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1b880d6c9b99bde07470fc7319ec2fa992df0eb7b179a22526eb8a88ee3c1454 | [2023] EWCA Crim 23 | EWCA_Crim_23 | 2023-01-20 | crown_court | Neutral Citation Number: [2023] EWCA Crim 23 Case No: 202200118 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Nottingham Crown Court His Honour Judge Burgess T20167555 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 January 2023 Before : LADY JUSTICE CARR MRS JUSTICE MCGOWAN and MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - - - - Between : AFU Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Benja | Neutral Citation Number:
[2023] EWCA Crim 23
Case No:
202200118 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Nottingham Crown Court
His Honour Judge Burgess
T20167555
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20 January 2023
Before :
LADY JUSTICE CARR
MRS JUSTICE MCGOWAN
and
MR JUSTICE GOOSE
- - - - - - - - - - - - - - - - - - - - -
Between :
AFU
Appellant
- and -
REX
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Benjamin Douglas-Jones KC
(instructed by
Philippa Southwell
of
Birds Solicitors
) for the
Appellant
Andrew Johnson
(instructed by
the Crown Prosecution Service
) for the
Respondent
Hearing date : 19 December 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 9.45am on Friday 20 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Lady Justice Carr :
Anonymity
1.
We make an anonymity order in this case in order to protect the interests of the proper administration of justice. We bear in mind that the normal rule is open justice, but an anonymity order on the facts of the present case is strictly necessary, pursuant to the principles identified in
R v AAD and others
[2022] EWCA Crim 106; [2022] 1 WLR 4042 (“
AAD
”) at [3] and [4] and summarised in
Human Trafficking and Modern Slavery Law and Practice
(2
nd
ed)
(at 8.103-8.108). The risk to the applicant of being re-trafficked for criminal exploitation in the United Kingdom (“UK”) is real. Such an order is also consistent with (and so does not risk undermining) anonymity orders made in respect of the applicant in the First-Tier Tribunal (Immigration and Asylum Chamber).
Introduction
2.
We have before us an application for leave to appeal against conviction, together with an associated application for an extension of time (of 1,872 days). Both applications have been referred to the full court by the Registrar.
3.
The applicant, who is Vietnamese, is now 28 years old. During the course of his trial in October 2016 before HHJ Burgess (“the Judge”) sitting in the Crown Court at Nottingham, he pleaded guilty on re-arraignment to a single count of conspiracy to produce a controlled Class B drug (cannabis) contrary to s. 1(1) of the Criminal Law Act 1977.
4.
It is said that the applicant committed the offence against a background of being trafficked (or smuggled) into the UK. Once in the UK, he was further trafficked, and subjected to exploitation involving forced labour. This trafficking and exploitation compelled him to commit the offence, having left him with no realistic alternative but to act as he did.
5.
The application is brought on two grounds, in summary as follows:
i)
First, it is submitted that the applicant was not advised adequately, or at all, as to the availability of his defence under s. 45 of the Modern Slavery Act 2015 (“s. 45”) (“the Act”). It is said that the extreme nature and full circumstances of the trafficking and compulsion operating on the applicant only emerged from a conclusive grounds decision made by the Competent Authority on 5 March 2018 (“the CG decision”), as confirmed by the findings of First-Tier Tribunal Judge Rastogi (sitting in the Asylum and Immigration Chamber) (“the FTT Judge”) promulgated on 5 January 2021 (“the FTT decision”). A s. 45 defence would, it is argued, quite probably have succeeded. The conviction is therefore unsafe;
ii)
Further or alternatively, the prosecution would, or might well, not have maintained the prosecution. There were multiple failures on the part of the authorities in identifying the applicant as a victim of trafficking (“VOT”) and reviewing his prosecution. The prosecution is said to have been an abuse of process such as to render the conviction unsafe.
6.
The application arises in the context of multiple failings on the part of the police and prosecution authorities in 2016 to discharge their obligations towards the applicant as an actual or potential VOT. It is to be hoped that such failures are not prevalent nowadays, given the increased awareness of the challenges and difficulties facing VOTs and the authorities’ obligations towards them. However in this case we are required, amongst other things, to consider whether or not, despite the applicant’s guilty plea, his conviction is unsafe for abuse of process and, in this context, the very recent guidance of the special court constituted for the purpose of the decision in
AAD
.
The facts
7.
At 10.55am on 26 April 2016 police attended 29 Irving Place, Blackburn and executed a warrant under s. 23 of the Misuse of Drugs Act 1971. The applicant, then aged 21 years, was present when they arrived. A substantial cannabis production farm was discovered: 280 plants in various stages of growth; lamps; heaters; fans and a hydroponic growing infrastructure. The electricity meter had been bypassed and electricity abstracted.
8.
In his first police interview under caution on 25 August 2016, the applicant relied on a prepared statement:
“I arranged to come over to England with a male in Vietnam. I was promised a job when I arrived and I have been here for around four months. Upon my arrival, I was taken to an unknown house and provided with food whilst I waited to be allocated to my job. I was unaware of what the job entailed and was keen to start employment. I was then transported to the address where I was arrested today. When I arrived, I was given instructions to water the plants. I was unaware of what the plants were and I did not know they were illegal until I was arrested today. When I arrived at the property, it was set up as it is today and I had no involvement. I am in fact the victim of this crime and I have been exploited, I have not made any income from the cultivation of cannabis. This is all I have to say at this stage”.
9.
The applicant then answered “no comment” to all further questions.
The proceedings and sentence
10.
The applicant pleaded not guilty and the matter proceeded to trial, where the applicant appeared alongside seven co-defendants. He was represented by Mr Robert Wyn-Jones (“Counsel”). On the sixth day of trial he pleaded guilty on the following basis:
“I was brought to this country in December 2015. I was placed in a house until another house became available for me to work in. Once placed in the second house I was told to water the plants. Before I came to the UK I did not know that I would be told to grow cannabis. At first I did not think I had a choice but to do what I was told. I now accept I could have done more to get away”.
11.
He signed and dated the written basis of plea document, as well as the following endorsement:
“1.
I…have decided to plead guilty to the allegation of conspiracy to produce cannabis that I face at Nottingham Crown Court.
2.
I do this because I am guilty of this allegation.
3.
I have not been promised what my sentence will be.”
12.
In each case it was confirmed that the declarations (in English) had been translated for, and fully understood by, the applicant.
13.
At the sentencing hearing, the prosecution contended that the applicant was a gardener with a significant level of involvement, relying on his degree of contact with others and assistance in the operation. In relation to the applicant’s basis of plea, prosecution counsel stated:
“…to the extent it may be submitted that he was under some form of almost duress -- to use that inelegant phrase -- we would reject that, your Honour, on the basis that he is seen on a number of occasions on the CCTV. On one occasion, walking around Wilkinson's store and then within the Lemongrass store. On no occasion does he appear to be under any sort of duress or acting in any way that might be considered out of the normal. He was a straightforward and willing participant in this conspiracy”.
14.
By way of general overview the Judge said this:
“Between 2014 and 26 April 2016 a business was operating. The business was to produce cannabis on a very large scale. It was highly profitable. Large sums of money were invested in premises, equipment and manpower. This business operation was run from Chesterfield, though in the main the production was taking place in Blackburn in Lancashire…Seizures of cropped cannabis either on 27 April or earlier were in the region of twenty kilos. It was plain that tens of thousands of pounds worth of cannabis was being moved around the country in suitcases and I’m quite satisfied that a significant proportion of that went to Scotland…Once a gardener was installed in one of the farm houses, they had to be instructed in the best way to grow the drug. Detailed written instructions in feeding and watering and plant maintenance were provided. The farm workers had to be fed. They were all Vietnamese nationals and their preference was for Vietnamese food…I’m quite satisfied that the general conspiracy was an operation that was not only capable of producing industrial quantities of cannabis for commercial use, it did produce such quantities.”
15.
When sentencing the applicant specifically, the Judge referred to his age and the circumstances of his arrest when 280 cannabis plants were seized. His telephone records showed that he had been in contact with other conspirators. He was seen in Chesterfield on 18 and 19 December 2015 loading supplies into a taxi. He was telephoned by one of the conspirators to alert him to the deliveries. The Judge went on:
“The prosecution also claim that your role was significant and they say that you must have been aware of the wider conspiracy. You say that you were trafficked to this country and told to fetch and carry. You arrived in this country on 15 December. Therefore the time that you were involved in the conspiracy must be limited by that. You accept you were working as a gardener.
Again it is argued on your part that because of your limited knowledge of the wider conspiracy I should look at a lower category and a lesser role. I remind myself that you are still only twenty-one years old. There may be some force in the submission that is made on your behalf by Mr Wyn-Jones. However, in the context of the case as a whole, my starting point cannot be lower than thirty months’ imprisonment.”
16.
The Judge addressed the question of credit for the applicant’s guilty plea as follows:
“I said I would come back to the question of the timing of your plea. We had quite a lot of discussion about it and how much credit you should get.
It was entered at the conclusion of the prosecution opening. However, there was a real problem getting you to see a legal adviser. Not only was there a change of representation which was not your fault, but you were also moved repeatedly through the prison estate so it became impossible for your legal advisers to visit you. I am told by Mr Wyn-Jones that the first opportunity he had properly to give you advice was right at the beginning of the trial. I am prepared to accept that.
Rather ambitiously, he asks for full credit. But given your denials to the police, I am not prepared to give you that much. But in the very unusual circumstances of your case, I am prepared to give you 25%. So, I reduce the sentence in your case to 22 months' imprisonment.”
Fresh evidence and subsequent events
17.
The applicant seeks leave pursuant to s. 23 of the Criminal Appeal Act 1968 to introduce fresh evidence as follows:
i)
The Competent Authority’s Reasonable Grounds decision dated 8 March 2017 and the CG decision;
ii)
The Home Office Rule 35(3) Detention and Services Order 09/2016 (“Rule 35(3)”) report dated 17 October 2017;
iii)
The report of Dr Utpaul Bose (“Dr Bose”), consultant psychiatrist, dated 26 October 2017;
iv)
The Home Office Rule 35(3) report of 20 February 2020 and Home Office response dated 24 February 2020;
v)
Report of Dr Nuwan Galappathie (“Dr Galappathie”), consultant psychiatrist, dated 8 June 2020;
vi)
The applicant’s witness statement dated 6 August 2020 prepared for the hearing before the FTT Judge;
vii)
The FTT decision.
18.
All of this evidence post-dates the applicant’s conviction. We entertained the evidence for the purpose of the appeal hearing
de bene esse
. It reveals the following broad chronology of events, set in the context of the applicant’s account which the FTT Judge went on to accept in the FTT decision.
The applicant’s account of events leading up to his arrival in the UK as presented to the FTT Judge
19.
The applicant grew up in a rural village in Ha Tinh province, central Vietnam. He lived with his mother. His father was often absent because, according to the applicant’s mother, he was a gambler. He accrued significant debt as a result. The applicant’s parents would argue about money. In August 2015, the applicant’s mother was kidnapped. The applicant was in the house at the time, but managed to escape. Afraid that the traffickers would find him, the applicant moved to Nghean Province, approximately 50 kilometres from his village. He travelled to the City of Vinh. A month later, he was kidnapped from the street by the traffickers who had taken his mother. The applicant was then reunited with his mother. She told him that she was being forced into prostitution, that the traffickers were very dangerous and that he should obey their instructions. The applicant was held captive by these traffickers for several weeks. He was threatened, beaten and told that he had to work to pay off his father’s debt. He was then flown to Russia, held for another two to three weeks before being trafficked through several European countries. In France, he was stowed in a lorry and transferred to the UK. The applicant claimed to have entered the UK in December 2015.
The applicant’s account of events leading up to his arrest as presented to the FTT Judge
20.
On arrival, he said that he was taken by his traffickers and held captive for several months, and threatened and beaten. He was then forced to work in a cannabis house, where he remained until his arrest on 26 April 2016.
Events following the applicant’s arrest on 26 April 2016 up to the CG decision
21.
On 6 May 2016, the applicant was referred to the National Referral Mechanism (“NRM”) by Blackburn and Darwen Children’s Services. On 13 May 2016, the Home Office found that there were reasonable grounds to believe the applicant was a VOT.
22.
On his account, very shortly thereafter, the applicant was then re-trafficked. While living in a foster home in Burnley, he was kidnapped off the street, beaten and taken to another cannabis house. The applicant was then taken to a third cannabis house. He tried to run away but was caught. His traffickers had a gun and threatened to kill him if he tried to escape again.
23.
Following the applicant’s second arrest on 22 July 2016 (arising out of his involvement in the second cannabis farm), he was referred to the NRM for a conclusive grounds decision to be made. During this process, he was age-assessed and found to be an adult.
24.
On 25 August 2016, the applicant was interviewed under caution. As set out above, his trial commenced in October 2016, during the course of which he pleaded guilty. He was sentenced in December 2016.
25.
On 18 January 2017, the applicant was served with a deportation decision by the Home Office (“the deportation decision”).
26.
On 8 March 2017, the Home Office concluded that there were reasonable grounds to believe that the applicant had been the victim of human trafficking.
27.
On 25 September 2017, the applicant was interviewed regarding his asylum claim and trafficking experiences.
28.
On 17 October 2017, the Home Office concluded that the applicant may have been a victim of torture, having a “large scar consistent with the account of torture at the hands of human traffickers”.
29.
On 18 and 19 October 2017, the applicant was assessed by Dr Bose who concluded in a report dated 26 October 2017 that the applicant had problems with depressed mood and seemed to be suffering from post-traumatic stress disorder (“PTSD”). Dr Bose stated that his mental health condition “… has been severely caused and aggravated by the human trafficking incident(s)”. Dr Bose added in his report that the applicant “presents as a vulnerable person and this could easily be identified when he is deported to Vietnam … . His returning to the place where he was originally abducted is likely to cause a re-ignition of the traumatic experience of when he was first abducted in Vietnam. His concerns are that he is very likely to be abducted again by the gang who have abducted him twice before, and these fears and anxieties are likely to fuel an increase in his PTSD symptomatology”. According to Dr Bose, the applicant also reported he was at risk of suicide if returned to Vietnam.
30.
On 30 November 2017, the applicant was interviewed in relation to his asylum and trafficking-based claims.
31.
Between October 2017 and January 2018, the applicant sought permission to seek judicial review of the decision to detain him. Amongst other things, he questioned the delay in processing his claim through the NRM, as well as the Home Office’s alleged failures to report his case to the police and/or the Crown Prosecution Service (“CPS”).
32.
On 4 January 2018, the applicant’s solicitors emailed the Salvation Army with concerns that the Applicant had been placed in accommodation in Bradford, close to the Blackburn location where he was trafficked. He went missing and, according to the applicant, was kidnapped and taken to a cannabis warehouse. When he refused to tend the plants, he was threatened with a knife. The traffickers then used the knife to cut his neck. He has a scar from this incident.
33.
The CG decision was made on 5 March 2018.
Events between the CG decision and the FTT decision
34.
On 29 March 2018 the applicant’s application for asylum was refused for non-compliance, due to failures to report. The applicant was listed as an absconder.
35.
On 8 November 2018, the applicant’s claim for permission to apply for judicial review of the deportation decision was refused. The reasons given were that the applicant had been missing for many months, despite efforts to locate him and there did not appear to be any prospect of the claim being pursued further.
36.
On 26 September 2019, the Home Office decided not to allow the applicant discretionary leave to remain following the CG decision. The Home Office concluded “that there is no realistic risk” of the applicant being re-trafficked or becoming a victim of modern slavery again if he were to return to Vietnam because, according to the Home Office, the “exploitation took place in the UK after he had departed from Vietnam”.
37.
On 24 October 2019, the Home Office wrote to the applicant, noting his failure to report since 17 January 2018 and asking him to make contact.
38.
On 31 October 2019, the Home Office issued a Deportation Order (“the Deportation Order”).
39.
According to the applicant, during this time he was being held captive by his traffickers. He was taken to another cannabis house in Scotland. On 5 December 2019, police searched this property and arrested the applicant. He was taken to a detention centre. There, he told a duty solicitor that he had been trafficked.
40.
On 6 February 2020, the applicant claimed asylum again. A NRM referral was sought to establish his trafficking status. The applicant’s solicitors stated that there was “considerable mitigation for his absence from the reporting sessions”.
41.
On 24 February 2020, the Home Office responded to another Rule 35(3) report from 20 February 2020 that concluded the applicant may have been a victim of torture. The Home Office referred to the medical practitioner’s statement, which noted that the applicant:
“…[c]laims to have been kidnapped off the streets by an unknown group of men. He states he was forced to work in a cannabis farm which he didn’t want to do as it was illegal.
He initially refused to do the work but they put a knife against him[;] stated he would be killed if he didn’t start working.
He was locked up, not allowed to go out and was forced to work long hours. Living conditions were poor and he was given minimal to eat and drink. The perpetrators would punch him repeatedly and cut him with knives. If the condition of the cannabis was not good enough, they would burn him with cigarettes. He worked for nearly 2 years before he was arrested”.
42.
In the Rule 35(3) report it was noted there were two scars on the applicant’s body consistent with his story: a scar to the neck (where he was cut with a knife) and a scar to his right forearm (where he was burnt with a cigarette).
43.
The Home Office acknowledged that the evidence of torture met the guidance set out in the Detention Services Order 9/2016 and Level 2 of the Adults at Risk in Immigration Detention Policy. However, the Home Office decided to maintain the applicant’s detention. It was considered that the negative factors outweighed the risks and indicators of vulnerability.
44.
On 2 March 2020 the Home Office refused the applicant’s human rights claim and refused to revoke the Deportation Order. The Home Office concluded:
“…it may be accepted that you are a victim of trafficking and modern slavery[;] however, it is considered that you are safe on return to Vietnam where your parents and connections reside”.
45.
On 7 May 2020, the applicant was assessed by Dr Galappathie who found the applicant to be suffering from recurrent depressive disorder with a range of anxiety symptoms. He presented as an individual with ongoing severe depression. Dr Galappathie also found that the applicant was suffering from severe PTSD and that his symptoms had worsened since his assessment by Dr Bose. Dr Galappathie concluded that the applicant’s symptoms were consistent with his biographical account and that he presented with a significant number of risk factors for self-harm and suicide. In his opinion, if the applicant was to be returned to Vietnam he would be at a high risk of self-harm and suicide.
46.
On 12 May 2020, the Competent Authority decided that there were reasonable grounds to conclude that the applicant was a victim of modern slavery.
47.
On 17 June 2020, the applicant appealed the Home Office’s decision of 2 March 2020. The grounds of appeal claimed that the applicant was a refugee and would face a real risk of harm if returned to Vietnam.
The hearing before the FTT Judge
48.
The appeal came before the FTT Judge at a hearing in which the applicant gave oral evidence, alongside his witness statement of 6 August 2020; his account was then tested in cross-examination. In his written statement he said this of his time at the cannabis house where he was found in April 2016:
“64.
When I arrived there I was told how to look after the plants. They taught me when to turn on the lights and how to water the plants. My job was as a gardener and I did what I was told to do.
65.
The door was always locked and there was no way to escape. I was very scared and intimidated. They constantly threatened me so I did what I was told, they did not beat me on this occasion.
66.
I was given limited amounts of food and drink and I was not paid for this work. The traffickers did not tell me what had happened to my mum and dad and they did not tell me how long I was supposed to be there for.
67.
I was at the Cannabis House for approximately one month when I was arrested.”
49.
Of his experience leading up to and at trial and sentence in October/December 2016 the applicant said that his solicitor never advised him of his potential defence as a victim of trafficking. He never met a solicitor face to face, nor even spoke to a solicitor on the telephone. He was very worried and anxious and did not know what was going to happen. He went on:
“88.
On the morning of my trial I was brought to Court and I met my barrister for the first time. I did not receive any other legal advice before the hearing.
89.
I only spoke to him briefly. I didn’t have time to tell him everything that had happened to me. He just said that he had prepared the file and I must plead guilty.
90.
He did not advise me of a potential defence as a victim of trafficking.
91.
I didn’t know what to say. He didn’t give me an opportunity to do anything else apart from what he told me.
92.
He didn’t say I could plead not guilty and I was not able to defend myself. He told [me] that my sentence would not be very long if I pleaded guilty.
93.
It was a really frightening experience and I felt very intimidated. I had no guidance about what I was supposed to say or do. I knew that I had committed the crime because I was forced to by the traffickers. I was scared that if I escaped or did not do as I was told, they would kill me.
94.
I was sentenced to 22 months in prison. I didn’t really understand what was going on or how this happened. This did not seem like a short sentence to me.
95.
I did not speak to my solicitor or my barrister after the trial.
96.
Everyone else had their lawyer with them and had proper legal advice but I didn’t.
97.
I knew that it was not fair and I was really upset by this.”
50.
In his oral evidence to the FTT Judge, he continued to maintain that he was only involved in the cannabis production as he was trafficked into it. He accepted that he had a mobile telephone, since the traffickers gave him one so that he could receive instructions.
51.
The FTT Judge allowed the applicant’s appeal against the decision not to revoke deportation. She found that the applicant was a VOT and a refugee. In the course of her analysis of the evidence, she commented as follows:
“59.
I also have regard to the appellant’s guilty plea. In pleading guilty he accepted the prosecution case against him…He has stated in his witness statement that he felt intimidated into pleading guilty and was told he would receive a short sentence. He is now see[k]ing to challenge his conviction.
60.
There is significant reference in the sentencing remarks to the problems the appellant had in accessing legal advice. He received advice on the day of the trial. This is not ideal for offences of such severity especially for a young person with no previous experiences of the criminal justice system. It was clear he raised at that stage the fact that he was trafficked in and told to fetch and carry. Nevertheless his guilty plea was accepted”.
52.
The FTT Judge concluded that:
“80.
Standing back and looking at the evidence in the round, I find the totality of the evidence over a prolonged period consistently points to the appellant being a [VOT] as he has claimed to be…The main evidence pointing away from his account being true is the fact and circumstances of his conviction. That is a significant indicator contradicting the appellant’s case and in many other cases, may be decisive. However, there is enough doubt in my mind that the situation here is more complex. The sentencing remarks corroborate the appellant’s account about the difficulties he had accessing lawyers. Although he pleaded guilty, the nature of his role within the conspiracy as described in the sentencing remarks, is not wholly inconsistent with his account that, at the time, he was under the control of traffickers….
81.
Therefore for all those reasons, and reminding myself of the lower burden of proof in protection claims, I find as fact that the appellant was trafficked out of Vietnam to Russia and then within and out of Russia and through Europe until he arrived in the UK in 2015 and then within the UK until his arrest on 26 April 2016; between mid May 2016 when he went missing from foster care till his arrest on 25 July 2016 and again in mid-January 2018 to his arrest on 5 December 2019. I find as fact that he was taken forcibly from Vinh City in Vietnam by traffickers because of a gambling debt owed by his father and whilst en route to the UK he did not work but he was deprived of his liberty and he sustained beatings. In the UK I find that he was required to work as a gardener in various cannabis factories and he was beaten, deprived of sufficient food and of his liberty. His beatings included being cut to the neck with a knife and being burnt with a cigarette to the arm and being assaulted to the head with a wooden post whilst in Russia. As a result of his experiences I am satisfied that the appellant bears some scars of his experiences…and has developed mental health problems in the form of depressive episodes and PTSD which have progressively worsened with each re-trafficking episode and compounded by his period in prison and in immigration detention. They are now classified as both being severe conditions. Finally, I am satisfied that the appellant is unaware of the whereabouts of his parents in Vietnam and therefore it is reasonably likely that if returned to Vietnam he will be doing so as a fairly young man without family support, who is a former [VOT] and who suffers with mental health conditions as outlined and for which he has not yet received the appropriate treatment to assist him to recover from his experiences ...
88.
…I find that the appellant’s case has features of virtually all of the factors listed at [2.4.8] of the April 2020 CPIN as increasing the risk of suffering abuse or re-trafficking. In addition, I find that the fact that the appellant has already been re-trafficked on more than one occasion and this has compounded his mental health problems from which he has not yet recovered. This places him at a more enhanced risk than someone whose experiences of being trafficked are more limited …”.
The circumstances surrounding the applicant’s guilty plea
53.
As set out above, the applicant’s evidence before the FTT was to the effect that he had been told by his barrister to plead guilty and had not been advised of a potential defence of trafficking.
54.
In a witness statement dated 3 January 2022 prepared for the purpose of this application, the applicant elaborates on his time at the (first) cannabis house, stating that he was the only person at the property, which he was not allowed to leave. He was provided with frozen food and had to sleep in the living room with just a mattress and a blanket.
55.
He goes on to state:
“I think I told the barrister that I was forced to come to the UK. I do not recall what else I told the barrister about my situation. The barrister advised me to plead guilty and I entered a guilty plea. I do not recall why the barrister advised me to plead guilty, but he said that the other defendants on the case pleaded guilty, therefore, I also pleaded guilty… . I had one week to consider the evidence and see whether I would like to plead guilty. Because the judge said if we enter guilty plea at that stage, we could get 10% credit. My barrister said I if want to plead guilty, he can ask whether I could get full credit of 25%. He said in his opinion everyone in the case was guilty of the offence.”
