminating errors than seems to have been appreciated when the legislation was enacted and brought into force. It may seem straightforward to ascertain the number of days, but experience shows that it is frequently not so. Defendants often offend more than once and may be on remand in relation to one set of proceedings but not another. Others, like Johnson in this case, move in and out of remand. In the case of yet more, the position is confused by absconding and its consequences. The addition of a curfew calculation will plainly add to the danger of administrative uncertainty as to how many days are to be counted. As these cases show, any error may often not be picked up until well after the elapse of even the 56 days now allowed under section 155 of the Powers of Criminal Courts (Sentencing) Act. As we have endeavoured to set out, needless expenditure is incurred for no apparent gain. There are two solutions to the problem: i) Reconsideration ought to be given by Parliament to s.240 of the Criminal Justice Act 2003 . We understand clearly the need for transparency, but perhaps this would be more reliably achieved by a default provision to the effect that the time spent on remand was to count unless the Judge otherwise ordered. It seems that the practice of requiring the Judge to specify the number of days, bearing in mind the mistakes that can be made and the increased likelihood of mistakes, is adding a wholly unnecessary and disproportionate expenditure of funds at the present time. ii) Pending reconsideration of the provisions of s.240 , we would hope that each Judge when imposing a custodial sentence would use the formula suggested by Sir Igor Judge (as he then was) in Gordon along the following lines: “The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s.240 . On the information before me the total period is … days but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded.” We hope that, if this formulation is used in every sentence, then the unnecessary costs that are incurred in this Court will be avoided if it transpires that mistakes have been made.	[ "LORD JUSTICE THOMAS", "MR JUSTICE PENRY-DAVEY" ]	2009_03_17-1869.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/468/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/468	1,099
5de2b5507d252cb572b7a5440dc274b2b82d36629f28ab1f16110c383925e627	[2006] EWCA Crim 139	EWCA_Crim_139	2006-02-14	supreme_court	Case No: 200306109B2 Neutral Citation Number: [2006] EWCA Crim 139 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) A REFERENCE BY THE CRIMINAL CASES REVIEW COMMMISSION. Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday, 14 February 2006 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE CRANE and THE HONOURABLE MR JUSTICE RAMSEY - - - - - - - - - - - - - - - - - - - - - Between : COLIN JOHN WATERS Appellant - and - THE CROWN Respondent	Case No: 200306109B2 Neutral Citation Number: [2006] EWCA Crim 139 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) A REFERENCE BY THE CRIMINAL CASES REVIEW COMMMISSION. Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday, 14 February 2006 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE CRANE and THE HONOURABLE MR JUSTICE RAMSEY - - - - - - - - - - - - - - - - - - - - - Between : COLIN JOHN WATERS 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) - - - - - - - - - - - - - - - - - - - - - Mr Peter Thornton QC and Mr Paul Taylor for the Appellant Mr Camden Pratt QC and Mr Julian Woodbridge for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. On 8 July 1994 at the Crown Court at Hove before Hidden J and a jury the appellant was convicted of murder. He was released from custody on 4 April 2004. He sought leave to appeal his conviction. Leave was refused as also was his renewed application. He now appeals against conviction upon a reference from the Criminal Cases Review Commission (“CCRC”) under section 9 of the Criminal Appeal Act 1995 . 2. At some time in the evening of Sunday 18 April 1993, 17 month old Aaron Dellow suffered very severe injuries from which he died later that evening or early the next morning. Dr West, who conducted the post-mortem, gave evidence that Aaron had died after suffering a minimum of seven substantial impacts to the head. The pattern of injury suggested that the child had been picked up and his head gripped hard as he was struck against a hard surface. There was also evidence to indicate that the child had been picked up by the right leg and swung to cause injuries. There were also injuries consistent with an adult hand or hands being pressed violently against the child’s face perhaps, in the view of Dr West, to stifle his cries. Some of the injuries showed a pattern imprint which may have been from a carpet. Fourty-one separate injuries were identified including two fractures to the skull and severe swelling of the brain. There was no evidence of any previous episodes of physical injury. According to Dr West it would have taken some three and a half minutes to inflict all the injuries. 3. Aaron suffered those injuries in a small, one bedroom flat. It was accepted at the trial, and it continues to be accepted by the appellant, that there were only two possible candidates for the killer, in the sense that no other person had an opportunity to inflict the injuries. They were Lee Baker who was the mother of Aaron, 24 years old at the time and some 8 months pregnant (by the time of the trial) and the appellant Colin John Waters who was living with her. Both were candidates in the limited sense that their life styles and their reliance on alcohol and/or drugs could have made them unsuitable carers. 4. Upon the case as presented at trial and now on appeal the injuries were caused by one of them acting alone. Furthermore each could only have inflicted the injuries within a certain period of time on the Sunday evening. The “window of opportunity” for Lee Baker was between 6.30pm and 6.55pm. During that time there were other people in the flat including the appellant. The appellant’s “window of opportunity” was between about 7.45pm and 9pm when the appellant was alone in the flat and another short window of opportunity when he was alone from about 9.30pm to about 9.45 pm. 5. Lee Baker left the flat at about 7pm and should have returned by about 7.15pm. In fact she became involved in an altercation, was arrested and, no doubt to the appellant's annoyance, did not return until about 9.45pm. Thereafter at about 10.15 they went to bed. At no point during the trial was it suggested that Lee Baker could have caused the injuries whilst the appellant was asleep after about that time. The appellant, on his account, discovered the body of Aaron at about 3.00 am in the cot next to their bed, 6. As between Lee Baker and the appellant, the jury could have sensibly concluded that the appellant was the more likely candidate. If Lee Baker caused the injuries then she did so at a time when there were three other adults in the small flat, none of whom gave evidence of hearing any cries. Aaron had been in the flat for about 30 minutes before Lee Baker, on her account, took him through to their bedroom in which his cot was situated. Before then he had been playing happily on the floor with the other children, Laura and Molly, who were temporarily in the house. It seems unlikely, so the jury may well have concluded, that the child was crying so loudly and so continuously that Lee Baker was driven to stopping it by violence and yet no one heard anything. Moreover, Lee Baker would have had to carry out the violence uninhibited by the obvious risk that others would hear something. Having put the baby to bed, on her account, Lee Baker came back into the room in which the adults, Laura and Molly were. There was no evidence that Lee Baker appeared flustered or upset. She then took £20 from the appellant in order to go to an off licence. 7. On the other hand if the appellant was the killer, he was alone at the time. There was also evidence from a neighbour that when she called at the flat to deliver some cigarettes she was not invited in, something that she found strange and unusual. 8. It is submitted on behalf of the appellant that the learned judge misdirected the jury in an important respect about what we shall call the “6.30 feed”. Mr Thornton QC also sought to call fresh evidence rebutting the evidence of Dr West about the time of the injuries in relation to the food which Aaron had consumed. 9. We turn to the factual evidence in more detail in so far as relevant to the issues on this appeal. 10. Aaron was with his father for the weekend who returned him shortly before 6.00 pm on the Sunday to his mother’s care. The somewhat conflicting factual evidence about what Aaron ate before being returned is neatly summarised in a report by Dr Murphy prepared for the appeal: “1.5 Brian Dellow’s Statement reported that at lunchtime (14.00-15.00 approximately) Aaron had been offered a cooked lunch (chicken, cabbage, peas, roast carrots and gravy). He stated that he did not think Aaron ate any of this. In the afternoon he gave him a chocolate mini roll and some yogurt. At 17.00 he gave him a portion of a chocolate biscuit (Penguin) and a portion of a fudge bar. 1.6 Later in his evidence he stated that Aaron had ‘picked at’ his lunch. He recalled that Aaron had eaten some crisps and chocolate bars during the afternoon. He stated that he had also eaten some other biscuits (animal shape biscuits). He thought the fudge bar had been eaten at 16.00 or 16.30 or ‘it might have been a bit later’. Subsequently he stated that some of these items might have been eaten as late as 17.30 before going to meet Aaron’s mother. When asked if the fudge bar was the last item eaten he said he might have had a couple of ‘little animal biscuits’ also. He also stated that when he returned Aaron to his mother he had placed a bottle of milk in a bag attached to the child’s buggy. Aaron had already taken some of that milk before they left his flat. 1.7 John Warner (Brian Dellow’s friend and flat mate) stated that Aaron had not eaten any of the cooked lunch. At about 15.30 he had eaten part of a Penguin bar and part of a fudge bar. He was drinking milk and water throughout the afternoon. He did not recall other foods being eaten.” 11. It seems likely that the jury would have concluded that Aaron, before his return, ate his last solid food at about 5.30 pm and drank some milk from the bottle. Mr Andrew Mitchell QC (who appeared for the appellant at the trial but not in the appeal) elicited the 5.30 timing in cross-examination by pointing out what the witness had said in his statement. 12. Dellow agreed that in his statement he had described washing the bottle and packing it empty, but he thought that was wrong and that he had confused the beaker and the bottle. He had also said in evidence at the committal proceedings that he had confused the two (so that he actually thought it was the beaker he had washed out and packed empty). He had agreed that he might have discussed that issue with Lee. Giving evidence at trial, he was sure that Aaron's bottle had milk in it when they left the flat and that he was drinking from it on the way to meet Lee, but he could not say how much was in it. He did not think he had drunk it all when he handed him over. 13. Lee Baker, who had been drinking much of the day with the appellant and others, gave evidence about what happened when they returned to the flat at about 6.00 pm. They sat in the front room for a time. She put Aaron to bed at 6.30, which was the time he always went to bed. She knew the time from the video recorder. She changed his nappy and left him in a t-shirt. There were no marks on him. She put him down. Then she went to get his bottle from his bag of things. It was three-quarters full of milk and she left it with him. She could not say whether he had drunk from the bottle. The door to the hall from the bedroom was “closed to”, but the door from the front room to the hall was pegged open. She went back into the front room at about 6.40 and everyone was still there. Shortly before 7.00 pm she left with Pamela Waters, at the appellant’s suggestion, to get some drink. The appellant gave her the money. 14. In cross-examination she said that when they went back to the flat the television could have been on. She had not gone to the bedroom right away and when she did put Aaron to bed, she was with him in the bedroom for no more than five minutes. She was in the room when the appellant asked Pamela Walters to call Stan and she was in the room when the call was made. (There were three calls made 6.42-6.50, 7.04-7.17 and 7.29-7.43.) She thought it was during the second call that she put Aaron to bed. She had earlier said in examination-in-chief that she was there during the telephone calls with Stan Davies. She was positive that it was about 6.30. She repeated what she had said about getting the milk bottle and said it contained at least seven ounces (nine ounces being the maximum it would take). She was certain the bottle was almost full when she collected Aaron from Brian. If it had not been full she would have given him a clean bottle. 15. During the hearing of the appeal it was assumed that Lee Baker took Aaron through to the bedroom at about 6.30. If there was a feed at that time, a matter to which we return later, then that would be the so-called 6.30 pm feed. 16. Paul Keen, who was involved in making the calls thought that he had left the flat at about 7.45 pm, leaving the appellant, Molly (asleep) and Aaron (in bed) there. 17. Maria Manton lived in an upstairs flat at 16 Montpelier terrace. She was friendly with Lee Baker. On Sunday 18th April she had been out and on her way home with her boyfriend at about 7.30 thought she would call in to see Lee for a cup of tea. Lee was not there but the appellant, Paul Keen and Molly were. She did not knock and walked straight down the hall to the front room. Paul was having an argument on the telephone. Aaron was not in sight and she assumed he was in bed. She stayed five or ten minutes and her boyfriend Wayne and the appellant smoked a joint. The appellant asked her to get him some cigarettes and told her that Lee and Pam had gone for a drink. She went back up to her flat and collected some money before going to the shop. That was 7.40 to 7.50. As she walked out of the building she saw Paul on his way back. He asked her if she had seen Pamela and she said not. She bought things at the off-licence and came straight back. She thought it was about 8 or just after 8 that she returned. The appellant came out when she knocked, took the cigarettes and said 'cheers'. Normally she said she would knock and walk straight in and she found it a bit strange that she was not invited in. 18. By some time around about 9.00 pm Paul Keen and Pamela Walters were back in the flat, to leave again at about 9.30, with Molly. When Lee Baker arrived back at the flat at about 9.45 pm the appellant was alone in the front room. She asked him if Aaron had woken up and he told her that he had but that he had given him his bottle and Aaron had gone back to sleep. He told her that the neighbours from upstairs had been down. At about 10 o'clock he said he was going to bed. She tidied up and followed him to bed about ten minutes later. The light was out and she said she would not have turned it on or looked in the cot as she would have worried about waking Aaron. When she got into bed the appellant said he could not sleep because he had a stomach upset. She went to sleep within minutes. The next thing she remembered was waking in the night, about 3 a.m. The appellant was calling her and said "Something is wrong with Aaron, he's not breathing." He was standing in the doorway and the only light was from the hall. She got out of bed and the appellant put the light on and came over to the cot. She had a quick look and saw foam by his left cheekbone, so ran to the front room to call an ambulance. 19. By now Aaron was dead. 20. The night sister at the hospital noted bruises on the child's face and that his clothes were wet with vomit. 21. Dr Langton-Hewer was the registrar on call at the hospital who examined Aaron and noticed extensive fresh bruising. The bruises were very clearly visible. He spoke to Lee, and noted down that she told him that Aaron had been well when they had put him to bed at about 6.30. He asked if she had checked him when she went to bed and she said that she probably had, at about 10.30, but she could not be sure. Her boyfriend had got up at 3 to go to the toilet and had found Aaron not breathing. He said to Lee that he had seen bruising to Aaron’s face and she said something to the effect of, ‘Do you think I’ve done that to him?’ and took a rather aggressive stance. He explained that he was trying not to jump to any conclusions. The appellant had not commented at that time. Lee had no explanation for the bruises. She rang other family members who came to the hospital, although she had seemed reluctant to do so when first offered the telephone. Apart from that and her reaction to his remarks about the bruises, she showed signs of normal grief. The appellant did not seem unduly upset, but was generally supportive to Miss Baker. Throughout his conversations with those present he said there was no evidence of anyone being under the influence of alcohol. The grandmothers were clearly horrified when they saw the bruising. Cross-examined, he said that his primary source of information had come from Lee Baker. She was with the appellant the whole time. He had made notes, but not as he sat and talked. He was asked about his note to the effect that ‘ M checked him briefly at 22.30 – was okay ’ and said that Lee was clearly very upset when he interviewed her. He wanted to get the picture in his own mind and in particular to ascertain whether Aaron might have been unwell when he was put to bed. His mother thought she had looked at him but she could not be sure and he could not definitely remember her saying that she had definitely checked him at 10.30. He was asked about his deposition before the Magistrates and agreed that she had initially said she had checked Aaron but subsequently she said that she was not so sure. 22. Before looking at the evidence of Dr West, we turn to the appellant’s evidence. He was then aged 45. He said that on the weekend of 17 th and 18 th April he was serving a prison sentence of 27 months and had not returned from a period of home leave. He said he did not drink and rarely went out. He had smoked cannabis for 25 years on and off. It had a calming effect on him. He described how they had gone to the pub on Sunday and he had drunk a couple of pints. He thought he was not wearing a watch and did not know what time they left. They moved on to the restaurant where he paid with a stolen cheque. They had drunk wine and lager in the restaurant. Once back at the flat the television was on and the children were playing. He rolled a joint and listened to the answer phone. He remembered a message from Stanley Davis, who had called a few times. Paul Keen got very angry and suggested that he speak to him. Paul made the call at 6.42 but he recalled Pamela Walters saying something to Stan in that call as well. He was concentrating on that and not on Aaron and did not remember when Aaron was put to bed. Lee came back in the room and it was her idea to go to the off-licence, for which he gave her £20. Pamela and Lee went out right away after Lee came into the front room and there was then another call to Stan in which Paul was very threatening. He had not remembered that call when he was questioned by the police. 23. He recalled Maria coming to the flat with her boyfriend Wayne and daughter Natalie. He was buying cannabis from her regularly. He thought she stayed about half an hour during which time Wayne asked if he had any cannabis and he handed cannabis to Wayne to roll a joint. At the same time he asked if they had any more for him and Maria said they had some upstairs. When they left he was with Paul and Molly in the lounge. He would not have left Molly alone. He did go upstairs to Maria’s. Asked about Maria’s evidence that she saw Paul as she left the flat, he said that was not possible. However, he had no idea how long it was after Paul had gone that Maria knocked on his door. He had no recollection of Paul returning to the flat after he had gone out. There was about twenty minutes between him going upstairs to Maria and her returning with the cannabis. She knocked on the door and he opened it. Usually he would have shouted ‘come in’ but Molly had just had a sleep and he did not want any company. The telephone went and it was Lee’s brother. There was a further call from Stan which he did not answer. 24. When Pamela rang it was the first he knew of what had happened to her and Lee. It was about ten minutes after that call that she returned. He told her to get a taxi and that he would pay. Molly was asleep on the settee and he had heard nothing from Aaron. Paul then arrived, within minutes. He made several calls to the police station to find out what happened to Lee and was eventually told that she would be released in about twenty minutes. Nothing caused him to think that the police might come to the flat. Lee came home as expected and was in a bad mood. He did not say anything to her about Aaron. They had a beer from the fridge and he asked her what had happened. Her version was different from Pamela’s and he did not know who to believe. He went to bed fifteen or twenty minutes later. It was not his habit to check the baby. Lee always used to check that he had orange or water before she went to bed. He remembered her coming to bed. 25. He woke at about 3.00 am and went to the toilet and to the kitchen for a drink. He sat down for a smoke and was thinking. It was about half an hour before he went back to bed. He had put the hall light on but turned it off as he went into the bedroom. As he came in he saw Aaron’s covers were off and as he bent down to cover him up, he felt he was cold and smelt of vomit. He put the light on in the bedroom and told Lee there was something wrong with Aaron and to ring an ambulance. She ran to the phone. She was not able to touch Aaron or be anywhere near him. He did not cause the injuries to Aaron. 26. In cross-examination he said that there was no problem with the children before Aaron was taken to bed. He said that Aaron could have been injured in the bedroom with Pamela, Paul and himself still in the flat and they would not have been aware. It could all have happened between 6.35 and 6.55. He was not aware of Lee giving Aaron a bottle of milk and was not aware of the bottle being with Aaron until he found it in the morning. He had no recall of Lee asking him if Aaron had woken up. He was positive that he had not said that he had given Aaron a bottle and he had gone back to sleep. When she first confronted him with that statement the morning after, he was in complete and utter shock and when questioned by police he said he could not remember, but later he became sure that he had not said it. He had decided to deny it after hearing Lee give evidence at the committal hearing. He denied that he had complained of a bad stomach when Lee got into bed. He was feeling relaxed. Cannabis did not affect his self control, nor did drink, although it did with some people. He had not noticed anything when he went to bed and had no idea if Aaron’s quilt was over him. 27. Because of its potential importance we summarise the evidence given by the appellant about the feeding of that night. In his first interview the appellant was asked whether he had given Aaron a feed. He said “No”. In his second interview he was asked about the evidence of Lee Baker who said that, when she got home at 9:45pm and asked whether Aaron was okay, Colin Waters had said that Aaron had woken up, was given a bottle and went straight back to sleep again. When asked whether it was possible that the conversation took place he said “Yeah, but I cannot remember it, I will tell you that now. I definitely didn’t give him a bottle.” Later he then says “Yeahs, I don’t honestly remember it. I mean. If, if he woke up I’d have gone in, not give a bottle, it’s just passing a bottle that is already there he used to throw it on the floor”. He accepted that it was a possibility. In his third interview he was asked generally about Aaron’s crying. He replied that “I found the best way to quieten him down was either fill his bottle with milk. I’d give him like two-thirds of a bottle of milk…and then he would be all right again”. In his third interview he was asked again about what he said to Lee when she returned at 9:45pm about having given Aaron his bottle. He said he had spoken to his solicitor and “I’m not saying I didn’t say. I’m not saying I did say” he later said “I can’t say yes or no, on the bottle. I just cannot say.” In his evidence-in-chief he said “Aaron didn’t wake up while his mother was out…I didn’t say anything to her about Aaron. I didn’t say anything to her about him having woken up or me having given him anything to drink”. In cross-examination he said “I have no recollection of Lee asking me if Aaron woke up. I deny it. I decided to deny it when I heard her giving evidence at committal and at the Magistrate’s Court, that was September last year. I didn’t say I just gave him his bottle and he went back to sleep. I am positive about that….” He agreed that he had moved from what he had said in interview. 28. When the bottle was recovered from the cot by police on the Monday evening, it appears to have had about a quarter to a half inch of milk in the bottom. If Lee Baker was telling the truth or accurately recording the amount of milk in the bottle when she says she gave it to Aaron some time shortly after 6.30, then (in the absence of any other explanation) logically Aaron must have drunk the rest of the milk some time between just after 6.30 and the time of the infliction of the injuries. The possibility of the bottle leaking was not apparently explored. 29. We turn to the evidence of Dr West about the time of the injuries to Aaron in relation to his feeding. His evidence was in part based on the statement of Mr Roy Green, a forensic scientist, which was read to the jury. Included within that statement was the following passage: “The stomach contents consisted of approximately 40ml (1/1/2 ounces) of a thick pinkish fluid which contained a number of flat white lumps. Tests showed that these flat lumps were starch based. Their general appearance and the fact that they contained starch suggested that they were probably potato crisps.” 30. Dr West described how he had found a mixture of fluid like thick soup with some rather more solid bits in the stomach. There was no solid material in the second part of the duodenum, only bile; food was just starting to leave the stomach. There could have been milk in the stomach, but it was impossible to identify any individual constituent of the liquid. He saw solid particles which could have been pieces of crisp and the appearance of the mixture he found was consistent with the child having eaten crisps and later drunk milk. The crisps would digest relatively slowly because they are fatty. He thought that the appearance of the contents of the stomach was consistent with Aaron having eaten crisps and biscuits. Some material could have been vomited out as a result of injury or attempts at resuscitation. It was likely that the injuries had either stopped or dramatically slowed digestion. 31. As to timing Dr West said that the state of digestion of the stomach contents suggests that the head injuries had probably occurred within two hours of the last feed, and was likely to have occurred between 45 minutes and one and a half hours after the ingestion of the food. He said that a feed of milk would count as a meal provided it was of reasonable substance. 32. We set out in full a part of the transcript of Dr West’s evidence in chief which was the subject of detailed analysis during the hearing of the appeal. MR CAMDEN PRATT: (To the witness) If Aaron - - and I say “if”; it is going to be a matter for the jury to decide in due course - - if Aaron had, in the course of the late afternoon, say, some fatty crisps and some chocolate biscuit, digestive chocolate biscuits or something of that sort, and if around about 6.30 he had had a feed of some ounces of milk, what sort of time span do you consider is likely to have elapsed before the injuries you saw were inflicted? Can you help us on that? A. I would have thought that the period is unlikely to have been greater than two hours; and I would only - - by using a two hour period I am assuming that digestion has been slowed in a child and who was, until he suffered his head injury, quite healthy. Q. A child who was until he suffered his head injury…? A. Quite healthy. Q. So we are talking about a two hour period from whenever he had his last feed of milk, when that might have been? MR JUSTICE HIDDEN: “Unlikely to have been greater than two hours”. MR CAMDEN PRATT: Quite right. (To the witness) And so, just to make sure I have understood it: if his last feed of milk was at 6.30 it is unlikely to have - - the assault is unlikely to have occurred after 8.30? A. Yes. Q. If he last took milk at seven o’clock? A. It is unlikely to be later than nine. Q. “It is unlikely to be later than nine”. Can you help us any more than that, as to the likely bracket, after the last feed, in which the injuries most probably occurred? Or can’t you help on that? A. One cannot be precise. I would suggest that the most likely period within the two hour period is 45 to 90 minutes, but it could be outside those limit, there is quite a lot of variation. Q. Again so I can understand it: so whatever time we think he may have had his last feed, taken milk last, in your opinion the most likely time for the assault to have occurred is from 45 minutes to 90 minutes thereafter, but you enter the caution that there is a possibility that it is outside that period? A. Indeed.” 33. Mr Pratt then turned to another aspect of the same topic with this question: Q. Can you help us on this: how likely is it that the assault that you have described must have happened/occurred within minutes of the last feed? 34. The transcript continues: A. It depends on what one means by “the assault”. The assault could certainly start at that period; the critical point is when one - - the critical feature is when the brain damage was suffered. So you can have an assault which takes several minutes. This would, in fact, take a time, perhaps a few minutes, to inflict. Q. The nature of the injury would take a few minutes to inflict. Can I ask you - - - MR JUSTICE HIDDEN: I am not sure that was an answer to your main question. MR CAMDEN PRATT: (To the witness) I will ask you again. Let’s assume that - - I just want to take some examples - - let’s assume for a moment that there is a feed of several ounces of milk at 6.30, and it is followed immediately by an assault lasting a few minutes, how likely is it, then, that you would have the picture you found, as you have described on your diagram there. MR JUSTICE HIDDEN: Is that what you want? The witness said: “When you say ‘an assault’, do you mean this assault in ------? MR CAMDEN PRATT: yes. (To the witness) The assault you have described of seven impacts? A. It is possible; I think it is not very likely, if the child had just been consuming a substantial quantity of milk, but it is possible. Q. It is possible but it is not very likely? A. I think again this is dependant upon the amount of fluid, the amount of milk that was taken. Q. And is it easy to explain to us - - and I am going to ask you to try, even if it is not - - why it is not very likely? A. Because I think that if something had occurred within effectively whilst the child was either consuming milk, or immediately afterwards, one would have seen some evidence of milk in the stomach contents, that is assuming - - - - MR JUSTICE HIDDEN: (To the witness) Just pause please. A. - - - - that the assault at the time rendered the infant immediately and deeply unconscious. MR CAMDEN PRATT: (To the witness) So you say it is unlikely because you might have found milk in the stomach contents rather than what you did in fact find? A. One might have seen traces of curdled milk, milk in which the gastric acids and one of the enzymes have acted. Q. Is there any other reason? A. No, that is the main reason.” 35. Later Dr West was to say that fattier milk will take longer to pass through the stomach than very dilute milk. 36. In cross-examination he agreed that “normal individual stomachs may empty at rates that are as variable as less than 30 minutes to more than four hours”. The matter was not further explored by Mr Mitchell. 