56.
Counsel, in line with the procedure identified in
R v McCook
[2014] EWCA Crim 734; [2015] Crim LR 350, responded to the applicant’s suggestion that he was never advised as to the availability of a s. 45 defence and told to plead guilty (and simply told that others had pleaded guilty). In doing so, Counsel produced his contemporaneous manuscript notes, together with the applicant’s signed basis of plea and signed endorsement. He explained that on Monday 17 October 2016 he had asked the Judge for time to take instructions, having not met the applicant before. The reason for that was that the prison service had not been able to locate him.
57.
The jury was selected at 12.17pm on the Monday and sent away until the Wednesday. Thereafter Counsel’s note states “S. 45 Modern Slavery Act 19-464”. (19-464 was a reference to the relevant section in the then current edition of
Archbold
addressing s. 45.)
58.
Counsel states that he had a s. 45 defence well in mind. The next day, Tuesday 18 October 2016, he reminded the applicant of his first account to the police and went through the telephone evidence. He noted to himself “But – Slavery”. He then took a full account from the applicant. Counsel says that this account is completely different to the one now advanced by the applicant. The account given to Counsel at the time was as follows:
i)
The applicant lived rough, begging, from the age of 16, until the end of 2015;
ii)
He then met a man, “Hung”, who invited him to come and work for him abroad where the applicant would be fed and clothed and have a better life;
iii)
He had heard of others going abroad, including girls who were forced into prostitution. He was scared and worried that he would be asked to do something he did not want to do. However, he thought that Hung was a good man;
iv)
Hung gave him somewhere to stay in Saigon for two months. Hung wanted him “to taste the good life”;
v)
Hung organised travel documents for the applicant, and travelled with him by plane to France in about October 2015;
vi)
On arrival they were picked up in a car and taken to a forest where they stayed in tents housing lots of different nationalities, all guarded by European men. He stayed there for two months. He was sexually assaulted by the guards more than once. He had to do what they told him to. He refused in the beginning and was beaten up for this refusal. As a result, he had scars on his head. Eventually he gave in;
vii)
One night, men drove him to a lorry park and put him in the back of a lorry with lots of boxes. After a few hours or so, he was let out by a Vietnamese male who told him to get into his car. He was taken to an address where he stayed for three months. He was fed and clothed as normal. He was told he owed £20,000 for the trip and had to work to pay off the debt;
viii)
About a month before his arrest he was taken to 29 Irving Place. Everything was in place for growing cannabis. He was told to work on the plants. He was told that there were guards outside the address and he would be killed if he ran away.
59.
Counsel’s notes then state “To Answer” and set out the evidence that the applicant would have to address, particularly his access to telephones and his appearance at various locations on CCTV travelling about with others. He says that he considered the evidence against the applicant. He then made notes about the Lemongrass store and the applicant’s connection with it.
60.
On the following day, Wednesday 19 October 2016, Counsel says that he saw the applicant in conference and went through the CCTV evidence. The applicant confirmed his identity in the footage for various dates.
61.
On Friday 21 October 2016, Counsel’s notes at lunchtime read:
“D is considering pleading guilty. He will make his final decision on Monday am.”
62.
At 4pm, the applicant asked to see the CCTV footage again.
63.
On Monday 24 October 2016, Counsel noted:
“D wants me to ask the Judge how much credit he will give D should he plead guilty today.”
64.
The Judge gave an indication at 10.45am, following which the trial opening continued. Counsel noted at 12.30pm:
“D tells me he intends to plead guilty. He signs endorsement and basis of plea.”
65.
The applicant was re-arraigned and pleaded guilty at 2.30pm. At 3pm, Counsel noted:
“D wants to give police info about who was in charge of the operation. I explain to him that I will mention this to prosecution counsel today.”
66.
Counsel goes on to state:
“Over the course of a week and a day I took the Defendant through the evidence against him. I did consider and explain the defence of modern slavery. I took him to the evidence that I advised may be inconsistent with that defence. I advised him on credit for guilty plea. He made his own decision to plead guilty having been properly advised. The account that he gives now about this life and journey to the UK is completely different to the one he gave me. Importantly there was no mention at all of threats to his parents. Plainly if he had told me that I would have factored that into my advice on the evidence. He told me he hadn’t seen his parents since he was 16. The account he gives of how I dealt with him is untrue.”
67.
In an email dated 25 October 2021, the applicant’s solicitor, Mr Rode of ABR Solicitors, agreed with Counsel’s comments.
68.
In the light of a relevant factual dispute between the applicant and Counsel, both gave oral evidence before us, the applicant using the services of an interpreter. We make our findings in relation to the events surrounding the applicant’s guilty plea later in this judgment.
Grounds of appeal
69.
For the applicant, Mr Douglas-Jones KC contends that in this area of law, investigators and prosecutors played a very significant role in permitting a false understanding of the law to become prevalent. None of the very obvious indicia of trafficking were identified by the police or the prosecutors. The police failings caused them to be in breach of their duty under s. 52 of the Act. The failure of investigators and prosecutors to identity “classic Vietnamese trafficking paradigm indicators” caused them to breach their international law obligations. In those circumstances, there should be no requirement on the applicant to demonstrate that a s. 45 defence would quite probably have succeeded, and the conviction is unsafe.
70.
Further or alternatively, tailored to s. 45, it is submitted that the appropriate questions to pose (adopting the checklist identified in
R v Dastjerdi
[2011] EWCA Crim 365 (“
Dastjerdi
”) at [9] (“the
Dastjerdi
checklist”)) are:
i)
Should the applicant have been advised about the possibility of availing himself of a s. 45 defence? If so,
ii)
Was he so advised?
iii)
Was it open to the applicant, had he been so advised, to advance the defence?
iv)
Was it (at least) quite probable that the applicant would have been able successfully to advance such a defence? That is to say, could the prosecution have disproved any of the following to the criminal standard, namely that:
a)
He did the act because he was compelled to do it?; and
b)
The compulsion was, or was part of, conduct which constitutes relevant exploitation, or the compulsion was a direct consequence of the applicant being, or having been, a victim of relevant exploitation (i.e. exploitation that was attributable to the exploited person being, or having been, a VOT)?; and
c)
A reasonable person in the same situation as the applicant and having the applicant’s relevant characteristics (age, sex and any physical or mental illness or disability) would have no realistic alternative to doing that act?; and
d)
It is likely that the prosecution could not have disproved one of those limbs to the criminal standard?
71.
The answer to each question would be as follows:
i)
This was “classically and obviously” a case where the applicant should have been advised about the possibility of availing himself of a s. 45 defence;
ii)
He was advised. However, the police
prima facie
breached their statutory duty to notify the Secretary of State about a suspected VOT. The NRM process only concluded after the applicant’s conviction. Those representing the applicant had no opportunity to advise him that he had a
meritorious
s. 45 defence. It was not possible for those representing him properly to advise him. Further, they were constrained from exploring his possible defence through the constraints on conference and interview time;
iii)
It was open to him, had he been so advised, to advance the defence;
iv)
The applicant could clearly satisfy the evidential burden in relation to the three limbs of the defence.
72.
Beyond this it is submitted, relying on
R v LM and others
[2010] EWCA 2327; [2011] 1 Cr App R 12 (“
R v LM
”), that, had the prosecution known at the point of charge or prosecution what is now known, the prosecution “would” or “might well” not have maintained the prosecution, rendering the conviction unsafe. The prosecution was an abuse of process.
73.
It is said in particular that, where the prosecution has failed to apply the relevant CPS Guidance on prosecuting suspects who might be victims of human trafficking, the prosecution breaches the protections under the international and regional instruments enshrined with that guidance and, as
AAD
makes clear, such a prosecution may be an abuse of process. Any conviction following such failures will be unsafe, and advice as to the merits cannot remedy that. A finding otherwise would i) undermine the principle that, where it is unfair to try a defendant on the second limb of the test identified in
R v Horseferry Magistrates Court (ex p Bennett)
[1994] 1 AC 42, a prosecution should not be maintained and any conviction will be unsafe; ii) remove the non-prosecution protection which applies by virtue of the relevant guidance; and iii) violate the protections in international and regional instruments and Article 4 of the Convention of Human Rights (“Article 4”).
74.
This was a case where indicators of trafficking were clearly present. There was a failure on the part of the prosecution to note that all three components (
prima facie
evidence of the purpose of the trafficking, recruitment and exploitation) were present. The applicant was committing a cannabis offence “paradigmatic of Vietnamese O[rganised]C[riminal]G[ang]s”. There was thus a failure to identify the applicant and to apply the relevant CPS Guidance, including a failure to comply with any of its duties under the three-stage test there identified. The positive duty to take operational measures to protect the applicant was violated. Given what is now known about the applicant, this is a case where the prosecution would or might well have been discontinued in the public interest. It was therefore an abuse of process. The principle of finality does not apply where trafficking considerations have been overlooked.
The Respondent’s position
75.
Mr Johnson for the Respondent accepts that, on the basis of the FTT Judge’s findings, the applicant had a sound s. 45 defence which would “quite probably” have succeeded. The concession in the applicant’s basis of plea that he “could have done more to get away” has to be viewed in light of the repeated trafficking found to have occurred by the FTT Judge.
76.
However, it is said that the fact that a defence would “quite probably” have succeeded is insufficient for the appeal to succeed. If the failure to advance arose out of the applicant’s own fault, then the appeal should not be allowed. This principally turns on whether the applicant was properly advised. If the applicant was advised as to the availability of a s. 45 defence, then his appeal should fail. The fact that the applicant should have been referred by the police upon his first arrest does not mean that the applicant’s representatives were thereby prevented from properly advising him.
77.
In short, the applicant was not compelled to enter a plea, but rather chose to do so. The facts do not fall within the limited category of situations where an appeal founded on a guilty plea can succeed.
78.
As for abuse of process, it is said that no abuse is made out. The initial charging decision demonstrates that the prosecution was alive to the need to consider whether the defendants in the proceedings were VOTs. It is accepted that his account in interview should have triggered a referral through the NRM to the Competent Authority. But a referral was made very shortly afterwards by the Children’s Services in any event.
79.
The Respondent submits that the fact that a s. 45 defence had a probability of success does not render it inappropriate for the issue to be determined at trial. Decisions on disputed facts or evaluations of facts are for the jury (see
AAD
at [142(3)]); there would have been no impropriety in the prosecution proceeding on the basis that this was a case where it was proper for the jury to evaluate the case with oral evidence, rather than to proceed on the basis of a paper-based evaluation by a prosecutor.
80.
In any event, the fact that the applicant’s decision to enter a guilty plea, after being fully advised as to the availability of a s. 45 defence, is relevant. There are good policy reasons why the principle of finality exists. This was not a “no-fault” case. The applicant was advised that he could defend himself on the basis of his alleged status as a VOT and chose not to do so. If a convicted offender in the position of the applicant could succeed in arguing that proceedings amounted to an abuse of process in such circumstances, the effect would be significantly to undermine the
Boal
test in respect of VOTs, which would be an unsatisfactory state of affairs.
Overview of the relevant legal principles
The state’s duty to identify victims of trafficking and the defence under s. 45
81.
As confirmed in
Rantsev v Russia and Cyprus
[2010] (25965/04); [2010] 51 EHRR 1 (at [288]), Article 4 entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint: once the matter has come to the attention of the authorities, they must act of their own motion. In order for the prosecution of an actual or potential VOT to respect the freedoms guaranteed by Article 4, their early identification is of paramount importance (see for example
VCL v United Kingdom
(77587/12);
AN v United Kingdom
(74603/12) [2021] 73 EHRR 9 [2021] Crim LR 586 (at [160])).
82.
Further, the UK is party to both the 2000 Palermo Protocol and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”), as well as the Convention. An essential part of achieving the purposes of ECAT is the effective identification of victims (see article 10). To this end the UK has established the NRM. First responders, such as the police or social workers, who suspect that a person may be a victim of trafficking, refer the case to the Home Office, as the competent authority under ECAT, for investigation. Whether or not a person is identified as a VOT is decided by reference to the offence of trafficking in international law. It includes slavery and forced or compulsory labour.
83.
Article 26 of ECAT (“article 26”) provides:
“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
84.
On 6 April 2013, Directive 2011/36 of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (“the Directive”) came into force in the UK. Article 8 (“article 8”) of the Directive provides:
“Non-prosecution or non-application of penalties to the victim
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [trafficking]…”
85.
The UK provides protection for VOTs through s. 45, which came into force on 31 July 2015 and applies to all (relevant) offences committed after that date. S. 45 provides materially:
“(1)
A person is not guilty of an offence if:
(a) the person is aged 18 over at the time of the act which constitutes the offence.
(b) the person does that act because he is compelled to do it.
(c) the compulsion is attributable to slavery or to relevant exploitation, and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
(2)
A person may be compelled to do something by another person or by the person’s circumstances.
(3)
Compulsion is attributable to slavery or to relevant exploitation only if-
(a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or
(b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation….
(5)
For the purposes of this section-
“relevant characteristics” means age, sex and any physical or mental illness or disability;
“relevant exploitation” is exploitation…that is attributable to the exploited person being, or having been, a victim of human trafficking.”
86.
S. 45 does not apply to offences in Schedule 4 of the Act (see s. 45(7)). Schedule 4 includes common law offences, including kidnapping, manslaughter and murder, as well as many offences under the Offences against the Person Act 1861, the Firearms Act 1968 and the Theft Act 1978.
87.
It is for the defendant to raise evidence of each of the elements in s. 45(1), and for the prosecution to disprove one or more of them to the criminal standard: see
R v MK; R v Gega
[2018] EWCA Crim 667; [2019] QB 86 at [45].
88.
Decisions of the Competent Authority are not admissible at trial, but are admissible on appeal when it is contended that a person’s trafficking status has been overlooked or inadequately considered (see
R v Brecani
[2021] EWCA Crim 731; [2021] 1 WLR 5851 at [40] and [41] and
AAD
at [79] to [89]). Whilst not binding, the decisions will usually be respected, unless there is good reason not to do so. However, there may be cases where it is necessary for an applicant’s account to be tested independently for the purposes of safe resolution of the issues on appeal; for example where a finding of trafficking is based on unsatisfactory evidence (see
AAD
at [108]).
89.
Equally, a decision of a tribunal or court, where a finding of fact is made based on evidence, may be admissible to assess the prospects of a defence succeeding or in the context of abuse of process proceedings for reviewing the decision of a prosecutor (see
R v Sadighpour
[2012] EWCA Crim 2669;
[2013] 1 Cr App R 20 at [35] to [36];
R v Mateta
[2013] EWCA Crim 1372;
[2013] 2 Cr App R 35 at [23]).
90.
The extent to which expert evidence can be of assistance when assessing an account of trafficking will likely depend on the extent to which it relies on the accuracy of an individual’s untested account of events: see for example
R v N; R v L
[2012] EWCA Crim 189; [2013] QB 379 (“
R v N/L
”) at [86(c)]; and
R v VSJ et al
[2017] EWCA Crim 36; [2017] 1 WLR 3153 (“
R v VSJ
”) at [67].
Appeal against conviction on a guilty plea
91.
The Court of Appeal’s power to overturn a conviction is found in s. 2 of the Criminal Appeal Act 1968, which reads:
“(1)
Subject to the provisions of this Act, the Court of Appeal –
(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b) shall dismiss such an appeal in any other case.
(2)
In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.
(3)
An order of the Court of Appeal quashing a conviction shall… operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal.”
92.
The “sole obligation” of the court, therefore, is to determine whether the conviction is “unsafe”: see
R v Graham
[1997] 1 Cr App R 302 (at 309). A guilty plea does not deprive the court of jurisdiction to hear the appeal: see
R v Lee
[1984] 1 WLR 579 (at 583).
93.
However, the court should be cautious when overturning convictions following guilty pleas. As Lord Hughes made clear in
R v Asiedu
[2014] EWCA Crim 567; [2014] 2 Cr App R 7 (“
Asiedu”
) at [19] to [25], and [32], it will ordinarily be difficult to overturn a voluntary confession. The defendant, having made a formal admission in open court that they are guilty of the offence, will not normally be permitted to change their mind. The trial process is not to be treated as a “tactical game”.
94.
Broadly, there are three categories of case in which a guilty plea may be vitiated, as summarised in
R v Tredget
[2022] EWCA Crim 108; [2022] 4 WLR 62 (“
Tredget
”) at [154] to [180] and
Archbold
(2023 ed) at 7-43 to 7-46:
i)
Cases where the guilty plea is vitiated. This can occur in several circumstances, including the appellant being under the influence of controlled drugs when they entered their plea (
R v Swain
(1986) Crim LR 480); a plea compelled by an adverse or incorrect ruling as to the law (
Asiedu
); improper pressure (
R v Nightingale
[2013] EWCA Crim 405; [2013] 2 Cr App R 7); or incorrect legal advice that deprived the defendant of a defence which quite probably would have succeeded such that a clear injustice has been done (
R v Boal
[1992] QB 591 (“
Boal
”));
ii)
Cases where there is a legal obstacle to the defendant being tried. That will be the case where the prosecution would be stayed on the grounds that it was offensive to justice to bring the defendant to trial. Such cases are generally described, “conveniently if not entirely accurately”, as cases of “abuse of process” (see
Asiedu
at [21]). As stated in
R v Togher
[2000] EWCA Crim 111; [2001] 1 Cr App R 33 at [33], if it would be right to stop a prosecution on the basis that it was an abuse of process, an appellate court would be most unlikely to conclude that, if there was a conviction despite this fact, the conviction should not be set aside. In such cases, “by parity of reasoning, if the trial process should never have taken place because it is offensive to justices, a conviction upon a guilty plea is as unsafe as one following trial
”
(see
Asiedu
(at [21]);
iii)
A small residual category of cases, where the admission made by the plea is a false one, because it is established the defendant did not commit the offence (see
R v Verney
[1909] 2 Cr App R 107 and
R v Foster
[1985] 1 QB 115).
95.
In this case, we are concerned with the first and second categories: that is, i) whether the applicant’s guilty plea was vitiated by inadequate legal advice, and/or ii) whether the proceedings were an abuse of process.
Inadequate Legal Advice
96.
Guilty pleas will be vitiated if erroneous advice was given that was so strong as to go to the heart of the plea, such that it was not a true acknowledgement of guilt:
R v Saik
[2004] EWCA Crim 2936; [2005] CLY 883 at [57].
97.
An appeal can also succeed if the plea is vitiated by erroneous legal advice or a failure to advise as to a possible defence, even where the advice may not have been so fundamental as to have rendered the plea a nullity. In this case, the effect of the advice must be to deprive the defendant of a defence which would probably have succeeded:
Tredget
at [158];
R v Kakaei (Fouad)
[2021] EWCA Crim 503; [2021] Crim LR 1079 (“
Kakaei”
)
at [67].
98.
This test derives from
Boal
, where the court emphasised that in such situations a conviction should be overturned only “exceptionally”, where “a clear injustice has been done” (at 599-600). This passage was cited with approval in
R v PK
[2017] EWCA Crim 486; [2017] Crim LR 716 (“
PK
”) at [12]. The exceptionality of the defence was further emphasised in
Tredget
at [158] and
R v PBL
[2020] EWCA Crim 1445 at [23].
99.
The
Dastjerdi
checklist, applicable when determining whether a conviction following a guilty plea should be overturned, was subsequently applied in
PK
at [13]. On the facts in this case, as set out above, it requires:
“(1)
That the applicant should have been advised about the possibility of availing himself of the [s. 45] defence;
(2)
That the applicant was not so advised;
(3)
That, had [the applicant] been so advised, it was open to him to advance the defence;
(4)
That the prospect that [the applicant] would have been able to advance such a defence were good.”
100.
In the present case, it is contended that, while the applicant was informed of the possibility of raising a s. 45 defence, he was not advised that the defence was meritorious.
101.
In this regard, it is useful to compare two cases:
R v S
[2020] EWCA Crim 765; [2020] 4 WLR 125 and
R v V
[2020] EWCA Crim 1355.
102.
In
R v S
, a conviction under the Misuse of Drugs Act 1971 was found to be unsafe. S entered a guilty plea after being advised that a defence under s. 45 would be unlikely to succeed, following a negative CG decision. The evidence suggested that counsel had proceeded on the erroneous basis that the CG decision was decisive (see [40]). Furthermore, S needed an interpreter, and may also have misunderstood the importance of the CG decision (see [39]). For these reasons, in the highly unusual circumstances, the conviction was regarded as unsafe.
103.
The court in
R v V
distinguished
R v S
on three bases (at [36] to [40]): (i) the solicitor’s advice as to the availability of the s. 45 defence did not arise out of any misconception as to the importance of the conclusive grounds decision in that case; (ii) the conclusive grounds decision in that case was wholly lacking in any analysis of the evidence; (iii) there was a strong evidential basis on which to rebut the s. 45 defence. Because the potential for a s. 45 defence had been raised at the outset, and V was advised realistically as to its merits, there was no basis on which to rule the conviction unsafe (see [41]).
104.
In
R v Bani
[2021] EWCA Crim 1958, four defendants had been convicted of assisting unlawful immigration, Mr Bani upon his guilty plea. However, subsequent to their convictions, the decision in
Kakaei
determined that, where a person remains in an “approved area”, they are deemed not to have entered the UK for the purposes of s. 11 of the Immigration Act 1971. It was further agreed that this was not a departure from earlier law, but rather affirming consistent previous jurisprudence. The appellant who had pleaded guilty had done so on the basis of advice that had not properly identified the relevant elements of the offence. The guilty plea had been entered not simply because counsel had given inaccurate advice, but because a legal “heresy” had been adopted by the investigators and then passed on to and accepted by prosecutors, defendants, and judges (see [109]). The investigators and prosecutors had a role in “causing or permitting a false understanding of the law to become prevalent” (see [116]). In these circumstances, the court held that it “may be unjust” to require Mr Bani to prove that he would probably have succeeded in his defence (the fourth limb of the
Dastjerdi
checklist). The conviction was held to be unsafe (see [118] and [119]).
Abuse of process
105.
The provisions of ECAT and the Directive demonstrated a very significant change in the approach to victims of trafficking, reflected in a series of appellate decisions underlining the power to quash a conviction as an abuse of process if identification of a person as a victim of trafficking did not occur until after conviction (see for example
R v L(C)
[2013] EWCA Crim 991; [2014] 1 All ER 113 (“
R v L(C)
”);
R v LM
and
R v N/L
). The law was developed so as to ensure that the UK complied with its international obligations where the common law defence of duress was not available, including under article 26 and Article 4, and before the implementation of the Act.
106.
However, there is no question of any blanket immunity from prosecution on VOTs, as was emphasised in
R v S(G)
[2018] EWCA Crim 1824; [2018] 4 WLR 167 (“
GS
”)
at [76(i)]. Rather, the relevant enquiry is whether, had the prosecution known the true facts, the prosecution would not have (or might well not have) been maintained in the public interest.
107.
The test was usefully formulated by Gross LJ in
GS
at [76(v)] as follows:
“As always, the question for this court goes to the safety of the conviction. However, in the present context, that inquiry translates into a question of whether in the light of the law as it now is (this being a rare change in law case) and the facts now known as to the applicant (having regard to the admission of fresh evidence) the trial court should have stayed the proceedings as an abuse of process had an application been made.
This question can be formulated indistinguishably in one of two ways which emerge from the authorities: was this a case where either: (1) the dominant force of compulsion, in the context of a very serious offence, was sufficient to reduce the applicant's criminality or culpability to or below a point where it was not in the public interest for her to be prosecuted? or (2) the applicant would or might well not have been prosecuted in the public interest?
If yes, then the proper course would be to quash the conviction …”. (emphasis added)
This passage was cited subsequently with approval in
R v BXR
[2022] EWCA Crim 1483 (“
BXR”
) (at [19]) and
R v AGM
[2022] EWCA Crim 920 (“
AGM
”) (at [11]).
108.
The court in
GS
emphasised that it was putting the same test in two different ways. The first formulation emphasises that it is not enough, on its own, for the applicant to have been trafficked. Rather, using the language of s. 45, the applicant must have been “compelled” to do the criminal act in question, the compulsion being “attributable to slavery or to relevant exploitation”.
109.
In
BXR
the necessary degree of “nexus” between the trafficking and the commission of the offence was explained thus (at [17]):
“Where there is no reasonable nexus, generally the conviction should not be set aside. At the other end of the scale, where the nexus is such that in reality culpability is extinguished, the conviction should normally be set aside. In between these examples at either end of the scale are cases in which there is a degree of causative connection between the trafficking and the offending. Whether it is sufficient to make it contrary to the public interest to prosecute will depend upon the extent to which it reduces the defendant's culpability for the offending.”
110.
The degree of compulsion is “not necessarily decisive in every case”: see
AGM
at [13]; it must be considered in its full context. Thus, in
BXR
(at [18]) a range of other factors was taken into account:
“Nexus is not however the only factor: other factors which engage the public interest are the gravity of the offence, and alternatives reasonably open to the defendant… There may also be particular features of the defendant in question, including his history, and of the particular crime and the seriousness of the defendant's participation in it, which increase or decrease the public interest in prosecution.”
111.
The obvious point, as confirmed in
R v L(C)
(at [13]), is that the question of whether a prosecution in a trafficking case is or might well be contrary to the public interest must be approached “with the greatest sensitivity”. It is not necessarily the case that, even if there is strong evidence against the defendant, prosecution will always be in the public interest (see
AGM
at [8]).
112.
The degree to which the prosecution complied with CPS guidance in identifying the applicant as a VOT will be relevant, in that it affects the standard of scrutiny which the court can apply. Unless it is argued that the guidance is in some way inadequate, it should normally be assumed that the contemporaneous guidance will have taken account of all the guidance offered by the relevant authorities with responsibilities in the context of Convention obligations. Therefore, when assessing compliance with article 26, the guidance can provide the starting point and, in the overwhelming majority of cases, the finishing point for that assessment (see
R v N/L
at [86(b)]).
113.
The authorities emphasise that the decision to prosecute is ultimately for the prosecution, and not the court. Where the prosecution has applied its mind to the relevant questions in accordance with the applicable CPS guidance, it will not generally be an abuse of process to prosecute unless the decision to do so is “clearly flawed” (see
AGM
at [12] and
R v BYA
[2022] EWCA Crim 1326 at [20]). The court does not intervene merely because it disagrees with the ultimate decision to prosecute: see
AAD
at [119]. However, if CPS guidance has been disregarded, such that the question of whether to prosecute has not been properly considered (or considered at all), the court can intervene more readily: see
AGM
at [13] and [56]. It will then be open to the court to consider the public interest question without trespassing on ground which has been appropriately considered by the prosecution authorities.
114.
All of the authorities referred to immediately above relate to cases where the offending pre-dated the Act (“pre-Act cases”). In
AAD,
the court considered, amongst others, the question of whether it was still possible, following the arrival of the Act, to argue on appeal that prosecution of a VOT was an abuse of process. At [142] to [143], the court held that the jurisdiction to stay for abuse of process on appeal had not been curtailed by s. 45, as had been perhaps suggested by the earlier case of
R v DS
[2020] EWCA Crim 285; [2021] 1 WLR 303 (at [40]). The jurisdiction remains “an additional safeguard, given appropriately exceptional facts… Cases of abuse of process will be (as they always should have been) very rare in this context and can arise in only very limited circumstances”.
115.
It was submitted for the Respondent that the guidance in
GS
(and the other cases dealing with pre-Act cases as set out above) does not apply to the present case, being a case to which the Act applied (a “post-Act case”)
.
Post-Act cases, it is suggested, fall to be assessed under the guidance in
AAD
, which is said to be very different.
116.
In
AAD,
having concluded that the abuse of process jurisdiction remains available in principle in all VOT cases following the Act, the court went on to state (at [142]):
“(4)
If (in what will be likely to be a most exceptional case) there has been a failure to have due regard to CPS guidance or if there has been a lack of rational basis for departure by the prosecution from a conclusive grounds decision then a stay application may be available.
It will then be assessed by the court, by way of review on grounds corresponding to public law grounds
.” (emphasis added)
117.
The court in
AAD
was not saying that the review is to be carried out strictly on public law grounds. Rather, it referred to assessment by way of review on grounds “corresponding to public law grounds”. This echoes the statement in
R v LM
at [18] where the court stated that the test was “akin to that upon judicial review”. Nor was
AAD
breaking new ground in terms of the approach to be adopted when considering whether there has been an abuse of process. The point being made was that the exercise for the appellate court is not to substitute its own view, but rather to review the decision to prosecute by reference to considerations including those of rationality and procedural fairness. Thus, by way of example, the court stated in [120] of
AAD:
“But what if the CPS has failed unjustifiably to take into account the CPS Guidance…?...in principle such a scenario would, on ordinary public law grounds, seem to operate to vitiate that prosecution decision: whether by reason of a failure to take a material matter (viz the CPS prosecution guidance) into account or by making a decision to prosecute which is properly to be stayed as irrational. Consequently, such a prosecution may, in an appropriate case, be stayed. This aligns with the principle…that, generally speaking, a decision to prosecute is not susceptible to judicial review in the Administrative Court because it may be challenged during the trial process itself, most particularly by an application to stay the proceedings on the grounds of abuse of process…”
118.
Specifically, the court in
AAD
did not disapprove of the earlier guidance in
GS
, nor did it suggest that such guidance no longer applied to cases falling under the Act. The considerations identified in
GS,
including for example the question of nexus and the seriousness of the offending, may still be relevant to the question of whether a stay would have been appropriate and whether or not a conviction can properly be said to be unsafe on abuse of process grounds. That can be seen, for example, in the discussion in
AAD
at [182] of the safety of AAD’s conviction on the facts.
119.
We do not therefore accept the submission that the court in
AAD
was promoting a fundamentally different approach to that adopted previously by the courts when determining whether or not there has been an abuse of process.
Findings and analysis
Fresh evidence
120.
The application is predicated on the fresh evidence identified in [17] above, culminating in the FTT decision. It is in the interests of justice to admit this evidence, including the expert psychiatric evidence (which is based essentially on the applicant’s accounts of trafficking which have been held to be reliable), and we do so. In particular, the evidence appears to be (broadly) capable of belief and may afford a ground for allowing the appeal.
Findings on the contested facts surrounding the applicant’s guilty plea
121.
We start with our findings on the question of whether or not the applicant was advised (adequately or at all) of the availability of a s. 45 defence.
122.
On the basis of the written material available, together with the oral evidence of the applicant (in which he largely maintained the position set out in his witness statements) and Counsel, we have no hesitation in preferring the evidence of Counsel over that of the applicant on this issue.
123.
The applicant’s version of events is unsustainable in the face of Counsel’s lengthy manuscript notes, which the applicant accepted in the witness box were made contemporaneously. Counsel took instructions, showed the applicant the evidence against him and gave advice. Counsel’s notes make it clear, amongst other things, that he was fully alive to the possibility of a s. 45 defence. Counsel explained in the witness box that this was the first time that he, and indeed all the other counsel in the case, were having to grapple with s. 45. There is no good reason to doubt that Counsel, an experienced criminal practitioner, did not take the applicant through the essential elements of a s. 45 defence. Whilst Counsel could not remember what he had said about burden and standard of proof (as to which the law at the time was not clear), he was certain that he discussed in particular the applicant’s freedom to leave and, for example, his use of the Zello app, which allowed worldwide communication. That issue was, he said and we accept, why the applicant was anxious to view the CCTV footage available. That this was understood as an issue is further reflected in the applicant’s signed acceptance in his basis of plea that he “could have done more to get away”. Counsel confirmed that it was the applicant’s independent choice to plead guilty.
124.
Thus, the applicant did not only have a single brief conversation with Counsel; he was not told that he “must” plead guilty, as he in fact readily conceded before us in the witness box; he was given a full opportunity to give instructions and he was advised of the essential elements of a s. 45 defence; it was his free decision to plead guilty which he did in the hope of a significant reduction in sentence as a result. (That hope indeed came to fruition, given the credit for guilty plea of 25% afforded by the Judge.)
Inadequate legal advice
125.
As a preliminary matter, we reject the submission that there would be an injustice in requiring the applicant to meet the
Boal
test, by analogy with
Bani
. As set out above,
Bani
was a most unusual case, where a “legal heresy” had been created by the prosecution and then adopted throughout the system as to the legal requirements of an offence under s. 25 of the Immigration Act 1971. By contrast, the position here is that, as set out in more detail below, there were operational failures in the identification of the applicant as a VOT and the application of the relevant CPS guidance in force at the time. Although such failures were serious, even fundamental, there was no false understanding, shared or otherwise, as a result of anything said or done by the authorities as to any matter of principle or law.
126.
We turn therefore to the requirements of the
Boal
test. As set out above, an appeal can succeed i) if the guilty plea is vitiated by erroneous legal advice or a failure to advise as to a possible defence, even where the failures may not have been so fundamental as to have rendered the plea a nullity and ii) the effect of the advice is such as to deprive the defendant of a defence which would probably have succeeded. A clear injustice must have occurred.
127.
As for the merits of a s. 45 defence, the Respondent has conceded throughout that, on the basis of the findings in the FTT decision in relation to events preceding trial (by which time the applicant had been forced to work at a second cannabis farm), a s. 45 defence would “quite probably” have succeeded. In other words, that part of the
Boal
test is satisfied. This is a case where the question of trafficking has been explored fully at a hearing before the FTT Judge at which the applicant gave oral evidence which was challenged in cross-examination. [81] of the FTT decision, as set out above, is particularly pertinent. There is in our judgment no proper basis on which to depart from the findings there that, in the UK, the applicant was required to work as a gardener in various cannabis factories and was beaten, deprived of sufficient food and of his liberty.
128.
We are not however persuaded, in the light of our findings above, that there was any clear injustice. This is not a situation where a potential defence was missed; specifically the applicant was advised as to the availability of a s. 45 defence. Counsel also gave sufficient advice on the basis of the applicant’s instructions to him. Only the applicant could explain to Counsel what had happened to him, and Counsel could only work on the basis of those instructions. The applicant had time to consider the advice given, and to consider, with reference to the CCTV footage in particular, whether he wished to accept guilt. He suggested in his second witness statement that he was inhibited when speaking to his solicitor at the police station; but we note that when giving instructions to Counsel, he freely alleged that he had been in fear of his life, and the subject of multiple sexual assaults by guards. Further, he indicated that he wished to provide the police with information “about who was in charge of the operation”. He signed the basis of plea and the endorsement, both of which were in clear and readily understandable terms.
129.
In these circumstances, we do not consider that this is one of those exceptional cases where the applicant’s guilty plea is vitiated on the basis of erroneous or inadequate legal advice. For the sake of completeness, we add that there is no proper basis for suggesting that the plea was a nullity, and the written submission to this effect was not pressed orally before us at all.
Abuse of process
130.
As set out above, the further or alternative basis for the challenge to the safety of the applicant’s conviction is the contention that the proceedings against the applicant below were an abuse of process. This is, on the facts, a far more obvious platform for a successful appeal.
131.
We consider first the extent to which, if at all, the prosecution complied with the relevant CPS Guidance, namely that in force in November 2015 when the applicant was arrested, and as revised in July 2016 (together “the Guidance”).
132.
The Guidance included that prosecutors should be alive to indicators of trafficking i) generally and ii) expressly in the context of cannabis cultivation and immigration crime. It identified the three-stage approach to the prosecution of possible credible VOTs, including their identification, the consideration of a possible defence of duress and the consideration of the public interest in prosecution of a VOT. In relation to the first stage, the duty of prosecutors was to make proper enquiries in criminal prosecutions involving individuals who may be VOTs by a) advising the investigating agency that it must investigate the suspect’s trafficking situation; and b) advising that the suspect be referred via the NRM. All law enforcement officers are able to make such a referral, and these are steps that “must be done” regardless of what had been advised by the investigator or whether there was an indication of an early guilty plea. In relation to the second stage, a case should be discontinued if there is clear evidence of a credible common law defence of duress (or, by extension, a s. 45 defence). In relation to the third stage, prosecutors had to consider whether the offence was a direct consequence of, or committed in the course of, trafficking, whereby if the suspect had been compelled to commit the offence but not to a degree where duress was made out, it would generally not be in the public interest to prosecute unless the offence was “so serious” or there were other aggravating features. It was incumbent on prosecutors to apply to adjourn a case where a defendant proposed pleading guilty if a “full investigation” had not been carried out and there was a suspicion of trafficking. There was also a continuing duty after plea and pre-sentence to refer a defendant via the NRM where indicators of trafficking became apparent at that stage.
133.
The Respondent has made the following disclosure:
“The Respondent has considered the review notes it holds. The only reference to ‘trafficking’ is a general note that in an initiating charging decision that ‘Age of Vietnamese nationals and risk of being victims of human trafficking to be kept under review’".
134.
There is no evidence that any review of the applicant’s position as a potential VOT was carried out at any stage.
135.
It is clear that the police failed to discharge their duty as first responders and that the prosecution failed to comply with the Guidance. We emphasise the following:
i)
There were clear indicators of trafficking from the outset, given the circumstances of the applicant’s arrival as an unaccompanied Vietnamese child/very young adult, his involvement in the cultivation of cannabis and the express reference in his first prepared statement to having been exploited;
ii)
No proper enquiries were made upon his arrest, nor was there any referral to the NRM;
iii)
There being good reason to believe that the applicant was a VOT, there was no review on evidential grounds as to whether there was clear evidence of a credible s. 45 defence;
iv)
There was no consideration in any event of whether or not the public interest lay in proceeding to prosecute/continuing a prosecution or not.
136.
Had there been compliance with the Guidance, in the light of the fresh evidence, it can be seen that the following main pre-trial events would have been discovered by the prosecution authorities:
i)
Based on the findings of the FTT Judge, the applicant was trafficked out of Vietnam to Russia and then within and out of Russia and through Europe until he arrived in the UK in 2015 and then within the UK until his arrest on 26 April 2016;
ii)
He had been taken forcibly from Vinh City in Vietnam by traffickers because of a gambling debt owed by his father and whilst en route to the UK he did not work but was deprived of his liberty and sustained beatings;
iii)
In the UK he was required to work as a gardener in two cannabis factories and was beaten, deprived of sufficient food and of his liberty. His beatings included being cut to the neck with a knife, being burnt with a cigarette to the arm and being assaulted to the head with a wooden post whilst in Russia;
iv)
On 9 May 2016, the applicant was age-assessed as a minor and referred to the NRM as a potential VOT. There were concerns over his vulnerability and he was placed into foster care;
v)
On 13 May 2016, a positive reasonable grounds decision was made;
vi)
On 14 May 2016, the applicant went missing from foster care;
vii)
On 27 May 2016, he was arrested at another cannabis farm, having been re-trafficked. (At this point he was age-assessed as an adult and held on remand.)
137.
Thus, the unjustifiable failure on the part of the prosecution to take into account the Guidance led to material factors being overlooked. Added to this is the Respondent’s acknowledgement that a s. 45 defence would “quite probably” have succeeded. We are confident that the prosecution would have been discontinued at the second evidential stage. Alternatively, the trial court would have stayed the proceedings as an abuse of process, had an application been made.
138.
Armed with the fresh evidence it can be seen that the dominant force of compulsion was sufficient to reduce the applicant’s criminality or culpability to or below a point where it was not in the public interest for him to be prosecuted and the applicant would or might well not have been prosecuted in the public interest. Further the applicant’s involvement in the cannabis cultivation operation was limited in time and he was operating at the bottom of the chain. He was very young, damaged and vulnerable, with no previous record of offending. That there would have been no impropriety in leaving the facts to be evaluated by a jury, the submission relied upon by the Respondent, misses the point. The prosecution would not have been pursued with full knowledge of the relevant facts after proper enquiry.
139.
Taking all of the above into account and standing back, we conclude that, on the present combination of very unfortunate facts, this is one of those exceptional cases where there was a clear abuse of process such that the conviction is unsafe.
140.
For the sake of completeness, we add that, whilst there was no suggestion by the Respondent that there was no continuing abuse of process jurisdiction after the applicant’s conviction on his guilty plea, it was suggested that the fact that he had pleaded guilty, and the principle of finality, were material considerations, militating against a finding of abuse. There should not be a licence to appeal by anyone who discovers, following conviction, that some possible line of defence has been overlooked (see for example
Boal
at 599).
141.
The principle of finality is undoubtedly important. However, we do not consider that the fact that the applicant pleaded guilty renders his conviction safe on the facts of this case. Amongst other things, as set out above, had the prosecution complied with its duties under the Guidance, the prosecution would not have proceeded in the first place and/or would not have been pursued and/or the applicant would have had a proper opportunity to apply for a stay. And, as set out above, a conviction on a guilty plea in a case involving an abuse of process is as unsafe as one following trial. It would in our judgment be inconsistent with the due administration of justice to allow the applicant’s plea of guilty to stand.
Conclusion
142.
We grant leave to rely on the fresh evidence and leave to appeal. We also grant the necessary extension of time. Although the delay is very significant, as is apparent from the chronology above, there is an explanation for the delay and there would be a significant injustice if the appellant were to be prevented from pursuing what is a strong appeal. It is in the interests of justice to proceed accordingly.
143.
For the reasons set out above, we allow the appeal on the basis that the conviction is unsafe in circumstances where, although the appellant pleaded guilty following adequate legal advice, the proceedings amounted to an abuse of process. The conviction is quashed. | [
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"MR JUSTICE GOOSE"
] | 2023_01_20-5557.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/23/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/23 | 709 |
74c67fb70c12b4b992ec59b2dc7828c72749381ccd5192659f88dfbfeb8647cf | [2005] EWCA Crim 2077 | EWCA_Crim_2077 | 2005-08-04 | supreme_court | Case No: 200403172 A7 Neutral Citation Number: [2005] EWCA Crim 2077 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM DERBY CROWN COURT His Honour Judge Waitt Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday, 4 th August 2005 Before : LORD JUSTICE MANCE MR JUSTICE ELIAS and SIR CHARLES MANTELL (Sitting as Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : I.A. Appellant - and - Regina Respondent - - - - - - - - - - - - - - - | Case No:
200403172 A7
Neutral Citation Number:
[2005] EWCA Crim 2077
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM DERBY CROWN COURT
His Honour Judge Waitt
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Thursday, 4
th
August 2005
Before :
LORD JUSTICE MANCE
MR JUSTICE ELIAS
and
SIR CHARLES MANTELL
(Sitting as Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
I.A.
Appellant
- and -
Regina
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 D WHITEHEAD
appeared on behalf of the APPELLANT
MR S LOWNE
appeared on behalf of the CROWN
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Mance:
1.
On 12
th
January 2004, in the Crown Court at Derby before HHJ Pugsley, the appellant (born on 29
th
November 1984 and of prior good character) pleaded guilty on re-arraignment, and on 30
th
April 2004, in the same Crown Court before HHJ Waitt, he was sentenced, as follows: on count 1, rape, to custody for life; on counts 3, 4, 6, 7, 8, 9, 10 and 12, each involving indecent assault on a male, to 8 years custody on each count concurrent inter se and with count 1; and on counts 2, 5 and 11, having an offensive weapon, to 12 months custody on each count concurrent inter se and with count 1. The total sentence was thus custody for life, and the judge made the recommendation that a minimum period of 6 year 9 months be served from the time of sentence before any release.
2.
The judge in sentencing explained to the appellant that he passed a life sentence, because he had “no doubt at all” that “you present a very grave danger to young boys and no-one can say when or if you will be safe to be released”. He went on:
“In my judgment you present such risk that there must be a wider view as to when and if you are safe to be released. If you had not suffered from the impairment that you have, then at your age with your lack of previous convictions, an appropriate sentence for all of this offending would have been one of 15 years imprisonment [sic]. But because I cannot say when you will be safe to be released the only sentence that I can properly impose is one of custody for life”.
The period of 6 years 9 months from the date of sentence was specified by the judge pursuant to
s.82
A of the
Powers of Criminal Courts (Sentencing) Act 2000
. It represented the period after which, having regard to the period of remand in custody prior to sentence, the appellant would have been eligible to be considered for parole under a 15 year sentence. The judge concluded his sentencing remarks by expressing the hope and expectation that the appellant would in fact be detained at Ashley House (a medium secure hospital run by Care Principles Ltd.) until his treatment there was properly concluded, and that “today” arrangements could be made for his return there through a transfer by the Home Secretary under
s.47
of the
Mental Health Act 1983
. But he added that in any event he was “confident that the long-term security of young boys makes it necessary” to pass a sentence of custody for life.
3.
The appellant appeals against this sentence by leave of the single judge. Mr Whitehead representing him makes submissions at the following levels. First, he submits that the judge was wrong not to accept the recommendations of the medical experts before him, and to impose a hospital order under
s.37(1)
of the
Mental Health Act 1983
, with an indefinite restriction order under s.41(1) of the same Act.
4.
Secondly, he submits that, even if detention was appropriate, the judge erred in considering that the case called for custody for life. It is suggested that this sentence was imposed without specific warning to counsel and
R v Hawkins
12 Cr App R (S) 161 is cited in support of the proposition that counsel should have been given a specific warning in order to be able to address the judge about such a sentence. Thirdly, he submits that, if the case called for custody for life, the judge erred in taking a period of as long as 15 years as the starting point for the calculation of the minimum period to be served under
s.82
A of
the 2000 Act
. It is submitted that the sentence was manifestly excessive having regard to the guidelines in
R v Millberry
[2003] 1 CAR 25.
5.
The facts in outline and chronological order were these:
(a) Counts 3, 4 and 5 (Indecent assault x 2 and having an offensive weapon):
On two occasions between 1
st
and 31
st
March 2003 8 year old J was taken to the appellant’s den in a graveyard. On the first occasion the appellant lay on top of the boy and kissed him on the cheek. J knew that the appellant had a knife in his back pocket. On the second occasion J was forced back to the graveyard den. The appellant jumped on his back, took his trousers down and rubbed his penis over the boy’s bottom whilst forcing his bottom up and down and holding a knife to his throat.
(b) Counts 6, 7, 8 and 9 (Indecent assault x 4):
On 30
th
July 2003 12 year C and 12 year S were playing at a skate park. They ran with the appellant into some trees and bushes at the park. The appellant lay in turn on top of each of them, rubbing his penis over their bottoms as part of some sort of game. The two boys were then taken back to the appellant’s home. Whilst in his bedroom the appellant lay on top of them and tried to push his penis into their bottoms.
(c) Count 1 and 2 (Rape and having an offensive weapon):
On 4
th
August 2003 11 year old C was taken to the appellant’s graveyard den. With a knife placed at his throat the boy was forced to lay on the ground with his trousers pulled down. The appellant inserted his penis into the boy’s bottom and at some stage ejaculated. The boy was told that he would be stabbed if he told anyone. The offence lasted over an hour.
(d) Count 10 and 11 (Indecent assault and having an offensive weapon):
Later on the same day 11 year old D was enticed to and shown the appellant’s den at the cemetery. Having been threatened with a knife the boy was told to lie down while they played a game. The appellant pulled down his trousers and rubbed his penis over the boy’s bottom.
(e) Count 12 (Indecent assault):
On 26
th
August 2003 10 year M was at a local park when the appellant asked him to go round back to talk. After a while the appellant lay on top of the boy before eventually letting him go.
6.
In August 2003 the appellant was arrested in connection with the rape offence. Further enquiries led to the allegations of sexual abuse. At first he made no admissions, but during extensive interviews he made numerous admissions about the offences.
7.
The judge had before him medical as well as pre-sentence reports. A consultant forensic psychiatrist, Dr H Boer, examined the appellant on 29
th
October 2003 and again 28
th
January 2004, and concluded that he was not under a disability precluding a trial, although he might need additional clear explanations in simple language and assistance with documentation. He appeared to suffer from a mild learning disability, and could be seen as suffering from mental impairment as defined in the
Mental Health Act 1983
. Dr Boer also suggested, in view of reported second and third person auditory hallucinations, that he suffered from a psychotic disorder, probably schizophrenia, but subsequent psychiatric examinations and reports have discounted the suggestion.
8.
After interviews and psychometric tests extending over 8 hours on 13
th
and 18
th
November 2003 Dr Rozina Gazard wrote a psychiatric report dated 17
th
November 2003. She concluded that the appellant had the Pervasive Development Disorder of Autistic Spectrum Disorder combined with a significant learning disability. She explained that people with this disorder frequently suffered from the “egocentrism” which she identified in the appellant, and “may know what is right and wrong but cannot act upon their knowledge or apply it”. She also concluded:
“1. ..… He does not understand the social world, he does not have the intellect to work out problems and he is highly suggestible. Because of these factors in my opinion there are grave concerns about his ability to be fully responsible for his behaviours.
2.
If he is found guilty of the charges ….., then he is a significant risk to children, and should be considered as unmanagable in the community. ……
3. The minimal standards of any institution in this case will be the ability to provide Ian Alfrey with the structure, containment and support he requires to accommodate both his Autism and learning disability, while at the same time aiming to address the deviant sexual nature of his offending behaviour.
4.
I would not expect progress in this area to be easy and any gain to be small and incremental, over a number of years. I cannot estimate a prognosis as the problem is so rare, but in my opinion I am dubious about promoting change in this case. Therefore it is possible that Ian Alfrey may be a risk to children for the foreseeable future. Alternatively when he receives appropriate structure and support in his life combined with meaningful activities then it may be that his sexual interest becomes of minimal importance.
5.
Should he be found guilty, then, I would respectfully recommend that he be placed in, at least, a Low Secure NHS Unit where his unusual treatment needs identified above can be met.”
She referred to sexual abuse which the appellant disclosed that he had himself suffered when aged 14.
9.
The appellant’s solicitors approached Ashley House, a medium secure hospital run by Care Principle Ltd., to assess the appellant, and in report dated 10
th
February 2004 Dr Simon Halstead identified a number of
possible
diagnoses, which, in addition to mental retardation, included organic disorder, schizophrenia, autism and psychopathy, but he made clear that he left open whether the appellant actually suffered from all or any of them. He recommended a hospital order with classification of mental impairment.
10.