37. Having said that there may be no disagreement between Dr West and the defence, Mr Mitchell put the first of two alternatives: I ask you, therefore, to have in mind two sets of circumstances: the first set is that the child had nibbled through the day and had, before leaving to be taken home at quarter to six, certainly eaten a chocolate bar or chocolate biscuit, certainly eaten part of a fudge bar, and certainly eaten some crisps? A. Yes Q. And also, we understand, on the way back to being returned to his mother, drunk milk from his milk bottle? …. Q. Thank you. This proposition: the state of the baby’s digestion was not inconsistent with the crisps, the fudge, the biscuits, the milk up to about six o’clock and then being injured, such as to cause his death, between five to seven and ten to or five to seven. Would you agree with that? A. Yes, I said early on I could not exclude that possibility. Q. Not couldn’t exclude”, it is a sensible, fair and reasonable possibility? A. It is a possibility. Q. Sensible, far and reasonable? A. If one assumes that the last meal was taken or the last food was taken prior to six o’clock thereabouts. Q. Yes? A. Yes. 38. Mr Mitchell turned to the second alternative MR MITCHELL: That there is food taken at 6.30. (To the witness) And by “food” we would not - - it would only be fluid? A. Milk, which becomes more solid in the stomach. Q. Yes, I appreciate that , but even the taking of some fluid milk at half six, you cannot exclude the possibility of twenty to, ten to, five to, as being the time that injuries were caused? A. Twenty to seven is certainly unlikely because it is going to take a finite time to drink milk through the bottle with a teat, but I am certainly not in a position to exclude that period. MR JUSTICE HIDDEN: (To the witness) You cannot exclude which period? A. That period which counsel is suggesting. Q. Twenty to, ten to seven? A. Yes. MR MITCHELL: (To the witness) And therefore, on the basis - - basis that no milk was taken at half six - - and they obviously had to resolve the evidential problems - - - - A. If no milk is taken at half six, that comes well within my range. 39. There is no complaint about the manner in which Dr West’s evidence was summarised to the jury- except in one passage at the end of the summing-up, to which we turn later. Dealing with the evidence of the two alternative situations, first: last feed of solids at about 5.30 followed by milk in the pushchair between then and about 6.00 without milk at about 6.30 and secondly, with milk at that time, the judge said: He was asked to look at a set of circumstances and give his evidence then. He was asked to look at a situation where the child had nibbled throughout the day and had had certainly eaten chocolate biscuits, chocolate bar, fudge bar and crisps, and also on the way back to the meeting point had drunk milk from a bottle. He said that he had heard the evidence, the state of the baby’s digestion being not inconsistent with the Defence [case] of [the injuries occurring] about twenty to seven or ten to seven. He said that was a possibility; he could not exclude it. If one assumes the last food was taken prior to six o’clock, it is a sensible possibility. Solid food, starchy food he thought was not eaten after six o’clock. He said the crisps had liquefied into a paste in some ways, a thick paste, and there was no solid in the duodenum; it was in the stomach that solid particles were found – not in the duodenum. The stomach had broken some of the lumps down but biscuit and fudge crumbles, easily. Other things, that is crisps, crumble much slower and are very fatty and take much longer, and fats digest quite slowly. ... He said he could not exclude the injuries occurring at twenty to seven or ten to seven, both on the basis that there was no milk [at about 6.30] and that there was milk taken [at about 6.30] . It came within his range of the time for the injury. The death could be as soon as a few minutes or as long as some hours. (Underlining added) 40. Three paragraphs from the original grounds of appeal succinctly state the respective cases of the appellant and the respondent. It was the defence case that Lee Baker could have snapped and lost her temper when putting Aaron to bed and caused the injuries. Lee Baker says that she took 5 or 10 minutes to put Aaron to bed and that there were no incidents of any sort, other than her going back into the living room to fetch the bottle for Aaron to drink. She said that the bottle was full of milk and that she gave him the bottle as she put him down for the night. The defence case was that this was impossible as the child would have drunk most of the milk on the way to the Post Office and while waiting for his mother. The Crown’s case was that Lee Baker had given him the bottle at about 6.45pm and that the child had drunk most of it before the attack by Waters between 8 and 9pm. The defence case was that Lee Baker had put the nearly empty bottle into the cot with Aaron after she had attacked him. 41. Mr Thornton submitted that the Crown’s case was that there had been a feed of milk at 6.30. There is support for that in the note prepared by junior counsel for the Crown, Mr Lindsay Burn. But it seems clear to us that Mr Pratt abandoned that after Lee Baker did not say that Aaron had fed at 6.30 and given Lee Baker’s evidence about what the appellant had told her. When Mr Pratt put the assumption of a 6.30 milk feed (see paragraph 32 above), he was doing no more (as he assured us) than catering for a situation in which the jury reached that conclusion. Mr Thornton submits that there was no evidence to support such an assumption. However, if the jury accepted the evidence of Lee Baker that she had given Aaron the bottle some three quarters full at just after 6.30, then the milk had been (so it appears) drunk by Aaron before he received his injuries. He could have drank it then, shortly afterwards or later with or without the assistance of the appellant. 42. Mr Thornton sought to call expert evidence to support the proposition that Lee Baker might have caused the injuries after her return at about 9.45. The substance of the evidence was that food may remain in the stomach for significantly longer than the two hours for which Dr West opted, albeit with the caution to which we have already referred. We refused permission to call that evidence. Whilst not doubting the credibility of the experts (indeed we have seen that Dr West accepted a period of up to four hours after a passage in the report of Dr Payne-James (instructed by the defence) had been put to him). However the appellant is now seeking to put a case which had never been advanced at trial and appears never to have been advanced in his consultations with his legal team. The new theory only appeared after the CCRC had issued a provisional decision refusing to refer the case and before the final decision to refer made in October 2003. As the CCRC stated in its provisional decision: “it has never been suggested [by the defence] that the injuries were inflicted upon Aaron” at a later time. 43. As the appellant accepted in interview he would have woken up “if Lee had hit him”, referring to Aaron. There was no suggestion that either drink or drugs had rendered him incapable of waking up during what must have been prolonged crying followed by a brutal assault lasting some three minutes (as Dr West opined). The new theory is no more than very late post-trial speculation unsupported by any evidence. If there had been any realistic chance that Lee Baker had assaulted Aaron after her return, then that case would have been developed. For these reasons we refused to hear the evidence. 44. We admitted fresh evidence (but only provisionally) at Mr Thornton’s request on the grounds that it might undermine the evidence of Dr West that the assault was not likely to have taken place immediately after the feed (paragraph 32 above). In fact the evidence called supported Dr West’s evidence. Indeed a further reason was given in support of Dr West’s evidence. If there had been a feed of say half a bottle just after 6.30 followed by an almost immediate assault there would likely to have been a significantly greater volume of fluid than that found (on the assumption that the digestive process stopped or slowed right down after the attack). Mr Thornton rightly abandoned the application to have this fresh evidence admitted. 45. Mr Thornton then applied to have admitted the evidence of Professor Milla who cast great doubt on the theory that Aaron had been assaulted by Lee Baker after Aaron had consumed say half a bottle of milk. We rejected this application. His evidence was to a similar effect as that given by Dr West on this point. 46. We turn finally to the ground of appeal which gave us more concern. 47. As we have already noted, there is no complaint about the manner in which Hidden J summarised for the jury the evidence of Dr West. However, at almost the end of the summing-up Hidden J said: There are only two candidates are there not? Either his mother, Lee Baker, or his mother’s boyfriend, the defendant. ... If there are only two candidates, there are only really two times that are possible, are there not, for the infliction of those injuries, either in the early evening between 6.30 and about five to seven when Aaron was being put to bed by his mother with three other adults and two other children in the flat, or a time, still in the evening, but sometime later, when the defendant was alone in the flat, Paul Keen having left to go out and Pamela and Laura not yet having come back. You will remember the evidence of Dr Ian West in relation to time. … His evidence was that if [in] the late afternoon Aaron had a packet of crisps, some chocolate biscuits at around about 6.30 and he had a feed of some ounces of milk, the time span likely to have elapsed before the injuries the pathologist saw were inflicted he thought that period was unlikely to be greater than two hours from the last feeding. He said also that the most likely period within that 2 hours was 45 to 90 minutes, but it could be outside that; there could be quite a lot of variation. In cross-examination, given the same circumstances to consider, the child nibbling throughout the day and having certainly eaten a chocolate bar, some biscuits, a fudge bar and crisps also on his way back to being handed over a drink of milk from the bottle. Dr West said that the state of the baby’s digestion was not inconsistent with the blows causing the death occurring about twenty to seven or ten to seven. He said that is a possibility. He said that he could not exclude a time of twenty to seven or ten to seven. He thought twenty to seven was unlikely but he could not exclude those two times. There you have his evidence on the timings in his view which I will just summarise to you. It is unlikely to be greater than two hours, most likely within two hours or most likely the period within the two hours forty five minutes to ninety minutes. He could not exclude 6.40 or 6.50. So, you have to come to your decision on the fact in these matters. 48. We note that the third paragraph starts off with the words “given the same circumstances”. As transcribed there is an enigmatic reference to “to being handed over a drink of milk”. If the judge was dealing with the “same circumstances” then that would include a feed at 6.30. Is the reference to “being handed over” a reference to the “pushchair” or the “cot”? It is not clear. However, the judge had earlier reminded the jury that Dr West had: said he could not exclude the injuries occurring at twenty to seven or ten to seven, both on the basis that there was no milk [at about 6.30] and that there was milk taken [at about 6.30]. 49. The complaint made by Mr Thornton relates to the issue of the feed at 6.30. Mr Thornton submits that the way it was left in the second paragraph pointed towards the injuries having occurred at a time when the appellant was alone and was based on the false premise that there was a feed at 6.30. He submits that the judge should have told the jury that there was no evidence of milk being taken at 6.30 (as to which see above paragraph 41) or should have reminded the jury of all the evidence about the so called “6.30 feed”. If he had done the latter he would have to have set out again the evidence of Aaron’s father, of Lee Baker, of the appellant, of the state of the bottle and Dr West’s doubts about whether what he saw was consistent with a feed of several ounces from about 6.30 until 6.40 (we were told that it would have taken Aaron about 10 minutes to consume half a bottle). Much of that would not have helped the appellant. 50. Whilst we agree that this part of the summing-up could have been worded better, we do not take the view that this renders the conviction unsafe. We also accept that the third paragraph could have been more clearly worded (assuming that the transcript is accurate). However Dr West had said in cross-examination that he could not exclude the injuries occurring at twenty to seven or ten to seven, whether the milk was taken at 6.30 or not. We note also that Mr Mitchell made no complaint about the way the matter had been summarised in this passage which would be surprising if he thought that what was being said undermined his approach to the case. The case he was advancing on behalf of the appellant was that there had been no feed at 6.30, the bottle being by then nearly empty. However, if the jury concluded that Aaron had fed at 6.30 when given the bottle, then that did not necessarily exculpate Lee Baker. 51. For these reasons the appeal is dismissed. 52. This case demonstrates again how useful it would have been for the experts to have met and to have prepared a list of matters about which there was agreement and about which there was disagreement. If that had been done the so called 6.30 feed might have played little or no part in the case. It may well be that the experts would have concentrated not on the last feed of milk (at either just before 6.00 or just after 6.30), but on how long it would normally have taken for the fatty food, in particular the crisps, once digested to move into the duodenum.	[ "THE RIGHT HONOURABLE LORD JUSTICE HOOPER", "THE HONOURABLE MR JUSTICE CRANE", "THE HONOURABLE MR JUSTICE RAMSEY" ]	2006_02_14-719.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/139/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/139	1,100
7ec74eb47a63e36756a1aa3bf4776e30f63afc169e4565daddc9f8a5d398416f	[2024] EWCA Crim 256	EWCA_Crim_256	2024-02-16	crown_court	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 pers	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 256 No. 202203015 B1 Royal Courts of Justice Friday, 16 February 2024 Before: LADY JUSTICE WHIPPLE MRS JUSTICE STACEY HIS HONOUR JUDGE PICTON REX V ADAM COURTNEY-KASHER REPORTING RESTRICTIONS APPLY: THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR G. GATLAND appeared on behalf of the Respondent. ________ JUDGMENT MRS JUSTICE STACEY: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead 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 that Act. It has not been waived or lifted. 2 On 15 September 2022 in the Crown Court at Durham before HHJ Kidd, the applicant (who was then aged 40) was convicted of six counts of indecency with a child contrary to s.1(1) of the Indecency with Children Act 1960 and three counts of rape contrary to s.1(1) of the Sexual Offences Act 1956. 3 On 10 October 2022 the applicant was sentenced to a total of 12 years' imprisonment. Twelve years' imprisonment was imposed on the three counts of rape concurrent to each other and concurrent to 16-month concurrent sentences for the remaining offences. However the sentence was reduced by three years on appeal. On 5 September 2023 the Court of Appeal Criminal Division allowed an appeal against sentence and the sentences imposed on Counts 3, 6 and 7 for rape were quashed and substituted with a sentence of nine years' imprisonment on each count concurrent. The remaining sentences were affirmed. 4 The applicant now renews his application for leave to appeal conviction following refusal by the single judge. It had not been possible for the full court to determine the applicant's renewed application to appeal against conviction on 5 September 2023 when it considered his sentence appeal as it had not received all the documents that the applicant had sent into the criminal appeal office seeking to amend and expand his grounds of appeal. 5 The court now has before it the perfected grounds of appeal against conviction and the applicant's letters to the court dated 11 March, 10 August, 5 September and 1 October 2023, the amended respondent's notice, the addendum respondent's notice and the applicant's response to the respondent's notice. The applications before us are for leave to amend, to add additional grounds and for an extension of time, in which to do so, since the amended proposed further grounds are now out of time. The Facts 6 In September 2020 the complainant contacted the police and told them he had been a victim of sexual abuse as a child some years ago. He gave a video recorded interview in which he stated that the applicant had sexually abused him from April 1997 until August 1999 when he and his family moved away from the area. He said that the abuse fell into three broad categories: occasions when the applicant carried out oral sex on him, occasions when he was forced to carry out oral sex on the applicant and three specific occasions when the applicant anally raped him. 7 The complainant explained that when he was aged seven to nine, he used to play out in the street as part of a larger group of children who all lived locally and the applicant was part of that group. During half-term holidays when his parents were working, the applicant would sexually abuse him. The applicant would undress him and perform oral sex on him and ask him to perform oral sex on the applicant and it progressed to anal rape. The offences occurred in the complainant's bedroom and bathroom while his parents were out. The applicant had told him that they were best pals so he did not need to tell anyone. The abuse stopped when the complainant moved away. 8 The complainant said he did not report the matter because it was not commonplace to report such things, especially for a man, in those days. However, he had written a letter to a close friend of his "GS" in 2014 stating that he had been abused. When he was older, he looked the applicant up on Facebook and found that they had a mutual friend. He also looked up the electoral roll to find out where the applicant was living. 9 In his police interview in October 2020, the applicant denied knowing who the complainant was. He had lived at that address in the same street as the complainant and played football in the street, but did not know who the complainant was as he played with boys around the same age as him. 10 The prosecution case was that the applicant had groomed the complainant by telling him they were best friends, playing football with him and creating a degree of confidence and friendship between them to enable the applicant to sexually assault the complainant in a way that reduced the risk of him complaining. 11 The prosecution relied on four strands of evidence in support of the case: firstly the evidence given by the complainant; secondly the disclosure to the friend in 2014 (given in evidence from GS in a statement that was read) about the letter that the complainant had written to him about being abused by a good friend when he was seven, eight or nine; thirdly, evidence from the complainant's mother, including that she recalled the applicant and his family and that the complainant used to play out in the street at the time with a group of children, including the applicant. She had assumed that the applicant did not have many friends of his own since he played with younger children. She could not remember seeing the applicant in her home, but did remember seeing him in the garden. She did not ever see the complainant and the applicant together by themselves during school holidays, but the complainant would go out and would return for lunch and dinner. The fourth ground was evidence from BW, one the complainant's childhood friends, to whom the complainant had made a disclosure in the autumn of 2020 after contacting him on Facebook and asked him if he remembered the applicant, which he did. 12 The defence case was denial. He did not know the complainant, did not play with him, did not groom him, they did not go to each other's houses and he did not sexually abuse him. The applicant gave evidence that although the address he lived at was correct, his bedroom was nothing as described by the complainant and he did not wear the type of clothes as described by him either. He had no interest in other males. He had girlfriends, his first being when he was 14 or 15. He used to play on the street but only occasionally with the younger children collectively and that started when he was 15 or 16. He had no idea why the allegation was made. The defence read a statement from a former girlfriend of the applicant who confirmed she knew the applicant between the relevant dates and they had dated on a casual basis when she was around 15. 13 The issue for the jury was factual: whether the applicant had an opportunity to commit the acts alleged and, if so, whether he did so or whether the complainant had incorrectly identified the applicant as his abuser. The applicant was unanimously convicted by the jury. 14 Leave was refused by the single judge on the grounds of appeal prepared by counsel which are now renewed by the applicant. Those grounds were that late disclosure and service of material evidence created a situation which was unable to be rectified and caused an unfairness and prejudice to the applicant. The disclosure issues were twofold. Firstly, the naming of the applicant by the complainant in messages with another person, BW, and, secondly, that the defence were unaware until the officer in the case gave evidence that approximately five neighbours had been spoken to but had refused to give statements. 15 It is accepted by the prosecution that there had been a request for disclosure in the defence case statement served in May 2022. The defence had sought any relevant text, Facebook and WhatsApp messages. The prosecution accept that there were five pages of messages between the complainant and his family from 2019 onwards naming the applicant as his abuser when a child which should have been disclosed sooner. They were not disclosed until the day before the trial commenced and they were then admitted as agreed facts by the defence during the course of the defendant's evidence. 16 Although the timing was not ideal, there was no prejudice to the applicant from the late disclosure which explains why defence counsel agreed that they be admitted as agreed facts. It is not said how the defence could or would have been run differently if the information had been provided sooner or what other questions would have been asked of the witnesses. In any event, the complainant as the first witness to be called by the prosecution gave evidence of his naming the applicant as his abuser to his family and told the jury of his searches on Facebook and on the internet to try and ascertain the applicant’s current whereabouts in the evidence he gave to the court. There was no dispute that the messages had been sent, even if the accuracy of the allegations contained in them was in dispute. 17 As to the second ground, the applicant's defence team was on notice six months before the trial on 8 March 2022 that the five neighbours whose names the complainant could remember had been spoken to by the police. It was served in the unused material. They either had no memory, or they did not want to be involved or could not be identified and traced by the police. It was therefore not accurate that the applicant was unaware until the officer gave evidence that five neighbours had been approached by police and that they had not provided any corroborative evidence. But in any event, given that those approached provided neither inculpatory nor exculpatory evidence, there would have been no unfairness or prejudice to the applicant even if the information about their being approached had not been known of until the detective constable gave evidence. 18 For these reasons, the original grounds of appeal perfected by counsel are not reasonably arguable and do not give reasonable grounds to show that the conviction was unsafe. Leave to appeal is refused. The proposed new grounds. 19 In his letters of 18 March, 10 August, 5 September, 1 October 2023 and the response to the respondent's amended notice, the applicant repeats the grounds set out by counsel which we have dealt with already and also raised a number of additional points that can be divided into five headings. (i) Firstly, discrepancies and deficiencies in the evidence that was served. The applicant identifies inconsistencies in the evidence, such as the complainant not accurately describing the layout of the applicant's bedroom. (ii) Secondly, that the photographs used of the applicant in court did not match his photographs on Facebook. (iii) Thirdly, that there were some inconsistencies in the recollection of the prosecution witness BW, a childhood friend, to whom the complainant had later disclosed the abuse. (iv) Fourthly, that the complainant's mother had said that her son was never left alone and that other relations would be there on hand in the holidays and that the complainant stated that the applicant's aunt lived in the same street when she did not. All of which it was said undermined the prosecution case. (v) He also relies on inaccuracies in the complainant's evidence such as that the bathroom door did not have a lock in his house and that there was no room to hide in the cupboard under the stairs. 20 However, these were all matters that were before the jury and were for the jury to assess in considering if they could be sure of the applicant’s guilt. The issue in the case was whether the complainant had correctly identified the applicant and whether the jury was sure of the factual accuracy of the complainant's central allegations, even if some of the details were inaccurate or had been misremembered. The jury was entitled to conclude that the inconsistencies, such as they were, were not material and did not undermine the central allegation and they do not render the conviction unsafe. 21 The second category in the proposed further grounds is that there was a failure to conduct sufficient investigation and the applicant relies on the duty of the prosecution to explore all reasonable lines of investigation, whether they point towards or away from the guilt of a suspect. The police are criticised for not conducting more detailed investigations by, for example, interviewing the applicant's mother and stepfather or going through his mother's diary or asking his mother if she could identify other potential witnesses. A further criticism was of not obtaining the applicant's employment records to identify his shift pattern and his work with the Royal Navy as a possible alibi defence. 22 If the applicant had wanted police assistance in checking particular witnesses or obtaining specific disclosure of documents, they could have and should have been put in the defence case statement and enquiries could then have been made. No names were provided and the police had no knowledge of the individuals. Furthermore, if the names had been relevant, they could have been called by the defence at the trial. The applicant did not raise an alibi defence, but it is not suggested that his work pattern or employment would have made it impossible for him to have committed these offences and, again, these issues were part of the factual matrix for the jury to consider. In any event, the applicant's counsel, Ms Lamb, explored the extent of the police investigation in cross-examination with the police officers before the jury. The point was therefore before the jury to take into account in deciding if they were sure of guilt. 23 We appreciate the difficulties the applicant has in prison, the toll that his separation from his wife and three young children has had on him and the difficulties that they are experiencing because of his conviction and sentence. We also accept that it is difficult when matters such as these are raised many years after they have occurred. But nothing in the grounds put forward either by trial counsel or by the applicant as a litigant in person provide arguable grounds that the conviction was unsafe. The jury had a careful direction on the impact of delay and the disadvantage this may put to a defendant. 24 We therefore refuse leave to appeal and we also refuse leave to amend the notice of appeal to add additional grounds. It is not in the interests of justice to grant the amendment application since, if granted, none of the proposed further grounds have any prospect of success. For the same reason, we also refuse the extension of time needed. The application is refused. __________	[ "LADY JUSTICE WHIPPLE", "MRS JUSTICE STACEY", "HIS HONOUR JUDGE PICTON" ]	2024_02_16-6060.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/256/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/256	1,101