In a report dated 12
th
February 2004, the probation officer, Jeremy Draper, recorded the appellant as acknowledging the rapes and indecent assaults that he had committed, and as able to empathise “to some degree” with his victims’ feelings and as expressing regrets. He referred to the previous psychiatric reports, and, while acknowledging the consultants’ recommendation of a hospital order, said:
“9.
The Court will also consider the imposition of a life sentence which in my opinion would be commensurate with the seriousness of these offences. I have grave concerns about the risk that this defendant presents to the public, in particular children and in my opinion, his mental health treatment could and should be accessed within the auspices of a custodial sentence.
10.
Whichever sentences is passed today it is, in my opinion, most important in terms of public protection that Mr Alfrey is not released until he is considered to present no risk to the public. Furthermore, that at that point (if reached) he is subject to as lengthy a period of supervision as possible”.
11.
Between plea and sentence, the appellant was detained under s.38 of the Mental Health Act in Ashley House. In a further psychiatric report dated 26
th
April 2004, provided by Dr Juli Crocombe at the appellant’s solicitors’ request, she reported that, since admission there, the appellant had been very keen to attend the Learning Support Department and worked hard between sessions. Further:
“Ian has commenced individual sessions with our Consultant Clinical Psychologist. During these sessions he engages well and is willing to discuss his offending behaviour and the difficulties with his anger. However, he has marked impairment in his understanding of the impact of his behaviours on others and shows little ability to appreciate the consequences and implications of his actions. These findings are consistent with the opinions expressed in Dr Rosina Gazard’s Independent Psychological Report.”
12.
Dr Crocombe concluded:
“4.1 Ian Alfrey is a 19 year old man with a mild level of learning disability (mental impairment) and an Autistic Spectrum Disorder. This mental impairment is associated with both abnormally aggressive and seriously irresponsible behaviour in the form of physical aggression to self and others, verbal aggression, physical aggression towards property and inappropriate sexualised behaviour.
…..
4.3 Whilst there have been some initial difficulties following Ian Alfrey’s admission to Ashley House, particularly in relation to his interaction with other residents, overall he has settled in well and shown a number of encouraging signs that he will be willing and able to participate in the treatment programme offered at Ashley House and gain benefit from this.
4.4 Without the necessary treatment, support and supervision, I believe that Ian Alfrey will continue to present a high risk to the safety of other persons, and that there will also be a risk to his own health and safety.
4.5 In my opinion it would be inappropriate for Ian Alfrey to be given a custodial prison sentence. He would be extremely vulnerable within a normal prison environment and in addition he would not be able to take part in any of the prison treatment programmes due to his learning disability and autistic spectrum disorder. At the point of release from prison, therefore, the level of risk which he presents to the public would not have been reduced and might possibly have increased as a result of the distress he would have experienced whilst in prison.”
13.
She recommended:
“5.4 In my opinion, given the serious nature of the offences committed by Ian Alfrey, his long history of difficult and challenging behaviour and the high risk of his committing further serious offences if he were not detained within a secure hospital setting, it would be appropriate for Ian Alfrey to be subject to the special restrictions as set out in
Section 41
of the
Mental Health Act 1983
in order to protect the public from serious harm. Such restrictions should be without limit of time in light of the fact that in my opinion Ian Alfrey will continue to require high levels of support and supervision for many years into the future.”
14.
In mitigating on 30
th
April 2004, Mr Whitehead offered the appellant’s apologies and called psychiatric evidence from Dr Simon Halstead, who produced both his own and Dr Crocombes’ reports. Dr Halstead gave as his opinion that the appellant “suffers from mild mental retardation, which means that he has a low IQ, impaired intelligence and a delay, a global delay, in development”, conditions constituting a mental impairment under the Mental Health Act. He also had Autistic Spectrum Disorder. He considered that the appellant would benefit from a hospital order, which he recommended should be without limit of time. He thought that custody would have a severe impact on the appellant, on his mental state. When previously in custody he had been vulnerable and behaviourally impaired, displaying symptoms suggestive of psychosis, and because of his autistic pathology he would not be able to benefit from punishment and would emerge, in Dr Halsteads’ view, essentially unaltered – there would be “no benefit to him or to public safety in a custodial sentence”. However, when asked whether the appellant was likely to become safe to be at large unsupervised (if hospitalised), he said:
“If you ask me …. to answer that question through my experience, I have to be pessimistic and in the sense that I would never before this court predict a cure. What I would predict, however, is that we could perhaps indefinitely, if required, keep Mr Alfrey safe and keep the public safe, and that may involve close supervision for an indefinite period and that is certainly a possibility in this case, and it would certainly be possible for us to provide that.”
15.
He explained his preference for a hospital order with restriction, compared to a custodial order with a recommendation for transfer, by saying that “our preference would be very strongly for the hospital order in that it would give us an uncomplicated relationship with the patient”. Mr Whitehead then addressed the judge on the basis that there were “two choices here”, while encouraging the course recommended by Dr Halstead.
16.
Following the sentence of custody for life imposed by the judge, the appellant was returned to HMP YOI Glen Parva, and notified that, as a lifer, he was not suitable to remain there long-term and would be transferred to a lifers-centre, probably “an establishment where a sexual offenders treatment programme can be offered in due time”.
17.
The appeal having been lodged and leave given by the single judge, the matter first came before the Full Court presided over by May LJ, on 7
th
December 2004. Not long before that date (in fact in September 2004), the appellant was moved from HMP YOI Glen Parva to HMP YOI Swinfen Hall. Swinfen Hall is again not a hospital, but is a detention centre, about the precise conditions in which the Full Court had no information. The Full Court found this a “very worrying” matter (a view which we share). The Full Court expressed its concern that little or nothing appeared to have been done to effect the transfer which the judge contemplated under
s.47
, and adjourned the appeal with an invitation to the Secretary of State to consider such a transfer to either Ashley House or to another hospital, Rowan House, which Dr Halstead was now suggesting. It also ordered reports on the facilities at Rowan House, a report on the appellant from Swinfen Hall and a report from Dr Halstead on all three of these institutions, with his “opinion on the difficulties with a
s.47
transfer as opposed to a
s.37
order with
s.41
restrictions”. It concluded its short judgment:
“The court is very concerned with three things. First, any disposal of this appeal sufficiently and fully protect the public from this appellant for a sufficient time. Second, so far as is consistent with the first, the appellant should receive proper and appropriate treatment. On a lesser but not unimportant matter, the question has been raised by my Lord, Sir Charles Mantell, as to whether it might not be right to consider an application for leave to appeal against the minimum determinate sentence of six years and nine months and I have no doubt that counsel will consider that in the intervening period.”
18.
The appellant’s personal officer, Mr Simpson, made a report in respect of his stay in Swinfen Hall. The report indicated that, since arrival there, the appellant’s behaviour had been of an acceptable standard, though he often had to be reminded what was expected of him. He had a good relationship with staff and posed no control problems. He had settled into the wing regime and was coping well. He had been assessed for a sex offenders treatment course (“SOTP”) and agreed to attending it. He had recently been assessed by a psychiatrist with a view to a return to a secure hospital, but “until all assessments and appeals are resolved it is not possible to make any long-term sentence plans”. This report was accompanied by a medical report dated 20
th
December 2004 from Dr Ton Polak, medical officer at Glen Parva, who made clear that neither Glen Parva nor Swinfen Hall actually provided a bed in a psychiatric hospital, and that any transfer under
s.47
depended on (a) availability of a hospital bed, (b) funding from the appellant’s local primary care trust and (c) the issue of a transfer warrant , which he said “In many cases (and this appears to be one of them) …. means a considerable waiting period during which the prisoner is left in limbo – a situation we regret but are sadly unable to change”.
19.
Dr Halstead’s further report dated 2 February 2005 summarised the appellant’s current mental position, on the basis of an interview on 14 December 2004:
“Mr Alfrey continues to display symptoms of mental disorder. In my opinion he continues to meet the Mental Health Act criteria for mental impairment and also, possibly, mental illness. I do not believe that he is schizophrenic. While he hears voices they are not typical of the auditory hallucinations occurring in schizophrenia.
It is inappropriate for a severely mentally disordered and vulnerable person to be managed in a prison. I continue, therefore, respectfully to recommend a placement in a secure hospital.”
20.
Dr Halstead said further:
“In Mr Alfrey’s case, his offences stemmed directly from his mental disorder. A core feature of autism is the inability to perceive the feelings of other[s]. Other people are therefore treated as objects. Moreover, he was repeating sexually abusive experiences which he himself had suffered.
The pathology of autism is amenable, at least in part, to treatment and to education. It is not responsive to punishment, which can actually have an opposite effect.”
He went on to explain the treatment programme that would be available in hospital and to say that
“If Mr Alfrey, or any other patient for that matter, were to come to hospital for treatment with a 6 year tariff, he would see most of the other patients leave hospital before he could even begin the most important parts of his treatment programme. Successful treatment within the tariff period would lead only to transfer back to prison.
This approach might be appropriate, for instance, for someone who became acutely psychotic during a prison sentence. He could be transferred to hospital, treated, then returned to prison.
For someone with a life long and permanent disorder such as autism this is entirely inappropriate. The Mental Health Act and the mental health care services are designed to provide life-long security, supervision and treatment for people with such mental disorders.
…..
[The Mental Health Act] distinguishes treatment from punishment. The former was done in hospital and the latter in prison. There have been pressures to blur this distinction, in other words to treat the mentally disordered in prison and to use hospitals for punishment.
In my view medicine [and psychiatry is a medical discipline] offers a humble, scientific service to mankind. It is well established that medicine cannot inflict punishment. …..
Furthermore it is my opinion, confirmed over many years of practice, that it is perfectly possible to protect the public without punishing or harming the patient. I would argue, as I have done before, that the health system is better at this than the prison system because we have vastly better risk assessment procedures at our disposal, plus the appropriate legal powers.”
21.
Dr Anne Jaspers of the Birmingham and Solihill Mental Health NHS Trust saw the appellant on two visits to Swinfen Hall in September and November 2004, and, after discussing his case with Dr Halstead (who she said know the appellant much better than she did), wrote a report dated 31 January 2005, in which she stated her opinion that neither the SOTP at Swinfen Hall nor the staff delivering it were equipped “for someone with Mr Alfrey’s range of disabilities and active symptoms of mental illness”. He was “inappropriately placed with a prison setting” and “has mental disorders which need treatment in hospital”. She said that
“I understand Ashley House can offer the treatment he needs is he is made subject to a
Section 37
Hospital Order. Ashley House has also agreed Ian Alfrey could be admitted there under the provisions of
Section 47
should his mental state significantly deteriorate, but Home Office and funding issues mean that Mr Slfrey may not be automatically placed there”.
22.
In a letter dated 11 February 2005 Care Principles Ltd. set out information about the conditions and treatment available at Rowan House, which provides both medium and high dependency secure accommodation. It said:
“Levels of supervision of each individual patient are determined by the multidisciplinary team depending on risk assessment and risk management plans. For all restricted patients, access into the community will take place only with the approval of the Home Office after a request has been made by the Responsible Medical Officer of the patient giving detailed reasons of the care plan and why such community exposure would be beneficial to the patient’s therapeutic program.
The multidisciplinary clinical team at Rowan House works closely with the referring clinicians in order to facilitate patients eventual return to their home areas if it is appropriate. Pre-discharge information detailing the essential service elements required to provide long-term care and durable aftercare services in the community are usually discussed at Section 117 meetings, to which the local community services are invited.”
23.
A letter dated 7
April 2005 was also written by a Dr Sultan of Linden House, another medium secure hospital run by Care Principles Ltd. Dr Sultan saw the appellant at Swinfen Hall on 23 March 2005, summarised his condition as that of “a 20-year old man who has clearly mild learning disability and Autistic Spectrum Disorder, which has associated with a long history of challenging behaviour, that had escalated to having serious offences in the form of indecent assault and rape”. He recommended a hospital order with restriction.
24.
The appeal came before us on 28 June 2005, Sir Charles Mantell being again a member of the court. We heard evidence from Dr Halstead which was along the same lines as his reports. He last saw the appellant on 14 December 2004, but had been in touch with the prison mental health service. The appellant continues to display symptoms of autism and in Dr Halstead’s view post traumatic stress syndrome (“PTSD”), related to the appellant’s own sexual abuse. Dr Halstead repeated his view that, where mental disorder causes an offence, then the letter and spirit of the Mental Health Act called for a hospital order. Here the appellant’s autism had inhibited his ability to perceive the feelings of others, and his PTSD would cause him to inflict on others the same abuse that he had himself suffered, while his autism would also encourage this. The appellant had however shown insight into his disorder and needed treatment. Dr Halstead explained that a transfer to hospital under
s.47
was effectively precluded by the length of the minimum tariff period of 6 years 9 months. An important part of any treatment programme would, at least in its later stages, be training in conditions outside the hospital, but that would not be possible during the minimum period. However, Dr Halstead also thought that the appellant’s condition would require a substantial period in hospital, and that treatment could take years.
25.
Dr Halstead also said that, under a hospital order, if the stage came when his case was considered by the Mental Health Review Tribunal, the Tribunal would consider the risks posed, and if there were risks, then, even in relation to someone who no longer required to be detained for medical reasons, the Tribunal had power to make a conditional or deferred conditional discharge. That was a reference, in the context of a hospital order with a restriction order, to
s.73
of
the 1983 Act
, whereby the Tribunal is obliged to direct an absolute discharge in some circumstances, but may direct a conditional discharge in others. More precisely, under
s.73(1)
, the Tribunal
“shall direct the absolute discharge of the patient if satisfied-
(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.”
The matters mentioned in s.72(1)(b)(i) and (ii) are, so far as presently relevant, these:
“(i) that he is not then suffering from mental illness …. or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; …”
26.
The possibility of a conditional order arises under
s.73(2)
, whereby:
“Where in the case of any such patient as is mentioned in subsection (1) above the tribunal is satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.”
The power to make a conditional order is thus expressly related to the potential appropriateness of further treatment.
27.
Mr Whitehead on behalf of the appellant adopted Dr Halstead’s evidence, and submitted that the authorities establish that, where an offender qualifies for a hospital order with restriction, and a hospital place is available, it is wrong in principle to impose a life sentence out of concern that the offender’s release should be determined process other than by the Mental Health Review Tribunal. In
R v. Morris
(1961) 45 CAR 185, the court said that this was the general principle “where punishment as such is not intended”, while stating that “Of course there may be cases where, although there is a substantial impairment of responsibility, the prisoner is shown on the particular facts of the case nevertheless to have some responsibility for the act he has done which must be punished”. In
Morris
however no suitable hospital was shown to be available, so the judge’s order of life imprisonment was upheld. In
R v. Howell
(1985) 7 CAR 360 the appellant was extremely dangerous, “suffering from mental illness in the shape of schizophrenia, which is susceptible to treatment, but also from a much more serious personality disorder with deviant sexual overtones, which is a much more intractable condition ….”. The judge was “so worried about the danger that this man would represent to the public if released that instead of making a hospital order, which he was asked to make and as to which ample evidence existed, …. he passed a life sentence”. The court, presided over by Lord Lane CJ, said:
“We do not think that the course taken by the judge, although we understand his reasons well, was a proper one. In circumstances such as these, where medical opinions are unanimous and a bed in a secure hospital is available, we think that a hospital order under
section 37
of
the Act
should be made together with a restriction order without limit of time under
section 41
.”
28.
That approach was followed 10 days later in
R v. Mbatha
(1985) CAR 373, Lord Lane again presiding over the court. The judge there had identified “a substantial element of criminality in this behaviour”, notwithstanding that there was also a direct causal link between the defendant’s manic depressive psychosis and the attacks. Such criminality related to the circumstances in which the defendant had discontinued restraining medication. But the Court of Appeal heard evidence of lack in insight and inability to control behaviour which undermined the conclusion regarding “criminality”, and on that basis the court applied what it had said in
Howell
.
29.
In
R v. Birch
(1989) 11 CAR (S) 202, Mustill LJ, giving the judgment of the court, pointed out that prison might be chosen by a judge as an alternative to hospital either because the offender was dangerous and no suitable secure hospital accommodation was available or because there was an element of culpability in the offence which merited punishment, as might happen where there was no connection between the mental disorder and the offence or where the offender’s responsibility for the offence was reduced but not wholly extinguished.
30.
In
R v. Mitchell
[1997] 1 CAR (S) 90 the court endorsed the approach in
Howell
, treating as
per incuriam
the decision in
R. v. Fleming
(1993) 14 CAR (S) 151, where the court had preferred a life sentence on the (mistaken) basis that the decision whether to release would then be for the Home Secretary (when in fact it would be for the discretionary lifer panel, or, now, the Parole Board). It said that “The composition and powers of the discretionary lifer panel and the Mental Health Review Tribunal are closely analogous”. In
R v. Hutchinson
[1997] 2 CAR (s) 60, the court again applied the approach of
Howell
and
Mitchell
.
31.
However, in
R v. Drew
[2003] UKHL 25
; [2004] 1 CAR (S) 8, page 65, the House of Lords examined further the relationship between a life sentence and a hospital order with restrictions in respect of an offender suffering from schizophrenia (who had in fact been transferred to hospital shortly after sentence was passed), in a context where the judge had no option but to pass an automatic life sentence under the
Crime (Sentences) Act 1997
s.2
(since replaced by the
Powers of Criminal Courts (Sentencing) Act 2000
,
s.109
). The issue was whether an automatic life sentence was compatible with the appellant’s rights under the Human Rights Convention. Lord Bingham said in relation to the case before it:
“16. It may be accepted that a sentence of life imprisonment, passed under
section 109
of
the 2000 Act
, is, in part at least, punitive in purpose and effect. The minimum term specified by the judge to be served before release is imposed as retribution for the crime committed. It may also be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit to be tried, are not responsible for their conduct because of insanity: see, generally,
R v H
[2003] 1 WLR 411
; [2003] UKHL1. But the appellant did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another. The Recorder of Cardiff did not regard the appellant as other than criminally culpable. Had he done so he would not have specified a minimum term based on a notional sentence of eight years’. The appellant’s mental illness could properly be relied on as mitigating the criminality of his conduct but not as absolving him from all responsibility for it. Mr Davies laid stress on the stigma attaching to a sentence of life imprisonment, which he criticised as unfair in the case of a mentally-disordered defendant such as the appellant. It is of course true that conviction of serious violent crime carries a stigma. But the appellant will have been stigmatised less by the sentence passed upon him than by his voluntary admission of guilt.”
32.
Lord Bingham continued:
“17.
Section 82
of
the 2000 Act
imposes additional duties on sentencing courts where offenders appear to be mentally disordered. Save where a custodial sentence is fixed by law (as in cases of murder) or falls to be imposed under
section 109
, the court must consider the offender’s mental condition before imposing a custodial sentence. The humanity and fairness of this requirement are obvious. But it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. This is made clear by the terms of
section 37
of
the 1983 Act
, for even where the conditions in sub
section (2
)(a)(i) or (ii) are found to be satisfied the court may make a hospital order only if it is also of opinion under sub
section (2
)(b) that a hospital order is "the most suitable method of disposing of the case". If it is not of that opinion, a sentence of imprisonment may be imposed even on an offender in whose case the conditions in sub
section (2
)(a)(i) or (ii) are satisfied.”
33.
Lord Bingham then summarised
Birch
in the same terms that we have done so in paragraph 29 above. At paragraph 19 he said:
“19. If it were shown that a mentally-disordered defendant was held in prison, that he was there denied medical treatment, available in hospital, which his mental condition required and that he was suffering serious consequences as a result of such denial, he would have grounds for seeking judicial review of the Home Secretary’s failure to direct his transfer to hospital under
section 47
of
the 1983 Act
:
Keenan v United Kingdom
(2001) 33 EHRR 913
. But this would not be a challenge based on the compatibility of
sections 109
and 37 with article 3. Nor is it the ground of challenge which the appellant makes, or could make, in this case, since the Home Secretary exercised his transfer power promptly. …..”
34.
The House endorsed the solution adopted by the Court of Appeal in
R v. Offen
[2001] 1 WLR 253
, to avoid the passing of an automatic life sentence on a defendant who no longer presented a danger to the public, and said:
“21. Interpreted in accordance with
R v Offen
[2001] 1 WLR 253
,
section 109
does not lack an objectively justifiable protective purpose: ”
(1) Defendants sentenced to determinate sentences of imprisonment must be released after serving a specified proportion of their sentences and are subject to recall for a limited period only. If on release they are still dangerous, they are a source of risk to the public.
(2) Defendants made subject to hospital orders, whether restricted or not, are entitled to release when the medical conditions justifying their original admission cease to be met:
R v London South and South West Region Mental Health Review Tribunal, Ex p Moyle
[2000] Lloyd’s Rep Med 143, 150;
R (Von Brandenburg) v East London and The City Mental Health NHS Trust
[2002] QB 235
, 248, paragraph 18. Further, they are liable to recall only on medical grounds. They may be a source of danger to the public even though these medical conditions are not met. While it is possible to argue, as Mr Davies did, about the magnitude of this risk, it cannot be said not to exist.
(3) A defendant sentenced to life imprisonment under
section 109
is not deprived of all his rights. He may appeal against imposition of the sentence. He may appeal against the minimum term specified by the judge. He is eligible for release on the expiry of that term and is entitled to be released if he is no longer a source of danger to the public. But the decision whether it is safe to release him will be taken by the Parole Board, as an independent body acting judicially, which will not be confined to the medical considerations of which, alone, a Mental Health Review Tribunal may take account, and he is liable to recall indefinitely if he appears to present a danger to the public, the grounds of recall, again, being broader than in the case of a restricted patient. In short, an automatic life sentence affords a measure of control not available under the other available orders.”
35.
The House did however indicate its hope that thought would be given to extending the power under
s.45
A of
the 1983 Act
(in England presently confined to cases of psychopathic disorder) to make a hospital order with a “limitation” restriction under
s.41
at the same time as passing a sentence of life imprisonment. It said of the case before it:
“Had it been open to the Recorder to make an order under
section 45
A (which it was not, because the appellant was not suffering from psychopathic disorder) it seems likely that he would have done so. This would have avoided the ill effects which the appellant undoubtedly suffered as a result of his confinement in prison. We hope that further thought may be given to exercise of the power conferred by
section 45
A(10).”
36.
Finally, Lord Bingham said this:
“22.
In the course of his argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions generally encouraging the making of hospital orders where the relevant medical criteria were met might, in the absence of adversarial argument, have given less than adequate weight to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners. He instanced authorities such as
R v Howell
(1985) 7 Cr App R (S) 360
;
R v Mbatha
(1985) 7 Cr App R (S) 373
;
R v Mitchell
[1997] 1 Cr App R (S) 90
;
R v Hutchinson
[1997] 2 Cr App R (S) 60
. There may be some force in this criticism, and we would accept that these differing conditions are a matter to which sentencing judges and appellate courts should try to give appropriate weight. The difficulties caused to prison managements by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we would need to be persuaded that any significant change in the prevailing practice was desirable.”
37.
Accordingly, judges are not required to ignore, but should, on the contrary, give some appropriate weight to, such differences as there are between the regime of custody for life, with the Parole Board’s role after the expiry of the minimum period, and the regime of a hospital order with indefinite restriction, with the Mental Health Review Tribunal’s role under
s.73
of
the 1983 Act
. This does not mean assuming that the latter regime, which has the advantage of guaranteeing hospital treatment, will in any particular case necessarily afford significantly less protection to the public than the former.
38.
We turn to consider the judge’s decision in the present case in that light. In the course of Dr Halstead’s evidence before him, he obtained the doctor’s confirmation that consideration of any ultimate release from a hospital order would come “before a Mental Health Review Tribunal, which operates by way of different criteria, though not wholly dissimilar from the Parole Board”. In the light of Lord Bingham’s observations in paragraph 22 of
Drew
, we do not consider that any criticism can attach to that as a general statement.
39.
The question remains whether the judge erred, in law or in principle, in treating this as a case for life custody, in the expectation that the appellant would be transferred to a hospital for treatment, rather than making a hospital order with restriction. Before us, counsel did not deny that, despite the problems faced by the appellant, there was a degree of responsibility in the offending. The judge was, as counsel accepted, concerned with a mild learning disability as well as a condition of Autistic Spectrum Disorder. In addition, on the basis of Dr Halstead’s evidence before us, the sexual abuse suffered by the appellant himself when aged around 14 can be viewed as having a continuing traumatic effect involving a form of PTSD. In these circumstances, the doctors have been unanimous in advocating the making of a hospital order with restriction, although we note that the probation officer in his pre-sentence report favoured a custodial sentence.
40.
In the grounds of appeal, Mr Whitehead relied on
R v Howells
(1999) 1 Cr App R(S) 360. That was a decision on the custody threshold – whether (under what is now
s.79
of the
Powers of Criminal Courts (Sentencing) Act 2000
) the offence or one or more offences associated with it was “so serious” that only a custodial sentence could be justified, or whether, in the case of a violent or sexual offence, only such a sentence would be adequate to protect the public from serious harm from him. In the present case, apart from the possibility of a hospital order, there could be no doubt that the custody threshold was far passed. As counsel accepted before the judge, the judge was faced with a straight choice, between custody and a hospital order with restriction. Under
s.37
(2(b) of
the 1983 Act
, one of the preconditions to making a hospital order is that:
“(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
See also per Lord Bingham in paragraph 17 in
Drew
, cited in paragraph 32 above.
41.
Accordingly, the judge was bound to consider which was the more appropriate in the particular circumstances of this case, a custodial sentence or a hospital order with restriction. That involved weighing the factors. On the one hand, this was very serious offending, with serious impact on the victims and their families and in respect of which the appellant cannot be fully excused of all responsibility. On the other, he is someone with diverse and unusual problems, who the doctors unanimously advise would benefit by treatment in a psychiatric hospital. On the one hand, as the history to date shows, a custodial sentence (especially for life) affords the most clear-cut security to the public. On the other hand, it does not by itself guarantee that the appellant will receive the assistance that may enable his problems to be overcome, and (as this case shows) a sentencing judge’s hope and expectation that there may be a transfer under
s.47
to a hospital for treatment may, for one reason or another, not be realised.
42.
In this case, it is, we think, clear that it was not considerations of responsibility or punishment that determined the judge’s decision to order custody for life. It was considerations of public safety. He took the view that the appellant was so grave a danger to young boys and presented such risks that a “wider view” needed to be taken as to when he was safe to be released. By that, he clearly meant wider than the view that he thought would be taken by the Mental Health Review Tribunal, looking at the matter under
s.73
. At the risk of over-simplification, under
s.73
the Tribunal must focus on the existence, or the potential risk of recurrence, of any mental impairment making detention in a hospital for appropriate medical treatment necessary for the patient’s health or safety or for the protection of other persons. There may, Lord Bingham observed in
Drew
, be cases where a person remains a risk to the public, even though it cannot be said that he or she has now, or is likely to suffer in the future, any such actual or potential mental impairment. In a complex case like the present, where the roots of the appellant’s offending exist in an uncertain combination of factors, there may be some force in the judge’s approach, which was to cover all possibilities. However, the judge was bound also to weigh in the balance the appellant’s clearly attested psychiatric problems, the benefit that the medical evidence also attested that he would be likely to receive from treatment and the protection of the public, as well as in the long term the rehabilitation of the appellant in society, that could result from a hospital order with restriction. He sought to do so, by expressing his hope and expectation that a hospital order with restriction would, even “today”, be achieved. But, as the history shows in the present, there can be a considerable difference between the making of such an order by the court and the imposition of a sentence of custody for life in the hope and expectation of a transfer under
s.47
by the Home Secretary (or
de facto
, as we understand, by the Governor of whatever institution the appellant is in, acting under delegated power from the Home Secretary). Because we also understood when the appeal came before us on 28th May 2005 that the difference may have arisen in this case because of the length of the minimum period fixed by the judge, and because we had formed the provisional view that the judge may have fixed too long a minimum period, we adjourned it and the giving of any judgment for a further 21 days, pending enquiry of the Secretary of State for the Home Department regarding the prospects of a transfer to hospital under
s.47
, if the minimum period were to be reduced to 4 years from the date of sentence. We have not received any response.
43.
There is therefore still uncertainty about whether and if so when the appellant would receive the medical treatment in hospital which alone offers any prospect of rehabilitation and ultimately release into the community. The judge sentenced in the hope and expectation that such treatment would be made available from “today”, even though he also stated the view that custody for life was “in any event” necessary. The continuing uncertainty about whether and when medical treatment in hospital will be provided, if the present sentence stands, must be weighed in the balance against the factor that was critical for the judge, his concern that the public would not receive the most complete protection under the regime of a hospital order. But, on the evidence before us, the regime of a hospital order with restriction is designed and able to offer very great protection, if necessary indefinite, for the public in respect of the risks posed by this appellant. Further, the evidence suggests that the real risks are, in the case of this particular appellant, associated with conditions in respect of which medical treatment would be appropriate. In these circumstances, we have come to the conclusion that the right order, particularly in circumstances where the judge’s own hope and expectation have not been fulfilled and it remains uncertain whether or when they ever would be, is a hospital order with restriction. The appeal will be allowed and the sentences passed on all counts quashed and replaced in each case by a hospital order with indefinite restriction.
44.
That conclusion makes it unnecessary for us to address the question whether the judge would have been right to pass a sentence of custody for life in respect of the rape (count 1). The complaint is made that he did not raise this possibility expressly with counsel. But the reports before him and Dr Halstead’s recommendation of an indefinite restriction order might be thought to have raised the possibility fairly obviously. Be that as it may, the judge was clearly right to consider that the criteria for custody for life were satisfied. The offending was very serious in nature and extent, and the appellant was someone who was likely to remain a serious danger to the public, particularly small boys, for an entirely unpredictable period and quite possibly always, with or without treatment. Before us, therefore, there could be no complaint if the sentence stood, bearing in mind that its appropriateness would on any view now have been fully argued.
45.
Finally, we should say some words about the minimum period fixed by the judge of 6 years 9 months (that is 15 years less 9 months for time spent on remand in custody). Here, there were repeated sexual assaults on young boys aged between 8 and 12, including one anal rape with ejaculation, and three of these assaults, including the rape, were aggravated by the presence or use of a knife to force submission. Nonetheless, we bear in mind (a) the appellant’s youth (18 at the time of the offences, and 19 at sentence), (b) his psychiatric problems, including those stemming from the abuse perpetrated on him some five years before these offences, and their causative relevance to the present offending, as well as (c) his plea of guilty. This was, it appears, a late change of plea, on or very near the date fixed for trial but before any jury was sworn. However, it saved the victims from having to give evidence, and should still have received express credit. It was not taken into account expressly in the judge’s sentencing remarks, as it should have been under
s.152
of
the 2000 Act
. We also mention that the appellant’s prior good character, though of very limited weight here, especially in the context of a series of assaults. Even if one takes the eight year starting point in
R v. Milberry
[2003] 1 CAR 25, page 396, because the rape was on a child, and increase it notionally (perhaps by as much as 4 years if one were to take the case of an adult defendant), to take into account the aggravating factors (the repeated offences on six different victims and the use of a knife to intimidate), we consider that the mitigating factors which we have identified as (a), (b) and (c) act as significant counter-balancing factors. They lead us to the conclusion that the appropriate sentence to pass in respect of this young offender, aside from the factors justifying a sentence of custody for life, would have been 9-10 years, say 9½ years. On that basis, the appropriate minimum period to specify in the case of a sentence of custody for life would have been 4 years 9 months, less the 9 months served in custody, making a minimum period of 4 years from the date on which the judge passed sentence.
46.
For the reasons which we have summarised in paragraph 43 above, the appeal will be allowed and the sentences passed on all counts quashed and replaced in each case by a hospital order with an indefinite restriction order under
s.41
of the
Mental Health Act 1983
.
47.
We would, however, repeat the hope expressed by the House of Lords in
R v. Drew
(cf paragraph 35 above), that the power under
s.45
A of the
Mental Health Act 1983
to make a hospital order with a limitation restriction under
s.41
at the same time as passing a sentence of imprisonment or custody, should be extended to cases of mental illness or impairment not involving psychopathic disorder. Such an extension would remove or reduce very real difficulties and dilemmas in sentencing which can at present (as this case illustrates) face judges at first instance and on appeal. | [
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"SIR CHARLES MANTELL"
] | 2005_08_04-578.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2077/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2077 | 710 |
b424b9cffb3042128049c5a88dd33b25fe203e402f0211501eb7cbf40c23a5d1 | [2024] EWCA Crim 85 | EWCA_Crim_85 | 2024-01-23 | 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.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2024] EWCA Crim 85
No. 202304009 A2
Royal Courts of Justice
Tuesday, 23 January 2024
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE CHOUDHURY
HIS HONOUR JUDGE ANDREW LEES
REX
V
KGS
REPORTING RESTRICTIONS AND ANONYMISATION APPLY:
A order pursuant to s. 45 of the Youth Justice and Criminal Evidence Act 1999 was made that no matter relating to the offender’s grandson R shall be included in any publication of these proceedings or any judgment if it is likely to lead members of the public to identify him as a person concerned in the proceedings. This prohibition will last until he reaches his 18
th
birthday.
__________
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_________
MR A. LANGDALE KC
appeared on behalf of the Appellant.
MS J. LEDWARD KC
appeared on behalf of the Respondent.
________
JUDGMENT
LORD JUSTICE POPPLEWELL:
1
An order pursuant to
s. 45
of the
Youth Justice and Criminal Evidence Act 1999
was made that no matter relating to the offender’s grandson R shall be included in any publication of these proceedings or any judgment if it is likely to lead members of the public to identify him as a person concerned in the proceedings. This prohibition will last until he reaches his 18
th
birthday. In order to protect his anonymity it has been necessary to anonymise the name of the offender, the victims, and other members of their family. This anonymity will also last only until R reaches his 18
th
birthday.
2
On the evening of 29 March 2023 the offender shot and killed JD, the former partner of his daughter, at point-blank range. He drove to the home of JD’s father, GD, and shot and killed GD at point-blank range. He was soon apprehended, and made written admissions to the killings shortly thereafter. He pleaded guilty to two counts of murder on 28 June 2023 at an adjourned pre-trial preparation hearing once a psychiatric report had confirmed he was fit to plead.
3
On 23 October 2023 he was sentenced by HHJ Bishop sitting in the Crown Court at Cambridge to life imprisonment with a minimum term of 25 years less 206 days spent on remand on each count, to run concurrently.
4
His Majesty's Solicitor General applies for leave to refer the sentences under
s.36
of the
Criminal Justice Act 1988
as unduly lenient.
5
We emphasise at the outset that the minimum length of time which a murderer must serve in prison does not reflect the value of the lives taken away, and does not attempt to do so. The sentence, however long, and whatever the outcome of this application, can never compensate for the grievous loss which has been suffered by the families of the victims in this case.
The Facts
6
JD was 32 at the time of his death. He lived alone in a semi-detached house in Bluntisham, Cambridgeshire. His father, GD, was aged 57 at the time of his death. He too lived alone, in a house in Sutton, Cambridgeshire, some six miles away from JD’s house.
7
The offender, then aged 66, is a widower. Following the death of his wife in 2020, he sold his home and bought a motor home. At the time of the offending, he was living in that motor home on a campsite in Willingham, Cambridgeshire. He also owned a car. He was the holder of a shotgun licence and lawfully owned a Beretta shotgun.
8
The catalyst for the shootings was a Family Court decision two days earlier, on 27 March 2023. Those proceedings were between the offender's daughter, S, and JD who was her former partner. They had been in a relationship and had a son, R, who was aged seven at the time of the shootings. S and JD had separated shortly after R was born. R lived with his mother but had regular contact with his father. In 2020 S married her current partner, Paul, and they had a daughter together. Paul is a US national who was serving with the US Airforce and was stationed in the UK but had been due to be redeployed back to the United States, and S and Paul planned to move there together with R and their daughter. The Family Court proceedings, which had been going on for some time, had involved disputes about contact and financial arrangements, and now involved an application by S to remove R from the jurisdiction so that he could go with her and Paul and their daughter to the United States. JD, R's father, opposed the application and submitted his own application to increase contact time to 50/50. The interim decision of the Family Court on 27 March 2023 was that JD's contact should not be increased to 50/50, but that R could not be removed from the jurisdiction pending further enquiries and further hearings.
9
There were a number of communications prior to the shootings which were relied upon by the prosecution as evidence of planning. In particular, there were a number of text messages downloaded from the offender's mobile phone which, as the Judge concluded, showed that he was "getting very involved in the family proceedings dispute between [his] daughter and [JD]". He also sent text messages over the preceding months, about which the judge said this:
"From the texts which have been produced the family proceedings have been troubling you to a significant degree over the year before the murders. Some of the texts indicate that you are thinking about taking the law into your own hands. The defence submit that these comments were bravado only but they were plainly more than that."
10
On 17 August 2022 there had been an exchange with someone called April in which the offender had said, "I have a shortlist of people I intend to murder". On 19 October 2022 he had said to April, "I will override any court decision", adding later "first hearing end of November. But there is always a plan B." The offender's telephone contained photographs of the houses occupied by both JD and GD and their vehicles, taken between November 2022 and early February 2023. These had been taken in connection with the family proceedings and were accompanied by commentary about contact arrangements, and financial aspects of the family proceedings, demonstrating the extent to which the offender was getting involved in those family proceedings. The Judge found that although those were not part of the planning for the murders, a by-product of that research was that the offender knew where the victims lived.
11
On 27 March 2023, the day the Family Court made its interim ruling that R could not be removed from the jurisdiction pending further enquiries and hearing, the offender sent a message on his mobile telephone telling a friend "I will be [R's] carer/guardian, and let [S] and co move over to America. No problems. I'd kill a host of individuals but implication spread out too wide." There was evidence that at around this time (and on the day of the murders) the offender was making enquiries about viewing properties to rent.
12
On the morning of the murders the offender drove his car to Meridian Close where JD lived, and remained there for about two minutes. He then drove to The Row in Sutton where GD lived, arriving ten minutes later and pausing there for a few seconds. The offender's car was seen again later and briefly in Meridian Close at 3.20 in the afternoon and again at about 4.40.
13
At half past seven in the evening, the offender began a series of checks designed to ensure that the two victims were home and alone for the evening. He drove onto The Row in Sutton. On that occasion, GD returned to his home in his van a few minutes later and the offender drove past GD's home address before leaving the street. At about quarter to eight, he drove into Meridian Close and waited there for about a minute. He repeated that at about five past eight.
14
At about 8.40 he drove along The Row and parked up at the side of the road. He went up to the van parked outside GD's home address before leaving.
15
Shortly before nine o'clock, he drove into Meridian Close again and parked up. At around nine o'clock, JD's girlfriend left his home, having spent the evening there with JD. She drove home, leaving JD alone in his house.
16
Very shortly after her departure, the offender went up to the front door of J's house, carrying his loaded shotgun. He knocked on the front door. When JD opened the front door, the offender shot him at point-blank range, to the left chest and then to the right side of his head. The injuries were rapidly fatal.
17
Alerted by the shots, neighbours emerged from their homes and saw the offender walking from the front door, having closed it behind him, carrying the shotgun which he placed on the backseat of his car before driving off. The neighbours called 999 and soon found JD's body, where he had collapsed in the hallway of his home.
18
The offender drove straight to The Row in Sutton, where his car was seen shortly before 9.15. He parked up. A lady walking a dog noticed him doing something in the boot with a dark long-shaped object, which was undoubtedly the shotgun. He appeared startled by her presence.
19
Within a couple of minutes, at 9.17, the offender knocked on GD's front door. When GD opened the door, the offender shot him three times at point-blank range, to the top of the head, the right chest and the left hip. In fact, four shots had been fired, one of them missing, indicating that the offender had reloaded the two-barrel gun at the scene. Those injuries would have been rapidly fatal.
20
The offender then closed the front door, and left the scene in his car. He drove to the caravan site in Willingham where he had been living, placed the shotgun in a cupboard in his motor home, and drove away in that vehicle, intending, it seems, to drive to Bristol.
21
He was very quickly identified by the police as the murder suspect and that night his motor home was brought to a stop by the police on the M5 at about 1.30 am. He was arrested on suspicion of murder and told the arresting officer where the shotgun was. He was taken to Worcester police station. During the booking-in procedure, he was heard to say "Sometimes you have to do what you have to do, even if it is wrong in the eyes of the law." He later said he was very remorseful. He was transferred to Parkside police station in Cambridge, and interviewed under caution in the presence of a solicitor. He answered "no comment" to all questions asked. He was charged with murder.
22
He was not arraigned at the Plea and Trial Preparation Hearing scheduled for 11 May 2023 as a psychiatric report was being prepared as to fitness to plead. He sent the first of three letters to the court on 18 May, a week later, in which he confessed to the two murders and said he had intended to plead guilty at the hearing on 11 May. He said:
"I am struggling with the burden of my guilt and wish to bring to a closure the suffering and emotional stress that my actions on this tragic and fatal night have caused ... if I could turn back time I would and I regret that there are not enough words or remorse I can offer to the families affected by this crime."
23
He sent a second letter to the court dated 30 May 2023, in which he offered a lengthy explanation of his personal circumstances, and which made plain the connection between his actions and his feelings resulting from the outcome of the Family Court hearing. He set out his personal history from the time when his wife was diagnosed with cancer, and the difficulties faced by him over the following years in having to care for her alone until her death. He indicated that he had used alcohol in order to manage his stress and his anguish. In that letter he made a number of derogatory assertions about JD's care of his child R, which were not accepted by the prosecution.
24
At the adjourned Pre-trial Preparation Hearing on 28 June, the offender pleaded guilty to the two counts of murder on the indictment.
25
Shortly before the sentencing hearing, on 20 October 2023, a third letter written by the offender was uploaded to the Digital Case System. The content of that letter is important. Much of it repeats that which the offender had previously set out in his earlier letters. He said that his actions were "driven" by the actions of JD, encouraged by his father GD, and the offender's overwhelming desire to protect his grandson:
"My action has been driven by the physical and emotional abuse from his biological male parent and the failure of the family courts ... I would not and cannot condone what happened but love can be blind and be the catalyst for tragedy. This is a crime of passion."
…
"During these years of caring for my wife and acting as [R's] father and grandfather, I would acknowledge I developed anger management issues towards [JD & GD] over their mistreatment of [R]."
26
He said that when he received a letter from JD's solicitors advising that JD would be making an application to the Family Court for greater contact "from this moment on I struggled to manage my anger, stress, anxiety, and the red mist brought on by my growing alcohol dependency. But despite my rage moments, I never planned any harm and am ashamed of the events of 29 March."
27
He said that the decision of the Family Court on 27 March: "May have been the point where the straw broke the camel's back, but I tried hard to control my anger." The decision was, in his words, "a catastrophic error of judgment which would ruin [R]'s life" and which had "pushed me over the edge":
"The court had failed [R] and thus failed me. The decision proved to be catalyst for all of the dark thoughts I was struggling to manage and control. I had failed [R]. In my mind [JD] had destroyed [R] in an instance (sic) and this was born from his own interests. My grandchildren have now been placed in care for the crimes of their grandfather. I despise myself for all the hurt I have caused and am continuing to cause."
…
"I was in a fragile state of the mind at the time [of the murders] but I would never seek to use my mental health to defend this act."
28
He continued to express his remorse for his actions, somewhat qualified by his explanations. The letter concluded:
"Unfortunately, I am driven by a duty, and human instinct to protect and care for the ones I love. I accept this should not have been at the expense of the law, but I do not believe the family courts are fit for purpose".
29
The final two paragraphs made further criticisms of the working of the Family Courts generally.
Sentencing
30
The offender had no previous convictions or cautions recorded against him.
31
When sentencing there were no reports before the court. Although a psychiatric report had been obtained during the course of the proceedings, it was not served on the court and no reliance was placed upon it by the defence at any stage, including at the sentencing hearing. Having raised the matter explicitly with defence counsel, the judge was satisfied that he did not need to obtain a psychiatric report before sentencing the offender.
32
The judge had victim personal statements which detailed the devastating effects which the murder had had on the family of the two victims.
33
In advance of the sentencing hearing, prosecution counsel had prepared a sentencing note setting out the facts, the relevant statutory provisions and the applicable guidelines. The defence also put forward a sentencing note.
The relevant law and guidelines
34
The mandatory sentence for an offence of murder committed by an adult is imprisonment for life (s.321 of the Sentencing Act 2020). In fixing the minimum term, the Sentencing Act requires the court to have regard to sch.21 of
that Act
in doing so, and to any other relevant guidelines which are not incompatible with that schedule. In respect of adult offenders, sch.21 sets four starting points in fixing the minimum term. They are starting points which are expressed to be those which will "normally" apply depending on the presence of specific features. They are a whole life order, a minimum term of 30 years, a minimum term of 25 years, and a minimum term of 15 years. So far as relevant, sch.21 states as follows:
"Starting points
2(1) If—
(a)
the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b)
the offender was aged 21 or over when the offence was committed, the appropriate starting point is a whole life order.
(2)
Cases that would normally fall within sub-paragraph (1)(a) include—
(a)
the murder of two or more persons, where each murder involves any of the following—
(i)
a substantial degree of premeditation or planning.
[...]
3(1) If—
(a)
the case does not fall within paragraph 2(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b)
the offender was aged 18 or over when the offence was committed, the appropriate starting point, in determining the minimum term, is 30 years.
(2)
Cases that (if not falling within paragraph 2(1)) would normally fall within sub-paragraph (1)(a) include—
[...]
(b)
a murder involving the use of a firearm or explosive,
[...]
(d)
a murder intended to obstruct or interfere with the course of justice.
[...]
(f)
the murder of two or more persons.
[...]
Aggravating and mitigating factors
7.
Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point.
8.
Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.
9.
Aggravating factors (additional to those mentioned in paragraphs 2(2), 3(2) ... ) that may be relevant to the offence of murder include—
(a)
a significant degree of planning or premeditation.
[...]
10.
Mitigating factors that may be relevant to the offence of murder include—
[...]
(d)
the fact that the offender was provoked (for example, by prolonged stress) but, in the case of a murder committed before 4 October 2010, in a way not amounting to a defence of provocation."
35
There was no dispute that a life sentence was mandatory and the only question was setting the minimum term. The prosecution contended that there was an element of premeditation and planning, which the court could consider to be a "substantial degree" of premeditation or planning for both murders, and that the court could find that the seriousness of the offences was "exceptionally high" within the meaning of para.2 so as to warrant a whole life order. The court's attention was drawn to the guideline case of
R v Stewart and others
[2022] EWCA Crim 1063
; [2023] 1 Crim App R (S) 17 on the imposition of whole life terms. The prosecution submitted in the alternative that if the seriousness was not "exceptionally high", the case fell clearly within para.3 as one of "particularly high" seriousness as it involved the murder of two persons and the use of a firearm, such that the starting point would be one of 30 years. It was suggested that the aggravating features present comprised the presence of two qualifying factors under para.3, that is to say the use of a firearm and the murder of more than one person; the element of planning and premeditation; the fact that the victims were in their own home; and the effect on the surrounding community, which was said to make this equivalent to "a killing in public". The court was referred to the Sentencing Council's guideline on "reduction in sentence for a guilty plea", which provides that the minimum term should be reduced in the case of a guilty plea to murder, but that such a reduction should not exceed one-sixth of the minimum term, and can never be more than a reduction of five years.
36
On behalf of the offender, the defence submitted to the Judge that the case was not one of exceptionally high seriousness and that the degree of planning for each murder fell short of that which was required to place the case within para.2 of sch.21. It was accepted that the case fell within the category of "particularly high seriousness" described in para.3 by reason of the two factors identified, and as such a 30-year starting point was appropriate. It was submitted that the text messages relied upon by the prosecution did not establish, to the criminal standard, that the offender had formed any murderous intent months or weeks before the murders. Any planning or premeditation it was submitted was not "significant" and thus there was no statutory aggravating factor of the kind listed in para.9 of sch.21. It was suggested that the offender had only formed a murderous intent when JD's girlfriend left his home on the evening in question, and that the previous visits earlier in the afternoon and evening did not establish premeditation, albeit that it was accepted that the offender had at least made preparation for such an outcome by taking the shotgun in the evening.
37
It was submitted that the mitigating factors outlined in para.10(d) of sch.21 (i.e. "the fact that the offender was provoked (for example by prolonged stress) but ... in a way not amounting to a defence of provocation") was present in this case, and required a significant downward reduction to be applied to the minimum term. It was submitted that this was a subjective test, based on what the defendant perceived and what ultimately caused the "prolonged stress" which led to him mentally collapsing in a way which led to the commission of the offence. It was also submitted that, inevitably, the offender would die in prison because of his age, and as such his sentence should be further reduced to reflect his age; and further for his lack of previous convictions and for his positive good character. Reliance was also placed on his obvious remorse and on his plea of guilty.
38
Having heard submissions from the crown and the defence on Friday, 20 October 2023, the Judge adjourned to give the matter further consideration over the weekend and pass sentence on the following Monday, 23 October. He described the murders as "executions" motivated by the offender's distorted beliefs over the Family Court proceedings in respect of the care of his grandson. Dissatisfied with the decision made at the interim hearing to preserve the status quo, the offender had taken the law into his own hands and ended the lives of two innocent men.
39
Having reviewed the decision of this court in
Stewart
, the judge concluded that the murders did not fall within para.2 of sch.21 as requiring a whole life order. Instead, para.3 applied, and the seriousness was "particularly high" so as to attract a 30-year starting point, on the grounds that there were two murders and a firearm was used.
40
He found that there were additional aggravating factors comprising the following. First, what he characterised as a significant degree of premeditation and planning in the light of (a) the texts earlier in 2022 about taking the law into his own hands, (b) his beliefs about the Family Court ruling, (c) the repeated visits on the day to the victim's home and (d) the offender having a shotgun with him by the evening at latest. Secondly, there was the aggravating factor of both victims being in their homes where they were entitled to be safe. Thirdly, there was an impact on the community, which was an aggravating factor (although the judge did not go so far as to equate this with a "killing in public").