817d706989162a984250d1aad00cdd7d5cd3316ff50dadc7a2f2b6c56b9f484d	[2009] EWCA Crim 389	EWCA_Crim_389	2009-03-11	supreme_court	Neutral Citation Number: [2009] EWCA Crim 389 Case No: 200805059 A6 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Worcester Crown Court His Honour Judge RUNDELL 200805059A6*1 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/03/2009 Before : LORD JUSTICE MOSES THE HON.MR. JUSTICE HEDLEY and HIS HONOUR JUDGE RUSSELL, THE RECORDER OF PRESTON - - - - - - - - - - - - - - - - - - - - - Between : Imran Mohammed Khan Appellant - and - Regina Respondent -	Neutral Citation Number: [2009] EWCA Crim 389 Case No: 200805059 A6 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Worcester Crown Court His Honour Judge RUNDELL 200805059A6*1 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/03/2009 Before : LORD JUSTICE MOSES THE HON.MR. JUSTICE HEDLEY and HIS HONOUR JUDGE RUSSELL, THE RECORDER OF PRESTON - - - - - - - - - - - - - - - - - - - - - Between : Imran Mohammed Khan Appellant - and - Regina Respondent - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr David Isles (instructed by Sheppards Solicitors ) for the Appellant Mr Tom Schofield (instructed by C.P.S. Staffordshire ) for the Respondent Hearing dates : 5 th February 2009 - - - - - - - - - - - - - - - - - - - - - Judgment The Hon. Mr. Justice Hedley : 1. This is an appeal (with leave of the single judge) against a sentence of three years imprisonment imposed by His Honour Judge Rundall sitting in the Crown Court at Worcester on 22 nd August 2008 following conviction by a jury of doing an act trending or intended to pervert the course of justice. The judge revoked an existing suspended sentence (imposed with conditions) but made no further order in respect of those matters. As it happens the appellant has subsequently been sentenced to a substantial consecutive term of imprisonment in relation to unconnected drug offences. 2. The question in this appeal is the extent to which a judge may take into account in sentence matters of evidence in a trial which tend to aggravate the offence but which comprise behaviour which could have been (but was not) charged as a separate offence and which is disputed by the offender. 3. The appellant had been charged with drug offences to which he had pleaded guilty. The case had been adjourned for a pre-sentence report. Pursuant to that the appellant attended at the Probation Service office. His case had been assigned to a qualified Probation Officer by whom he was interviewed. During the course of that interview he asked for a good report as he could not afford to be sent to prison. Unsurprisingly he was told that he would get a fair and balanced report on the basis of the available information. He repeated his entreaty and got the same response. He then said, “I’ve to a grand here” and displayed a carrier bag containing a large sum of cash. The officer sensibly brought the interview to a speedy conclusion and referred to her superiors. 4. In accordance with instructions that she had been given, the officer made a telephone call to the appellant some three days later. The purpose was to inform him that his report had been assigned to another officer. His response was hostile: “I am not happy with things that you said. Do you not like Asians?... are you racist? ……..I could have seen you right…..Well love I’m going to have to have a hit on you. A hit on you.” In the course of the conversation he also referred by name to another in respect of whom this officer had not written a good report. That other was recognised by the officer as a high risk offence. The officer took these remarks very seriously and indeed moved home and offender. 5. When he was interviewed about these matters by the police, he denied issuing any of the above threats in a telephone conversation. He did accept, however, the conversation in interview. He said it was a light hearted joke and that he had the money coincidentally as rent money. He also alleged that she had first asked for £500 in cash. 6. The matter came on for trial. It was accepted that whilst the charge related to the interview in the office, the telephone conversation was admissible as evidence in rebuttal of his defence that it was all nothing more than a joke. The prosecution, no doubt for good reason, decided to abandon a separate charge to cover the telephone call. All the evidence was heard and the appellant was duly convicted. 7. In sentencing him, the judge took account of the telephone call. He said this – “In your case there is a significant aggravating feature, in that you made threats to Miss Lawrence. I’m perfectly satisfied that after she told you she would no longer be preparing a report you made what can only be described as a gratuitous but serious threat, which she took very seriously. It had a significant effect on her; she was off work for several weeks and she was so frightened that she’s had to move her place of work. It’s perfectly clear from those of us who saw her yesterday in the witness box that that threat that you made several months ago is still affecting her. The appellant says that the judge should have put the matter entirely out of his mind. The prosecution contend that he was entitled to give proper weight to it in his sentence . 8. The appellant’s submission is simply that he should only be sentenced for that of which has been convicted and nothing more. Thus a man who pleads guilty to cultivating cannabis cannot be sentenced on the basis that he intended to supply it if not charged with that offence – see LAWRENCE (1981) 3 Crim. App. Rep. (5) 49. The matter is well illustrated, it is submitted, in the case of DAVIES [1998] 1 Crim. App. Rep (5) 380 where at p.382 Judge LJ (as he then was) says this – ‘….it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that he trial judge, in the light of the jury’s verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as was put in Hutchison 1972) 56 C.A.R. 307 at 309, is to “deprive the appellant of his right to trial by jury in respect of the other alleged offence.” Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle…. ’ 9. The prosecution say that the judge was entitled to act as he did. They draw attention to the case of RIBAS (1976) 63 Cr.Appr.R 147 but that case is actually about drug smuggling where quantity rather than intent is the gravamen of seriousness and the court treated it as a contested issue of mitigation. Further they invite our attention to COOKE (1987) 9 Crim.App.Rep. (5) 116. There it was accepted that within the context of affray, the judge could from views about specific acts of violence without each having to be charged as a separate substantive offence. That approach may often be seen in domestic burglary: to ransack a house is to aggravate the offence without the need for additional charges of criminal damage. Other examples might include concealing a firearm after use or fleeing from the scene of a fatal accident. 10. In many of the examples or cases the aggravating conduct is either accepted or not disputed by the offender. In such circumstances there can be no objection to its being taken into account in sentence. Likewise matters may have been the subject of a NEWTON hearing which again may entitle a court to have regard to conduct which tends to aggravate sentence. However, there are recognised limits to a NEWTON hearing, one of which is in relation to conduct capable of sustaining a separate charge on which the verdict of a jury could be sought. 11. Here it is the case that the relevant conduct (the threats) whilst not the subject of a specific charge were the subject evidence deployed before the jury which the appellant was able both to challenge and to answer. Moreover it is most unlikely that a jury would have convicted him, given his defence, had they not accepted the evidence of threats. That said it is logically possible to have rejected both the threats and the appellant’s explanation but it is unlikely. Thus whilst one does not have a criminal conviction in respect of the conduct (nor a special verdict), it is the fact that the evidence was before the judge and jury. The jury were very likely to have accepted it; the judge had every opportunity to evaluate it. Certainly at all times the appellant knew of its relevance and must have been aware of it potential relevance to sentence. 12. Nothing in this judgment is intended to cast doubt upon the general proposition that no-one should be sentenced for criminal conduct in respect of which he has neither accepted it nor been convicted. Moreover nothing in this judgment is intended to give comfort to the view that such conduct is capable of being established in a NEWTON hearing. Nevertheless where the conduct is relevant to a criminal charge being considered by a jury and where such conduct has been the subject of specific scruting in a trial then unless reliance on that conduct is inconsistent with a verdict, a judge should be able to take that conduct into account on sentence provided he is satisfied that it has been established to his satisfaction to the criminal standard. Clearly treating someone as having an intention to supply drugs is inconsistent with a conviction for simple possession or treating someone as intending to cause really serious bodily harm is inconsistent with a verdict for inflicting the same. 13. The court recognises that there may be areas of uncertainty. For example where a person is convicted of sexual activity in circumstance where they are in a position of trust, the consent of the victim is irrelevant. However, the absence of consent would be a seriously aggravating feature so far as sentence is concerned. We can see that that decision taken by the sentencing judge alone might well be thought to contravene the general principle. However, consent would not have been an issue specifically addressed in the trial. Here, however, the relevant aggravating feature was not only addressed but was a specific issue having regard to the nature of the defence. It is that fact which in our view permits the judge to have taken account of it here. 14. That said we have reached the view that nevertheless the sentence passed was manifestly excessive. We think there is merit in the analogy with criminal contempt which carries a maximum sentence of two years imprisonment. This conduct was indeed analogous to contempt given the position of a writer of a pre-sentence report in the criminal justice system. It was, as the judge rightly said, an extremely serious matter. We think it merited a sentence of 18 months imprisonment and to that extent this appeal succeeds. The judge’s directions in relation to the community and suspended sentence will stand. Likewise his direction in relation to time spent on remand will also stand. To the extent indicated, this appeal is allowed.	[ "LORD JUSTICE MOSES", "HIS HONOUR JUDGE RUSSELL, THE RECORDER OF PRESTON" ]	2009_03_11-1861.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/389/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/389	1,102
b58876f5ada8d8dabc6e49ebda6743bf3a613771a00c8cf7f32cb91f7972c697	[2016] EWCA Crim 682	EWCA_Crim_682	2016-05-06	crown_court	No: 2016/1478/C3 Neutral Citation Number: [2016] EWCA Crim 682 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 6 May 2016 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE STEWART THE RECORDER OF WESTMINSTER HIS HONOUR JUDGE McCREATH (Sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - R E G I N A V MICHAEL COLLINS - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Not	No: 2016/1478/C3 Neutral Citation Number: [2016] EWCA Crim 682 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 6 May 2016 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE STEWART THE RECORDER OF WESTMINSTER HIS HONOUR JUDGE McCREATH (Sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - R E G I N A V MICHAEL COLLINS - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr G Fishwick appeared on behalf of the Appellant Mr A Wheeler appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE McCOMBE: On 9th March 2016 in the Crown Court at Birmingham, before His Honour Judge Eyre, the appellant was found to have failed to have attended his trial without reasonable excuse and was sentenced to six months' imprisonment. He now appeals as of right against the finding and against the penalty that the judge imposed. 2. The background to the proceedings is that the appellant stood charged, with 11 others, with an offence of conspiracy to commit fraud in certain property dealings. In circumstances which we will relate, the trial of the charge against him became severed from the trial of his co-accused and is now adjourned to a date in October 2016. We need not say much about the substantive issues in the trial, save to say that it is alleged against the appellant that he was involved in submitting dishonest applications for mortgage finance to building societies or other financial institutions. 3. The trial began before Judge Eyre at the Crown Court at Birmingham on 18th January 2016 when the appellant duly attended, together with his co-accused. The trial estimate was 12 weeks. The appellant's bail was extended as before. It is material to note that in fact the appellant resides in the Bolton area of Lancashire. 4. The jury was empanelled, as we understand it, either on that first day or shortly thereafter, but the Crown opening was delayed until 22nd January, which was a Friday. 5. On production of a medical certificate the appellant was excused attendance at court on 25th January. He was further excused from attending for medical reasons between 26th and 29th January and then between 1st and 5th February pending further medical examinations and medical evidence. 6. On 8th February, in the absence of the appellant, the jury was discharged from delivering a verdict and, as we have said, he was severed from the indictment. His proceedings were adjourned until 7th March, while the trial continued in respect of his co-accused. We have been informed that that trial has now been concluded by verdicts and, in the appropriate cases, sentence on the co-accused has been passed. 7. Following the hearing on 7th March, when the judge made the findings that he did, the appellant's trial on the indictment was adjourned until 17th October. 8. On 8th March the learned judge conducted a hearing to determine whether the appellant had failed to attend on 8th February without reasonable excuse, on that occasion not having been excused attendance as on the earlier occasions. 9. The Crown had served CCTV material showing the appellant attending retail premises and motor service stations (and in one case a cash dispensing machine) at times when he was excused from court attendance owing to alleged physical ill-health. The judge viewed this material and we have also seen that footage. He saw the documents relating to the appellant's attendances upon doctors during this period. He also heard the evidence of the appellant and of a friend by the name of Mark Jones, who said he had taken the appellant to medical appointments on one or more occasions and found him to be severely disabled to the extent of being barely able to get out of the car. A statement from the appellant's wife, Mrs Lyn Collins dated 26th February 2016 was also read by the learned judge. To summarise, Mrs Collins said this in her statement: i. "I am aware that Michael suffered with some back pain/problems over the weekend of 23/24 January 2016 when he had to attend the local A&E department. Michael was accompanied by his friend Mark Jones to hospital." 10. We quote that with a slight correction to the syntax. It also said: i. "Michael has been in pain substantially over the last four weeks which has made it increasingly difficult for both our family and any other events we have had to postpone. We had to come to terms with the stress and logistics of the trial for this to now become a major setback. Michael is normally fit and well but since this back problem has occurred I have seen him physically break down due to the nature of the pain which is completely out of character for him. ii. I confirm I do not have any criminal convictions." 11. The medical material can be summarised as follows. The appellant, as we have said, visited his local Accident and Emergency Department over the weekend of 23rd and 24th January 2016, the weekend after the Crown opening of the trial, followed by a visit to his General Practitioner, a Dr Marshall, on 25th January. On that consultation the doctor reports: i. "I saw him in surgery this morning (25th January 2016) when he complained of a two day history of left sided loin pain. The pain is described as severe and I understand Mr Collins was seen in Accident & Emergency yesterday owing to the same problem. He tells me that he is currently attending court in Birmingham and owing to the severe pain he has experienced over the past 24-48 hours he is unable to travel to Birmingham to attend. ii. Given his symptoms I have commenced him on strong painkillers and we are arranging an urgent ultrasound of his abdomen. My current working diagnosis is that of renal stones. Mr Collins tells me that he has struggled with kidney stones before ... At this moment in time I do not think he is well enough to travel to Birmingham for his ongoing court case." 12. The ultrasound scan on 28th January showed a "possible 5mm renal calculus noted in the lower pole". The appellant was prescribed further painkillers, including at that stage Zomorph (a form of morphine) and referred to a consultant urologist. In conversation with a police officer it was said that, although the doctor wished to reduce the strength of the prescription, medication even at the referred level of reduction, would still render him unsafe to drive a car and, even if he took other forms of transport to the court, he would be sufficiently drowsy to cause him [that is the doctor] concern as to his ability to follow proceedings and answer questions effectively. He [the doctor] believes that his patient is genuinely in pain which could not be faked. 13. On 3rd February the appellant was referred to a Consultant Urologist who referred him for a CT scan which was undertaken on 4th February. It was suggested prior to the scan that if no stone was found then the likelihood was that the pain was of musculoskeletal origin and should settle with some more straightforward analgesia rather than opiates. That appears from a report of the consultant, Dr Pantelides of 3rd February 2016. 14. There was a report of the CT scan which stated that whilst a "tiny" calculus was found on the wall of the ureter, it was doubtful that this was related to his symptoms. This was in a report by a Dr Lay of 4th February 2016. 15. Following that scan it became the opinion of the Consultant Urologist that the pain might have a musculoskeletal origin and he suggested that the appellant were to use painkillers such as Co-Codamol or Ibuprofen to control his pain. This would enable him to fulfil his court commitments. That is in a report of 5th February from Dr Pantelides, where he says this: i. "I have seen Mr Collins' CT scan report which excluded kidney stones. It comments about a 1mm calcification in the wall of the left ureter which I do not feel is of clinical significance. I believe Mr Collins' pain to be unrelated to his urinary tracts. His pain might well be due to musculoskeletal origin. ii. I spoke to him and suggested he should perhaps use Co-Codamol and Ibuprofen to control his pain, which would at the same time enable him to fulfil his Court commitments. He told me his degree of pain is not controlled by the opiates and that his GP is considering further radiological scanning in terms of an MRI." 16. Following that, the appellant returned to his GP it seems on the same day, 5th February. He was prescribed further opiates and referred to a physiotherapist and for an MRI scan by the GP, who concluded this in his letter of 8th February 2016 to the appellant's solicitors: i. "Mr Collins tells me that his pain persists. He tells me that he is requiring Zomorph and Tramadol... " 17. (We note that is in spite of the recommendation of the consultant.) i. "... He tells me that despite this he has episodes of intense stabbing pain to the left side of his back and under his ribcage. He also tells me that he is struggling with some side effects from the strong painkillers, including nausea and vomiting. He tells me at present he feels that he is not fit to travel to Birmingham to attend court and that he is not able to concentrate on the ongoing legal proceedings. I have referred Mr Collins for an MRI scan of his spine as well as a musculoskeletal clinical referral. At present I am unsure as to the time frame for scans and reviews. At present I am unsure as to the cause of his pain and he therefore needs investigation. I am, as a result, unable to provide you with any timescale with regards to the cessation of his symptoms. If this is a musculoskeletal problem it may improve with time and painkillers, however at present I am unsure of his current diagnosis. I am not a musculoskeletal specialist and therefore point any further queries you might have in the direction of a musculoskeletal specialist." 18. The appellant did see a physiotherapist who thought that the appellant presented with a spinal joint dysfunction. In the final piece of material from the GP of 24th February, the doctor says this: i. "Many thanks for your correspondence with regards to Mr Collins dated 22nd February 2016. I can confirm that I spoke to Mr Collins on 8th February and that he advised me that he was struggling with an increase in left sided lower back pain. This meant that he was unfit to travel to attend court on 8th February 2016. He has since been assessed by a physiotherapist who feels that the most likely diagnosis at present is spinal joint dysfunction. I am thankful to say that Mr Collins has reduced his painkillers but still remains on Tramadol. He is awaiting an MRI scan of his spine as well as a specialist review by a musculoskeletal expert." 19. We consider that to be an adequate summary of the medical material that was before the learned judge. 20. The judge stated at the outset of his ruling, applying, as we see it, the correct standard of proof, that he was satisfied so that he was sure that the appellant had been deceiving his doctor and thereby the court and that there was no reasonable cause for his failure to attend. The judge in his ruling summarised what he derived from the video footage on the various occasions. He said he exercised caution in drawing conclusions from what he saw. He put it this way (page 2D to F): i. "Let me make it quite clear that I exercise caution in drawing conclusions from CCTV footage. The footage is on a stop/start basis. There is probably some more accurate terms than that but it is not free-flowing film as one would have in a motion picture. I also have to be very conscious and am conscious of the expertise of medical practitioners in assessing conditions and assessing whether matters have been put forward genuinely before them. I am also conscious that pain can be fluctuating. Those suffering from pain, even from disabling pain, can have good days and bad days, good hours and bad hours." 21. In giving his summary of the recorded incidents on the CCTV, the judge interpolated explanations of that footage given by the appellant. There are five material passages in the judge's ruling where he put the matter first in this way at page 3B to C: i. "The first footage I have been shown is of the Defendant shopping at about 10.30 in the morning on Saturday 23rd January." 22. We interpolate to say that is the day after the opening of the Crown case. Continuing the quotation: i. "The Defendant appeared in that footage to be bending, lifting and stretching. He now says that that was before the onset of any pain. He says that in the night of 23/24 January he suffered severe disabling pain, which caused him to go to accident and emergency. He went to see his GP Dr Marshall on the morning of 25 January and I have read Dr Marshall's letter of 25 January relevant to factors in part being this." 23. Then page 4A to D: i. "The next relevant date is 2 February when CCTV footage showed Mr Collins shopping at a Tesco store, walking apparently normally and doing some bending and a limited amount of carrying. Mr Collins says about that and about the other shopping expeditions that they were to stores within a matter of less than 100 metres or so from his home, that he went rather than his wife because it was simpler for him to do that than for his wife to sort the children out and go and he says that he was not able to lift his daughter and so he could not be left alone with the five-month-old baby that they have. ii. He also, in connection with the CCTV footage, initially said that the footage at various times showed him leaning on a shopping trolley or walking with difficulty. My perception is neither of those matters were shown by the footage; something which, indeed, Mr Collins when he was taken through the footage was constrained to accept." 24. At 4G the judge said this: i. "On 3 February there is, again, footage of him at a store bending and lifting and doing some carrying." 25. At 5A to B: i. "but one sees him also on 4 February in two separate incidents, albeit closely connected, on one trip of shopping. And, again, there is some movement and some bending, albeit limited, and carrying." 26. Finally at page 5F to H: i. "CCTV footage on 5 February shows Mr Collins shopping at a service station. Footage on 6 February shows him shopping at a Tesco store. And there are two separate incidents on 7 February shown by CCTV footage with a four hour interval between them. The first was an occasion of shopping and the second is an occasion of going to a cashpoint. Mr Collins' wife was alongside him in the car on that occasion at something a little after 7 o'clock in the evening. Mr Collins says that that attendance at that cashpoint, which is some three miles from his home, was by way of obtaining funds to pay for accommodation prior to coming to Court in Birmingham on 8 February and also by way of something of a trial run to see if he could cope with driving and that is why his wife was with him." 27. We would add that having looked at the CCTV footage and Mr Fishwick has made no complaint about it, the learned judge's assessment of the footage seems to be accurate. 28. In reaching his conclusions the judge began in effect discounting the evidence of Mrs Collins. As we have said she expressly claimed to be free of criminal convictions, but the judge said he had been shown an antecedent print out for someone in her name and at her address with a number of convictions, the last of which was in 2006. The appellant said to the judge apparently that the wife had recently had a CRB check which had come back clear. The judge said he found Mrs Collins' statement disingenuous. 29. The judge then reached his conclusions on the main issue in the following terms, starting at page 7E: i. "Against that background and for the following reasons I have come to the conclusion that Mr Collins was lying to the doctors about the pain he suffers and was lying to this Court. That conclusion is because of the impression I have gained from the CCTV footage viewed with all the caution, as I have said; from the coincidence of timing between that footage and the visits to various medical practitioners; from the inconsistency between what is shown on that footage and the symptoms described by Mr Collins and the effects from which he would have been suffering if taking the medication which he is said to have been taking. I am also influenced by the fact that Mr Collins failed, it appears, to urge his GP to act on the recommendation of Mr Pantelides to move from opiates to anti-inflammatories as a better [way] of dealing with the situation and Mr Pantelides being a consultant surgeon [That is an error he was a consultant urologist]. I am also influenced by the fact that Mr Collins has a past history some few years ago of suffering from kidney stones. It follows he would be conscious of the nature of that condition, which is well-known as being disabling and painful, and, therefore, he had to hand the information as to the kind of condition which might be able to be used to say that he was unfit to attend Court. And, as will be apparent from the recital I have set out earlier, the timing of the onset of these alleged symptoms is also significant as being a time when perhaps it was brought home to Mr Collins the gravity of what he was facing and the evidence against him." 30. In support of the appeal against the finding made by the judge, Mr Fishwick in his written grounds made five submissions, amplified helpfully by him in oral submissions this morning. First, he says the judge failed to give proper weight to the findings of all the doctors that the appellant appeared to be in significant pain; second, that the pain described, although self reported, was unlikely to be faked -- we interpolate that that is to do with the report to the police officer on 29th January; third, as a result of pain the appellant had been prescribed opiate-based medication; fourth, because of the medication the appellant was unfit to travel to court and unfit to follow proceedings; fifth, the video footage was start/stop motion and of limited duration. 31. In response for the Crown, and in the respondent's notice which we have read, it is submitted that the judge considered the evidence as a whole and had correctly directed himself as to burden and standard of proof and was entitled to reach the conclusion that he did. The Crown relies upon the contents of the video footage showing the appellant's attendance at retail premises and petrol stations on nine occasions, without apparent physical disability. It is submitted the appellant's evidence of being forced to lean upon shopping trolleys for support was contradicted by the films. On 3rd and 4th February the footage was on dates when he attended an appointment with Dr Pantelides, driven there by Mr Jones. The film on those dates contradicted Mr Jones' evidence that the appellant had been barely able to get out of the car on the relevant occasions. At 7.15 pm on the day before the applicant was due to attend the Crown Court on 8th February, he was caught on CCTV at a cashpoint some three miles from his home with his wife and children in the vehicle, him being the driver. He was seen to move freely from the driver's door to withdraw money, before getting back into the car and driving away with apparent ease. The medical evidence, it is argued, did not support his initial complaint of kidney stones and when recommended by the consultant to take anti-inflammatory medication he had failed to ask his GP to act upon that advice. 32. We have considered those submissions made on each side. Mr Fishwick particularly emphasises to us in oral argument this morning that none of the doctors express an opinion that Mr Collins was feigning the symptoms he reported and doctors, he argues, are well used to making diagnosis of faking when that is appropriate. 33. Taking account of these submissions, it seems to us clear that the judge reached his conclusion based upon the entirety of the material before him, including the CCTV evidence and the medical material and most importantly to our minds upon his evaluation of the appellant's own evidence upon the matter and his explanations of what the documents and the film material showed. In essence, Mr Fishwick is inviting us to overturn the findings of a jury on evidence that was properly considered. In our judgment, on the material that was available, the judge was clearly entitled to reach the conclusion that he did that the appellant had been deceiving his doctors with his self-reported symptoms. The comment of his GP to the police officer that he believed the appellant to be genuinely in pain which could not be faked was on 29th January, at an early stage of the medical history before the supposed kidney stones diagnosis has been discounted. The prescription of medication impairing the appellant's ability to travel and/or to follow proceedings was on the judge's finding entirely due to the appellant's own deceptive presentation to his doctors, leading to those drugs being prescribed in the first place. 34. In our judgment, there is no basis at all upon which this court could properly set aside the judge's careful analysis of the facts. In our judgment the finding of failing to attend without reasonable excuse is an entirely safe one and, from what we have seen, an entirely correct one. 35. We turn to the question of penalty. It is submitted that the order made was excessive in the light of the appellant's limited previous convictions, his family circumstances and the fact that he had never previously been in custody. In stating his conclusions on that issue, the judge said at page 2A to F of the sentencing transcript: i. "There was a deliberate attempt to disrupt the trial that you faced. You failed to attend during the course of the trial at a crucial point. You fabricated symptoms. You misled medical practitioners. You engaged in a deliberate attempt to get out of standing trial and to disrupt the Court process. It was in the context of you facing trial with a number of co-accused. The effect of your failure to attend on 8 February was not just to delay your trial, which will now have to take place beginning on 17 October, not just to delay that but had the effect of ensuring that when you do stand trial you will be standing trial by yourself rather than alongside a number of other Defendants. I am driven to the conclusion that there was an attempt by you on your part to engineer matters so that you would be tried alone rather than with other Defendants. ii. Your conduct has had a significant impact. It means you will be standing trial by yourself and an additional seven days of Court time will be taken up dealing with that, which would not necessarily have been needed or not to anything like that extent if you had been continuing from [inaudible] in the current trial." 36. The judge had regard to the Sentencing Guidelines Council guidelines which Mr Fishwick said had not been raised in argument but which, he accepts, must have been well in his own mind, counsel for the Crown's mind and clearly the judge's when he passed sentence. Those guidelines state that a deliberate failure to attend, causing delay and/or interference with the administration of justice, attracts a very broad range of sentence, from a community order of medium severity to 40 weeks' custody. The judge said he regarded the matter as one of high culpability. He considered the offence to be at or near the top of the guideline range. He said he drew back from a sentence at the top of the range, taking account of the appellant's family circumstances, leading to the sentence of six months which we have already mentioned. 37. In our judgment, the judge was well placed to assess the impact on the administration of justice caused by the misconduct of this appellant and accordingly was fully entitled to take the view he did of the harm caused and the culpability of the offending in the present case. We can find no fault with the judge's reasoning, nor in his conclusions in respect of the matter of penalty either and, in spite of Mr Fishwick's helpful submissions, the appeal against findings and penalty is dismissed.	[ "LORD JUSTICE McCOMBE", "MR JUSTICE STEWART" ]	2016_05_06-3769.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/682/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/682	1,103
3e1d4ed9d8fd882f9bdc4f878be879a939ad22d33cfd009e300dc7675eb53d57	[2008] EWCA Crim 1410	EWCA_Crim_1410	2008-05-21	crown_court	No: 200800967/A2 Neutral Citation Number: [2008] EWCA Crim 1410 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 21st May 2008 B e f o r e : MR JUSTICE JACK MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBIN FRANCIS ALI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London	No: 200800967/A2 Neutral Citation Number: [2008] EWCA Crim 1410 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 21st May 2008 B e f o r e : MR JUSTICE JACK MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBIN FRANCIS ALI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr P W Gibbs appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GRIFFITH WILLIAMS: On 5th February 2008, at the Crown Court at Leicester, the appellant pleaded guilty to robbery and was sentenced by His Honour Judge Pert QC to four years' imprisonment. 2. He appeals against that sentence by leave of the single judge. 3. He is 32 years old. He has a bad criminal record with 27 convictions of 71 offences which include convictions of robbery in 1992, when he was sentenced to three years' detention in a young offender institution, and of attempted robbery in 1995, when he was sentenced to four years' detention in a young offender institution. 4. The facts of the present offence can be shortly stated. On 17th October of last year he went into a Farm Food store in Wigston and purported to purchase a bottle of chilli sauce for £1.00. As the manageress of the shop rang the amount into the till and as he proffered to her a £1 coin, he pushed her over causing her to fall on to a metal pole next to the till and to sustain some bruising to her arm. He snatched £130 from the till and ran out of the shop pursued by another member of staff but he was able to make good his escape. 5. Two days later he contacted the police from a public house and he waited there to be arrested. Following his arrest, he made full and frank admissions to the offence and apologised for his actions. 6. Clearly a custodial sentence was inevitable. The only issue was the length of that sentence and whether four years' imprisonment, with the full credit which the sentencing judge gave him for his plea of guilty and co-operation with the police, and so equating to a six year sentence following conviction, was manifestly excessive. 7. The definitive guideline for offences of robbery issued by the Sentencing Guidelines Council identifies a sentencing range of two to seven years' custody and a starting point of four years' custody for a first time offender convicted of a robbery of a small business in which force is used which results in injury to the victim. Clearly the sentencing range and starting point are higher for a person with the appellant's previous convictions. 8. Although, as Mr Gibbs pointed out in his advice, the frequency of the appellant's offending and the seriousness of his offending seems to be diminishing, it is not without significance that he was convicted on 30th April 2004 of an offence of assault occasioning actual bodily harm, making threats to kill and theft from the person. 9. It is also not without significance that he has a drug habit. It is perfectly clear from his attitude towards the probation service in the preparation of the pre-sentence report that he is not minded to seek help to address that habit at the moment and so there is a significant risk of re-offending in his case. 10. We do not minimise the gravity of this offence of robbery, or the effect upon the manageress of the shop. She made a victim impact statement in which she wrote of the shock of the incident and said that she could not stop shaking afterwards. The experience made her feel very nervous about working in the shop. It was clearly for her a very frightening experience. 11. But we observe that the offence lacks the aggravating features sometimes found in robberies of small businesses and, in particular, the use of a disguise. Whilst there was some violence, that violence was restricted to a push. Furthermore, the offending was spontaneous and there is the important mitigation of the appellant having contacted the police himself to make a full admission. That is possibly the best evidence of his remorse and regret and it may indicate that he is minded to try to avoid this type of offending in the future. 12. Having regard to all those matters, the conclusion this court has reached is that the sentence of four years' imprisonment was manifestly excessive. We substitute for it a sentence of two and a half years' imprisonment. The appellant will fully understand that he will be liable to the licence provisions when he is released from that sentence. To that extent, and that extent only, this appeal succeeds.	[ "MR JUSTICE JACK", "MR JUSTICE GRIFFITH WILLIAMS" ]	2008_05_21-1519.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1410/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1410	1,104
805098b1d9c2eacca4c0a2ca6ad71541719862aa8402128726bdb8d848ea555f	[2004] EWCA Crim 1368	EWCA_Crim_1368	2004-05-27	crown_court	Neutral Citation Number: [2004] EWCA Crim 1368 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 May 2004 B E F O R E: THE VICE PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE ROSE MR JUSTICE CRESSWELL MR JUSTICE ANDREW SMITH - - - - - - - INTERLOCUTORY APPLICATION UNDER SECTION 9(11) CRIMINAL JUSTICE ACT 1987 R E G I N A -v- B G - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet S	Neutral Citation Number: [2004] EWCA Crim 1368 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 May 2004 B E F O R E: THE VICE PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE ROSE MR JUSTICE CRESSWELL MR JUSTICE ANDREW SMITH - - - - - - - INTERLOCUTORY APPLICATION UNDER SECTION 9(11) CRIMINAL JUSTICE ACT 1987 R E G I N A -v- B G - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR C MISKIN QC, MR R PARDOE & MISS E LEES appeared on behalf of the APPELLANT B MR A MITCHELL QC, MR P MARTIN & MR S ESPRIT appeared on behalf of the APPELLANT G MR VB TEMPLE QC & MISS L DOBBS QC appeared on behalf of the CROWN MR R RHODES QC & MR D AARONBERG appeared as interveners on behalf of the other three defendants MR O GLASGOW appeared on behalf of the City of London Police - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: This appeal comes before this court as a matter of urgency. The trial judge has, within the last ten days, made rulings which are in part the subject of challenge. On 7th June he is due to embark on a trial which may last up to a year. Speedy resolution of the important issues raised is essential. Other demands on this court's time mean that, unless judgment is given today, it will be several weeks before it can be given. 2. The two appellants G and B are jointly charged with three co-accused to whom we gave leave to intervene in this appeal. All five face an indictment containing counts of common law conspiracy to defraud and conspiracy to contravene various provisions of the Theft Act, by procuring investment in reliance on proof of funding which was worthless. 3. On 21st April 2004, having heard counsel for the prosecution on an ex parte PII hearing in chambers, the trial judge ruled that certain sensitive material should not be disclosed to the defence. That ruling in itself is not the subject of challenge nor could it be at this stage. 4. However, on Friday 14th May, after the jury had been sworn and the prosecution opening had begun, in breach of that ruling, "grossly negligently" as the judge said, the prosecution inadvertently disclosed, in an unredacted paragraph of a document, highly secret and sensitive material. Before the error was realised, the material was read by leading and junior counsel representing the two appellants and leading counsel for G informed his solicitors about that material. Later that day, the judge made an interim order that those to whom such disclosure had been made should not further disseminate the material to any third party, including their clients. It had, by this time, become apparent that, for unconnected reasons, one of the jury, and therefore probably the whole jury, would have to be discharged. 5. On Monday 17th May there was a further ex parte hearing before the judge which only the prosecution attended when the propriety of the order made on 21st April was revisited. Prosecution counsel had sought a hearing attended by counsel for the appellants but they thought it inappropriate to take part. Confidential written submissions were lodged by counsel to whom inadvertent disclosure had been made and to whom we shall refer for brevity as being "in the know" and written submissions were also made by leading counsel not in the know on behalf of R. The judge made a provisional ruling, in the light of those submissions, that the information inadvertently disclosed should not be disclosed to the defence and that no injustice would, in consequence, result to any of the defendants. 6. On 19th May the jury were discharged. The judge then heard further argument as to the principles surrounding a debarring order of the kind provisionally made on the 14th, as to whether this court would have jurisdiction to entertain an appeal and as to the merits of him granting leave to appeal. He distinguished Davis, Johnson and Rowe 97 Cr App R 110 and ruled that there would be a ban on dissemination by lawyers in the know to anyone, including their clients, that no use must be made by the lawyers of the information wrongly disclosed and that the order was being made at a preparatory hearing pursuant to sections 7 and 9 of the Criminal Justice Act 1987 and was therefore subject to interlocutory appeal. He gave the two appellants leave to appeal but refused leave to the other three defendants. All the wrongly disclosed documents were returned to the Crown pursuant to the order made by the judge, though junior counsel for B made a note, which he still has, of the sensitive material. 7. It is that ruling of 19th May that is the subject of present challenge by way of appeal. We have been greatly assisted by the written and oral submissions which we have received from Mr Mitchell QC on behalf of G, Mr Miskin QC on behalf of B, Mr Rhodes QC on behalf of the other three defendants, and Mr Temple QC on behalf of the Crown. We have also received and are grateful for submissions from Mr Spens QC on behalf of the Bar Council and Mr David Perry on behalf of the Law Society. 8. We intend no disrespect to counsel if, in the interests of brevity, we do not rehearse their arguments but proceed to our conclusions and the reasons for them. 9. The first question which arises is whether this court has jurisdiction to entertain an appeal. For the Crown, Mr Temple QC accepts that the judge's determination related to the admissibility of evidence and/or a question of law within section 9(3) of the Criminal Justice Act 1987 . But he challenges the judge's conclusion that he was holding a preparatory hearing within section 7 of that Act . He relied on Gunawardena 91 Cr App R 55, Moore & others CACD transcript 4th February 1991, and Hedworth [1997] 1 Cr App R 421 , and submitted that, notwithstanding Claydon [2001] EWCA Crim 1359 and Attorney-General's Reference No 1 of 2004 [2004] EWCA Crim 1025 , the judge's order was not for the purpose of trial management. 10. We indicated our view, during submissions, that we do have jurisdiction. In our judgment, the judge was right to hold that, the jury having been discharged, what took place on 19th May was a preparatory hearing, in a case of serious and complex fraud, for the purpose of assisting him in the management of the trial within section 7(1) (d) of the 1987 Act . Nothing in Gunawardena , Moore or Hedworth is inconsistent with that view. The judge's order, made for the purposes of the trial when a new jury was empanelled, restricted communication between lawyers and clients and precluded the deployment in evidence or cross-examination of the disclosed sensitive material. Such an order, as it seems to us, self-evidently assisted the judge's management of the trial and the hearing on 19th May was held for that purpose. 11. The second question is whether the judge had jurisdiction to make the order on 19th May. There is no doubt, and it is not suggested to the contrary, that the judge was entitled, by virtue of section 3(6) and section 7(5) of the Criminal Procedure and Investigation Act 1996 , to make the order for non-disclosure which he made on 21st April. By virtue of section 45(4) of the Supreme Court Act 1981 the Crown Court has High Court powers in relation to contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction. It is clear that the judge regarded his provisional orders on 14th and 17th May and his final order on 19th May as being ancillary to his order of 21st April. He was right so to do. He had jurisdiction to make appropriate orders ancillary, and giving effect to his order of 21st April. An order under section 3(6) is made at the behest of the prosecution and has the effect of exonerating them from the obligation otherwise to disclose the sensitive material. But once the court has concluded that disclosure is not in the public interest it is entitled to give effect to that conclusion by making appropriate, supportive, ancillary orders. 12. The third question is whether the order of 19th May was appropriate. It is to be noted that the judge's prohibition on use of the wrongly disclosed material was new. It is also to be noted that he concluded that no injustice would result from maintenance of the original order, that there was no impediment to the legal advisers properly continuing to act and that knowledge by the lay clients of the unauthorised material was unnecessary for just disposal of the trial. 13. It is apparent that, if the judge's order holds good, there will be a number of consequences in relation to the conduct of the trial. First, counsel in the know will be unable to discuss the sensitive material with their clients, obtain their instructions as to its accuracy, advise the client about his rights in relation to it (including as to a possible stay for abuse of process) or use it in cross-examination or otherwise. Secondly, it will be necessary during this very long trial for counsel and solicitors acting for G and for counsel acting for B to take care throughout not to let slip, however inadvertently, the sensitive material, to their clients or to anyone else not in the know, including counsel for the other three defendants, otherwise they will be in contempt of court. In D&J Constructions v Head [1987] 9 NSWLR 118 at 122, Bryson J, in a passage cited by Clarke LJ in Koch Shipping v Richards Butler [2002] EWCA Civ 1280 paragraph 31, said, in relation to information barriers in the civil sphere: "... it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently and without explicit expression, by attitudes, facial expression or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control." Thirdly, policing the behaviour of those restrained both outside as well as inside court will be virtually impossible: any communication to the client will be protected by legal privilege, to which the English and Strasbourg courts attach great importance (see per Lord Hoffmann, with whose speech the other members of the House agreed, in R (Morgan Grenfell) v Special Commissioners of Income Tax [2003] 1 AC 263 at paragraph 7). Fourthly, the relationship between a lawyer in the know and his client is bound to be damaged because, in addition to preventing frankness and fettering the free flow of information between lawyer and client, the order is likely to nurture in the client a belief that his lawyers are putting other interests, possibly including those of the prosecution, above his own. The client's reasonable perception of the relationship is, as it seems to us, a matter of importance. Fifthly, the judge has a continuing responsibility to keep his PII order under review in the light of developments in the case and the submissions made to him ex parte by the Crown and inter partes by the defence; defence submissions by those in the know will be entirely artificial if those advancing them are precluded from referring to the very material which is the subject of PII and the distinction between overt use and inward thoughts is not always easy to maintain - see per Sir Nicholas Browne-Wilkinson VC in English and American Insurance v Herbert Smith [1988] FSR 232 at 240. Finally, the creation of an asymmetrical Chinese wall between some but not all of the lawyers and their clients will make it impossible for the other defendants, whose lawyers are not in the know, to avoid a sense of unfairness if those representing their co-accused are in possession of information which is denied to their lawyers but which might be of benefit to the conduct of their defence. The point was graphically illustrated in the proceedings before this court, which included the submission of skeleton arguments by those in the know which could not be seen by co-defendants and their representatives not in the know, and the repeated exclusion from court of those not in the know during submissions for co-accused. 14. We turn to consider whether the authorities to which we have been referred suggest or permit such a surprising result. We deal first with the submissions made on behalf of the two professional bodies. The Law Society acknowledged that a solicitor's duty to disclose all relevant information to clients is not an absolute one, but observed that any departure from it is "a matter of profound concern" and should happen only where "circumstances compel such a conclusion". The public interest in the administration of justice must be the determining factor where principles of conduct are in conflict. The Law Society emphasised that the trial judge expressed the opinion that "the just determination of these criminal proceedings does not require that any person including the defendants should be informed of the contents of the unauthorised disclosure", commenting that he "appears well placed to make this assessment". They do not challenge the judge's conclusion that the legal advisers could continue to represent their clients properly and effectively. The Bar Council however submit that it is for counsel alone to decide whether they can continue to act (weighing professional embarrassment and any jeopardy to the lay client's interests) because the judge does not know all that counsel knows. We think it right, both in principle and pragmatically, that whether a solicitor or barrister can properly continue to act is a matter for him or her not the court, although of course the court can properly make observations on the matter. The Law Society also observes that, in publicly funded cases, the trial judge decides whether a change of representation is justified: see the Criminal Defence Service (General) (No 2) Regulations 2001, regulation 16. Absent exceptional circumstances, such as an obvious attempt by a defendant to abuse the system by repeated applications, we think it is unlikely that, if leading counsel tells a judge he is embarrassed to continue acting, the judge will not permit a change of representation. 15. In civil proceedings, the courts in some circumstances will not permit the use of a privileged document inadvertently disclosed: CPR 31.20. The circumstances in which its use will be permitted and when it will be restrained were considered by the Court of Appeal, Civil Division, in Al-Fayed v Commissioner of Police and the Metropolis [2001] EWCA 780. The essential question is what justice requires. In particular, use of a document might be prevented if inspection of it was procured by fraud, and will sometimes be prevented if disclosure was made by an obvious mistake. This is so whether the document was protected from disclosure by legal professional privilege or by public interest immunity which the party concerned was not bound to assert: see Al-Fayed , the judgment of Clarke LJ at paragraph 17. However, use will not be prevented unless it would be unjust or inequitable to use it, and this question may well involve considering whether it is too late to restore the status quo: see Guinness Peat Ltd v Fitzroy Robinson [1987] 1 WLR 1027 per Slade LJ at 1046. 16. There is no reason in principle why a Crown Court, exercising the jurisdiction to which we have earlier referred, should not similarly restrain the use of material inadvertently disclosed, although the particular circumstances of the case which dictate whether justice requires an order will, of course, be different. In a criminal case with more than one defendant, regard must be had to the position both between the prosecution and the defendants and between the defendants. However, the appellants submit, referring to Archbold paragraph 12-16, that no comparable remedy is ever available in the event of inadvertent disclosure in criminal proceedings, at least in the case of a public prosecution. The basis of this view in Archbold is that cases such as Kuruma [1955] AC 1978 establish that admissibility of evidence depends upon relevance and it is immaterial how the evidence was obtained. We do not accept that reasoning or its conclusion. The approach in Kuruma applies in civil cases: see Calcroft v Guest [1898] 1 QB 759 . But a sharp distinction has been drawn between restraining a person from divulging or using confidential information which has come into his possession, including using it in litigation before trial, and preventing its use at trial: see Ashburton v Pape [1913] 2 Ch 469 , particularly at page 476. 17. It is not necessary for the purposes of this appeal for us to define the circumstances in which the Crown Court might exercise similar powers to those established in a civil context and restrain use of documents inadvertently disclosed in criminal proceedings. Nor is it necessary to consider a submission by Mr Miskin that, even if such powers are available (in that there can be restraint of disclosure and use of confidential material in advance of a criminal trial), here, by virtue of section 8 of the Criminal Justice Act 1987 , the trial had started with the preparatory hearing. It suffices to say that disclosure and use should not, in our judgment, have been restrained in this case, not least because it was too late to restore the status quo having regard to all the matters set out above, and therefore it was not just or equitable to order restraint. 18. We have considerable sympathy with the trial judge who faced an extraordinary situation. On 14th May he was right to staunch by his interim order any further dissemination of the material. On 17th May he was right to revisit his 21st April ruling and to consider its continuing propriety. But on 19th May, albeit that he did not have the advantage, if such it be, of being referred to the large number of authorities before us, he fell into error in two other important respects. 19. First, Davis, Johnson and Rowe was not, in our judgment, distinguishable. It is true that in that case there was no inadvertent disclosure. But we can see no difference in principle between the court seeking an undertaking from a lawyer not to disclose material to his client which he has seen, and making an order to that effect. We regard the observations of Lord Taylor CJ in that case at page 113 as being equally apt in the present circumstances: "It would wholly undermine counsel's relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client." Secondly, the judge was wrong to conclude that counsel and solicitors, albeit restrained by his order, could properly continue to act. As we have indicated, it is for counsel and solicitors, not the court, to make that decision in the light of all the circumstances known to them, some of which may not, for reasons of legal privilege or otherwise, be known to the court. It is also to be noted that the House of Lords in H and C [2004] 2 WLR 335 have recently considered PII procedures and their compatibility with Article 6 of the European Convention on Human Rights. The appellate committee on that occasion included three present or former Lord Chief Justices of England or Northern Ireland, and a former Lord Justice General of Scotland. They did not, of course, address the sort of circumstances which have arisen in this case. But it seems unlikely that procedures for the appointment of special counsel, approved in paragraph 36(4) of the opinion delivered by Lord Bingham of Cornhill, would have been considered necessary had their Lordships thought that it might be possible, in a criminal case, to compel the silence of legal representatives by such an order as was made in the present case. 20. Accordingly, these appeals are allowed. The judge's order of 19th May will be quashed, but not immediately. First, we shall hear submissions from counsel on behalf of all parties as to what the position of those in the know should be when the judge's order is quashed. 21. MR TEMPLE: My Lord, may I turn now directly to the invitation of the court to deal with how the Crown view the position of those in the know? Before I come to deal with that question in terms, may I just indicate to your Lordships that the Crown would wish to preserve their position on appeal. Clearly we have anticipated much of what your Lordship has said in the judgment. We have already drafted a possible three questions to place before your Lordships for certification and leave, if we felt it appropriate after having further digested the terms of the judgment. 22. So, with that in mind, may I turn to your Lordship's direct question with regard to the question of the position of those in the know. We would submit that the solution is this. There should be an order from this court that those in the know will not use or disseminate the inadvertently disclosed material (originally forming a short paragraph on a submission paper to the Attorney General) until further order of this court. Phrased in that way, the Crown submit that the position with regard to the exhaustion of the appeal process will be covered. 23. MR MITCHELL: My Lord, until further order of the court is not, with respect, appropriate. My learned friend, I believe, has fourteen days to come back before your Lordships for certification and the issue of leave. We would respectfully submit that if you are to make such an order -- and if I may reflect on that for a moment as I am addressing you -- it should be time limited to that fourteenth day. 24. THE VICE PRESIDENT: There are difficulties in that regard, Mr Mitchell, I can tell you at once, because not only is it the vacation next week, but the week after that I shall be away, so certainly for the next fourteen days there is no possibility of any question - unless it is submitted in the course of the next fifteen hours or so - being considered. 25. MR MITCHELL: Can I address that? We have at each stage when there has been a question of an interlocutory appeal -- twice with leave and once not with leave -- moved extremely quickly and within very few days, not worrying about time limits at all, to get the papers in before this court so that hearings could take place. They have all been expedited and there has been assistance from the court staff to make sure that we can get on. It seems, respectfully, rather unfair for the Crown now to be saying, knowing that we are supposed to be back on 7th June and starting, that they would like to, in effect, have their fourteen days before they have to come to some final -- 26. THE VICE PRESIDENT: Well they are entitled to them, Mr Mitchell. 27. MR MITCHELL: My Lord, so were we entitled. 28. THE VICE PRESIDENT: That may impress a jury; it does not impress me. 29. MR MITCHELL: My Lord, that is my first point. If your Lordship is away and the court is not sitting next week, my Lord, that adds weight to my respectful submission that really the Crown should go away and think about their position and come back either tomorrow morning or some time tomorrow with an answer. As to whether or not I -- 30. THE VICE PRESIDENT: The Crown, at the moment, are coming back at just after 10 o'clock tomorrow morning. 31. MR MITCHELL: Are they? They have asked for fourteen days, my Lord. 32. THE VICE PRESIDENT: No, no, but they are coming back in relation to other matters at 10 o'clock tomorrow morning, as matters stand at the moment, because that was discussed yesterday. 33. MR MITCHELL: As far as I am concerned -- and since this is also an issue of orders made personally -- first of all, I would prefer to give my undertaking to your Lordship than be subject to an order, and secondly, I would be prepared to give you an undertaking until such time as the question of the appeal is resolved, and then, my Lord, that undertaking should lapse, unless of course your Lordships decide that there are issues to certify and leave is to be granted, in which case -- 34. THE VICE PRESIDENT: If that route was followed it would obviously have to be an undertaking on behalf of junior counsel and your solicitors as well. 35. MR MITCHELL: It may be that they would each consider it is appropriate, either as counsel or, in the case of the solicitor, as an officer of the court, to give that undertaking individually and personally. 36. THE VICE PRESIDENT: If they hear you give such an undertaking in their presence maybe they would be bound by it. 37. MR MITCHELL: (Instructions taken.) One of the party in the know is taking a well-deserved Bank Holiday weekend and has already gone, and we will try to communicate with him. He is the member of the Bar who is a paralegal at those instructing me, but all present are content for me to give an undertaking on their behalfs, and myself, to the court. My Lord, that undertaking is plainly something which should be revisited as soon as the Crown have determined what it is they wish to do. Whether your Lordships grant leave or not to any application they make will impact upon whether that undertaking continues. But, my Lord, to permit the Crown to have breathing space, in the same way that we acceded, without demur, to the judge's original holding order that we would give such an undertaking. It is the only way to assist this matter being properly thought through and resolved. 38. THE VICE PRESIDENT: Thank you. Mr Miskin? 39. MR MISKIN: My Lord, I said to Field J that I would carefully consider the matter at that point. I would prefer an order, and so would my junior. I am, of course, happy to give an undertaking, but I would just prefer an order. 40. THE VICE PRESIDENT: Mr Temple, what, if anything, do you contemplate in the context of your perfectly proper application for fourteen days should happen tomorrow morning at 10 o'clock? 41. MR TEMPLE: Nothing, my Lord. In view of your Lordships' judgment, the matters your Lordship raised, I think, if my memory serves me best, for discussion tomorrow morning, have now been subsumed by the exchanges we have had today, namely how your Lordship should deal with the question of "those in the know". 42. THE VICE PRESIDENT: Do the questions which you are going to ask us to certify already exist? 43. MR TEMPLE: They do, my Lord, in draft form. May I please emphasise that clearly these are important matters. They need to be properly thought through and discussed with those who instruct us and we would like time to go through that exercise, and particularly we would wish to reflect upon the precise terms of your Lordships' judgment. 44. THE VICE PRESIDENT: Bearing in mind that this is an interlocutory appeal, I merely make the comment: I do not know to what extent you are likely to be able to excite the interest of the House of Lords, even if you persuade us to certify some questions, but ... 45. MR TEMPLE: We would hope their Lordships would be excited by the prospect of hearing these matters. 46. THE VICE PRESIDENT: Yes; there it is. 47. MR MITCHELL: My Lord, before your Lordships reflects a little further, may I respectfully make this suggestion? The trial cannot start until this appeal is resolved. It may be that your Lordships have indicated what it is that the final order of this court is going to be but the court does not perfect its order, and it is that that would lead to the original order being quashed, and it would be then that my learned friend, of course, would be in a position to determine where he wishes to go with his appeal. Provided he was prepared to put himself in a position as if you had quashed the order today but you do not quash it, and we return here on the first day when your Lordships resits for my learned friend to make his submissions, we are then all in a position (a) to continue to be bound by the order which you indicated you will eventually quash, (b) that the appeal is still extant, so the trial properly will not start before a jury until the Crown have made their minds up, and (c) it means that there is a finite date, a definite date, when we can come back before the court and my learned friend can be called upon to indicate what his position is. That occurred to me, whilst the exchanges were going on, as being a sensible way, if I may put it that way, of resolving the issue about whether it is an undertaking or an order, and giving my learned friend the breathing space that he wishes and ensuring that the court remains in control of the events until the Crown have made their minds up. 48. THE VICE PRESIDENT: The only possible complication so far as that is concerned is that until the court gives its judgment, or finalises its judgment, the Crown have fourteen days within which to consider the matter. 49. MR MITCHELL: One would imagine that, in the light of the way the exchanges are taking place, the Crown would be prepared to abridge the claim for an extra fourteen days because this is the purpose of them having the time from now, and it would need Mr Temple to agree to that. Then we could come back on the first date that my Lords were able to reassemble after the break which your Lordship has referred to. 50. THE VICE PRESIDENT: That may be some time ... (The Bench conferred.) 51. MR MITCHELL: My Lord, Monday the 14th, I think Mr Temple appears to find that appropriate -- and others will need to address you -- but I would certainly be happy for your Lordship to approach it on that basis. 