41
When it came to aggravating and mitigating factors, the judge said that although two factors referred to in para.3 were present, he declined to treat this as an aggravating feature, saying "I have already taken [them] into account in arriving at the correct minimum term, so I do not double-count those aspects."
42
The judge then found that the following mitigation fell to be taken into account. First, the offender's age and previous good character, not just an absence of convictions but having led a hard-working and productive life. The Judge said he took into account the impact of prison on a man sent there for the first time at the age this offender was.
43
Secondly, the judge took into account in mitigation his repeated expressions of remorse for what he had done and the effect it had had on the family of his victims. The judge said that the third letter made his express remorse "somewhat equivocal" by placing it in the context of his perceived duty to the family and his views about the Family Courts; but that the best evidence of remorse was the early guilty pleas. Remorse was therefore, he said, some mitigation.
44
Thirdly, the Judge rejected the suggestion that the offender had been "provoked" within the meaning of para.10(d) of sch.21. But he did take into account the stress suffered by the offender as a result of his wife's illness and death; his beliefs, which he described as "distorted beliefs", about the welfare of his grandson; and his recognition of his "anger management" issues and his increased use of alcohol during that time. The Judge said:
"It may not be helpful to analyse legally whether the mitigation is best described in the statutory terms as provocation or whether I take it into account as general mitigation that you have lived under great stress and anxiety for some time and this includes a period which had nothing to do with your grandson or the [D] family but was during the care of your wife and her death in December 2019. This stress and anxiety continued in your involvement in your grandson's life. I accept that you clearly loved your grandson and this led to you becoming overwrought about the family contact disputes. This provides background to these offences which I take into account in mitigation."
45
The Judge said that having considered all the aggravating and mitigating features as he had explained them, he would have fixed the minimum term at 30 years, after a trial. He then gave maximum credit for the offender's guilty pleas, thereby reducing the minimum term to 25 years, further reduced to give credit for time spent on remand of 206 days.
Submissions
46
On behalf of the Solicitor General, Ms Ledward KC accepted that the judge had been entitled to decline to impose a whole life order, although she submitted that this case was on the borderline of requiring such a tariff. She also accepted that he correctly applied the maximum discount for the offender's pleas of guilty. Her submissions may be summarised as follows:
(1)
The offending involved the murder of two persons and, for that reason alone, this was a case of at least "particularly high" seriousness which for that reason alone required a starting point in determining the minimum term of 30 years.
(2)
The aggravating features were then that:
(i)
the murders involved the use of a firearm (a factor also listed in para.3 as normally resulting independently in a 30-year starting point);
(ii)
the murders were intended to obstruct or interfere with the course of justice (a further factor listed in para.3); this was not a factor relied upon by the prosecution before the Judge, and therefore was not addressed during the sentencing exercise by the prosecution or by the defence or by the Judge;
(iii)
there was at least a significant degree of premeditation (a statutory aggravating factor under para.9);
(iv)
the victims were killed in their own homes, and
(v)
there was an impact on the local community.
47
She accepted that the following mitigating factors applied:
(i)
lack of previous convictions and good character;
(ii)
remorse, albeit, as she characterised it, qualified;
(iii)
the offender's personal circumstances resulting in prolonged stress; and
(iv)
the age of the offender being such that he was very likely to die in prison.
48
She submitted that having adopted the correct starting point of a 30-year minimum term, the Judge made two obvious errors which led (overall) to a third. The first was that he did not take into account that there were not two, but three factors listed in para.3 which were present. The second was that he wrongly concluded that to treat the presence of more than one para.3 factor as an additional aggravating factor would be to "double-count". Third, that as a result he lost sight of the fact that this was a case which, as she submitted, was arguably (by reason of the combination of aggravating features) on the borderline of meeting a whole life order, and which therefore warranted a significant uplift from a 30-year starting point, even when taking into account the mitigation which was present. Her submission was that all the circumstances required a minimum term which was nearer to 40 years than 30 years after a trial.
49
The submissions by Mr Langdale KC on behalf of the offender may be summarised as follows. This was a difficult sentencing exercise in which the Judge took into account all the relevant factors. He started at the right starting point, he balanced the aggravating and mitigating factors, and reached a conclusion which was sound. It was not open to the Solicitor General on this reference to advance the argument that there was an intention to interfere with the course of justice when that had not been suggested to the Judge below. In any event such an intention was not supported by the evidence. The judge was entitled to treat the existence of two factors within para.3, namely a double murder and a murder with firearms, as both being taken into account in reaching a starting point of a 30-year term. The Judge was entitled to treat the aggravating and mitigating features as balancing themselves so as to arrive at a notional minimum term after a trial of 30 years. In his submission the sentence was not lenient. Alternatively, if lenient, it was not unduly so, which requires it to be less than an appropriate sentence by a considerable margin before this court is entitled to interfere.
Discussion
Approach to Schedule 21
50
It is important to keep in mind the guidance in
R v Jones
[2005] EWCA Crim 3115
,
[2006] 2 Cr App R (S) 101
and subsequent case law as to how Schedule 21 is to be applied. The guidance given there is provided to assist the judge to determine the appropriate sentence. The judge must have regard to the guidance, but each case will depend critically on its particular facts. There are large gaps between the four starting points (15 years, 25 years, 30 years and whole life) which provide "a very broad framework" for the sentencing exercise. They are so far apart that it will often be impossible to divorce the choice of starting point from the application of aggravating and mitigating factors. This is expressly recognised by para.8 of sch.21. The starting points give the judge guidance as to the range within which the appropriate sentence is likely to fall having regard to the more salient features of the offences, but even then, as para.9 recognises, "detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order." Full regard must be had to the features of the individual case so that the sentence truly reflects the seriousness of the particular offence and the individual circumstances of the offender. It is also important to keep in mind that, as this court said at para.19(iii) of
Stewart
, being in prison for a finite period of 30 years or more is a very severe penalty.
Intention to interfere with the course of justice
51
We agree with Mr Langdale's submission that the Solicitor General should not be allowed to argue that there was an intention to interfere with the course of justice in this court because it would be unfair to do so. We see no reason to doubt Mr Langdale's contention that if such a submission had been raised during the Crown Court proceedings, the defence would have drafted a basis of plea challenging such an assertion; and a trial of issue would have been required, because of the Crown's present submission that it would be make a difference to sentence, which it is assumed would also have been advanced at the time of the point being taken. A Newton Hearing would have been required. Mr Ledward relied on this court's decision
AG's reference (Stewart
)
[2016] EWCA Crim 2238
[2017] 1 Crim App R (S) 48 at [32]-[36], which is to the effect that where the prosecution make a concession as to offence categorisation within a guideline before the sentencing court, the Attorney General is not bound by such a concession on a reference, and the same applies to points not taken below. There are a number of authorities in this court to that effect. However, that proposition applies where and because the concession is not as to a matter of fact but simply as to a matter of judgment or evaluation of how undisputed facts are to be categorised or treated. The court made that clear in
Stewart
at [33]. By contrast, where the point which is conceded or not taken is a disputed fact, of which the Judge must be satisfied to a criminal standard, and which it would be unfairly prejudicial to be advanced for the first time on the reference, that reasoning does not apply.
52
Moreover, we agree that on a fair reading of the material before the Judge it would be wrong to treat that as establishing to a criminal standard that the offender's intention was to frustrate the family proceedings. There was no evidence that the defendant gave any thought to trying to "obstruct" or "interfere" with the course of justice. The material is equally consistent with an increasing animosity towards JD which was of longstanding, driven by a perception of JD's deficient parenting of R, and exacerbated by JD's desire for greater contact; the animosity towards GD came from his support for JD in the family proceedings. The animosity was further exacerbated by the offender's frustration with the Family Court system which he thought should have ruled out of question any possibility of JD having any form of joint custody. It was this animosity towards the victims which led to the murders, rather than anything targeted at the family proceedings themselves. It was in this sense that the judge described the Family Court decision on 27 March as the trigger and the offender taking the law into his own hands.
53
Ms Ledward submitted that it was clear that the offender acted as he did because he disagreed with the outcome of the family proceedings to date, which he viewed as a grave mistake. She submitted that where there was a murder of a party to such proceedings, in which a murderer is dissatisfied with the course that the proceedings are taking, that must surely amount to a murder that was intended to interfere with the course of those proceedings. She submitted that the offender's motive was quite clearly to affect the course of those proceedings and the inescapable inference is that that was not only the motive but that he acted with the intention of changing or interfering with the outcome of those proceedings by removing those who were pursuing the opposing case.
54
We would not accept that that is an inescapable inference. Intention depends upon what subjectively is in the offender's mind, not merely the objective effect of his conduct, however foreseeable. His animosity towards his victims had been heightened by his frustration at the outcome of the latest stage of the proceedings, but that cannot automatically be equated with an intention to interfere with the proceedings by carrying out the murders.
55
However, having said that, we nevertheless observe that interference with the course of the proceedings was undoubtedly the effect of the conduct of the offender. That is, in our view, an aggravating feature which was not taken into account by the Judge. That is a matter to which we will return.
Double counting for two factors within para.3
56
It was an error of principle for the judge to say that treating the fact that there were two factors mentioned in para.3, namely a double murder and the use of firearms, did not require an increase because that would involve double-counting. On the facts of this case it would not do so. Parliament has indicated that a double murder is of itself something which normally puts the offending in the category of very high seriousness so as to attract a starting point of 30 years for that reason. The statute also requires a single murder using a firearm normally to be treated as of the same seriousness, warranting a starting point of 30 years for that feature alone. The statute treats such a single firearm murder as significantly more serious than, for example, one with a knife, for which the starting point is set at 25 years if taken to the scene. It is of course important that sch.21 is not applied mechanistically, but it follows from what we have said that parliament must have intended that if there were two murders which would of themselves normally require a starting point of 30 years, a significant upward adjustment would be appropriate if there were the use of the firearm in each case, at least where, as in this case, there was no necessary connection between the two features by reason of the nature of the offending.
Aggravating and mitigating features
57
This was a case of particularly high seriousness because there were two murders. These were not, as sometimes happens, two victims at a scene killed in rapid succession in the course of a single incident. These murders involved two separate incidents, separated in time, separated in place, with their own individual premeditation and planning, and with travel between them and reloading of the shotgun in between.
58
The use of firearms was an important aggravating feature, as we have said, requiring a significant upwards adjustment measured in years.
59
Further aggravation is to be found in the significant degree of planning and premeditation, which was accurately described by the judge as stretching back for a considerable period, at least contingently.
60
The offending is also made more serious because by the shooting of JD offender intended to deprive a seven-year-old child of his father forever. That was a specific motivation for his murder. That is an aggravating feature quite apart from the intention to deprive the child of his grandfather as well, and apart from the impact on the wider family attested to in the victim impact statement.
61
It is also significant that, as we have said, the effect of the conduct was to interfere with the course of justice. The function of the court in the family proceedings was to look after the best interests and welfare of R. The murders prevented the court from considering the extent to which that would be served by contact with JD or custody with him. The murders put an end to the dispute between S and JD by the offender taking the law into his own hands. That is a serious interference with the administration of justice which was the foreseeable result of what this offender did, even if it formed no part of his motivational intention. That does not go to increase his culpability, but it does increase the harm caused by the offence.
62
Further aggravation is to be found in the murders taking place in the victims' own homes where they were entitled to feel safe.
63
Against these aggravating factors, the mitigation was of more limited weight. In accordance with the guidance of this court in
R v Clarke
[2017] EWCA Crim 393
,
[2017] 2 Cr App R (S) 18
, old age and extreme old age in prison, and ill health or foreseeable potential ill health which may accompany old age, are mitigating factors because of the extent to which they may make the sentence more onerous. They are however, as that case said, to be taken into account "in a limited way" because the harm and culpability of the offending are the principal factors to be taken into account in sentencing serious offending of this nature. Under the minimum term imposed by the judge, the offender would in any event be in his early to mid-90s, if still alive, when he first became eligible to apply to the Parole Board for release. Similarly, good character does not count for a great deal in offending of this nature. We recognise that the stress which had affected the offender was something to be taken into account in his favour. It could not be treated as lessening his culpability to a very substantial extent, given the nature of the murders and their significant planning, but it did form, as the judge said, some mitigation. Moreover, there was remorse, which is a separate consideration from pleading guilty, and also afforded some mitigation. However, the third letter from the offender did make this, as the judge observed, somewhat equivocal.
64
We disagree with the judge's assessment that the aggravating and mitigating features could be taken as balancing each other out. In our view the aggravating features clearly outweighed the mitigation by some margin. We recognise that an assessment of the potency of aggravating and mitigating factors is not an exact science, and involves an evaluative judgement on which views of different sentencing judges may legitimately differ. Nevertheless, to treat the aggravating factors we have identified, which were of considerable weight, as entirely offset by the mitigating factors, which were of limited weight, was in our view well outside the range of any legitimate evaluation of them.
Conclusion
65
We have little hesitation in rejecting the submission made on behalf of the Solicitor General that this case fell "on the borderline" of meriting a whole life tariff. Applying the principles identified in
R v Stewart
it clearly did not. Nevertheless, taking all the circumstances of the offender and the offending into account, a minimum term, after a trial, of at least 35 years was called for, which after discount for a plea would be one of at least 30 years.
66
It follows that in our view a minimum term of 25 years was not merely lenient but unduly so.
67
We therefore grant leave to refer and we substitute on each count a sentence of life imprisonment of 30 years less 206 days spent on remand.
_____________ | [
"LORD JUSTICE POPPLEWELL",
"MR JUSTICE CHOUDHURY",
"HIS HONOUR JUDGE ANDREW LEES"
] | 2024_01_23-6008.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/85/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/85 | 711 |
62b7b2335fec48a35b57e08b4943e28b23379fbad852882b744f7e90b4cedaa8 | [2003] EWCA Crim 576 | EWCA_Crim_576 | 2003-03-05 | supreme_court | Case No: 2001/02957/W4 Neutral Citation No [2003] EWCA Crim 576 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 5 th March 2003 Before: LORD JUSTICE PILL MR JUSTICE STANLEY BURNTON and HIS HONOUR JUDGE FAWCUS - - - - - - - - - - - - - - - - - - - - - Between: The Queen - and - John Cornelius FITZGERALD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rachel Lawrence for the Crown Nemo | Case No:
2001/02957/W4
Neutral Citation No
[2003] EWCA Crim 576
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
5
th
March 2003
Before:
LORD JUSTICE PILL
MR JUSTICE STANLEY BURNTON
and
HIS HONOUR JUDGE FAWCUS
- - - - - - - - - - - - - - - - - - - - -
Between:
The Queen
- and -
John Cornelius FITZGERALD
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Rachel Lawrence for the Crown
Nemone Lethbridge for the Appellant
Hearing date: 31
st
January 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lord Justice Pill:
1.
On 10 May 2001 in the Crown Court at Middlesex Guildhall before His Honour Judge Karsten QC and a jury, John Cornelius Fitzgerald was convicted of an offence of having a false instrument in his custody or under his control. He was sentenced to six months imprisonment. He was acquitted on a count of having a false instrument with intent and of an offence of handling stolen goods. He appeals against conviction and sentence by leave of the single judge. The appeal raises a point on the construction of
section 5
of the
Forgery and Counterfeiting Act 1981
(“
the 1981 Act
”).
2.
On 6 July 2000, the appellant’s home was searched by police officers who discovered a passport in the name of a Mr Barfoot but bearing the appellant’s photograph. Mr Barfoot’s car had been broken into some weeks before and various items taken, including his wallet. He was unaware that his passport too was missing until visited by police officers investigating the present alleged offences. When interviewed, the appellant said he intended to use the passport as a means of identification to open a bank account or obtain credit but he never intended to use it for travelling. In the event, he obtained cash elsewhere and did not use the passport for the purpose of obtaining credit.
3.
In evidence, the appellant said he bought the passport for £23.50 from a man selling shirts in Oxford Street. The appellant had passport photographs taken. He gave them to the street trader and later obtained the passport from the trader with his own photograph in it. He was told that he could not expect to use it successfully for travelling. The appellant also said that the most he had, in a moment of madness, was a half-baked idea that he would use the passport to obtain credit.
4.
In those circumstances there was a discussion at the close of the defence case about adding an alternative charge to an indictment including a count of handling stolen goods and a count based on
section 5(1)
of
the 1981 Act
. The judge decided to leave to the jury the opportunity to bring in a verdict under
section 5(2)
of
the 1981 Act
as an alternative to the offence under
section 5(1)
. Miss Lethbridge, for the appellant, objected to that course on the ground that the offence under
section 5(2)
was not, under
section 6(3)
of the
Criminal Law Act 1967
(
the 1967 Act
”), strictly alternative to that under
section 5(1)
.
5.
Section 5
of
the 1981 Act
provides:
“(1)
It is an offence for a person to have in his custody or under his control an instrument to which this section applies which is, and which he knows or believes to be, false, with the intention that he or another shall use it induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.
(2)
It is an offence for a person to have in his custody or under his control, without lawful authority or excuse, an instrument to which this section applies which is, and which he knows or believes to be, false.
(3)
… .”
6.
Section 6(3)
of
the 1967 Act
provides:
“Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.”
7.
Miss Lethbridge accepts that a fresh count could have been added to the indictment, provided it caused no injustice to the defendant. Her client was prepared to plead guilty to a count alleging an offence under
section 5(2)
. Miss Lethbridge, in submissions to the judge referred to that option as:
“The simple solution which in no way prejudices the defendant, because he has admitted it, is to add that count.”
8.
For reasons which do not readily emerge, the judge declined to follow that course and left the possession charge as an alternative under
section 6(3)
. Miss Lethbridge persisted, stating that she was “trying to propose a solution which was simple for everyone concerned”. In the event, the jury acquitted of the offence under
section 5(1)
but convicted under
section 5(2)
.
9.
Miss Lethbridge’s first submission that the appellant did not have a fair trial because the alternative was introduced only after the completion of the defence case has no merit in present circumstances. It is not suggested that the defence would have been conducted differently had a count been included under
section 5(2)
or that the appellant had any lawful authority or excuse for possessing the false document. What is suggested is that the appellant was prejudiced in being deprived of the opportunity to plead guilty at the first opportunity and agree a basis for plea. While that submission may be relevant to sentence, it does not affect the fairness of the procedure which led to a verdict of guilty. Counsel told the Court that her client was prepared to plead guilty to an offence under
section 5(2)
, provided it was included in a separate count.
10.
The second submission is that the conviction is unsustainable because the jury were not entitled under
section 6(3)
of
the 1967 Act
to bring in the alternative verdict. It was not an alternative within the meaning of the subsection, which should be construed in the appellant’s favour.
11.
Before they retired, the jury were handed a typed document which had every appearance of being an additional count on the indictment, save that the count number was deleted and a handwritten note, which provided “alternative for jury to consider if they can’t agree on Count 1”, substituted. The document stated:
“JOHN CORNELIUS FITZGERALD is charged as follows:
STATEMENT OF OFFENCE
HAVING A FALSE INSTRUMENT contrary to
Section 5(2)
of the
Forgery and Counterfeiting Act 1981
.
PARTICULARS OF OFFENCE
JOHN CORNELIUS FITZGERALD on the 6
th
day of July 2000 had in his custody or under his control, without lawful authority or excuse, an instrument to which this Section applied which is, and which he knew or believed to be false.
Officer of the Court”
12.
The submission is that the offence in subsection (2) is not an alternative to the offence in subsection (1) because the expression “without lawful authority or excuse” appears in subsection (2) but not in subsection (1). It is not suggested that any lawful authority or excuse could have been put forward by the appellant.
13.
In
R v Wuyts
[1969] 2 QB 476
the expression “lawful authority or excuse” was considered in this Court in the context of the
Forgery Act 1913
,
section 8
, Widgery LJ presiding. It was held that, if a person retained possession of forged notes solely in order to hand them over to the police so that the previous possessors might be prosecuted, he had a lawful excuse.
14.
In
R v Wilson
[1984] AC 242
, it was held in the House of Lords, amongst other things, that it was open to the jury on a charge of inflicting grievous bodily harm contrary to
section 20
of
the Offences Against the Person Act 1861
to bring in a verdict of not guilty as charged but guilty of occasioning actual bodily harm contrary to
section 47
of
the Act
. Dealing generally with
section 6(3)
, Lord Roskill stated, at p 258 B:
“Ignoring the reference to murder or treason, there seem to me to be four possibilities envisaged by the subsection. First, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment impliedly includes an allegation of another offence.
If any one of these four requirements is fulfilled, then the accused may be found guilty of that other offence.”
15.
For the prosecution, Miss Lawrence submits that the
section 5(1)
offence expressly or impliedly amounts to or includes an allegation of the
section 5(2)
offence. Once the intention specified in
section 5(1)
is present, there could be no lawful authority or excuse for the custody of the document so that the words do not add a fresh ingredient but can be treated as present in subsection (1).
16.
We see force in that submission and would be inclined to accept it but, on the limited submissions made to the Court, we do not propose to decide the point and have concluded that there is no need to do so. In the context of this case, the point raised is of the utmost technicality:
a)
the appellant was prepared to plead guilty to the
section 5(2)
offence.
b)
In relation to conviction, the appellant was not prejudiced by the late introduction of the
section 5(2)
offence.
c)
The
section 5(2)
charge was placed before the jury in a written form which set out the particulars, had every appearance of being a separate count and would have been treated by the jury as such.
17.
The verdict can in our judgment be treated as the verdict of a jury on a separate count. There has been no unfairness to the appellant and no doubt has been cast upon the safety of the conviction. In future cases, we would however recommend, where on the evidence a conviction on either 5(1) or 5(2) may be possible, the charging of the two offences in separate counts.
18.
For the reasons given the appeal against conviction is dismissed.
Sentence
19.
The appellant is 58 years old. He has convictions for obtaining on forged instruments and deception, but not for very many years. He has more recent convictions for conspiracy to import and to supply controlled drugs.
20.
When sentencing the appellant the judge stated:
“These passport offences are all too prevalent and there is ample authority now that the Courts have to do what they can to discourage people from participating or encouraging the production of or sale or dealing with passports of this kind.”
The judge stated that he would treat the appellant as someone who wished to plead guilty to the offence at the outset.
21.
Miss Lethbridge submits that the judge’s indication as to plea amounted to an indication that the magistrates’ powers of sentencing were appropriate. She also submits that the judge did not sufficiently explain why a custodial sentence was necessary.
22.
We see no merit in either submission. The judge’s explanation was sufficient and appropriate to the circumstances. No indication was given that a lower level of sentence was appropriate.
23.
This sentence was in line with sentences approved in this Court for passport offences and was appropriate on an early guilty plea. The appellant had brought the false passport into existence and, whatever his present intention with respect to it, it could plainly be used in the future and by other persons if not himself for the purposes of crime.
24.
The appeal against sentence is dismissed. | [
"LORD JUSTICE PILL",
"MR JUSTICE STANLEY BURNTON",
"HIS HONOUR JUDGE FAWCUS"
] | 2003_03_05-38.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/576/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/576 | 712 |
f441b9c1c3e93584c0b2320420acac4d146177b1daf338e8a692ac500ecf2f15 | [2003] EWCA Crim 484 | EWCA_Crim_484 | 2003-02-27 | supreme_court | Neutral Citation No: [2003] EWCA Crim 484 . Case No: 2000/3506/W5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 27 th February 2003 Before : LORD JUSTICE KENNEDY MR JUSTICE McCOMBE and MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - Between : R - v - Robert Joseph McCARTHY - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Geoffrey Nice QC and Paul Spencer for the appella | Neutral Citation No:
[2003] EWCA Crim 484
.
Case No:
2000/3506/W5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27
th
February 2003
Before :
LORD JUSTICE KENNEDY
MR JUSTICE McCOMBE
and
MR JUSTICE TREACY
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Robert Joseph McCARTHY
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Geoffrey Nice QC
and
Paul Spencer
for the appellant
Charles Chruszcz
QC and
Neil Flewitt
for the Crown
Hearing date: 10
th
February 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lord Justice Kennedy:
1.
On 5
th
December 1997 in the Crown Court at Preston the appellant was convicted of murder, which was count 1 in the indictment, and of conspiracy to cause grievous bodily harm, which was count 2. He was sentenced to life imprisonment in respect of count 1 with a recommendation to serve a minimum of 20 years, and to 10 years imprisonment concurrent in respect of count 2. He now appeals against his conviction on count 1 by leave of the full court.
2.
The only persons charged with murder were the appellant and John Riley. Those two and nine others were charged in count 2 with conspiracy. The victim named in relation to both counts was Stephen Cole. Riley was convicted of both counts, and was sentenced in the same way as the appellant. Navarro was convicted of count 2 and received a sentence of ten years imprisonment. Four other co-accused - Blakemore, John Dillon, Paul Dillon and Cook pleaded guilty to a fourth count alleging conspiracy to commit violent disorder. They received lesser sentences.
3.
The background to the case involved a feud between rival Liverpool doormen. On 12
th
May 1996 John Dillon, a doorman at a nightclub called the Continental, was stabbed by a man named Chilton Jenkins. Stephen Cole had accompanied Jenkins and kicked Dillon as he lay on the ground. Dillon was sent to hospital, but released after a few days.