52. THE VICE PRESIDENT: That, of course, presupposes that the court has nothing else to do on the 14th. I shall actually be sitting in the Divisional Court at that time. 53. MR MITCHELL: I was not for a moment suggesting that it was anything other than a proposal to my Lord as to what may be convenient to the Crown. 54. THE VICE PRESIDENT: Yes. 55. MR MISKIN: My Lord, this case has had a rather unhappy history. I think it was last October that the learned trial judge said that it would take a cataclysmic event to move the trial from a start date of January this year. A cataclysmic event did occur in December of this year, when the SFO served papers equivalent in size to a medium size SFO case upon the defence a few days before the start of the proposed trial. We objected to that adjournment being granted, which was done on the application of the Crown, and said that the material should simply be excluded or not included without leave. His Lordship reluctantly granted the application to adjourn, and the trial date was set for April the 19th. The jury have been hanging around now, I do not know how many weeks it has been, but they have already been sent away once for several weeks, and now come back and were sent away again, or eleven of them were, again until 7th June. His Lordship has repeatedly stated, and done his best to ensure, that any appellate process is quickly dealt with. There have been two appeals already, one of which went to the appellate committee and was refused, no leave granted. And that was done very quickly indeed. 56. In all the circumstances I submit, my Lord, that there is no reason why the Crown, who have drafted the points -- and the points must be obvious -- should not perfect those points within the next 24 hours and serve them for your Lordships' consideration tomorrow morning. 57. THE VICE PRESIDENT: Thank you. Mr Rhodes, the discussion has rather widened; it now embraces you. 58. MR RHODES: My Lord, yes. My learned friend Mr Miskin took out my mouth most of the words I was going to put before my Lords. What I would say is this. Let us assume, for the sake of argument, that in the week commencing 14th June this court was able to hear and determine the application to certify; let us assume that, in accordance with its usual practice, if it were to certify, it would not grant leave, but leave it to the House of Lords to decide whether they wished to hear this appeal. The prosecution would have fourteen days in which to serve their petition for leave to appeal, which would take us until the end of June. There is no way in which this actual appeal could come on, assuming their Lordships were to grant leave, in the course of next term; it would not come on until the Michaelmas term - that would be at the earliest. The effect of that would be that this trial, which has been hanging about for far too long already, would not start until next January at the earliest. My Lord, that is why I support my learned friend Mr Miskin in his request to your Lordship to put pressure on my learned friend for the Crown to make his application to certify tomorrow morning. 59. THE VICE PRESIDENT: Do you want to say anything else, Mr Temple? 60. MR TEMPLE: No, my Lord, other than to reiterate that we would wish to have proper time to reflect on these matters - proper time meaning more than tomorrow morning. 61. THE VICE PRESIDENT: We shall retire for a moment. (The court adjourned for a short time.) 62. THE VICE PRESIDENT: In the special circumstances of this case, we shall direct that draft questions for possible certification by this court for consideration by the House of Lords will be submitted by 10 o'clock tomorrow morning. Argument in relation to those will take place tomorrow morning not before 10 o'clock and after the handing down of the judgment in another case which I mentioned yesterday. In the meantime the order of the trial judge in relation to those in the know will remain in force. 63. MR MISKIN: My Lord, we have been asked by the reporters if they may report this. It is section 11(5) of the Criminal Justice Act 1987 which empowers your Lordship to permit the reporting of something which is otherwise unreportable. The judgment is entirely sanitised. I have consulted with my learned friend Mr Mitchell, and we are content that, if your Lordship is to permit reporting, that the case be called G and B. 64. THE VICE PRESIDENT: Have you any comment on that, Mr Temple? 65. MR TEMPLE: No, my Lord, none. 66. THE VICE PRESIDENT: I did take care, I think, to sanitise the judgment. 67. MR TEMPLE: No further submissions, my Lord. 68. THE VICE PRESIDENT: Thank you. Well then -- 69. MR MITCHELL: Your Lordship will have the benefit of Mr Martin tomorrow morning. 70. THE VICE PRESIDENT: Well, it was of great excitement, Mr Mitchell, in view of your other commitments, to see you today. 71. MR MITCHELL: I had a very exciting day yesterday. 72. MR RHODES: Before your Lordships rise, would your Lordships formally grant legal aid for leading and junior counsel for the interveners? 73. THE VICE PRESIDENT: Oh yes, poor Mr Rhodes! We shall make -- 74. MR RHODES: Otherwise I shall be troubling -- 75. THE VICE PRESIDENT: I think we have nowadays to call it a representation order for leading and junior counsel. And have you got some solicitors as well? 76. MR RHODES: My Lord, yes. 77. THE VICE PRESIDENT: Yes, so be it. 78. MR MISKIN: I think, my Lord, that is his second application. Does he get twice as much, my Lord? 79. THE VICE PRESIDENT: Thank you, Mr Miskin.	[ "LORD JUSTICE ROSE", "MR JUSTICE CRESSWELL", "MR JUSTICE ANDREW SMITH" ]	2004_05_27-253.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1368/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1368	1,105
9e441b5665648006b1615af568be04ac09a47dfe68fdc52876936a45de457ed3	[2009] EWCA Crim 1910	EWCA_Crim_1910	2009-09-01	crown_court	Neutral Citation Number: [2009] EWCA Crim 1910 Case No. 2009/02541/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 1 September 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE COLLINS and HIS HONOUR JUDGE PERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - DAN THIEU TRUONG __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communic	Neutral Citation Number: [2009] EWCA Crim 1910 Case No. 2009/02541/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 1 September 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE COLLINS and HIS HONOUR JUDGE PERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - DAN THIEU TRUONG __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr A Butler appeared on behalf of the Appellant ____________________ J U D G M E N T LORD JUSTICE RIX: I shall ask Mr Justice Collins to give the judgment of the court. MR JUSTICE COLLINS: 1. On 16 April 2009, in the Crown Court at Blackfriars, before His Honour Judge Karsten QC, the appellant pleaded guilty to possessing a prohibited weapon (a Taser gun) and was sentenced to two years' imprisonment. That sentence was ordered to run consecutively to a sentence of two years' imprisonment which had been imposed on 31 October 2008 for an offence of burglary. 2. The recovery of the Taser gun resulted from the execution by police officers of a search warrant at the appellant's home address on 25 April 2008. When the weapon was found, it was noted that the batteries were fully charged so that it would have been a simple matter to have put it into working order. When asked what it was, the appellant said "Taser -- I got that in France". That was later modified when he said that it had been obtained for him by his brother. It was legal in France. He asserted that he did not appreciate that it was not legal in this country. 3. The effect of a taser can be serious. It can produce a loss of muscle control, incapacitation, intense pain and mental confusion. Indeed, it is designed to overcome an individual for a period of time so that the person in possession of the Taser can do what he will to its target. Its lawful use is for law and order and to deal with those who are misbehaving in a serious way. 4. It is significant to note that the burglary offence was committed on 30 June 2008 whilst the appellant was on bail for the offence before us. He committed that burglary with an accomplice. The accomplice had with him an imitation firearm. Thus the charge was one of aggravated burglary. The appellant pleaded guilty to simple burglary on the basis that he was not aware that his accomplice had the imitation firearm. The judge who dealt with that indicated that it would make no difference to his sentence whether or not the appellant was aware of the possession by his accomplice, and so the case was dealt with on the basis of that plea. Although that plea may have been accepted, the court never assumed that the appellant was guilty on that limited basis but was prepared to treat him as if he were. 5. For reasons which are far from clear, the instant offence was not dealt with at the same time as the burglary offence. It clearly should have been. The totality of the appellant's offending ought to have been before the same judge, particularly as the appellant committed the burglary while on bail. It can be assumed that the judge took that into account in imposing the sentence that he did impose because the fact that the appellant was on bail made it more serious. 6. The appellant has previous convictions largely for possession of drugs. This is the first time that he has been sentenced to a term of imprisonment. As his counsel recognises in his advice, a Taser gun is something which can be used for criminal purposes and frequently is by those who indulge in the drug trade one way or another and by those who commit offences such as burglary. However, it is fair to say that there is no evidence that the appellant had the weapon for any nefarious purpose. Although he never explained why he kept it, it would be wrong to assume against him that he intended to use it for a criminal purpose. 7. We have been referred to a number of cases which deal with possession of stun guns such as this. The point is made that Parliament has not provided a minimum sentence for these as opposed to firearms for which minimum sentences have been set out. There are a number of authorities to which our attention has been drawn which indicate that for an offence of possession of a stun gun simpliciter, without any aggravating features (and this case was treated in that way), a sentence of less than twelve months on a contested case would be, generally speaking, appropriate. We put it that way because it is far from clear precisely where the limit is, but certainly it is not more than twelve months. 8. In all the circumstances of this case we take the view, and counsel does not disagree, that a consecutive sentence was appropriate but that two years' imprisonment was excessive. Having regard to the plea of guilty we consider that the appropriate sentence should have been one of six months' imprisonment, to be served consecutively to the sentence of two years' imprisonment which he was already serving. 9. Accordingly, we quash the sentence of two years' imprisonment and substitute for it a sentence of six months' imprisonment which will run consecutively to the sentence of two years' imprisonment which he was already serving. To that extent this appeal is allowed. _____________________________	[ "LORD JUSTICE RIX", "MR JUSTICE COLLINS" ]	2009_09_01-2064.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1910/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1910	1,106
0400973b87fe6e27233d74b1ef88931f57289f32f547f63b4de317b75cf90c4d	[2019] EWCA Crim 259	EWCA_Crim_259	2019-02-07	crown_court	Neutral Citation Number: [2019] EWCA Crim 259 No: 201805212/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 7 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE O'FARRELL DBE HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DARREN CARL WILLIAMSON Mr P Jarvis appeared on behalf of the Attorney General Mr L Marklew appeared on behalf	Neutral Citation Number: [2019] EWCA Crim 259 No: 201805212/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 7 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE O'FARRELL DBE HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DARREN CARL WILLIAMSON Mr P Jarvis appeared on behalf of the Attorney General Mr L Marklew appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: On 22 October 2018, in the Crown Court at Worcester, Darren Williamson pleaded guilty to an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 22 November 2018 he was sentenced to 4 years' imprisonment. Her Majesty's Attorney General believes that sentence to be unduly lenient. Accordingly, he applies for leave to refer the sentencing to this court pursuant to section 36 of the Criminal Justice Act 1988. 2. Mr Williamson is now aged 36. As a teenager he was cautioned for offences of assault occasioning actual bodily harm and threatening behaviour. He has however not been convicted of any offence of violence. His only previous convictions were more than a decade ago and were for very different types of offending. 3. In 2014, very sadly, Mr Williamson's wife took her own life, leaving him with the care of two young children both then aged under 10. In the years which followed he was coping with his own distress, caring for his children and working to support them. He was later to say that he had been using cannabis to help him cope and his account was that it was for that reason that in 2016 he was growing cannabis in an outhouse at his home. 4. In late October 2016 someone stole Mr Williamson's crop of cannabis. It is clear that he was very angry and wanted to find out who was responsible. It appears that someone suggested to him that David Ramshaw was the thief (although there is no evidence that he was). Mr Williamson researched online and discovered Mr Ramshaw's address. He went there at about 5.30 pm on 15 November 2016. Mr Ramshaw has a partner and a young child but happened to be alone in his house at the time. 5. A violent incident occurred in which Mr Ramshaw suffered serious injuries. The most serious was a rupture of his spleen. In addition, he sustained a laceration behind his left ear, swelling of the left ear, abrasions to the left side of his head, a very swollen left elbow, abrasions to the right side of his chest, to his right shoulder and around his neck, a distended and bruised abdomen, a large bruise to his left hip, bruises to his scalp and a large contusion over his temple. He was taken to hospital after the incident. Upon arrival at hospital he collapsed and had to be resuscitated. Medical investigation showed that the spleen was so badly damaged that urgent surgical removal was necessary. But for that operation there is a substantial risk that Mr Ramshaw would have died as a result of internal blood loss. We should add that Mr Williamson himself was unscathed in the incident. 6. He was taken to hospital because a friend Mr Tomlinson who had come to the house in answer to a phonecall from Mr Ramshaw found him obviously injured, vomiting, shaking and crying. Whilst Mr Tomlinson, was there, Mr Ramshaw's wife and child returned to the home and saw him in that state. Shortly after the incident Mr Tomlinson spoke on the phone to Mr Williamson. He told him that Mr Ramshaw did not have the stolen cannabis. Mr Williamson was plainly still very angry. In the course of the telephone conversation he used the phrase "when we were smashing the fuck out of your mate". Mr Tomlinson told him that Mr Ramshaw's injuries were such that it was necessary to call an ambulance and inform the police. Mr Tomlinson's evidence was that Mr Williamson replied to the effect that if Mr Ramshaw knew what was good for him, he would not talk to the police or there would be more of the same. 7. In a statement made some 2 years after the incident, Mr Ramshaw indicated that for about 3 months after his discharge from hospital, he vomited each day. He developed a hernia, as a result of which his stomach was swollen and descended, but doctors took the view that he was too weak to cope with an operation to treat that problem. He suffered from low blood iron as a result of the removal of his spleen. This had caused his nails to fall out. In addition, Mr Ramshaw recorded that he now suffered from depression, withdrew from social life and had been harmed in the conduct of his business, which had inevitably resulted in financial difficulties adding to his depression and anxiety. 8. Mr Ramshaw's account of the incident in which he sustained those injuries was that three men, armed with weapons, came into his home and beat him. He said that Mr Williamson was the main aggressor of the three. Mr Williamson himself was arrested later on the day of the incident. Freshly washed clothes were found in his washing machine. He told the police that he had lost his mobile phone a few weeks earlier and indeed the police have never recovered it. Subsequent investigation of call billing records showed however that Mr Williamson had in fact been continuing to use his phone until very shortly before his arrest. 9. In the course of the investigation Mr Williamson's brother, Kevin Williamson, was also arrested. Both brothers were charged with aggravated burglary, to which they pleaded not guilty. The case was adjourned for trial and came on for hearing on 22 October 2018. On that date, in discussions between counsel, it was proposed that Mr Williamson would plead guilty to a section 18 offence and his brother, Kevin, would plead guilty to an offence of assisting an offender. The indictment was amended to that effect, those guilty pleas were entered and in due course no evidence was offered on the initial charge of aggravated burglary. 10. Mr Williamson's guilty plea was entered on a written basis which we must read in full: "The defendant was not intent upon violence when he went to the property. He did not attend there with a weapon and never went inside. Ramshaw reacted by producing a bat, when confronted about the issue of whether he had stolen the defendant's cannabis and that was the catalyst for the violence. The defendant admits repeatedly punching him and manhandling him, whilst lawfully defending himself, but his actions became unlawful when Ramshaw dropped the weapon. Thereafter the defendant admits striking him twice, with the requisite intent, angry at the behaviour that had been shown to him." 11. Although the written basis does not say so, we understand that the case was conducted on the basis that Mr Williamson was there admitting two unlawful blows with the baseball bat at the end of the incident. 12. The prosecution did not accept that basis of plea which is, of course, very far removed from Mr Ramshaw's account. In discussions, the judge before whom the trial had been listed, indicated that he did not think it necessary for there to be a Newton hearing or trial of the issue. The judge who later had conduct of the proceedings interpreted that as the trial judge having taken the view that even if the factual issues were resolved in favour of the prosecution, it would not make a material difference to sentence because the categorisation of the offence under the Sentencing Guidelines would be the same. 13. There had been a change of judge because it was discovered that the judge before whom the case had been listed for trial in fact knew someone connected to Williamson. So it was that the matter came before a different judge for sentencing on 22 November. That judge, understandably, did not feel able to go behind the earlier decision that no Newton hearing was necessary and on the basis which we have indicated also took the view that the categorisation of the offence would be the same on either version of events. 14. There was before the court on 22 November a thorough pre-sentence report. The author of the report indicated that Mr Williamson had given him an account of the incident to the effect that he had "flipped" when Mr Ramshaw came at him with a bat. Mr Williamson had told the probation officer that he could not remember striking Mr Ramshaw with any weapon but he accepted repeated punching with a closed fist. He also said that at one point he had pinned Mr Ramshaw down by kneeling on his stomach, which he suggested may have been the cause of the ruptured spleen. Mr Williamson told the probation officer that he recognised, with the benefit of hindsight, that he had overreacted to his belief or suspicion that Mr Ramshaw had stolen his cannabis crop. He took responsibility for his actions but also attributed some of the blame to Mr Ramshaw. Mr Williamson also spoke to the probation officer about the death of his wife some 2 years before the commission of the offence. The author of the report felt it possible to treat this offence as an aberration, possibly influenced by Mr Williamson's grief at the loss of his wife. He recorded that Mr Williamson is now in a new relationship. We understand that his girlfriend is pregnant with their child. 15. Also before the court were a number of character references in which persons who knew Mr Williamson well, including a retired police officer, spoke highly of him. Mr Williamson himself had written a letter to the court in which he expressed his genuine regret and absolute remorse for his actions. He said in his letter that at the time of the incident he was still struggling massively with the loss of his wife which had given him, as he put it, "a never back down approach to life". He said that at the time he had been walking around with a lot of anger and rage built-up inside him, though he had subsequently come to terms with all that had happened in his life. He said that the passage of time since the incident had taught him to walk away and, if faced with a similar situation again, he would. He repeated his remorse for what he had done. He described that in the time since his arrest he had, as a result of the arrest, lost both his home and employment but had subsequently started his own business by which he was earning enough to care for himself and his children. 16. The prosecution submitted, and the judge accepted, that under the Sentencing Council's Definitive Guideline this case fell within category 1. The judge, as we have noted, indicated that he understood the previous judge to have decided that a Newton hearing was unnecessary, precisely because it was a category 1 offence even on Mr Williamson's account. For such an offence the guideline indicates a starting point of 12 years' custody and a range from 9 to 16. 17. In mitigation Mr Marklew, then as now appearing on behalf of Mr Williamson, emphasised that the court must proceed on the basis put forward by Mr Williamson. He argued for the offence to be treated as a category 2 offence. He invited the court's attention to the absence of any premeditation, the fact that Mr Williamson had not gone to the property either armed or intent upon violence and that the assault had occurred in the heat of the moment after Mr Williamson himself had been attacked. Mr Marklew also drew attention to the fact that only two unlawful blows were struck, for which Mr Williamson had shown real remorse. He said that the nature of the injuries was not such that it would have been immediately obvious to Mr Williamson that the life of his victim was threatened. On that footing Mr Marklew argued that the fact that Mr Williamson broke off the attack indicated that in general he was not a violent or hot headed person. Mr Marklew referred to the testimonials and to Mr Williamson's own letter and spoke of the difficulty Mr Williamson had had in explaining to his children that having already lost their mother, they would now probably be without him for a time. Mr Marklew further noted that the pre-sentence report was in the favourable terms to which we have referred. 18. In his sentencing remarks the judge referred to Mr Williamson's limited previous convictions, his record of hard work and the loss of his wife. The judge referred to Mr Ramshaw's injuries as having been "life threatening". He said that on the written basis of plea, which he felt bound to accept, the appropriate sentence, after a trial, would have been at the bottom of the category range having regard to the circumstances of the offence. He went on however to note that the guidelines permit a judge to move outside a category range in some cases after considering all aggravating and mitigating factors. 19. In the present case the judge identified three features which he viewed as exceptional circumstances which caused him to move down from category 1 to category 2. Those three features were first, Mr Williamson's positive good character, as shown by the testimonials, coupled with the context of bereavement which may be connected to Mr Williamson's loss of control at the time of the offence. In this regard, the judge noted the probation officer's view that the offence could be viewed as an aberration. The second feature to which the judge pointed was the genuine remorse of Mr Williamson coupled with clear evidence of a change of behaviour on his part, including cessation from drug use. Thirdly, the judge noted the position of the children who, having lost their mother would now, through their father's actions, also be deprived of his company for a time. 20. The judge had indicated that he was prepared to allow 25% credit for the plea. He said that for the reasons he had indicated: "... I take the view that the true appropriate sentence after trial would have been one of six years' imprisonment, which is the starting point for category 2. I cannot, in all conscience, go any lower than that. That would be an insult to Mr Ramshaw, who has, as I have said, suffered and will continue to suffer for the rest of his life from the consequences of your evening of madness. Giving you 25 per cent credit, … the sentence in your case will be one of four years' imprisonment." 21. We note that arithmetically a reduction of 25% from the 6 year sentence which the judge had indicated as appropriate after trial would result in a sentence of 4 years 6 months. It seemed therefore that in his sentencing remarks just quoted the judge had fallen into a simple arithmetical error. We are however now informed that after the hearing the judge posted a comment on the Digital Case System in which he indicated that the factors of mitigation which he had mentioned had brought the sentence down to 5 years 4 months' imprisonment not 6 years, so that the credit for the guilty plea resulted in the final sentence of 4 years' custody. 22. On behalf of the Attorney General, Mr Jarvis submits that that sentence was unduly lenient. The case was in category 1 because it involved greater harm due to the severity of the life threatening injuries and higher culpability because of the use of the weapon. In his written submissions Mr Jarvis suggested a further ground on which the case could be regarded as one of greater harm, but correctly did not pursue that in his oral submissions. Because it was a category 1 offence Mr Jarvis submits that the starting point was 12 years, but it was incumbent upon the judge then to move upwards from that starting point to reflect the significant aggravating features that this was an attack upon the victim in his own home, and that it had resulted in long-term physical and emotional harm, though Mr Jarvis rightly noted that care must be taken to avoid double counting that aspect of the injuries which had already placed the case into category 1. It was a further aggravating feature that the violence arose out of Mr Williamson's criminal conduct in cultivating cannabis. Those factors, submits Mr Jarvis, required an upward movement above the guideline starting point. There was then undoubtedly significant mitigation and Mr Jarvis properly recognised that that was so. But, he said, that mitigation was not such as could justify the very substantial reduction which the judge made. 23. On behalf of Mr Williamson, Mr Marklew repeats his submissions in terms of the factors which he relied upon below. Recognising that the judge had placed the case into category 1, he nonetheless submits there was much about it which could fairly be regarded as closer to a category 2 offence. He emphasised the very sad and difficult position of the children, the pregnancy of Mr Williamson's current partner and the exemplary behaviour in prison which is noted in a report prepared for the assistance of this court. 24. Reflecting upon those submissions, we begin by observing that in the absence of any Newton hearing the sentencing judge had to sentence on the factual basis contained in the written basis of plea. We do not know the precise considerations which prompted the trial judge to conclude that no Newton hearing was necessary and we therefore do not criticise that decision. But we feel bound to observe that it was, on the face of it, a surprising decision: even if the case would inevitably fall into category 1 on either version of events, there was a stark difference between an attack by men who had gone to the house armed with weapons, and an attack in which Mr Williamson had initially done no more than defend himself and had only struck two blows with a weapon which Mr Ramshaw had initially used against him. On the face of it, as we say, that stark difference could be expected to make a difference as to where in the category 1 sentencing range the appropriate sentence would lie. We well understand why Mr Ramshaw has made clear his dissatisfaction with that state of affairs and with the course taken by the sentencing process. However, we emphasise that we must and do consider this application on the basis that the facts were as Mr Williamson asserted. It is for that reason, for example, that the written submission that this was a sustained or repeated assault could not be a proper point, since only two unlawful blows are admitted. 25. We accept the submission of Mr Jarvis that there were the aggravating features which he has mentioned and that those necessitated an initial movement upwards from the guideline starting point. With every respect to the sentencing judge, he said nothing to indicate that he had given appropriate weight to the fact that the origins of this incident lay in Mr Williamson's discovery that someone had stolen the product of his criminal activity. 26. We accept that there were a number of features of mitigation relating both to the circumstances of the offence and to matters of personal mitigation. In particular, Mr Williamson has no relevant or recent previous convictions, he had displayed genuine remorse and made genuine efforts to alter his behaviour. He could be regarded as a man of substantial good character who had worked hard to provide for his family. It would be fair to regard this as an isolated incident and it was an important matter for the court's consideration that Mr Williamson was the sole or primary carer for two young children who have already suffered greatly in their young lives. In addition to those matters there were the three particular features of the case to which the judge drew especial attention in his sentencing remarks. We readily accept that viewing those matters of mitigation collectively, they are weighty and necessitated a significant reduction from the provisional sentence reached by taking the guideline starting point and considering the aggravating features. But with all respect to the judge, we cannot agree that those mitigating features justified an initial reduction to the very bottom end of the category 1 range and then a further reduction, by reference to the three "exceptional circumstances" to a sentence, after trial, of 5 years 4 months. Sympathy for Mr Williamson's very difficult situation following the death of his wife has to be set in the context of the seriousness of the offending and the harm caused. Shortly put, a sentence which started at 12 years before taking into account the undoubted aggravating features has, in the result, come down as a result of the mitigating features to a sentence after trial of 5 years 4 months. Such a very substantial reduction cannot, in our view, be justified by the mitigation and fell outside the range properly open to the sentencing judge. Making every possible allowance in Mr Williamson's favour, we cannot, in the circumstances of this case, see that the sentence on his own basis of plea could properly have been less than 9 years' imprisonment after trial. For those reasons we conclude that this sentence was unduly lenient. We are acutely conscious of the ongoing consequences for Mr Williamson's children of his sentence being increased and we have considered anxiously whether we can properly exercise our discretion not to order an increase in the sentence. We are however satisfied that we must increase the sentence. Emphasising yet again that we approach the case on the basis of Mr Williamson's plea, this was nonetheless a serious offence and the sentence imposed below does not amount to just and proportionate punishment in all the circumstances. For those reasons, we grant Her Majesty's Attorney General leave to refer, and we quash the sentence imposed below. Giving the appropriate credit for the guilty plea, we substitute a sentence of 6 years 9 months' imprisonment. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]	[ "LORD JUSTICE HOLROYDE", "MRS JUSTICE O'FARRELL DBE", "HIS HONOUR JUDGE WALL QC" ]	2019_02_07-4497.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/259/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/259	1,107