4.
On 18
th
May a confrontation took place between the doormen of the Continental and those of a nightclub called Cream at which Stephen Cole worked. There was a protracted stand off at which armed police attended. Cole again confronted and threatened John Dillon. Dillon chose not to make any police complaint about either incident.
5.
On the morning of 19
th
May police became aware that Cole had made a threat to shoot Dillon that day. Dillon was offered police protection and a safe house, but he refused, and said that he would deal with it in his own way.
6.
In the early hours following the police visit to him John Dillon made sixty telephone calls to a large number of different people, including the accused. The last call was made at about 8 p.m. By 9 p.m, a formidable number of large men assembled at Gino’s Wine Bar. They were watched by two uniformed police officers in a marked car who, in the light of the earlier history, anticipated some kind of trouble. By the time the group left Gino’s there was a convoy of 5 or 6 cars each containing four or five men. The convoy was followed and the registration number of cars taken. The convoy went to the Copplehouse public house, and the men swept through without finding the deceased. They then went to another public house called the Chaser and went through that. The licensee asked who they were looking for, and was told to mind his own business. By the time they reached the Chaser the group was 32 strong and the convoy contained at least 11 vehicles. The police officers who had been following then had to abandon their surveillance because the convoy left their area, and they had been summoned to another call.
7.
Stephen Cole was having a drink with his wife at the Farmer’s Arms public house with friends. It was crowded. After 9 p.m. a large group of men rushed into the main lounge and attacked Cole as he sat with his wife. He sustained thirteen wounds to his skull, torso and legs. Some of the wounds were at least 5 inches deep and were forcefully administered, penetrating muscle, bone and internal organs. They were consistent with the use of large knives and machetes. Despite emergency surgery he died that evening as a result of his injuries. He had been effectively hacked to death.
8.
It was the prosecution case that the appellant, Riley and Navarro were party to an agreement to do serious harm to Cole. The appellant admitted to being in the group from its assembly at Gino’s up to and including when the group entered the Farmer’s Arms. It was his case that he went there to sort out a private grievance of his own unconnected with the Dillon matter. He was not a party to the purpose of the mob, and at worse he intended a one to one encounter with the deceased. The appellant maintained that in the Farmer’s Arms he had been at the back of the group, was pushed to the front and unintentionally fell on top of the deceased. He did not participate in the attack and was himself stabbed.
9.
Lorraine Cole, the deceased’s wife, was in the Farmer’s Arms public house with her husband when 8 to 10 men entered, streamed up the steps to the raised area, and one of them struck her husband with a baseball bat. Another had a machete and struck him, then others struck out with knives. Her husband fell to the ground, and all of the men were joining in stabbing him. None of them were trying to protect him or to hold others back. The only person she recognised in the group was Riley who said "that’s for what he done. That’s for the stabbing.” Then another man in the group sprayed a canister of CS gas into her face. She was certain that Riley hacked at the deceased with something, and that others were still having a go, but she did not know the appellant, and was unable to identify any one else in the group. She did not see any man fall across the deceased then get up again.
10.
Some weapons were found near to the scene, six knives and a meat cleaver but none were blood stained, possibly because rain had fallen which would have washed away any bloodstains before the weapons were found.
11.
A witness named Terry Fury had been with the appellant during the afternoon of 19
th
May, some hours before the incident at the Farmer’s Arms, when Stephen Cole stopped his car and shouted at the appellant threatening him and his family. The appellant told Fury to forget it, because Stephen Cole was “a bullying bastard”.
12.
After the attack on Stephen Cole the appellant drove to North Wales. Next day he went to a hospital at Rhyl to receive treatment for a dirty laceration on the back of his right hand. He said that he had fallen on the beach the night before while drunk. However he now accepts that the injury was sustained in the alcove at the Farmer’s Arms. At the trial it was accepted that in that alcove there was found blood from both the appellant and the deceased, although the blood was not mixed. The car which the appellant used when he travelled in the convoy belonged to his wife, and there were bloodstains on the driver’s seat but the bloodstains were probably his.
13.
On 23
rd
May 1996, four days after the attack on Stephen Cole, the appellant surrendered to the police. When interviewed he referred to the incident witnessed by Terry Fury. He admitted that he had been in the group which assembled at Gino’s and ended up at the Farmer’s Arms. He said that Cole had been trying to intimidate him, and he wanted to ask him why he was “putting all this shit” on him. He thought that all that would happen was a slagging off. As to the numbers, he said the more the merrier. He had been the victim of an attack in the Farmer’s Arms, and did not realise he was on top of the deceased. Whilst he lay there he was stabbed and sprayed. Afterwards he drove to his caravan in Wales. He disposed of his bloodstained clothing on the beach, and only kept his trainers. After receiving treatment to his hand he returned to Liverpool. He knew that the deceased had been involved with Chilton Jenkins. He was totally unaware that any of the group had been carrying weapons when they entered the Farmer’s Arms. He did not know why the deceased had threatened him earlier in the day. It had upset him. Then he received a telephone call summoning him to Gino’s to discuss “warning Cole off”. The intention was to confront him. It was like whipping up a posse, and over thirty men did go looking for the deceased.
14.
The attack on the deceased had already started by the time he got to the Farmer’s Arms. He could feel the hatred. He was in the middle of the group with about 15 others in front. He was only aware knives were used when he was stabbed. He was not aware of weapons before that. Although 3 to 4 people tried to get into his car afterwards, he drove away alone. He did not play any part in the attack, but could not have stopped it. He was sorry the deceased had died, but was not prepared to name names.
15.
He maintained that his grievance was quite separate. He did not know why the others had attacked the deceased. No reason was given when they assembled. He did hear screams of “get him” in the Farmer’s Arms. Any member of the public would have been terrified. He denied that he was part of the team but could not explain why he was summoned to join and did so. He questioned why the police had not broken it up, and did not answer why he did not leave the convoy. He denied that he was at the front of the attack or was one of the first, and denied seeing any blood. He said that he had been stupid to think that could deal with his own private grievance when he was with the others. He had no intention of doing to the deceased what was done to him. He did not know why he disposed of his clothes.
16.
The evidence given by the appellant at trial was broadly speaking in line with what he had said when interviewed. He said that when he went to join the others at Gino’s he did not have a weapon and did not foresee violence. When the cars left he decided to follow, but he was not part of the convoy. He was reassured by the police presence that there would be no trouble. There were 50 to 60 ahead of him at the Farmer’s Arms, and when he got inside he surmised that the deceased was in the alcove. There were about 20 men there. The deceased waved his arms and then it was confusing. Men behind pushed forward and he got tangled up. He ended up on the floor of the alcove on top of the deceased. There was an attack but he did not see any weapons. It was only seconds. He got up and felt a pain in his hand. He headed out of the public house, which was dense with people. He had not struck the deceased, nor did he know any of the attackers. His hand was badly injured and spurting blood. He got a towel from his son’s house, went home after midnight, then got more clothing and headed to his caravan in North Wales. When asked in cross-examination how it came about that he did not see the deceased being hacked, or any of the dreadful injuries he said that he was ‘bemused’ as to why he had missed all that. He had sneaked home and then gone to North Wales because he did not wish his wife to find out what had happened to him. He did not know why he lied to the doctor in Wales.
17.
When Riley gave evidence in his own defence he said that he saw the deceased on the floor with people attacking him. The scene was a confusing one, and although he knew the appellant he had not seen him there that night. He did not see any one lying across the deceased then get up.
Grounds of Appeal
18.
The sole point now taken in this appeal by Mr Nice QC, who did not appear at the trial, relates to the judge’s direction in relation to joint enterprise. In a nutshell what is said is that the judge failed to have regard to the decision of the House of Lords in
R v Powell and English
[1999] 1 AC 1
, in which judgment was delivered on 30
th
October 1997, about 5 weeks before the summing up was delivered in the present case. What the jury needed to be told was that in order to convict they must be sure not only that the appellant was present intending to cause at least grievous bodily harm to Stephen Cole, and willing to assist others to do so, but also that he was aware that others had bladed weapons and agreed to their use. Because it was the use of bladed weapons which caused Cole’s death.
Law
19.
In the case of
Powell
three men, of whom Powell was one, called at the door of a cannabis dealer. When he opened the door one of the men shot him and he died. At the trial Powell said he was only there to buy cannabis. His co-accused did not give evidence, but it was contended on his behalf that he was unaware of the presence of the gun until it was produced by Powell. Both were convicted and both appealed.
English
was fifteen years of age when he and his co-accused Weddle were charged with murdering a police sergeant. They had attacked the sergeant with wooden posts, but it was a knife with which the fatal injuries were inflicted. English contended that he had fled the scene before his co-accused produced the knife, but he was convicted. Thus the facts in both
Powell
and
English
were very different from those in the case with which we are concerned. It was in relation to those facts that Lord Hutton said at 27E -
“It is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.”
But what Mr Nice relies on is the situation which can arise if there is or may have been a departure from the common design. A possibility which clearly arose in
English
. As to that Lord Hutton said at 30C that the direction given by the trial judge was defective because -
“He did not qualify his direction of foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle’s part which English did not foresee as a possibility, then English should not be convicted of murder.”
In the Northern Ireland case of
Gamble
[1989] NI 268
two members of a gang of four which agreed to ‘kneecap’ their victim were held to be not guilty of murder when the other members of the gang caused death by cutting the victim’s throat with a knife. As to that Lord Hutton, said in P
owell
at 29H -
“In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife.”
20.
In
Uddin
[1989] 1 Cr App R 319
, decided some time after the trial judge gave his directions to the jury in the present case, this court considered a situation where a man was attacked by a group of men armed with sticks or bars. One of the assailants produced a flick-knife, and inflicted a fatal stab wound to the head of the deceased. The appellant was not the user of the knife, and Beldam LJ at 328F set out seven principles as to the liability of secondary parties. Those principles were helpfully reduced to four by counsel for the Crown in
Bentley
[2001] 1 Cr App R 307
and those four principles were adopted by the court at 327. They read -
“(1) Where two parties embark on a joint enterprise to commit a crime and one foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.
(2) Where the principal kills with a deadly weapon, which the secondary party did not know that he had and of which he therefore did not foresee use by the principal, the secondary party is not guilty of murder.
(3) If the weapon used by the primary party is different to but as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill or vice versa.
(4) The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible. ”
To those four principles it is appropriate in the circumstances of this case to add the fifth principle set out at 329C in
Uddin
, namely -
“If in the course of the concerted attack a weapon is produced by one of the participants, and the others, knowing that he has it in circumstances where he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound.”
Our attention was also invited to the decision of this court in
Messam
19
th
March 2001, as a useful application of the principle set out in the earlier cases.
Summing up and submissions.
21.
With that law in mind we turn to look at the issues which remained to be considered in this case when the judge came to sum up, and how he dealt with them. The basic facts were not really in dispute. The posse had gathered at Gino’s, and had gone in convoy, growing and searching two public houses on the way, until it arrived at the Farmer’s Arms. There a large number of men streamed in and attacked Stephen Cole in the alcove with bladed weapons and a baseball bat, with such ferocity that he was hacked to death. Neither of the two men accused of murder sought to deny their presence in the alcove. It would have been difficult for them to do so because John Riley was known to and recognised by Stephen Cole’s wife, and blood which the appellant accepted was his was found in the alcove, but basically both men contended that they were not part of the armed and angry posse. Their intentions were peaceful. Riley claimed that in the alcove he disarmed one man with a knife. The appellant claimed that because of the threats made to him by Stephen Cole that afternoon he wanted to have a word with Stephen Cole, and joined the others (who unlike him were all doormen) at Gino’s for that special purpose. He was not in the convoy, although the police officers noted that his was the second last car, and somehow when he got into the Farmer’s Arms he got pushed to the front and fell across someone who he ‘surmised’ to be Stephen Cole. But he did not know that Cole was injured, he never saw any weapons and he recognised nobody. When he left he thought he was the only person injured, yet when he left he delayed going home and having collected clothing drove to his caravan in North Wales where he disposed of the clothing he had been wearing and which he believed to be stained only with his own blood.
22.
So in relation to count 1 in the indictment the judge, at 23F of the transcript, directed the jury -
“Anybody who participated in the attack on Stephen Cole intending at that time he should suffer at least some serious bodily harm is guilty of his murder. You must judge a man’s intentions by all the surrounding circumstances of the case as you find them to be. Most especially, you may think in this case, by what his attackers did. They armed themselves with a variety of weapons and set about him with such ferocity that nobody had sought to suggest in this case they did other than to hack him to death. It is, therefore, common ground before you that whoever participated in that attack must, at the very least, have intended to cause him dreadful injury if not his death.”
Pausing there, it seems to us that what the judge said was right, taking account of what was said in
Powell and English
, because anyone who did participate in the attack with weapons must have intended at least very serious harm. Mr Nice was critical of the first sentence which we have quoted, as being too simple, but it does have to be read in the context of the paragraph as a whole. The judge then continued at 24F -
“It is, of course, not possible for the prosecution to prove whose hands wielded what implements and with what effect on the deceased but nor do they have to do so, .. the law recognises what is called a joint venture. If two or more men were physically present pursuant to a plan to attack the deceased with weapons intending thereby to kill or do grievous bodily harm, really serious bodily harm, and did so attack him with that intention, it matters not whose hand inflicted what wounds. All present and physically involving themselves in an attack of that character are equally accountable in our law for its consequences. And thus equally guilty of murder. The hand of one is the hand of all.”
23.
Again, as it seems to us, that direction is difficult to criticise. In order to be guilty the defendant had to be ‘present’ pursuant to a plan to attack the deceased ‘with weapons’ and with the requisite intention. If, as he contended, the appellant was not a party to any plan to attack the deceased then of course he could not be found guilty. Even if he were party to a plan to attack the deceased but was unaware of the presence of weapons he still could not be convicted because, on the judge’s direction, he could only be convicted if he was present pursuant to a plan to attack the deceased with weapons, and on the facts of this case it was clear that it was the bladed weapons to which the judge was referring. The evidence in relation to the baseball bat was peripheral, and the CS gas canister was only used on Lorraine Cole. It is true that by saying that ‘all present and physically involving themselves in an attack of that character are equally accountable’ the judge may have created the impression that presence alone was not enough, so it is not surprising, and indeed very much to the jury’s credit, that after retiring they asked this question -
“Please confirm our understanding that with respect to count 1 participation means either an actual physical act on the victim or being present with the intent of causing serious harm without actually committing a physical act.”
What it is important to recognise is that the question is not addressed to the state of mind of the defendant in relation to the overall plan, simply to the question of the need for physical participation as well as presence when the attack took place, and, after consulting counsel, the judge replied to the jury’s question -
“If a man agrees with others that serious harm should be done to a victim and is present with those others pursuant to that agreement when the victim is attacked, intending himself to play some part in that attack in furtherence of that joint purpose, it matters not that for whatever reason he is in the event himself physically unable to lay a hand upon the victim. If he is present with that state of mind I have just defined, then the hand of one is the hand of all.”
It is true that when in that answer the judge used the word ‘victim’ for the first time he could have added ‘with weapons’ or ‘with bladed weapons’ but the omission does not seem to us to be significant because of what had already been said in the main body of the summing up in the passages to which we have referred.
24.
Furthermore, as Mr Chruszcz QC for the Crown pointed out, the jury convicted the appellant on count 2, in relation to which no complaint is made, although the judge did invite the jury to treat that count as an alternative. That conviction shows that the jury rejected the appellant’s primary defence, namely that he was not a party to any plan to cause serious harm to the deceased. On the facts of this case it was not conceivable that he was a party to such a plan but did not how it was to be executed. It is one thing for one of two or three assailants suddenly to produce and use a knife or a gun which the others may not know that he possesses (
English
) or for two out of four assailants to attack an intended victim in a way that their fellow attackers never contemplated (
Gamble
) but in this case it was not one or two of the attackers who are armed. There were many who were armed. When dealing with the weapons recovered the judge said to the jury at 27E -
“Were all those weapons, do you conclude, effectively concealed until the very moment when Stephen Cole was attacked in the cubicle? Or was their possession, must their possession have been obvious to all present before they entered into the Farmer’s Arms? Questions of that kind and the answers to them are plainly relevant when you consider (a) whether there was an agreement and if so whether it is proved that it was an agreement to do Stephen Cole some serious injury.”
So even in relation to count 2 the jury was invited to consider the conspiracy as a conspiracy involving the use of bladed weapons, and that is why the judge said in his initial directions that it was ‘common ground’ that whoever participated in ‘that attack’ - in context the attack with bladed weapons - had the necessary intent for murder. The appellant asserted that he did not participate, he somehow got projected to the front and fell across the body of the deceased without intending to injure him and without seeing or knowing in any way that the deceased was being attacked by others. That account was plainly rejected by the jury. It was an account to which neither Lorraine Cole nor John Riley leant any support, and which no jury was likely to accept, so even if when he entered the Farmer’s Arms the appellant was unaware that his fellow conspirators were armed with potentially lethal weapons and even up to that time he had seen no weapons (a possibility which, as Mr Nice reminded us, is supported by the evidence of the doorman at the Farmer’s Arms who said he saw no weapons) the undeniable fact is that the appellant was so close to the action as to be in contact with the deceased when weapons were produced and used, yet the attack continued and he did nothing to desist.
Conclusion
25.
We therefore conclude that the directions given were appropriate, and dealt adequately with what Mr Nice referred to as the appellant’s second line of defence, namely that he was unaware that any body else was armed. Furthermore, the facts were such that even if the direction had been given in the precise terms advocated by Mr Nice the result would have been the same. The conviction therefore remains safe, and the appeal against conviction is dismissed. | [
"LORD JUSTICE KENNEDY",
"MR JUSTICE McCOMBE",
"MR JUSTICE TREACY"
] | 2003_02_27-32.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/484/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/484 | 713 |
3b960935758f229a8e906058035859a3298b8fe006a5460cbd52bfad4d3feb66 | [2023] EWCA Crim 1640 | EWCA_Crim_1640 | 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.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/03191/A2
[2023] EWCA Crim 1640
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 –
DYLAN JOSHUA BENJAMIN MARSHALL
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
____________________
Mr T Roseman
appeared on behalf of the Appellant
____________________
J U D G M E N T
Thursday 14
th
December 2023
MR JUSTICE TURNER:
1.
On 13
th
June 2023, having pleaded guilty to three charges relating to indecent images of children before the Colchester Magistrates' Court, the appellant (then aged 21) was committed for sentence to the Crown Court, pursuant to
section 14
of the
Sentencing Act 2020
.
2.
On 23
rd
August 2023, in the Crown Court at Chelmsford, the appellant was sentenced to 30 months' immediate imprisonment in respect of each count of making an indecent photograph of a child, contrary to
section 1(1)
(a) of the
Protection of Children Act 1978
, to run concurrently with each other. The individual charges related to categories A, B and C images. A number of ancillary orders were made, most of which are not the subject of appeal, save in relation to the duration of the notification requirements and the Sexual Harm Prevention Order.
3.
The appellant appeals against sentence with the leave of the single judge.
4.
The facts are these. On 1
st
October 2022, on receipt of information, police officers executed a search warrant at the appellant's address and seized his iPhone. On it they found 35 category A indecent images of children. 17 were unique, of which eight were videos and nine were images. These had been created between March and July 2022. The total duration of the videos was four minutes and 54 seconds. In relation to Category B, there were four unique videos, created between April and May 2022, the duration of which was one minute and 12 seconds. There were also 53 Category C images: 25 unique images, which were 21 images and four videos, created between March and September 2022; the duration of the videos was one minute and 42 seconds. The identity of the children concerned was never ascertained.
5.
The appellant made no comment in interview, save to say that he had never seen any indecent images of children and was not a risk to children. He was interviewed again several months later and stood by his initial statement. He declined to comment on most of the questions that were put to him.
6.
The case against the appellant proceeded on the basis that the making of the images under subsection (a) was to be treated as amounting to possession for the purposes of sentence and the application of the relevant sentencing guideline. Such an approach gave rise to a starting point of one year's custody, with a category range of 26 weeks to three years.
7.
During the course of the sentencing hearing the prosecution opened the case on this basis when the judge intervened. He pointed out that in the pre-sentence report the appellant had given a full account of his offending to the author, which involved an admission that he had sent indecent images to people with whom he was in contact in a network on the internet. He had also admitted that these images were of girls he knew.
8.
Thereafter, the judge proceeded on the basis that the case fell to be sentenced not within the category of possession in the guideline, but of distribution, which provided for a starting point of three years' custody and a category range of two to five years. The judge appeared to have abandoned an earlier suggestion that this may have been a case of production in the absence of evidence that the appellant had actually created the images in the first place. It was an aggravating feature that the images were of children he knew. Taking into account the appellant's good character, his mental health difficulties, abusive upbringing and the remorse he had shown, the judge came down from the starting point to 45 months, before allowing a discount of one third to reflect his guilty pleas. By this route she reached the sentence of 30 months' imprisonment on each charge, to run concurrently.
9.
The judge did not appreciate, however, that the offence of distribution of indecent photographs comprises a separate offence to that of making them. The former is created by
section 1(1)
(a) of the
Protection of Children Act 1978
, and the latter by subsection (b). It was simply not open to her to sentence on a basis that a different offence to that to which the appellant had pleaded guilty had been committed. If authority were needed for this proposition, it may be found in
R v Canavan
[1998] 1 WLR 604
, in which this court held that sentences should reflect only the offences of which the defendant has been convicted or has pleaded guilty. Accordingly, the judge's approach to sentence was wrong in principle.
10.
The author of the pre-sentence report recommended that an appropriate course would be to order that the appellant should be made subject to a community order of 24 months' duration, with the requirements that he complete an accredited programme requirement of 40 sessions and a rehabilitation activity requirement of at least 38 days. He suggested that the punitive element of any order could be addressed by an unpaid work order.
11.
It is to be noted that the guideline provides that where there is a sufficient prospect of rehabilitation, a community order with a Sex Offender Treatment Programme requirement under
section 202
of the
Criminal Justice Act 2003
can be a proper alternative to a short or moderate length custodial sentences.
12.
In the circumstances, we quash the sentences of imprisonment and accede to the recommendation of the author of the pre-sentence report, to the extent that the appellant will be the subject of a community order with the requirements we have identified.
13.
The appellant having already served nearly four months in custody, we do not consider it appropriate at this stage to impose any additional punitive sentence, whether by making an unpaid work order or otherwise.
14.
In order to reflect the reduction in sentence, we reduce the period of notification and the period under the Sexual Harm Prevention Order to one of five years, rather than ten years. That period is to commence on the date of conviction, namely 13
th
June 2023.
_____________________________ | [
"MR JUSTICE TURNER"
] | 2023_12_14-5959.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1640/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1640 | 714 |
7247ba41db676b3315d88e12ca1a5250a0d6a41e48a931251dbee88aa8a72019 | [2008] EWCA Crim 2467 | EWCA_Crim_2467 | 2008-10-17 | crown_court | Neutral Citation Number: [2008] EWCA Crim 2467 No: 2008/3020/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 17th October 2008 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER ( His Honour Judge Brodrick ) ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- WILLIAM CHAMBERS - - - - - - - - - - - - - - - - - - - - - Computer Aided Tra | Neutral Citation Number:
[2008] EWCA Crim 2467
No:
2008/3020/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 17th October 2008
B E F O R E:
LORD JUSTICE TOULSON
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF WINCHESTER
(
His Honour Judge Brodrick
)
(
sitting as a judge of the Court of Appeal, Criminal Division
)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
-v-
WILLIAM CHAMBERS
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Palantype Notes of
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr P Corrigan
appeared on behalf of the
Appellant
Mr G Cammerman
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON: This was to be hand down judgment, but events have moved on. Mr Cammerman we have had your further submissions. We accept your personal explanation, how you came to misunderstand what the law was and present the appeal on a false basis.
2.
MR CAMMERMAN: I am much obliged.
3.
LORD JUSTICE TOULSON: But it is a matter of concern. Was this a CPS or a Customs prosecution?
4.
MR CAMMERMAN: This was a Customs prosecution, my Lord.
5.
LORD JUSTICE TOULSON: So how did it come about that this mistake was spotted only at very much the 11th hour?
6.
MR CAMMERMAN: An assiduous lawyer at the office of the RCPO, Revenue and Customs Prosecutions Office, came into possession of the knowledge.... (
Pause
)
7.
There was a lawyer in Manchester who had noticed that the Regulations, as no doubt did a number of other lawyers in different departments at the Revenue and Customs, that the Regulations had been superseded, or should I say amended. A lawyer for Revenue and Customs, when considering a different case, came upon the consideration of that lawyer yesterday. She was considering a section 16 Proceeds of Crime Act application in respect of another case. When the observations of that lawyer in Manchester came to her attention, she immediately realised the importance of it and left a message on my telephone in chambers yesterday evening.
8.
LORD JUSTICE TOULSON: So effectively it was a fortunate accident?
9.
MR CAMMERMAN: My Lord, I regret to say it was a fortunate accident.
10.