0acfb917a5507be6ca51d388631c795405ffd0b3d515ed874f2941da394366be	[2015] EWCA Crim 659	EWCA_Crim_659	2015-03-24	crown_court	Neutral Citation Number: [2015] EWCA Crim 659 Case No: 2014/4976/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 March 2015 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE ELISABETH LAING DBE THE RECORDER OF EXETER HIS HONOUR JUDGE GILBERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON ELKINGTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes o	Neutral Citation Number: [2015] EWCA Crim 659 Case No: 2014/4976/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 March 2015 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE ELISABETH LAING DBE THE RECORDER OF EXETER HIS HONOUR JUDGE GILBERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON ELKINGTON - - - - - - - - - - - - - - - - - - - - - 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 Murray appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE RECORDER: On 24th July 2014 in the Crown Court at Warwick, the appellant pleaded guilty to assault occasioning actual bodily harm and assault by beating. On 3rd October 2014 Mr Recorder Evans sentenced him for the assault occasioning actual bodily harm to an extended sentence of five years with 44 months as the custodial element and 16 months extended licence. For the assault by beating the sentence was four months' imprisonment concurrent. There was a victim surcharge order of £120. 2. The appellant appeals against sentence by leave of the single judge, Green J. 3. The fact are these, taken briefly. The appellant was in an on/off seven year relationship with the complainant, Kay Jones. She was 26, he was 42. They both lived at a Salvation Army hostel. On the evening of 14th April 2014 the appellant started an argument with Kay in the hostel's reception area. He called her a prostitute and said she should go and sell herself. She laughed and he pushed her into a wall. She hit the wall and slumped to the floor, feeling dizzy. She went upstairs to her room and the appellant followed, shouting abuse through the door. She ran out of the room, trying to get out onto the street. He followed her outside and punched her in the eye. She fell down and the appellant kicked and punched her while she was on the ground. 4. The following day the appellant knocked on the door of the complainant's room. She did not know it was him and opened the door. He pushed his way in and knocked her over. She fell to the floor and he tried to hit her. He did not manage to strike a hard blow. That part of the incident relates to count 2. 5. The complainant did not report the offence but had a problems with the vision in her left eye and went to accident and emergency later that day. She had bruising and swelling around the eye and also bruising to her arms. She was in pain where she had been kicked in the ribs. The doctor treated her for the bruising. The appellant was arrested on 16th April. In interview he blamed the complainant, saying that she had assaulted him. 6. He is a man who has appeared before the courts on 37 previous occasions for 121 offences between 1983 and 2012. His relevant violent offences include a conviction for manslaughter in 1997 for which he was sentenced to eight years' imprisonment, common assault in 2003 for which he was sentenced to three months' imprisonment, assault occasioning actual bodily harm in 2005 for which he received an extended sentence of 17 months and one offence of section 20 wounding in 2012 for which he received an extended sentence of 56 months. He was currently on recall for this due to the present offences. Earlier violent offences included in 1993 convictions for affray, assaults on police and actual bodily harm for which he received concurrent sentences of three months in a young offender institution. There were further assaults on the police in 1995, 1996 and 2004. He has also received a custodial sentence for theft, burglary of a dwelling and a non-dwelling and in 1994 was sentenced to 15 months' imprisonment for blackmail. 7. In the pre-sentence report it is said that the appellant accepted responsibility for his actions but minimised his culpability by saying he could not recall the offence due to the alcohol which he had consumed, combined with medication received on prescription. He did appear to show remorse. Alcohol was a significant feature in his past for violent offending. 8. He had been made the subject of a range of sentencing options in the past, but this had done little to deter him from re-offending. He was currently recalled. It was his second recall for the section 20 wounding on the extended licence period for violent offending under the influence of alcohol. He was assessed as presenting a high risk of re-offending and a high risk of harm to his current partner and members of the public. He could not be safely managed in the community. Intervention was required to address his thinking skills deficit, substance abuse and relationship issues. An extended period of licence would ensure that work completed in custody could be demonstrated in the community. 9. The grounds of appeal settled by counsel are that firstly the judge took insufficient account of the five-and-a-half months in custody pending sentence when recalled on licence. Secondly, the judge took too high a starting point in relation to the assault occasioning actual bodily harm. 10. With regard to the first ground, it is not right in this case to reduce the sentence because of time spent in custody to date on recall unless there has been excessive delay. The offence was on 14th April 2014. The appellant pleaded guilty on 24th July 2014. Sentence was then adjourned to assess dangerousness and sentence was passed on 3rd October 2014. In our judgment that time does not amount to excessive delay. 11. The second ground of appeal is that the custodial sentence of 44 months following a guilty plea at the PCMH, to which 25 per cent credit was due, puts it within a month or so of the maximum sentence for assault occasioning actual bodily harm of 60 months. Whilst we are of course able to be satisfied, and it is right to be satisfied that it would be contrary to the interests of justice to follow the guidelines in this case, we therefore look at the sentence as passed. The record of the appellant in our judgment does not justify passing such a long custodial sentence as was passed in this case. If the reason for so doing was for fear of further violence then it is open to extend the licence period and that is what was done for good reason on the evidence before the court. 12. We therefore allow the appeal by quashing the custodial element of 44 months, substituting for it a sentence of 36 months, but with the extended period of licence extending to 24 months, so that the extended sentence itself remains one of five years.	[ "LORD JUSTICE GROSS", "MRS JUSTICE ELISABETH LAING DBE" ]	2015_03_24-3579.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/659/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/659	1,108
dbc0858a47a62e3ce20e8d5cc2f2eecd2af2a7885a5246e3bb0f15bc932a128b	[2015] EWCA Crim 1278	EWCA_Crim_1278	2015-07-21	crown_court	Case No: 201502124 C3 Neutral Citation Number: [2015] EWCA Crim 1278 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM DURHAM CROWN COURT HIS HONOUR JUDGE HICKEY T20147153 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2015 Before : LORD JUSTICE TREACY MR JUSTICE BLAKE and HER HONOUR JUDGE TAYLOR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : PAUL GOLDSBOROUGH Appellant - and - R Respondent - - - - - - - - -	Case No: 201502124 C3 Neutral Citation Number: [2015] EWCA Crim 1278 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM DURHAM CROWN COURT HIS HONOUR JUDGE HICKEY T20147153 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2015 Before : LORD JUSTICE TREACY MR JUSTICE BLAKE and HER HONOUR JUDGE TAYLOR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : PAUL GOLDSBOROUGH Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - J Hedworth (instructed by Registrar of Criminal Appeals ) for the Appellant J Kidd (instructed by CPS ) for the Respondent Hearing dates : 23 June 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy : 1. This is an appeal against conviction concerned with construction of the provisions of section 39(4) of the Anti-social Behaviour Act 2003. The application for leave was referred to the Full Court by the Registrar. We grant leave. 2. On 29 April 2015 in the Crown Court at Durham the appellant pleaded guilty on rearraignment, following the judge’s ruling, to possession of a prohibited weapon contrary to section 5(1)(af) of the Firearms Act 1968. The weapon in question was an air pistol, namely a Brocock .22 self-contained gas cartridge air weapon. Other counts on the indictment were adjourned pending this appeal. 3. The charge relates to 7 March 2014 when a search warrant was executed at the appellant’s home. During that search the Brocock handgun was found. When interviewed the appellant said that he had legitimately acquired the handgun in the late 1990s. At that time such a firearm could be lawfully purchased over the counter in any country pursuits store. The Crown did not challenge this account put forward by the appellant. 4. At the Crown Court a preliminary point was taken, namely whether or not the applicant was strictly liable on count 1. The judge ruled against a submission made on behalf of the appellant whereupon the appellant entered a guilty plea. The grounds of appeal submit that the judge’s ruling was wrong in law. 5. Section 39(3) of the Anti-social Behaviour Act 2003 amended paragraph 5(1) of the Firearms Act 1968 by inserting paragraph (af) into that section. Accordingly that section now reads by virtue of the 2003 Act: “A person commits an offence if, without authority he has in his possession,…(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with a self-contained gas cartridge system.” Thus this type of weapon, once that provision came into force, could no longer be possessed without the authority of the Secretary of State by reason of the amendment. 6. The prohibition on the possession of certain air weapons under section 5(1)(af) came into force on 30 April 2004: see paragraph 5(1) of the Anti-social Behaviour Act 2003 (Commencement No. 1 and Transitional Provisions) Order 2003 (2003 No. 3300). That prohibition, however, was qualified by a provision to address the position of those who had been in possession of such weapons prior to and at the time the new prohibition came into force. 7. Section 39(4) of the Anti-social Behaviour Act provides as follows: “If at a time when subsection (3) comes into force a person has in his possession an air rife, air gun or air pistol of the kind described in section 5(1)(af) of the Firearms Act 1968 (inserted by subsection (3) above) – (a) section 5(1) of that Act shall not prevent the person’s continued possession of the air rifle, air gun or air pistol, (b) section 1 of that Act shall apply, and (c) a chief officer of police may not refuse to grant or renew, and may not revoke or partially revoke, a firearm certificate under Part 2 of that Act on the ground that the person does not have a good reason for having the air rifle, air gun or air pistol in his possession.” 8. The appellant’s argument is that reading section 39(4)(a) and (b) together, where a person was in possession of a prohibited air weapon at 30 April 2004, his continued possession of that weapon was not prohibited by section 5(1), and that section 1 of the Firearms Act which requires the obtaining of a firearm certificate applied. Accordingly a person who had been in possession of a prohibited air weapon up to the commencement date and who did not obtain a section 1 certificate would be guilty only of an offence under section 1 of the 1968 Act rather than an offence under section 5. 9. Sections 1 and 5 create separate offences, with section 5 carrying a minimum term of 5 years unless the court is of the opinion that there are exceptional circumstances justifying a departure from that term. No minimum term applies to section 1. 10. Paragraph 5(2) of the Commencement Order provides: “Section 1(1)(a) of the Firearms Act 1968 shall not apply to a person who has in his possession any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system where he has applied before 30 April 2004 for a firearm certificate under Part 2 of that Act and either that application is still being processed or any appeal in respect of it has not been determined.” 11. Counsel for the Crown submitted to the court below that section 39(4) only allowed continued possession of the firearm if a firearm certificate from a chief officer of police was obtained or applied for before the due date. A person in the appellant’s position had two options prior to 30 April 2004: firstly he could hand the firearm over to the police; secondly he could apply for a firearm certificate. If he had done neither of those things he would be thereafter guilty of possession of a prohibited weapon contrary to section 5(1)(af). 12. The submissions made to the judge were very brief, as was his ruling. The judge in his ruling accepted the Crown’s argument stating that any reference in section 39(4) to section 1 of the 1968 Act was there to explain “how a firearm could be possessed legally if a certificate was also possessed.” The judge went on to say that section 39(4) only allowed continued possession if authority was given by the Secretary of State. Since the appellant neither had the permission of the Secretary of State nor had he handed the weapon over to the police or a registered firearms dealer by 30 April 2004, he was guilty of the section 5 offence. 13. Ms Kidd did not seek to sustain the judge’s latter observation regarding the Secretary of State as applying to the present situation. She accepted that a person in the position of this appellant who was in possession of a prohibited air weapon prior to the commencement date could regularise his position simply by obtaining a section 1 firearm certificate from a chief officer of police. She did not contend that section 39(4) required him to obtain the authority of the Secretary of State. 14. Whilst it is clear that the legislation requires a person coming into possession of a prohibited weapon after 30 April 2004 to have not only authority from the Secretary of State but also a firearm certificate, the transitional arrangements set out in section 39(4) did not require this. The current dual requirement for an authority and a firearm certificate can be demonstrated by a consideration of the definition of firearm in section 57(1)(a) of the Firearms Act, section 1(1)(a), and by inference from the exclusionary provision in section 1(3)(b). Moreover, the provisions of section 31(1) and (2) confirm that position. 15. Counsel for the Crown has drawn our attention to the Explanatory Note to the Commencement Order which is in the following terms: “Article 2(c)(iii) brings section 39(3) into force for certain purposes on 20 January 2004 and Article 5(1) brings that section into force on 30 April 2004 for all other purposes including possession. Section 39 adds certain air weapons using a self-contained gas cartridge system to the categories of prohibited weapons under section 5 of the Firearms Act 1968. In addition to an authority from the Secretary of State, a firearm certificate issued under Part 2 of the Firearms Act 1968 is required to possess a weapon prohibited under section 5 of that Act. (our italics) From…30 April 2004 it will also be an offence to possess such a prohibited weapon without authority from the Secretary of State. Section 39(4) of the Anti-social Behaviour Act 2003 permits existing owners of such weapons to continue to possess their weapons without an authority provided they obtain a firearm certificate. (our italics) Article 5(2) contains transitional provisions to allow anyone who has applied for a firearm certificate, or is appealing against the refusal of a firearm certificate, to lawfully possess their weapon pending the outcome of the application and/or appeal.” 16. The first italicised passage is consistent with the Crown’s acknowledgment of the judge’s error referred to in paragraph 12 above. It may be that a reading of that passage misled the judge into saying what he did. The second italicised passage dealing with the transitional arrangements would appear to be consistent with the appellant’s case rather than that of the Crown. 17. This Explanatory Note was drawn to the attention of the judge as was a witness statement from a firearms officer who produced a Home Office leaflet entitled “Air Gun Owners New Legislation” stating: “ Anyone (our emphasis) who is found in possession of a self-contained gas cartridge weapon on or after 30 April 2004 without it being entered on a valid firearm certificate will also commit an offence under the Firearms Act 1968 and will be liable for the same penalty.” [5 year minimum] 18. Those materials are not of direct assistance to us. Our task is to construe the statute. The views of those who drafted the Explanatory Note, the Home Office document, the witness statement, or a passage in Archbold are no more than opinions on the issue which we have to determine. We have been informed by Mr Hedworth of Crown Court decisions by judges or CPS which have adopted a construction of the statute which supports his approach. Again we do not find that of assistance since we do not have the benefit of any reasoned judgment analysing the statutory language. 19. There was reference at the hearing below to the case of Mehmet (2006) 1 Cr App R (S) 75 . That was a case where the appellant was appealing against a 5 year minimum sentence, having pleaded guilty to the offence of possessing a prohibited weapon under section 5(1). Like this appellant, he said he had been unaware of the change in the law. The only question before that court was whether there existed exceptional circumstances relating to the offence or the offender which would justify not imposing the minimum term. The court did not have to make any decision on the matter now before us in the light of the guilty plea. The editors of Archbold 2015 edition comment at paragraph 24-25 that the effect of subsections (4) and (5) of the 2003 Act may have been overlooked. Insofar as Mehmet was a guilty plea and thus the sole issue related to the minimum term, the point now arising was simply not in issue in these proceedings. However Mr Hedworth pointed to the passage as an indication that the editors would have sympathy with his submission. For the reasons stated above, we do not consider that either the authority cited or the comment provide assistance to us. 20. We have to consider the statutory language. We bear in mind that this is a penal statute which thus requires a degree of close construction. Whilst we accept that it was a clear purpose of the amendment to the Firearms Act to reduce the number dangerous firearms in circulation and to ensure that those already in circulation were properly regulated and licensed, the legislative intent has to be realised in the statutory language used. 21. Section 39(4) is a provision designed to cover a period of grace between 20 January 2004 and 30 April 2004 to enable owners in possession to regularise the position. Persons acquiring or purchasing such firearms were caught by the provision with effect from 20 January 2004. 22. The Commencement Order which has the effect of bringing into force the various provisions of the 2003 Act, does not change the terms of the statute. Where a person possessed the air weapon as opposed to purchasing or acquiring it, implementation of section 39(3) was postponed from January 2004 to 30 April 2004. Moreover, the provisions of paragraph 5(2) set out at paragraph 10 of this judgment represent a transitional provision disapplying the provisions of section 1 of the Firearms Act to a person possessing this sort of weapon who had applied for a firearm certificate before 30 April 2004 and whose application was pending for one reason or another. It does not qualify or contradict the provisions of section 39(4). 23. The mechanism adopted to deal with the position of those already in possession of what were to become prohibited air weapons was: i) to permit their continued possession (subsection (a)); and ii) to require the obtaining of a firearm certificate (subsection (b)). 24. Subsection 4 contains no requirement for the obtaining of the Secretary of State’s authority, absence of which is the trigger for section 5 liability. Nonetheless, the Crown contended that if a current owner did not apply for or obtain a firearm certificate by 30 April 2004 then, to put it colloquially, all bets would be off, and section 5 would apply. We cannot discern anything in the statutory language which would lead to such a result. All that is required by reason of section 39(4)(b) is the obtaining of a firearm certificate. Failure to obtain such a certificate is a section 1 offence. The wording “section 1 of that Act shall apply” clearly suggests that failure to obtain a certificate will constitute a section 1 offence rather than a section 5 offence. In our judgment it would have required clear language to achieve the result contended for by the Crown. Such language is absent from section 39(4). It would seem anomalous that, having dispensed with the need for the authority of the Secretary of State and simply required the obtaining of a section 1 firearm certificate, Parliament would have intended failure to obtain such a certificate to amount to a section 5 offence with the consequence that the stern minimum penalty of 5 years applied. Section 39 makes no such provision, nor does it put any time limit upon the applicability of section 39(4). 25. The natural meaning of section 39(4) cannot produce the result contended for by the Crown. In our judgment the contentions of the appellant are correct. This legislation was designed to allow those in possession of such firearms to continue to hold them with a section 1 certificate. It did not have the effect of creating liability for a section 5 offence on the part of those who failed to comply within the timescale laid down. A person in the position of the appellant would be liable for a section 1 offence but not one contrary to section 5. No doubt a judge sentencing a person such as the appellant, who by now will have been in possession of a prohibited weapon for more than 10 years since the legislation came into effect, would have regard to the length of that period of non-compliance with this legislation which is designed to protect the public in assessing the offender’s culpability. 26. Accordingly, we allow the appeal against conviction and give effect to that by quashing it. 27. At the hearing before us counsel agreed that if the appeal against conviction were to be allowed that the Court should order a retrial, the Crown indicating that it would include a section 1 offence of possessing a firearm without a certificate on the indictment. Mr Hedworth indicated that his client had previously offered to plead guilty to such a count but that the offer had been rejected. There was no such count on the original indictment. After the hearing members of the Court considered section 3A (power to substitute conviction of alternative offence after guilty plea), and section 7 of the Criminal Appeal Act. In addition we considered the case of Lawrence [2013] 2 Cr App R 24 and that of White [2014] 2 Cr App R 14 , doubting that we could take the course agreed by counsel. Accordingly, we have drawn the matter to the attention of counsel and invited further written submissions prior to delivering this judgment, including consideration of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933. 28. The Crown having considered the position does not now invite us to order a retrial under section 7 nor does it invite us to exercise our powers under section 3A. It was pointed out that in his defence statement and subsequently in his skeleton argument to the Court below the appellant was indicating a willingness to plead guilty to a section 1 offence. At the hearing before us Mr Hedworth continued to indicate as much. Clearly that is an important matter when the interests of justice are under consideration. 29. The Crown did not invite us to exercise our powers under section 3A because that would require the Court to move to sentence, and the Crown submitted that it would be inappropriate for us to do so since there are three other counts remaining to be tried on the indictment in the Crown Court whose trial has been adjourned pending this appeal. The Crown had submitted that were it not for that fact it would be open to the Court to exercise its power under section 3A based on the indications as to plea given in the appellant’s defence statement. We are doubtful that that would be sufficient to bring this appellant within the terms of section 3A, but in the event given the Crown’s stance on the sentence point which we think is well-founded, do not need to decide it. Additionally the matter has not been fully argued in counsel’s brief responses. 30. In the circumstances therefore we do not propose to exercise powers under section 3A or section 7. We turn next to section 2(2)(b) of the 1933 Act. We record our debt to Mr Michael Catterson of the Criminal Appeal Office who investigated the legislative history. It is apparent that this provision does not represent some free-standing power in this Court analogous to the power of a Judge of the High Court to prefer to give leave to prefer a voluntary bill of indictment. Instead, the 1933 Act was amended by one of the consequential amendments by the Criminal Appeal Act 1964 which for the first time gave the Court of Criminal Appeal statutory power to order a retrial. Accordingly, the amendment to section 2(2)(b) did not represent the creation of some additional power granted to this Court, it was merely recording the fact that this Court had been given the power to order a re-trial on a fresh indictment by the 1964 Act. It was simply adding to the list of qualifications to the broad power to prefer an indictment outlined in section 2(1). Accordingly, the provision in the 1933 Act adds nothing to this Court’s powers under the Criminal Appeal Act. 31. Thus there is no further power which this Court can exercise in relation to proceeding against the appellant for a section 1 offence. 32. That is however, not the end of the matter. We observe as the Court did in Lawrence , that there does not appear to be any bar to a charge of possessing a firearm without a certificate being brought now. Equally, if there was evidence before the Court below which would have provided a basis for a section 1 charge to be included in the indictment, it may be open to the Crown to seek to persuade the Court that an amendment of that indictment to include a section 1 count would be in the interests of justice. One further possibility would be by way of application to a High Court Judge for a voluntary bill. However, we draw attention to SFO v Evans and Others [2014] EWHC 3803 (QB) where Fulford LJ reviewed the law and concluded that permission should only be given in an exceptional case. In the end, however, it must be for the Crown Prosecution Service to decide which course, if any, it wishes to take. For our part, we allow the appeal and quash the conviction.	[ "LORD JUSTICE TREACY", "MR JUSTICE BLAKE" ]	2015_07_21-3643.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1278/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1278	1,109
d6c096da58c227128d10ac2f7df5bb11fe125011360a2279486fece412c0e984	[2015] EWCA Crim 1007	EWCA_Crim_1007	2015-05-22	crown_court	Case No: 2012/1781/C1 2012/1650/C1 2012/1652/C1 Neutral Citation Number: [2015] EWCA Crim 1007 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/05/2015 Before : LADY JUSTICE RAFFERTY D.B.E. MR JUSTICE SWEENEY and MR JUSTICE DINGEMANS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - Russell John KNAGGS Robert RICH Phillip HADLEY Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -	Case No: 2012/1781/C1 2012/1650/C1 2012/1652/C1 Neutral Citation Number: [2015] EWCA Crim 1007 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/05/2015 Before : LADY JUSTICE RAFFERTY D.B.E. MR JUSTICE SWEENEY and MR JUSTICE DINGEMANS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - Russell John KNAGGS Robert RICH Phillip HADLEY Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tim Owen QC & Helen Law (instructed by Draycott Browne (Knaggs) & Olliers (Rich & Hadley) for the Appellants Peter Wright QC, Hugh Davies & Julia Faure Walker (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 19 May 2015 - - - - - - - - - - - - - - - - - - - - - JUDGMENT JUDGMENT : DISCLOSURE & DIRECTIONS Mr Justice Sweeney : Introduction 1. On 20 February 2014 (see [2014] EWCA Crim 735 ) this Court, then comprised of Rafferty LJ, Sweeney J and the Common Serjeant, granted permission to appeal on three grounds - each concerned with the admissibility of evidence of communications between alleged conspirators by a particular method. The methods involved were respectively: i) Prison PIN telephone calls made from HMP Lowdham Grange (which were recorded). ii) Mobile telephone calls (which were intercepted by the Dutch authorities). iii) A Yahoo email account with the address [email protected]. 2. In relation to a further Ground raised by Hadley, the Court invited the Criminal Cases Review Commission (“CCRC”) to conduct any necessary inquiries to discover whether the individual seen by Hadley’s solicitor outside HMP Lowdham Grange some time after the trial was one of the jurors and, if so, whether he had any connection with the prison. The decision on permission on that Ground was deferred until the completion of those inquiries. 3. Since then a number of steps have been taken by the parties, and the CCRC has provided a report. 4. On 19 May 2015 we held a Disclosure and Directions Hearing. Following that hearing the Respondent disclosed further material; the Appellants served a Note on Further Disclosure dated 21 May 2015 in relation to that material; we delayed handing down our judgment to enable the Respondent to reply to the Appellants’ Note; and the Respondent thereafter served a Reply dated 28 May 2015 - which was accompanied by a further witness statement by John Biggin dated 21 May 2015 and a letter from the Dutch Prosecutor Mrs de Boer dated 26 May 2015. This is our judgment on the various issues raised. Background 5. The broad factual background is set out in the previous judgment of the Court – including an outline of the evidence, said to be expert, then relied upon by the Appellants. 6. In its Note, dated 7 May 2015, dealing with what was sought, resisted and agreed for the purposes of the hearing on 19 May, the Respondent invited the Court to proceed, in due course, as follows: i) To take the evidence served by the Appellants at its highest, to make the assumption (contrary to the case advanced by the Respondent) that the evidence in connection with each method of communication was unlawfully obtained, and then to determine whether (on that basis) the convictions may be unsafe. ii) Only if so, then to give directions as to the further service of expert and other evidence and to set a timetable leading to the ultimate hearing of the appeal - to be decided upon the merits of the evidence and argument ultimately advanced. 7. At the outset of the hearing on 19 May we made clear that we were not minded to accept this invitation, and it was not pursued. It was and remains the Respondent’s case that the evidence about communications by each method was lawfully obtained. 8. The disclosure sought by the Appellants, and the Respondent’s stance in relation to each item of it, is helpfully set out in a Table prepared on behalf of the Appellants - which we append to this judgment marked Appendix A. 9. Whilst, at one point, it appeared that the Respondent took a different view, there was no dispute at the hearing that, at this stage, the Respondent is subject to the common law duty delineated by the Supreme Court in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] 3 WLR 77 , namely to: i) Disclose any relevant material, not already known to the relevant Appellant or Appellants, which might assist in relation to their appeal. ii) Make further inquiries if there is a real prospect that those inquiries might reveal such material. 10. We make clear that in ordering, or not ordering, the Respondent to disclose items or to make further inquiries we must not be taken to be expressing any concluded view as to whether the Respondent has or has not complied with its overall duty of disclosure. If relevant, that will be a matter for the constitution that hears the appeal itself in due course. 11. In its Note, also dated 7 May 2015, dealing with requests of third parties since February 2014, the Respondent sets out the material that it has sought and disclosed in connection with the evidence of communications by each method. Prison PIN telephone calls 12. Appendix A makes clear that inspection of exact copies of the “BN” exhibits, which contain recordings of the relevant calls, has been agreed. 13. The argument concentrated on Item 1b in Appendix A – namely a request that Mr John Biggin (now the Governor of HMP Doncaster) should make a witness statement confirming that he had the permission of the Secretary of State pursuant to s.47 of the Prison Act and Rule 35A of the Prison Rules to record prisoners’ calls, and that he made arrangements for the recordings to be made in accordance with the Secretary of State’s approval and the relevant related Prison Rules – specifically Rule 35A (2). 14. As already indicated, the Respondent’s case is that the evidence of communications by this method was lawfully obtained – i.e. in accordance with the relevant legislation and rules. The Respondent asserted that there was nothing to disclose that might assist the contrary assertion. The Respondent pointed out that Mr Biggin has already made two witness statements since February 2014, and argued that the second of them (dated 11 November 2014), combined with all the other evidence now available, demonstrated compliance with the relevant legislation and rules – including the giving of appropriate permission by the Secretary of State. 15. On the Appellants’ behalf Mr Owen QC recognised the difference between the Respondent’s duty (which the court could enforce) to disclose material that might assist the Appellants as to lack of lawful authority on the one hand, and on the other hand an unsuccessful attempt by the Respondent, as he argued it to be, to prove a positive case of lawful authority (which the court, he accepted, had no power to direct the evidential content of). 16. As touched on in paragraph 4 above, after the hearing Mr Biggin made a further witness statement which the Respondent has served. In the statement Mr Biggin asserts that the arrangements that he made under Rule 35A(2) of the Prison Rules 1999 were in compliance with the directions that the Secretary of State had given for the interception of communications under Rule 35A, and that disclosure and retention of the intercepted material was in compliance with Rules 35C and 35D. In its Reply the Respondent indicated that it will provide other material relevant to Prison calls as soon as it is finalised. 17. Given the Respondent’s insistence that it has complied with its duty of disclosure in regard to these calls, the absence of any apparent material to the contrary, the provision of the further witness statement from Mr Biggin, and the indication of the provision of further material, we decline to give any disclosure directions in relation to them. 18. Having chosen to do so, it is a matter for the Respondent how it goes about seeking to prove the existence of lawful authority. Examples of the ways in which that can readily be done can be found by reference to Abiodun [2005] EWCA Crim 9 and Mahmood [2014] 1 Cr. App. R. 31. By way of forewarning, Mr Owen indicated that any (continued) failure to prove the existence of lawful authority would result, in due course, in the Appellants inviting the Court to draw adverse inferences. Dutch telephone intercepts 19. Appendix A shows that save for exact copies of exhibits PS/142-145 and a witness statement producing the originals, all the disclosure sought is resisted. At the hearing the Respondent disclosed a Dutch Police Report dealing with the request for the relevant interception. 20. Argument at the hearing concentrated on the provision by the Respondent of, in particular, the Court Order(s) signed by the relevant Examining Magistrate and the provision of the relevant BOB file. 21. In paragraphs 11-14 of its Note dealing with requests of third parties since February 2014, the Respondent summarised email communications with the Dutch authorities in the period between 17 February 2014 and 7 November 2014. The communications, as summarised, were emphatic as to the existence of Court Orders and thus of lawful authority. However copies of the emails were not provided at that stage, 22. On behalf of the Appellants Mr Owen reminded the Court of its observation in granting leave that the Appellants’ expert Mr van de Ven had highlighted what he had said to be the unusual fact that the Court Orders said to have been made had never been produced. Mr Owen asserted that it was a matter of great concern that the Court Orders had still not been produced. He further asserted that there were multiple anomalies and contradictions which undermined the Respondent’s explanation for the manner in which the evidence was obtained – four examples of which were set out in the Appellants’ Supplemental Submissions dated 12 May 2015. 23. In the fourth example it was asserted that the Respondent had misled the trial judge, but Mr Owen accepted in argument that at that stage at first instance there would not have been the concentration, as there is now, on the difference between the Order(s) made by the Prosecutor and any necessarily preceding Order(s) made by the relevant Examining Magistrate. Mr Owen also accepted that, at the relevant hearing, counsel had made specific reference to the prosecution being in possession of the Prosecutor’s file (as opposed to the Court file). He submitted, however that, absent the production / proof of the documents sought, the Respondent had failed, thus far, in its objective of proving lawful authority. 24. On the Respondent’s behalf it was asserted that there was nothing to disclose that might assist the defence, and that all the available evidence showed that the interception had been lawfully carried out by the Dutch. 25. At the conclusion of the hearing the Court required the email communications referred to in paragraph 21 above to be provided to the Court and disclosed to the Appellants. That was done. 26. Having seen the emails, the Appellants, in their Note on Further Disclosure dated 21 May 2015, made a number of criticisms of the Respondent, including asserting that there had been a material omission by the Respondent to mention that in her email of “4 May 2014” (in fact 14 April 2014) the Dutch Prosecutor had stated that she still had “the documents of the examining judge in storage and you are welcome to come over and have a look at them”, and that that was inconsistent with the content of a letter from the Respondent to the Criminal Appeal Office dated 5 December 2014. 27. In the Respondent’s Reply dated 28 May 2015, the Appellants’ criticisms are rejected, and the history of communications between the Respondent and the Dutch authorities is rehearsed. We note that in her letter of 26 May 2015 Mrs de Boer asserts that “…..Any and all wiretaps in this investigation were ordered by me after the necessary warrants from a (sic) examining judge. All requests for warrants were only submitted after I was both satisfied there was enough probable cause to justify the use of the said measure and that there was a pressing need for it…..All evidence was gathered in accordance with Dutch law…”. Mrs de Boer also indicates that she is in possession of the relevant court order(s) or authorisation(s) and that if this Court orders the provision of copies she will comply. 28. We have taken the content of the impugned emails fully into account. However, it seems to us that the position in relation to the Dutch telephone intercepts is, in principle, the same as that in relation to the Prison PIN telephone calls. The Respondent insists that it has complied with its duty of disclosure, but has also chosen to prove the existence of lawful authority. At this stage, we do not regard the failure to date to produce a copy of the Examining Magistrates Order(s) and/or the BOB file as giving rise to the inference that there is material in existence which might assist the Appellants and which we must order the disclosure of. 29. As with the Prison PIN telephone calls, having chosen to do so, it is a matter for the Respondent as to how it goes about seeking to prove the existence of lawful authority. That said, given the indication in Mrs de Boer’s letter of 26 May 2015 and for pragmatic reasons, we do order the provision of copies of the relevant court order(s) / authorisation(s). The slimjim email account 30. Appendix A shows that disclosure of all the material sought is resisted. 31. In paragraphs 5-10 of its Note dealing with requests of third parties since February 2014, the Respondent summarised its dealings with the United States authorities and, via them, Yahoo in California. Those dealings have included the obtaining of a Letter of Request in April 2014; the provision in June 2014 of a four page statement from Michelle Lai (a Custodian of Records and the Operations Manager of the US Law Enforcement Response Team for Yahoo Inc); and, following the receipt of Addendum expert reports from the Appellants, the making of further informal inquiries via the US Department of Justice and the receipt of a response (which was summarised in paragraph 10 of the Note). 32. At the hearing, Mr Owen accepted that the requests made by the Respondent for the provision of copies of particular technical records were an accurate reflection of what was sought on behalf of the Appellants. His complaint was that only some of the records had been produced and that they did not permit the Appellants’ experts to appropriately examine the authenticity of the claim that there had been no unlawful live monitoring of the account. 33. Mr Owen also referred us to Austin [2009] EWCA Crim 1527 , but we do not regard that case as providing any assistance on the issues that confront us at this stage. 34. The Respondent asserted that its extensive dealings with the US authorities, as summarised in the Note, demonstrated that there had been full compliance with the duty of disclosure. 35. As we have already noted, following the disclosure, after the hearing on 19 May, of the communications referred to in the Note dealing with requests of third parties, including the response to the further informal inquiries of the US authorities, the Appellants made a number of criticisms of the Respondent’s conduct of its duty of disclosure in their Note on Further Disclosure dated 21 May 2015 – in particular that there had been a lack of formality and appropriate vigour. 36. The Respondent’s Reply dated 28 May 2015 draws attention to paragraph 60 of the Attorney General’s Guidelines on Disclosure which provides that: “ Where it appears that there is relevant material, the prosecutor must take reasonable steps to obtain it, either informally or making use of the powers contained in the Crime (International Co-operation) Act 2003 and any EU and international conventions. See CPS Guidance ‘Obtaining Evidence and Information from Abroad’ “. 37. The Respondent asserts that the lack of formality asserted by the Appellants is thus not a valid criticism, and rejects the suggestion that there has been a lack of appropriate vigour. 38. We are conscious that the outstanding material sought by the Appellants is said to be relevant to complex technical issues. It is broadly accepted that the Respondent has requested disclosure of that material via the US authorities. Other material has been provided, including strong assertion in evidential form that there was no live monitoring of the type suggested. We are not persuaded that we should order the Respondent to repeat the exercise in any respect. As with the other types of communication, having chosen to assert that there was no live monitoring, it is a matter for the Respondent how it goes about seeking to prove that. Nor is it necessary for us to make a specific order as to disclosure by the Respondent of communications with third parties. The normal rules will continue to apply. The CCRC 39. We are most grateful to the CCRC for its clear and concise report dated 16 September 2014. 40. In their Response to the Report dated 3 November 2014, and in their Addendum Response dated 6 May 2015, the Appellants raise some further issues which we conclude require further investigation. 41. We order that both documents be provided to the CCRC and that they be invited to: (1) Make specific inquiries of the juror identified in the Response, to ascertain if he was at HMP Lowdham Grange on 12 April 2013 and if so why. (2) Make specific inquiries of Serco to ascertain if any members of staff (“works”) from any other prisons were brought over to HMP Lowdham Grange on 12 April and, if so, whether one was a juror at the trial. Timetable 42. We are grateful to the parties for providing a suggested timetable in the event of no further disclosure being ordered. We have made some modest amendments to it. (1) The CCRC to complete the further inquiries in relation to the juror by 31 July 2015. (2) The Respondent to serve any non-expert evidence on which it intends to make an application to rely at the full hearing by 31 July 2015. (3) The Respondent to serve any expert evidence upon which it intends to make an application to rely at the full hearing by 9 October 2015. (4) The Appellants to serve any evidence in reply, including any further expert evidence, on which it intends to make an application to rely at the full hearing by no later than 20 November 2015. (5) The Appellants to serve their consolidated skeleton argument by 4 December 2015, and the parties to provide an up-to-date estimate of the length of the full hearing. (6) The Respondent to serve its skeleton argument by 8 January 2016. (7) Agreed appeal bundles to be served on the Court by no later than 15 January 2016. (8) The full hearing to be listed on the first available date after 29 January 2016.	[ "LADY JUSTICE RAFFERTY D.B.E.", "MR JUSTICE SWEENEY", "MR JUSTICE DINGEMANS" ]	2015_05_22-3612.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1007/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1007	1,110
0439c437729b8353b338a4b3a39a42a7be882a1a63f6bc8753b0689ba852a5a2	[2005] EWCA Crim 145	EWCA_Crim_145	2005-01-28	crown_court	Case No: 2002 06987 -9/B2 Neutral Citation Number: [2005] EWCA Crim 145 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL APPEALS DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Friday, 28 January 2005 Before : LORD JUSTICE THOMAS - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Appellant - and - K, G & M Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed	Case No: 2002 06987 -9/B2 Neutral Citation Number: [2005] EWCA Crim 145 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL APPEALS DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Friday, 28 January 2005 Before : LORD JUSTICE THOMAS - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Appellant - and - K, G & M 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) - - - - - - - - - - - - - - - - - - - - - Jeffrey V. Pegden QC , instructed by Reynolds Dawson, for the Appellant K Dorian C. Lovell-Pank QC , instructed by Peters and Peters, for the Appellant G Stephen Walters, instructed by Hodge, Jones & Allen for the Appellant M Christopher Foulkes, instructed by the Crown Prosecution Service, for the Prosecution - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE THOMAS: 1. On 2 November 2004 the Court handed down its judgment dismissing this appeal. As set out in paragraph 41 of the judgment, the Court indicated it would hold a short hearing in relation to costs. LODGING OF FORMS IN REPECT OF LEGAL REPRESENTATION 2. When leave to appeal was granted, Representation Orders were made. Thereafter forms in relation to the means of all the appellants should have been lodged with the Court. K and G had not lodged their forms at the time of the hearing of the appeal. In the case of K this was due to a lack of understanding of the procedure in that his advisers did not consider it necessary to lodge new forms in the Court of Appeal. The grant of a Representation Order in the Court of Appeal is a separate matter; new forms have to be lodged. 3. In the case of G, the forms had not been lodged because G had been for the past seven weeks in the Far East on business. The court observed at the outset of the appeal that it did not consider this a satisfactory explanation. At the hearing after the hand down of the judgment, Mr Lovell-Pank QC was not able to give any further explanation. 4. I consider that for the future, the Court of Appeal Office should, if the requisite forms have not been lodged two weeks before the hearing, list the matter before the Registrar of the Court so that the advocate can attend, without fee, and explain the failure to lodge the form. The Registrar would then have an opportunity of revoking the Representation Order in an appropriate case; any appellant, who was unable to provide exceptional reasons for the failure, would be at risk of to having the Representation Order revoked. The lodging of the forms and the supplying of accurate information is an important matter and not a formality; the Court must be in a position when it gives judgment to be able to make an Order in the appropriate case for the recovery of funds from the appellant who has failed in his appeal rather than letting the burden fall on the taxpayer. Such cases are not likely to be at common, given the nature of the work of the court, but it is of importance that wherever appropriate, funds are recovered from appellants with means when they fail in their appeal. THE SCOPE OF THE REPRESENTATION ORDER 5. When a court grants a Representation Order for an appeal, the representation order only covers work on and attendance or appearance at the hearing in respect of the grounds upon which the Court has granted leave to appeal. It does not cover any work, preparation or time in court which is done or spent in respect of any renewed application in respect of ground on which leave to appeal has been refused. If, on a renewed application made at the same time as an appeal, leave is granted, the practice of the Court is exactly the same as applies when a renewed application is made separately. 6. It is therefore essential, in every case where there is a failure of a renewed application for leave to appeal made at the same time as an appeal and the Court does not specially and exceptionally order that the advocates or solicitors representing the applicant are entitled to a representation order for the costs of the failed application, that the fee notes submitted by the advocates or solicitors show a detailed account of the work done for the appeal and a detailed account of the work done for the renewed application for leave to appeal. This detailed split is necessary so that the Registrar of the Court can apply detailed scrutiny to the amount claimed so as to ensure that no amount is paid under the Representation Order in respect of the renewed application. 7. In this particular case, as the judgment of the Court shows: i) It was not necessary for the Court to consider the facts in any real detail for the purposes of the appeal; consideration of the facts and the evidence was only necessary for the renewed application. The issue on the appeal was one of law. ii) As to the law, this was, as can be seen from the judgment of the Court, within a relatively narrow compass. The time the court spent in hearing the argument on this issue was half a day. iii) In this case, the point of law was argued primarily by counsel for one of the appellants, though each joined in the written argument. In the assessment of the fees, careful scrutiny should therefore be given to the fee notes to ensure that the preparation as between the different advocates is properly reflected. Since the hearing on costs, fee notes have been submitted by the advocates spilt, at my request, in the way I have indicated. These have been referred to the Registrar of the Court for detailed assessment in the usual way. SHOULD AN ORDER BE MADE AGAINST THE APPELLANTS? 8. As the appeal failed, I have to consider whether an Order for the Recovery of Defence costs should be made against each of these appellants. In doing so, it is necessary to bear in mind the fact that each of the appellants may very well have very significant sums to pay to their advocates for the fees charged in respect of the renewed applications; it will obviously be necessary for each of them to supply receipted fee notes for the amount actually paid. In respect of each appellant confiscation proceedings are pending. However, unless an Order is made, I do not propose to take into account the prospect of such Orders being made. 9. It was submitted that as leave to appeal had been given, it would not be correct to make a recovery of Defence Costs Order; I do not accept that submission. The appellants decided to appeal and they failed; I see no reason why they rather than the taxpayer should not pay for the costs incurred. There is no exceptional reason of public interest involved. 10. In respect of the appellant K, a revised form was submitted prior to the handing down of the judgment; this discloses no income from the appellant; I was told he was not working and dependent on his family for support. The form did disclose the existence of equity of £112,000 in his residence. In the circumstances of this case, I see no reason why a contribution should not be made to the costs of the defence out of the equity of the house above £100,000, but I will reserve specifying the amount of the Order until the fee for this appellant payable in respect of the appeal has been assessed and a receipted fee note provided in respect of fees paid to his solicitor or advocate in respect of the renewed application. 11. As to the appellant G, the form submitted discloses an income of £24,000 which is the figure the form makes clear is not to be taken into account, unless there are exceptional circumstances. As to his capital, the form discloses that his residence is valued at £250,000, there is a mortgage of £150,000 with an equity of £100,000; the form makes clear at the first £100,000 of equity in the principal residence is not to be taken into account unless there are exceptional circumstances. The form gives very few other details of the appellant’s means save that he has a High Court judgment against him of £350,000. I do not consider there is sufficient information disclosed by this form; I therefore refer the issue of the financial resources of this appellant to the Legal Services Commission for a further investigation of his means and a report to the Court. This is necessary, particularly in the light of the fact that the explanation given to the Court for his failure to submit the necessary forms prior to the hearing of the appeal was that he was away on business in the Far East. Until the further investigation has been completed, I will reserve consideration of whether a Recovery of Defence Costs order should be made, but to enable me to deal with the matter, it will be necessary for an assessment to be made of the fee payable to his advocate for the appeal and a receipted fee note must be provided in respect of any fees paid in respect of the renewed application. 12. As to the appellant M, he is in receipt of working family tax credit and an invalid carers allowance. However he has equity in his house of £205,000. He has been convicted of involvement in a significant fraud; I see no reason why he should not make a contribution from the equity of his house to the amount that the taxpayer has expended on his legal representation in the failed appeal to this Court. I will assess the amount of that contribution when the amount of the fee payable to his advocate has been assessed by the Registrar and a receipted fee note provided for any amount he has actually paid to his advocate in respect of the renewed application.	[ "LORD JUSTICE THOMAS" ]	2005_01_28-431.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/145/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/145	1,111
ddffb682b902aab92d9e9731753e1dc4c555044c7cb35a0a71fa5f249afac38e	[2023] EWCA Crim 1540	EWCA_Crim_1540	2023-11-09	crown_court	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 pers	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 1540 Nos. 202303063 A1 202303070 A1 202303068 A1 202303145 A1 Royal Courts of Justice Thursday, 9 November 2023 Before: LORD JUSTICE POPPLEWELL MR JUSTICE JEREMY BAKER HER HONOUR JUDGE BERTODANO REX v (1) JOSH ETHAN MASON (2) JAMES MASON (3) ADAM MCARDLE REPORTING RESTRICTIONS APPLY SECTIONS 45/45A YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 __________ 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] _________ MISS J MAXWELL appeared on behalf of the First Appellant. MR S NIKOLICH appeared on behalf of the Second Appellant. MR J NUTTER appeared on behalf of the Third Appellant. MR P JARVIS appeared on behalf of the Crown. _________ J U D G M E N T LORD JUSTICE POPPLEWELL: 1 James Mason, now aged 34, his brother Josh Mason, now 25, and Adam McArdle, now 28, were involved with others in operating a county lines drugs operation supplying heroin and cocaine from Liverpool to Oswestry, Shropshire, using vulnerable children and young people aged between 14 and 18 as runners. They were sentenced by His Honour Judge Barrie in the Crown Court at Shrewsbury for offences of being concerned in the supply of heroin and crack cocaine and conspiracy to commit offences contrary to the Modern Slavery Act 2015 . They each pleaded guilty to those offences at various different stages of the proceedings against them. McArdle was sentenced to 14 years' imprisonment, James Mason to 7 years' imprisonment, and Josh Mason to 6 years' imprisonment. McArdle and Josh Mason seek leave to appeal against their sentences. The Solicitor-General applies for leave to refer the sentences of Josh Mason and James Mason as unduly lenient. 2 Count 1 comprised conspiracy to commit an offence contrary to section 1(1)(b) of the Modern Slavery Act of requiring a person to perform forced or compulsory labour. Count 2 comprised conspiracy to commit an offence contrary to section 2 of the Modern Slavery Act of arranging or facilitating the travel of a person with a view to the victim being exploited. We will refer to those Modern Slavery Act offences as "the slavery offence" and "the trafficking offence" respectively. McArdle and James Mason pleaded guilty to both offences, whereas Josh Mason pleaded guilty only to the slavery offence, with the trafficking offence being ordered to lie on the file. 3 Counts 3 and 4 (in the case of James Mason offences 1 and 2 to which he pleaded guilty at the magistrates court and was committed for sentence) charged being concerned in the supply of heroin and crack cocaine, respectively, contrary to section 4(3) (b) of the Misuse of Drugs Act 1971 . 4 The individual sentences were as follows: Count 1 (the slavery offence): McArdle 7 years, James Mason 5½ years, Josh Mason 4½ years. Count 2 (the trafficking offence): McArdle 7 years, James Mason 5½ years. Count 3/offence 1 (supply of heroin): McArdle 14 years, James Mason 7 years, Josh Mason 6 years. Count 4/offence 2 (supply of crack cocaine) McArdle 14 years, James Mason 7 years, Josh Mason 6 years. 5 All sentences were made to run concurrently. The facts 6 The drugs line, known as the Boris Line, was operated for about 18 months between July 2018 and February 2020, from two locations in Liverpool, one being the home of James Mason and the other a location close to where McArdle lived. The operation was run by an organised crime group which was described as 'extremely violent'. 7 The person in overall control of the line was McArdle, but between March and July 2019 James Mason was entrusted with the mobile telephone through which the line operated, after which McArdle resumed that role using a new number. Those in charge of the line sent out regular bulk messages advertising drugs for sale. When orders were placed by users on the line, instructions were sent to the local dealers in Oswestry, who would then arrange for the drugs to be delivered to the purchasers. There were a series of drugs supplies made to users on an almost daily basis throughout the indictment period. 8 Periodically the drugs were supplied from Liverpool to the associates in Oswestry to enable the dealing operation to take place, and the cash to be collected. Josh Mason bagged the drugs and made some 30 trips between Liverpool and Oswestry during the indictment period to deliver the drugs and collect the cash. His involvement continued after his brother, James Mason, had ceased to be operating the line himself. 9 The runners who delivered the drugs to users in Oswestry were provided with mobile telephones and were responsible for handing over the drugs, collecting the cash and giving it to the dealers in Oswestry. The operation used nine children, amongst others, to deliver the drugs in Oswestry. At the beginning of the indictment period one was aged 14 , one aged 15, four were aged 16 and three were aged 17. Many of them were threatened with violence and encouraged into drug use in order to make them indebted to those running the operation. Many of them were known to children's services in the Oswestry area. A number of them had very poor attendance at school. Some had mental health problems and others came from homes where the adults were drug users or where domestic abuse was prevalent. 10 The children were all from the Oswestry area, and the trafficking offence appears to have been put on the basis that it involved facilitating rather than arranging travel, the travel involved being simply the inevitable concomitant of their being the runners that were being exploited in the commission of the section 1 offence. Accordingly, it does not seem to us that the trafficking offence adds anything of any significance to the slavery offence so far as affects the length of sentence. 11 On 11 July 2019, the police raided the home address of James Mason. They found large quantities of heroin and crack cocaine as well as drug paraphernalia and £10,000 in cash. The police also found a black Samsung mobile telephone which, upon being interrogated, turned out to be the Boris Line telephone. Thereafter McArdle resumed operating the line with a new number. The police estimated the total quantities of drugs involved in the operation at a little over 1 kilogramme, and that those in charge of the line probably received about £100,000. 12 On 7 January 2019, during the indictment period, there was an attack on Lizzie West. She was a 30 year old heroin and cocaine addict who was supplied by one of those in Oswestry involved in the Boris Line operation, a man called Stewart. She had been given some £500 worth of drugs to sell by Stewart and had either used them or lost them and so was in debt to Stewart and McArdle. McArdle travelled from Liverpool and went to meet Lizzie West in a local park together with Stewart and another, who had arranged the meeting. McArdle slashed her face, neck and wrists a number of times with a blade, causing deep lacerations, going down to the bone of her jaw and leaving significant scarring and life-changing injuries. McArdle was sentenced for this offence in the Crown Court at Stafford on 3 September 2020 to life imprisonment with a minimum term of 8 years and 12 days, being 9 years less 353 days spent on remand, pursuant to section 225 of the Criminal Justice Act 2003 . In reaching such sentence the Judge on that occasion took account of the drugs context as aggravation, determined that McArdle was dangerous and concluded that a determinate sentence (which would have been one of 18 years imprisonment) would not adequately protect the public. His appeal against that sentence was dismissed by this court. 13 When His Honour Judge Barrie was sentencing for the instant offences on 9 August 2023 there was just over five years of the minimum term of that sentence left to serve. Bases of plea 14 James Mason and Josh Mason entered bases of plea to the Modern Slavery Act offences which the prosecution did not challenge. 15 James Mason's basis of plea stated that he did not know the individuals were victims of modern slavery until 19 March 2019 (i.e. for, roughly speaking, the first 7 months of the 11 month indictment period up to the time of his arrest). The basis of plea also said that he received communications via the drug line and made arrangements for the street dealers to supply the drugs, but he was not the principal, whom he declined to name. 16 Josh Mason's basis of plea stated that when he was first involved he was unaware that minors were involved. It said that he became aware of that at some point after his initial involvement but it did not identify when. It stated that he was not involved in the initial recruitment of minors, was not in direct contact with them and was not responsible for directing them through others. 17 McArdle pleaded guilty without a basis of plea. Antecedents 18 McArdle had 15 convictions from 8 prior appearances. Apart from the Lizzie West conviction, the most significant were for offences of conspiring to supply heroin and cocaine, committed when he was aged 19, for which he was sentenced in 2015 to three years' detention in a Young Offenders Institution. 19 James Mason had nine convictions, the last being in 2012. They did not involve offences of supply of drugs and none had attracted a custodial sentence. 20 Josh Mason had convictions for 22 offences, including 12 for fraud or theft or kindred offences, five for possession of drugs and, most significantly, one for possession with intent to supply heroin and crack cocaine for which he was sentenced in 2017 to two years' detention in a Young Offenders Institution. He was aged 19 at the time of the commission of those offences. Pre-Sentence Reports 21 In interview with the author of the Pre-Sentence Report, James Mason said that he became involved in the operation of the Boris Line because his brother Josh was in debt and one of his co-defendants threatened him that if he did not work to pay off that debt then someone would burn down his mother's house. He told the author of the report that he was provided with a mobile telephone and given instructions as to what to say to those who called it. He said he felt a sense of relief when he was arrested because it meant he would no longer be subject to threats and intimidation to carry on. He went on to say that he was unaware at the beginning that the group were using vulnerable young people as runners. When he learned of this he felt that there was nothing he could do to prevent it such was the fear that he was in. 22 In the author's assessment, it was likely that James Mason could have distanced himself from the operation of the Boris line if he had wanted to, and also likely that as well as taking orders he was handing them out. The author was also sceptical of James Mason's assertion that he made no gain from his involvement other than the opportunity to clear his brother's debt. 23 There was also evidence available to the Probation Service, recorded in the report, to show that James Mason experienced daily asthma attacks and often struggled to breathe. 24 The author assessed James Mason's risk of re-offending as medium, and she recognised that he was likely to receive a lengthy custodial sentence. 25 In Josh Mason's case, he told the author of his Pre-Sentence Report that he had become involved in the operation of the Boris Line in order to make ends meet and not to fund a lavish lifestyle. He said he had been raised by his elder siblings because his mother was always working and his father was never around. He first became involved in drug dealing aged 15, when he was approached by a drug dealer and was offered the opportunity to deliver some drugs for payment. He took that offer, and that was when his involvement in drug dealing first started. That involvement escalated, resulting in his first conviction of possession with intent to supply in 2017. Upon his release from that sentence he said he tried to find a responsible job but without success. It was not long before he descended back into a life of dealing drugs, and that was how he became involved with the Boris Line. He told the author he regretted the choices he had made in his life, although he realised that plenty of people in difficult situations would have made different decisions from those which he made. 26 The author assessed Josh Mason as presenting a low risk of re-offending in the future. Under different circumstances she would have recommended the imposition of a community order, but she acknowledged that the offences were too serious for that. 27 There was no Pre-Sentence Report prepared for McArdle for this particular sentencing, but the Judge had before him the Pre-Sentence Report which had been prepared when McArdle had been sentenced for the Lizzie West wounding in 2020. Sentencing 28 The Judge sentenced the Mason brothers together with a number of co-defendants on 7 August 2023. McArdle was not produced in time to be table to take part in that hearing, with the result that he was sentenced separately two days later on 9 August. Sentencing the Mason brothers 29 The Judge resolved to impose concurrent sentences on all offences, treating the drugs offences as the lead offences on which the sentences would reflect the total appropriate for all the offending. 30 The Judge agreed with the prosecution that the harm in respect of the drugs offences fell within Category 2 by reason of the quantity involved and the extent of the dealing over the indictment period. He also agreed that James Mason occupied a leading role and Josh Mason occupied a significant role. The Sentencing Council Guideline provides that for a Category 2 leading role the starting point is 11 years, with a range of 9 to 13; and for a significant role the starting point is 8 years with a range of 6 to 10 years. 31 The Judge said that for James Mason, the sentence after a trial for the drugs offences taken alone would have been one of 10 years' custody. For Josh Mason it would have been 7½ years. The Judge afforded credit of one-third to both for their guilty pleas, reducing them to 6 years 8 months and 5 years respectively. 32 Turning to the modern slavery offences, the Judge agreed with the prosecution that in the case of James Mason the harm was Category 2 and his culpability was medium. In accordance with the relevant guideline, that gave a starting point of 8 years' custody. The Judge adjusted that sentence downwards to one of six years by reason of the matters set out in the basis of plea, and then reduced it further to 5½ years to reflect the credit due for his late plea of guilty. 33 For Josh Mason the Judge concluded that in the light of his basis of plea the harm fell into Category 3 but that his culpability was also medium. That meant the starting point on count 1 for him was 6 years' custody. The Judge determined that a sentence after a trial for that offence alone would have been 5 years, which the Judge reduced to 4½ years for his late plea. 34 In the course of his sentencing remarks, the learned Judge remarked that the defendants had exploited young people by compelling them to become involved in drug dealing: "in a way that goes far beyond forced labour and amounts, in law, to slavery." He went on: ". . . there is obviously a substantial overlap of the drug dealing and the slavery offences. But the slavery offences emphasise the significance of this kind of exploitation which, in a less serious case, might be regarded as an aggravating feature." 35 The Judge went on to say that having decided to impose concurrent sentences for the two sets of offences, it was incumbent on him to make some upward adjustment to the drugs sentences to account for the principle of totality. In the final analysis the Judge decided to increase the sentences for the drug offences by 12 months in the case of each of the Mason brothers. With respect to James Mason that would have increased his overall sentence to 7 years and 8 months' imprisonment. From that figure, the Judge then made a further deduction of 8 months to take account of personal mitigation, most notably his health problems. That was the wrong stage at which to make a further deduction, having previously identified the appropriate sentence after a trial, but that does not form part of the grounds for the Attorney-General's reference, and we will treat James Mason as entitled to that reduction. That meant that his final overall sentence was 7 years' imprisonment, which was the sentence imposed on offences 1 and 2. With respect to Josh Mason the uplift of 12 months for the slavery offence increased his overall sentence to 6 years' imprisonment on counts 3 and 4, with the lesser concurrent sentence on count 1. McArdle sentencing on 9 August 36 The Judge recognised that there was an overlap between the Lizzie West incident, which was part of McArdle's role in operating the Boris Line, and counts 3 and 4 which concerned that role more generally. The Judge identified that McArdle had had a particular role in spreading fear of violence to get those lower down the chain to toe the line, and he was a key part of the compulsion and exploitation of the young people which comprised the Modern Slavery Act offences. He fell to be sentenced for his involvement in the county line operation beyond the specific instance of the attack on Lizzie West. 37 The Judge said that although he treated the quantity of drugs involved as Category 2, in McArdle's case he would elevate it to Category 1 because of his leading role in an organised crime group operation over a busy and sustained period of 18 months. A Category 1 leading role has a guideline starting point of 14 years, and a range of 12 to 16 years. The Judge moved up in the range from the starting point to 15 years by reason of McArdle's role and his previous convictions, before giving credit of one-third for the guilty pleas so as to reduce it to 10 years. He put the Modern Slavery Act offences in Category 2A with a starting point of 10 years. He increased that slightly for aggravating factors and reduced it by one-third for the guilty plea to come down to 7 years. 38 He then turned to the practical effect of the 2020 sentence. He said that he could impose a sentence which was consecutive to the minimum term imposed in 2020, which would then require a very substantial reduction for totality; but that he preferred to impose a sentence which commenced immediately and ran concurrently with the minimum term "rather than an artificially reduced sentence that runs consecutively." He resolved to add four years to the drugs offence sentence (10 years) to reflect the Modern Slavery Act offending, resulting in a 14 year sentence on counts 3 and 4 to reflect all the offending. The Judge said that the practical effect would be to add two years to the minimum term because McArdle would be eligible for release at the half way point of the 14 year sentence after 7 years, and there were about 5 years left of the minimum term of the 2020 sentence. McArdle's application for leave to appeal. 39 Two grounds of appeal were advanced. The first was that the Judge made a mistake in thinking that McArdle would be eligible for release halfway through the 14 year sentence, and that he would, rather, only be eligible for release after two-thirds of that sentence had been served by reason of section 130 of the Police Crime and Sentencing Courts Act 2022 , which inserted a new section 244 ZA into the Criminal Justice Act 2003 . That ground is misconceived, and the Judge made no such mistake, as Mr Nikolich, who appeared before us on behalf of James Mason, frankly accepted. In order for section 244 ZA to apply, amongst other things the offences must be specified offences in Part 1 or 2 of Schedule 15 to the 2003 Act (see sub section 4 (d) of section 244 ZA). Counts 3 and 4 do not fulfil that requirement. 40 That requirement and the other requirements of section 244 ZA are fulfilled for the Modern Slavery Act offences for which a 7 year sentence was imposed. Accordingly, McArdle could not be released under those sentences until two-thirds of them had been served, that is to say 4 years and 8 months. But since that is less than both the remaining period of the minimum term of 5 years and the period of 7 years, which is half the 14 year term imposed for the drugs offences, that has no bearing on how long he will remain in custody. 41 The second ground advanced is that the sentence overall was manifestly excessive. We cannot accept that submission. The structured way in which the Judge reached the overall sentence cannot be faulted. The practical effect of the total sentence, which was to impose an additional period of custody, at least of about two years, was commensurate with the totality of offending over and above that imposed for the Lizzie West wounding. That was not excessive, let alone manifestly so, and indeed might well be regarded as lenient. We do not concern ourselves with whether the Judge was right to achieve that outcome by treating the drugs offending as falling within Category 1A. He could just as easily have done so by treating them as Category 2A but giving a greater uplift for the Modern Slavery Act offences. We say some more about the seriousness of the Modern Slavery Act offences when addressing the application for a reference in the case of the Mason brothers. Or he might have imposed sentences consecutive to the minimum term imposed in 2020. Or he might have imposed sentences for the drugs offences and the Modern Slavery Act offences which took immediate effect but were consecutive to each other. It is the overall sentence which matters, not how it was structured, and we commend the Judge for taking the least complicated route of imposing a sentence to take immediate effect which took proper account of the existing minimum term. 42 Accordingly we dismiss McArdle's application for leave to appeal. Josh Mason leave to appeal 43 On behalf of Josh Mason it is contended that the sentences for the drugs offences were manifestly excessive for the following reasons: a. The assessment of his culpability was too high. He was playing a limited role under direction and he should not have been put into the category of playing a significant role; or if put in that bracket he should have been treated at the bottom end of the range which is 6½ years. b. Insufficient credit was given for his rehabilitation, remorse and personal mitigation. c. His previous conviction for supply should not have been taken as a serious aggravating factor because he was 15 when first involved in drug dealing and would have been treated as a victim of modern slavery had the legislation then been in place. d. In relation to the slavery offence for which he was being sentenced, the Judge ought to have categorised his involvement as culpability Category C not B. The Judge did not draw any distinction between him and James Mason when applying the uplift for the Modern Slavery Act offences which he should have done given that James Mason had pleaded to both offences and Josh Mason had only pleaded to the slavery offence. e. Finally, it was submitted, there was an unfair disparity between the sentence imposed on Josh Mason and that imposed on a co-accused, Gary Kelly. 44 We find no merit in any of these grounds. The Judge was well placed to assess Josh Mason's culpability, having prepared for three trials, and conducted one trial in respect of three of the individuals who were involved in the operation. Josh Mason acted as a courier, travelling with his wife to lend an appearance of lawfulness, on 30 occasions over the whole indictment period, involving the transfer of a large quantity of drugs and the transfer of a large quantity of cash. It is clear to us that he played a significant operational role with an awareness of the scale of the operation. The starting point of 8 years was entirely appropriate. Reducing it to 7½ years to reflect the balance between aggravating and mitigating features involved no error. Initially, the submission was made that the previous conviction should not have been taken into account because he was only 15 when it was committed. It is clear from the material that that was not so. The antecedents showed that it was committed in 2017 when he was 19, and the contents of the pre-sentence report confirmed that although he was 15 when he first became in drugs he was not saying that that was when the conviction took place. It was submitted that when he was first involved, he was a minor who was trafficked into offending and that he was a victim of modern slavery. Again, there is no basis for that submission. It is clear from what was said to the author of the pre-sentence report that his initial involvement when he was 15 simply involved the opportunity to become involved in return for payment, which he voluntarily and willingly accepted. That offence was, therefore, a significant aggravating factor. 45 The Judge was also fully entitled to treat Josh Mason's culpability for the slavery offence as Category B and involving a significant role. This was a conspiracy offence in which he bore responsibility for the treatment of the victims by others, quite apart from the extent of his own involvement. He was a knowing member of an organised crime group which he was aware forced minors into the operation through fear of violence. His basis of plea that he only became aware of it at some unidentified point after it started means that he fell to be sentenced on the basis that he was aware of the position for the greater part, if not the entirety, of the 18 months during which it operated. He was aware of the exploitation and the forced labour involved, and he did nothing to discourage or distance himself from it. That was part and parcel of the criminal operation in which he chose to play a significant role. 46 As to the disparity argument, Gary Kelly played a quite different role and there is no unfair disparity with his sentence, which was one of two years' imprisonment suspended for two years. The Judge said that Kelly was on the edge of the county line operation, acting as a driver on 12 occasions in quite a short period to carry others from Liverpool to Oswestry; and that Kelly had no contact with the drugs, no contact with the dealers, and no contact with the users. There was no suggestion that Kelly was aware of the scale of the operation, even for the short period when driving, let alone for the substantial indictment period during which Josh Mason played an important operational part. Kelly had no previous convictions for drugs offences, and was not convicted of any offending in relation to a Modern Slavery Act offence. He also had strong personal mitigation. His position was quite different from that of Josh Mason. The Attorney-General's Reference 47 Mr Jarvis, who appeared before us for the Solicitor-General, but not for the prosecution below, does not criticise the Judge for the sentences he reached for the drugs offences had they been committed alone. Nor does he make any criticism of the Judge's approach to the sentencing exercise seeking to apply the totality guideline by assessing what sentences would be appropriate separately for the drugs offences on the one hand, and the Modern Slavery Act offences on the other, and then seeking to give effect to them by imposing a sentence on the drugs offences to which the Modern Slavery Act sentences would run concurrently. His submission was, simply, that the uplift of 12 months for the Modern Slavery Act offences should have been much longer, and failed to take sufficient account of the gravity of that offending. 48 His submissions recognise that the Definitive Guideline for drugs offences lists as a statutory aggravating factor that the defendant: "used or permitted a person under 18 to deliver a controlled drug to a third person", and so, to an extent, the Definitive Guideline already takes into account the possibility of a defendant using children as runners. However, he submits, the offences in the Modern Slavery Act (including when in their inchoate forms as in this case) involve more than just the use of children to commit crime. What matters, Mr Jarvis submitted, is not just the fact that children and young people have been used to supply drugs, but the circumstances in which that happened. Some children and young people may be paid for their services as runners, and paid well, but others – like the runners in this case – fall into a different category. Their labour was not provided willingly, and for profit, but under compulsion. That, he submitted, is a serious form of criminality distinct from their simple involvement in drug dealing, and had to be met with a significant upward adjustment to the overall sentence. 49 On behalf of James and Josh Mason it was submitted that the Judge took into account all the relevant features, and that an uplift of 12 months was appropriate, and did not involve reaching a sentence which was lenient; alternatively, that if it was lenient, it was not unduly so. Analysis and conclusions 50 R v Mohammed (Zakaria) [2019] EWCA Crim 1881 concerned offences of conspiracy to supply drugs, for which the appellant was sentenced to a total of six years' imprisonment, and offences of conspiracy to commit offences of trafficking under section 2 of the Modern Slavery Act, for which he was sentenced to a consecutive period of eight years. His appeal against the individual sentences failed, and his appeal against the 14 year total, on the grounds of totality, was allowed only to the extent of a reduction of two years to reflect the appellant's youth, good record and personal background. In that case three children were used, aged 14 and 15, having been taken from Birmingham and transported to accommodation of poor quality in Lincoln as the base from which they supplied the drugs pursuant to a county lines operation. 51 William Davis J (as he then was), giving the judgment of the court, referred to three previous decisions of this court, namely: Attorney-General's Reference No.2 of 2013 [2013] Cr App Rep (S) 71; R v Connors [2013] EWCA Crim 1165 ; and R v Zielinski [2017] EWCA Crim 758 . All involved vulnerable adults. He emphasised that offending which involved exposing 14 and 15 year old children to the trade in Class A drugs put them in danger. At [37] he said this: "First, where the other person whose travel is arranged with a view to exploitation is a child, then the offence inevitably will be more serious than a case where the person is an adult. Second, where the exploitation of itself involves the commission of serious criminal offences, the exploitation offence will be especially grave. Third, the number of children whose travel is facilitated or arranged will be of importance. Fourth, the offence will be aggravated if the same child is the subject of travel with a view to exploitation more than once. We note that all of those features are present on the facts of this case." That was said in the context of offences under section 2 of the Modern Slavery Act, but in our view they apply equally to offences of compulsion and slavery under section 1 of the Act . We note that the first three of those factors are present in the operation of the Boris Line. 52 In R v Nixon & Ismail [2021] EWCA Crim 575 , this court increased the sentence imposed on Nixon on a reference by the Attorney-General. Nixon was involved in a county line drugs operation from London to Devon supplying heroin and crack cocaine. That involved arranging for four boys to be transported from London to the south west to act as runners, the youngest being 15. The sentencing Judge treated the drug dealing on its own as attracting a sentence of 5 years, reduced by one-third to 3 years 4 months for guilty pleas, and the trafficking offences on their own as warranting 5 years after a trial, reduced by 10 per cent for a late plea to 4 ½ years. The Judge took account of totality in imposing a total sentence of 7 years. This court took the view that the individual sentences were too short and that individually the drugs offences warranted 4 years (after discount for plea) and the trafficking offences 7 years (after discount for plea). That would have made a total of 11 years. The court determined that the total sentences for the offences should be increased to a total of 10 years. 53 In this case we have little hesitation in saying that the seriousness of the Modern Slavery Act offences required a significantly greater uplift than 12 months. Many of the children were particularly vulnerable for the reasons we have described. They were controlled by fear of serious violence and forced unwillingly to work in this trade. They were not merely encouraged or enticed to do so, but forcibly exploited by compulsion. That had particularly serious consequences in a number of ways. It enabled the operators of the line to run the county lines business remotely. County lines drug dealing is a scourge of modern society, with all the misery it inflicts, and any criminality which facilitates it is for that reason alone serious. But, more importantly, the effect on the young victims of the Modern Slavery Act offences themselves was also very serious. They were encouraged to become drug users so as to become embroiled in a way which made it difficult to remove themselves from the trade. They were put in fear of violence from the county line operation itself, violence whose seriousness is can be gauged from the Lizzie West assault of which they were no doubt all aware. They were put in danger, moreover, of violence from others in the drugs and gang world in which they were forced to work. They were isolated from the efforts of social services and other services to promote their welfare. They were put at serious risk of becoming entrenched in that world, even after this operation ceased, in a way from which they might find it difficult to escape. This is all serious enough if it happens to adults, but it is particularly so when it involves vulnerable children and young people, as young as 14 and 15. The number of children involved in this case is also a seriously aggravating feature. The sentences of 5½ years and 4½ years respectively, which were imposed for those offences taken alone, were certainly no less than was merited for the seriousness of this offending and were if anything lenient. To uplift the drugs sentences by only 12 months did not adequately reflect the seriousness of this aspect of the offending. 54 In the case of James Mason we consider that an uplift of at least four years was required, taking account of totality. In the case of Josh Mason an uplift of at least three years was required. When added to the sentences which the drugs offences alone would have attracted, 6 years for James Mason and 5 years for Josh Mason, this would have resulted in a total sentence for James Mason of 10 years, and for Josh Mason one of 8 years. The sentences of 7 years and 6 years respectively were not merely lenient but unduly so. 55 Accordingly we grant leave to the Solicitor-General. We quash the sentences on the drugs offences on each of Counts 3 and 4 for Josh Mason and Offences 1 and 2 for James Mason. In James Mason's case we increase the sentence on each of those counts to one of 10 years' imprisonment. In Josh Mason's case we increase the sentence on each of those counts to one of 8 years' imprisonment. The other sentences are undisturbed, and the sentences will remain running concurrently to each other. ______________	[ "LORD JUSTICE POPPLEWELL", "MR JUSTICE JEREMY BAKER", "HER HONOUR JUDGE BERTODANO" ]	2023_11_09-5905.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1540/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1540	1,112
a59d9f8ee57a574ecef8d4bb1e7576097cbe4f3a9a140c37c2c8a15841059f94	[2004] EWCA Crim 1795	EWCA_Crim_1795	2004-06-09	crown_court	Case No: 200400898/A6 Neutral Citation Number: [2004] EWCA Crim 1795 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 9th June 2004 B E F O R E: LORD JUSTICE JUDGE (Deputy Chief Justice of England and Wales) MR JUSTICE HOLLAND MR JUSTICE COLMAN - - - - - - - R E G I N A -v- MARK ANTHONY MARTIN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400	Case No: 200400898/A6 Neutral Citation Number: [2004] EWCA Crim 1795 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 9th June 2004 B E F O R E: LORD JUSTICE JUDGE (Deputy Chief Justice of England and Wales) MR JUSTICE HOLLAND MR JUSTICE COLMAN - - - - - - - R E G I N A -v- MARK ANTHONY MARTIN - - - - - - - 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 J KINKADE appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T 1. Mr Justice Colman: On 10th December 2003 before magistrates the applicant pleaded guilty to burglary and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . He also pleaded guilty to driving whilst disqualified and using a vehicle without insurance. He was committed to the Crown Court for sentence under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 . In addition he was in breach of an early release licence from a total sentence of three years' imprisonment imposed at Middlesex Guildhall Crown Court on 18th April 2001 for offences of burglary and handling stolen goods. On 22nd January 2004 at the Crown Court at Blackfriars he was sentenced by His Honour Judge Pontius as follows: for breach of the licence to serve a balance of three months' imprisonment; for the burglary offence, three years and six months' imprisonment consecutive; on the driving whilst disqualified offence, six months' imprisonment consecutive and disqualified from driving for five years and an extended retest to be taken. On the third offence of using a vehicle without insurance no separate penalty was imposed. The result was a total sentence of four years and three months' imprisonment. 2. The applicant is now aged 31. He renews his application for leave to appeal against sentence and for a representation order after refusal by the single judge. 3. As to the first offence, the burglary, the facts may be summarised as follows. On 29th September 2001 the occupier of a property in London W12 returned home to find it had been burgled. All the drawers of a desk in an upstairs room used as an office had been pulled out. The filing cabinet had been forced and there was blood on the desk. In the bedroom it was discovered that the bay window had been smashed and clothes and jewellery had been pulled out the cupboards. Glass was all over the room. There was also blood on a light switch in the downstairs hallway and on the curtains in the living room. Items to a total value of £1,053 were stolen. A DNA profile was obtained from the blood at the scene which matched that of the applicant. 4. As to the driving whilst disqualified offence, on 9th December 2003 the applicant was stopped by a police officer on the Uxbridge Road while driving a moped. When questioned he initially told the police that the moped belonged to a friend. A vehicle check revealed it had been stolen. The applicant was asked if he was disqualified. He replied that he was and was arrested. He made no comment in interview to all questions. 5. In the course of his sentencing remarks the judge observed that there was to be some credit for pleading guilty, but in view of the DNA evidence it was plain that there was no defence in respect of the burglary. As to the driving whilst disqualified offence, equally it was clear that the applicant knew that he was disqualified and there was no defence. 6. As to previous convictions, the applicant had been sentenced for burglary of homes and for driving whilst disqualified in the past on many occasions. As to burglary, in 1994 he had received a sentence of 18 months, in 1996 of 30 months and in 2001 of two years. In 1997 and 1998 on two occasions and in 2002 he had received sentences for driving whilst disqualified: periods of imprisonment ranging from two months to five years. 7. The offences in question were committed whilst he was on licence. The probation officer reported that, although the applicant was ready to undergo drug treatment, there were concerns about his current level of motivation. The judge said he was satisfied that there was an obvious lack of commitment on his part and that the public ought to be given as much protection as possible. 8. It is submitted that the imposition of the six month sentence for driving whilst disqualified was excessive, because, although the judge was entitled not to give credit for the plea of guilty, nonetheless the effect of a six month sentence for this offence, it being accepted that the sentence of three and a half years' imprisonment for burglary was not manifestly excessive, was to increase the overall sentence to four years, the crucial borderline, and consequently the effect of the six month sentence was to increase the actual time to be served by the applicant by the substantial period of a further six months. 9. Having carefully considered these submissions, we are not persuaded that the totality of sentence given in this case was clearly excessive. The applicant had a seriously poor record not only for burglary but particularly for driving whilst disqualified. He had offended again and again. In the view of this Court the judge was entirely justified in imposing a sentence, notwithstanding that, firstly, he did not give credit for a plea of guilty on the driving whilst disqualified offence and, further, that the effect of his not doing so was to take the totality of sentencing up to four years and three months. 10. In these circumstances this application is refused.	[ "LORD JUSTICE JUDGE", "MR JUSTICE HOLLAND", "MR JUSTICE COLMAN" ]	2004_06_09-256.xml	https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1795/data.xml	https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1795	1,113

Subsets and Splits