LORD JUSTICE TOULSON: By fortunate accident the draft judgment came to the attention of a lawyer in the RCPO, who was aware that the Regulations had been superseded and very properly took prompt steps to see that the court was alerted.
11.
MR CAMMERMAN: Became aware I think yesterday and --
12.
LORD JUSTICE TOULSON: Meanwhile, others in the RCPO have in recent years been proceeding on the erroneous basis.
13.
MR CAMMERMAN: My Lord, yes, and --
14.
LORD JUSTICE TOULSON: Have you any information how many confiscation orders may have been obtained where the court has not been told what the relevant Regulations are? (
Pause
)
15.
MR CAMMERMAN: In the light of what my Lord describes as a fortunate accident, a review is currently underway to answer the question your Lordship understandably asks. So the answer to the question is that there is no - I do not know --
16.
LORD JUSTICE TOULSON: It is not the only time it has happened in this court this week. As it so happens we had an earlier appeal this week when counsel for the respondent relied on the 1992 Regulations in a cigarette case. The Regulations were introduced only at a very late stage and he made his submissions on instructions, having spoken to the RCPO. That was I think on Wednesday.
17.
MR CAMMERMAN: I have been made aware of that case, although as I understand it that case in fact was not resolved.
18.
LORD JUSTICE TOULSON: Very fortunately, we thought that there was something which worried us about the fact that these Regulations were being produced at a very late stage and that all might not be entirely straightforward and that it really was not fair for the appellant to have to deal with them on his feet.
19.
MR CAMMERMAN: My Lord, yes.
20.
LORD JUSTICE TOULSON: That turns out to have been absolutely right.
21.
MR CAMMERMAN: My Lord, yes. I can also say on a personal note that I am in possession of a number of skeleton arguments of cases that I know my Lord himself is due to hear in due course.
22.
LORD JUSTICE TOULSON: Am I?
23.
MR CAMMERMAN: It may be that you are, my Lord. I am this afternoon going to write to all those individuals whose skeleton arguments I have seen that rely on those provisions, including counsel of greater esteem than I, and alert them to the difficulty that we have encountered here and hopefully avoid any further submissions being made that are wrong.
24.
LORD JUSTICE TOULSON: Right.
25.
MR CAMMERMAN: Can I in open court echo the apology that I have communicated in writing to the court.
26.
LORD JUSTICE TOULSON: Yes. (
Pause
)
27.
I am just trying to find among the recent cascade of emails that we have had, the one which actually explains the source of the misinformation.
28.
MR CAMMERMAN: That would be an email from myself, my Lord.
29.
LORD JUSTICE TOULSON: Yes, I think it was. Actually it is in your skeleton additional submissions. Yes, it is paragraph 1 of your addendum skeleton argument. Yes, the OPSI web site.
30.
MR CAMMERMAN: Yes. My Lord, I checked this morning to see if other sources of information would also mislead and in fact the Lawtel and the Westlaw web sites, which are common sources of statutory instruments, also quote the Regulations in their amended form; that is to say, without the new paragraph 3(4) --
31.
LORD JUSTICE TOULSON: Yes, they are private sector web sites, of course.
32.
MR CAMMERMAN: My Lord, yes. (
Pause
)
33.
LORD JUSTICE TOULSON: Yes, do you want to say anything further on your addendum submissions?
34.
MR CAMMERMAN: There is nothing further on the submissions themselves, save that those instructing me wish me to invite the court to consider giving some time for two things to happen. First of all, consideration of the impact of the change in Regulations on this particular appeal and, secondly, for any submissions to be made in writing that may assist the court.
35.
LORD JUSTICE TOULSON: Why should you have time? The position is this. You seek to uphold the order on the basis of a factual assertion that Chambers caused the tobacco products to reach an excise duty point. That is a pure assertion of fact. No such finding was made by the judge, nor was the case presented to him in a way which invited him to make such a finding of fact. If the prosecution had presented the case below on the basis that we have to establish a liability to pay duty arose on the part of this defendant, and that turns on the question of whether he caused the products to reach the excise duty point, both the Recorder and Chambers, and more particularly his lawyers, would have had their eye on the ball. We do not know, and it is not for us to speculate, what advice would have been given to Chambers about whether he should give evidence, or what evidence he might have given, or what the finding of fact the court may have made. Why in these circumstances would it be just to put the case over for further argument?
36.
MR CAMMERMAN: I think the recent nature of the realisation of the way in which Customs have put its case, most particularly before your Lordships, was an erroneous one and the implications that has in respect of the stance that Her Majesty's Revenue and Customs would wish to take in respect of this appellant is the reason why those instructing me wish time to draw breath and consider the position.
37.
LORD JUSTICE TOULSON: I appreciate that, but the short point is they did not seek the appropriate finding of fact when the matter was before the judge, although the relevant Regulations had been in force for over 5 years.
38.
MR CAMMERMAN: My Lord, my attention is being drawn.... (
Pause
)
39.
My Lord has the point that I make. (
Laughter
) (
The Bench conferred
)
40.
LORD JUSTICE TOULSON: We need not trouble you, Mr Corrigan.
41.
William John Chambers and James Dennard pleaded guilty on 11th October 2007 at Maidstone Crown Court before Judge Patience QC to an offence under
section 170(1)(b)
of the
Customs and Excise Management Act 1979
of being knowingly concerned in carrying, harbouring, depositing, keeping, concealing, removing or in any manner dealing with goods, which were chargeable with a duty which had not been paid, with intent to defraud the Crown of the duty chargeable on the goods. The judge set a timetable for sentence and for confiscation proceedings. On 23rd November 2007, before the same court, Chambers received a community sentence.
42.
On 8th April 2008 Mr Recorder Wilson made confiscation orders against both defendants for £66,120 under the
Proceeds of Crime Act 2002
, with a period of imprisonment in each case of 20 months in default of payment.
43.
Chambers' application for leave to appeal against his confiscation order was referred by the single judge to the full court. Having heard full argument in the matter from counsel for Chambers and for the prosecution, we formally grant leave.
44.
The evidence for the prosecution showed that the goods which were the subject of the charge were bought in Belgium on 12th September 2006 at 17.44. The evidence leading to the prosecution of the appellant and Dennard was summarised by the Recorder in his full and careful judgment as follows:
"7. On 13 September 2006 at 11.30am, officers of HM Customs & Revenue were at commercial premises at Nickolls Yard, Newing Green, Nr Hythe, Kent. In the yard was a Toyota Carina car. Mr Dennard was in the driver's seat, Mr Chambers in the front passenger seat and Mr Dennard's son was in a rear passenger seat. Messrs Dennard and Chambers were promptly arrested and taken to the Customs Custody Centre at Dover. At about 12.15 a customs officer searched the car and discovered a bunch of 5 keys with an alarm fob in the passenger footwell. The keys were tried in various locks on site and it was found that 2 of the keys opened 2 separate padlocks securing a large metal storage container near to the warehouse on the site. A third key fitted the padlock on one of the entry gates to the yard and a fourth key fitted the padlock on a door to the warehouse. ...
8. Inside the storage container there were 24 boxes of Golden Virginia tobacco: 600kg in all. Samples of the tobacco packaging were examined by the manufacturer who confirmed that the tobacco had been manufactured in July 2006 and delivered to the Belgian market. The revenue evaded was calculated at £66,120 ..."
45.
The appellant was interviewed on the day of his arrest and declined to comment.
46.
His subsequent plea of guilty was entered on the following written basis:
"1. He had never visited or had any contact with the yard prior to the day of his arrest.
2. He had been asked to attend the yard on the day of the arrest by his co-defendant and another.
3. He was to be paid £50 for his work that day.
4. He became aware that the work would involve handling dutiable items but nevertheless agreed.
5. He did not travel to Belgium on 12th September 2006."
47.
The Recorder noted in his judgment in the confiscation proceedings:
"According to the Court Log, the Crown asserted at the time that it was not bound by the basis of Mr Chambers' plea. A
Newton
hearing was neither requested nor ordered."
48.
Mr Corrigan argued on behalf of the appellant that because his client was sentenced by Judge Patience without a
Newton
hearing, the Recorder was bound in the confiscation proceedings to accept that the appellant's role was limited to that set out in his written basis of plea. We reject that submission.
49.
The Recorder said in his judgment:
"
May
is ... authority for the proposition that where the Crown agrees a basis of plea, that basis is binding on both the Crown and the Court considering confiscation. If the basis is not agreed, the judge will be required to hear evidence and reach his own conclusion as to the part played by the defendant. No such evidence was called before me in this case."
50.
That was a proper approach. The general principles regarding a basis of plea were set out in
Underwood
[2005] 1 Cr App R (S) 90
,
[2004] EWCA Crim 2256
. The Recorder's reference to
May
was to the judgment of the Court of Appeal in that case at [2005] 2 Cr App R (S) 67,
[2005] EWCA Crim 97
, paragraph 88. In this case the fact that the sentencing judge did not find it necessary to conduct a
Newton
hearing before sentencing the appellant was neither here nor there when it came to the confiscation proceedings. The facts found by the Recorder in paragraphs 7 and 8 of his judgment were undisputed. If the appellant wished to call evidence to explain his role in the matter, it was for him to do so. There would have been no excuse for any misunderstanding by the appellant, not only because the principles were clear but also because the prosecution's position was spelled out at the time of the appellant's guilty plea. Its position was that it did not seek a
Newton
hearing before sentence or consider such to be necessary, but it regarded the confiscation proceedings as a different matter and it did not agree to the appellant's basis of plea. On the hearing of the appeal Mr Corrigan accepted that Mr Cammerman had made these points clear.
51.
In his judgment the Recorder neither expressly accepted nor rejected the assertions in the appellant's basis of plea. He concluded that on the prosecution's evidence and the appellant's admissions he had obtained a pecuniary advantage equal to the value of the unpaid duty. He reached this conclusion on the ground that by becoming concerned in the removal and continuing concealment of the goods he "provided an important link in the chain between the importation and ultimate sale, up to which point no profit could actually be realised." The Recorder referred to regulation 5 of the Exercise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 but he relied rather more strongly on a number of Court of Appeal authorities in reaching the conclusion that the appellant had evaded duty and thereby obtained a pecuniary advantage. At the time of his judgment the cases of
May
,
Jennings
and
Green
were awaiting the decisions of the House of Lords, but the Recorder was asked by both parties not to defer his decision on that account.
52.
The Recorder is not to be criticised for deciding the case as he did, but the decisions of the House of Lords in those cases have now clarified the law
1
. On the hearing of the appeal Mr Cammerman accepted, in our judgment correctly, that the appellant would only have obtained a benefit by way of a pecuniary advantage in the form of the evasion of excise duty if he was himself under a liability for the payment of that duty which he dishonestly evaded. To help somebody else to evade the payment of duty payable by that other person, within intent to defraud, is no less criminal, but in confiscation proceedings the focus is on the benefit obtained by the relevant offender. An offender may derive other benefits from helping a person who is under a liability for the payment of duty to avoid that liability, e.g. by way of payment for the accessory's services, but that is another matter. In order to decide whether the offender has obtained a benefit in the form of the evasion of a liability, it is necessary to determine whether the offender had a liability which he avoided. In the present case that turns on whether the appellant was liable for the payment of excise duty on the relevant goods under the relevant Regulations.
53.
The Regulations relied on by the prosecution at the hearing of the appeal were the Excise Goods Regulations 1992. We heard arguments from both sides about their proper construction.
54.
Fortunately, as matters have turned out, we reserved our judgment. Two days ago we released to the parties our draft judgment, in which we were going to conclude that on the proper construction of those Regulations there was a liability to duty on the part of the appellant and that the appeal should therefore be dismissed.
55.
Yesterday, by a fortunate accident, our draft judgment came across the desk of a lawyer in the Asset Forfeiture Division of the Revenue and Customs Prosecutions Office, who was aware that the 1992 Regulations no longer applied to tobacco products. She immediately took proper steps to ensure that this court was alerted.
56.
It transpires that the Excise Goods Regulations 1992 were superseded in relation to tobacco products by the Tobacco Product Regulations 2001, which came into force on 1st June 2001, i.e. over 5 years before the events giving rise to the present prosecution.
57.
The provisions of the Tobacco Product Regulations 2001 are materially different from the Excise Goods Regulations 1992. In written submissions prepared for today, Mr Cammerman submitted that although the circumstances under which liability to duty may arise under the Tobacco Product Regulations 2001 are narrower than under the preceding relevant Regulations, they still cover the position of the appellant. This would depend on whether liability arose under paragraph 13(3)(e) of the Regulations, which would impose liability on him if he was a person who "caused the tobacco products to reach an excise duty point." In his oral submissions Mr Cammerman invited the court to adjourn the hearing of the appeal in order that fuller submissions could be made by both parties on that issue.
58.
In our judgment, it would be wrong to do so. The issue now sought to be raised involves a question of fact upon which the judge made no finding because he was not asked to address it. We have no idea, and it would be wrong to speculate, whether if the case below had been presented on the basis that the prosecution asserted that this appellant had caused the tobacco to reach an excise duty point, the appellant would have chosen to give evidence. It would be wrong for this court, which is primarily a court of review, to make a finding of fact of that kind in these circumstances. It is for the prosecution in a case of this kind to place before the court at first instance the relevant statutory provisions and to invite the court to make such findings of fact as it seeks.
59.
Accordingly, this appeal must be allowed and the confiscation order quashed.
60.
It is a matter of considerable concern to us that the Recorder was not taken to the relevant Regulations and nor were we until the 11th hour, when we were on the point of reaching a wrong decision. Mr Cammerman has explained that he based his understanding of the relevant law on the Office of Public Sector Information web site, which shows the Excise Goods Regulations 1992 in their unamended form. We accept his personal explanation and apology, but that does not alleviate our concern.
61.
What happened in this case is not an isolated lapse. Earlier this week we heard another appeal from a confiscation order relating to the evasion of duty on cigarettes. In that case too the prosecution relied on the Excise Goods Regulations 1992. We were unhappy in that case that the prosecution produced those Regulations - which as we now know were the wrong Regulations - only during the course of the appeal, because we did not think that it gave the appellant a fair opportunity of dealing with a potentially difficult point. So we allowed the appeal, with the result that no injustice was in fact done in that case by our being referred to the wrong Regulations.
62.
However, our concern remains that the court should have been misled in this way. It is clear that the problem is a systemic one in that the information on the Office of Public Sector Information web site is defective and has presumably been so for some considerable time. Mr Cammerman has told us that in the present case the prosecution was brought by the Revenue and Customs Prosecutions Office and therefore it is apparent that within that Office there is, or has been until now, considerable ignorance about what were the relevant Regulations in force. That is also a matter of self-evident concern.
63.
In the circumstances, we expect that the Revenue and Customs Prosecutions Office will now conduct an urgent inquiry whether there have been mistakes in other cases in which confiscation orders have been made, no doubt with sentences of imprisonment in default. If that turns out to be so, the defendants in those cases should be given notice in order that they can make late applications for leave to appeal or such other application as may be appropriate if, for example, they have served a default term of imprisonment as a result of a court imposing a confiscation order on an erroneous understanding of the law. We were told by Mr Cammerman this morning that such a review is already underway.
64.
This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.
65.
First, the majority of legislation is secondary legislation.
66.
Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission's Report on Post-Legislative Scrutiny, (2006) Law Com 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
67.
Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
68.
Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions, including the House of Lords Committee on the Merits of Secondary Legislation. In its Report on Post-Legislative Scrutiny, under the heading "Access to legislation and consolidation", the Law Commission stated:
"4.11. One theme related to delegated legislation, on which a number of consultees commented, was access to legislation. The joint response of the Children's Legal Centre and National Children's Bureau addressed the problem that despite their familiarity with the broader legal framework, they still found access to be a real problem:
'The lack of access to statutes with appropriate links to the regulations and guidance which are currently in force must be a cause of serious inconvenience to anyone who does not have access to specialist services. We are concerned when information so fundamental to a democracy is difficult to identify, obtain and understand, and is frequently out of date. It is frequently the case that secondary legislation and guidance are overlooked in the process of scrutiny, although their impact on the day-to-day operation of the law is as significant as the primary statute.'
4.12. The joint response stated that experience of practice in childcare suggests that many injustices are the result not of failure to comply with the statute, but of failure to know about, understand or access secondary legislation."
69.
The problem is not confined to secondary legislation relating to childcare. It affects many other areas of law of great impact on the ordinary citizen, such as social security benefits.
70.
The Law Commission concluded this section of its report as follows:
"4.15. It is also important that all related statutory provisions, whether primary or secondary, should be capable of being readily accessed together. We are aware of the work being undertaken on the Statute Law Database and recognise that public access to that resource is a step in the right direction.
We recommend that steps should be taken to ensure that the related provisions of primary and secondary legislation should be capable of being accessed in a coherent fashion by a straightforward and freely available electronic search
."
71.
The Government's response to that recommendation was presented to Parliament in March 2008, CM 7320. It stated as follows:
"35. Her Majesty's Stationery Office (HMSO) and the Statutory Publications Office (SPO), which produces the Statute Law Database, are to work together to create a single, powerful and free to access online legislation service. The launch of the SLD has been a milestone in government's online legislation publishing.
36. Over the last two years HMSO, via the OPSI website (
www.opsi.gov.uk
) has embarked on wide ranging improvements to how legislation is published online, taking account of key usability features for layout and navigation. This work is being undertaken as part of 'The Transforming Legislation Publishing Programme'. The aim has been to present legislation in the most accessible and usable way, whilst maintaining the traditional strengths of immediacy and accuracy. One of the benefits is that it affords the opportunity to provide links to related information. Initially these links will be to the Explanatory Note for Acts or the Explanatory Memorandum for Statutory Instruments. Alongside this is also published an ATOM feed for the piece of legislation. This provides visitors with an easy way to keep up to date with subsequent additions to the website, like the addition of Explanatory Notes for an Act, and also the enacting or making of other related legislation such as Commencement Orders or, longer term, amending legislation. In future HMSO will be adding explicit links to Commencement Orders, and where legislation implements an EU Directive, a link also to that Directive.
37. HMSO/OPSI and SPO will continue to work together and with government's online legislation visitors, to improve the service and ensure that UK legislation is available in a high quality and straight forward terms, with a freely available and powerful search."
72.
The aim is laudable, indeed imperative, but there is a long way to go and meanwhile the volume of legislation advances apace. It is a serious state of affairs when the relevant legislation is not accessible, the Government's own public information website (OPSI) is incomplete and the prosecution in an excise case unintentionally misleads the court as to the relevant Regulations in force. Although the problem has in this case arisen in an excise context, it is part of a wider problem of substantial constitutional importance.
73.
Mr Cammerman, there is the case of Dennard, who abandoned his application for leave to appeal.
74.
MR CAMMERMAN: My Lord, yes.
75.
LORD JUSTICE TOULSON: In our view this judgment ought to be made available to his advisers in order that they may consider what course, if any, they may wish to take.
76.
MR CAMMERMAN: I myself will ensure that Mr Dennard's counsel receives a copy of the judgment when I do.
77.
LORD JUSTICE TOULSON: Yes, thank you very much indeed.
78.
Are there any other matters? Mr Cammerman, thank you.
79.
______________________________ | [
"LORD JUSTICE TOULSON",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2008_10_17-1680.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2467/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2467 | 715 |
29d0b9f6a2863d5d721106d8ab4caf705b58a2fa7721042a039d98b495842385 | [2013] EWCA Crim 1011 | EWCA_Crim_1011 | 2013-06-05 | crown_court | No: 2012/6935/C3 Neutral Citation Number: [2013] EWCA Crim 1011 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 5 June 2013 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF BRISTOL HIS HONOUR JUDGE FORD QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v STEPHEN SMITH - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Me | No:
2012/6935/C3
Neutral Citation Number:
[2013] EWCA Crim 1011
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 5 June 2013
B e f o r e
:
LORD JUSTICE PITCHFORD
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - -
R E G I N A
v
STEPHEN SMITH
- - - - - - - - - - - - - - -
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 Carville
appeared on behalf of the
Appellant
Mr K Sutton
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE PITCHFORD: This applicant's application for leave to appeal against conviction has been referred to the full court by the single judge upon grounds drafted by counsel Mr Carville who has attended to present the application. We grant leave and henceforward will refer to him as the appellant. We shall also grant a representation order for junior counsel for the work done by Mr Carville in respect of this appeal.
2.
On 27th September 2012 before His Honour Judge Gilmour QC at the Liverpool Crown Court, the appellant was convicted of an offence of dishonestly failing promptly to notify a change of circumstances contrary to section 111A(1A) Social Security Administration Act 1992. A month later he was sentenced to a suspended sentence order for two years with a requirement that he perform 200 hours unpaid work.
3.
On 18th February 1995 the appellant submitted a claim for severe disablement allowance representing that he was 80 per cent disabled in consequence of an accident at work. An award was made in his favour. Subsequently, between 2nd June 2003 and 31st January 2007 he was employed as a construction manager by Touchstone Property Limited. In his application for that job he represented himself as fit and active.
4.
On 29th January 2007 the appellant set up his own building company, having been made redundant by Touchstone Property. The prosecution case at trial was that in consequence the appellant received benefits of £28,157.51 to which he was not entitled. It was agreed evidence that no notification to the department of work and pensions either by telephone or in writing could be found in the department's records. It was however the appellant's assertion in interview under caution and in evidence that he had telephoned the DWP in 2003 and 2007 to inform them of his change of circumstances. According to his evidence he had been told to write in and his wife had done that for him. The appellant's wife gave evidence in support of that case.
5.
The trial judge directed the jury to consider whether they were sure that the appellant had not notified the department on at least one occasion in 2003 that he was no longer severely disabled.
6.
The appellant claimed to have been told on both occasions that the award was made for life. SDA is not an award for life. The evidence from Mr Lloyd, a witness for the DWP, was that the appellant was notified annually of changes in the rate of the award. He said that notification by phone is recorded directly into the computer system against the name, address and National Insurance number of the claimant. Notification by letter is placed with the claimant's docket. The appellant's docket had been retrieved and no letter was found, although Mr Lloyd accepted that if a letter had been required by another office it could have been mislaid.
7.
The jury clearly disbelieved the appellant and his wife. They retired at 10.35 am on 27th September and returned with a guilty verdict at 11.48 am.
8.
There is a single ground of appeal, namely that due to a misunderstanding the trial judge did not give the jury a direction as to the significance of the appellant's good character.
9.
That misunderstanding arose because the Crown Prosecution Service produced to the advocate for the appellant, Mr Parry, a police national computer antecedent report which contained the appellant's full name, his date of birth and an address which was incorrect. It named Stephen John Smith as living on a farm at High Peak in Derbyshire. That antecedent report read in respect of convictions:
"17.5.78. Macclesfield Magistrates. Assault occasioning actual bodily harm, Offences Against the Person Act 1861, section 47, fine £10 ...
11.05.84. Knutsford Crown Court. Handling, imprisonment three months, wholly suspended two years; handling, imprisonment three months consecutive, wholly suspended two years. Compensation £300."
As a consequence of this document the advocate representing the appellant chose not to adduce any evidence of character and the judge did not give the good character direction.
10.
At the sentence hearing on 23rd October 2012, the appellant maintained that he had no criminal convictions. The following day the prosecution obtained a further antecedent report in respect of this appellant. The name and date of birth were identical, but this time the appellant's address in Merseyside was correct. The report disclosed that no convictions or cautions were recorded against the appellant.
11.
It is now submitted by Mr Carville that had the judge been aware that the appellant was a man of good character, he would undoubtedly have provided the jury with a good character direction. We agree. Secondly, it is submitted that the verdict of the jury is unsafe. Had the jury been informed of the two respects in which good character affected their deliberations upon the evidence, they might reasonably have come to a different conclusion about the credibility of the defence. Again, we agree. The court has said on several occasions that a good character direction is an essential component of a summing-up when the jury is considering evidence of dishonesty, particularly by a man of middle years with no convictions. It may be that the evidence of dishonesty was compelling and that a good character direction could not have saved the appellant. We cannot however be sure of that.
12.
The respondent has taken a responsible view of this appeal. It is conceded by instructions given to counsel Mr Sutton, who appears on behalf of the respondent, first that an error was made which deprived the appellant of the requisite good character direction, and secondly, that it cannot be argued that it would certainly have made no difference to the result of the trial if the good character direction had been given. It follows that this appeal must be allowed and the conviction quashed.
13.
We cannot however leave the appeal without expressing our concern that at the time when the advocate representing this appellant at trial received an antecedent report, he did not take the precaution of checking its details with his own client.
14.
No application is made by the prosecution for a retrial of this matter. We are informed that the unpaid work requirement of the order made has in any event been completed. We therefore make no further order. | [
"LORD JUSTICE PITCHFORD",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2013_06_05-3184.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1011/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1011 | 716 |
acbf9f0d96609830a52f8b61700467693ef4bf3e63ce99b6c075e0309946a960 | [2020] EWCA Crim 868 | EWCA_Crim_868 | 2020-07-01 | crown_court | No: 201903440/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 868 Royal Courts of Justice Strand London, WC2A 2LL Wednesday 1 July 2020 Part Virtual Court Hearing B e f o r e: LORD JUSTICE FLAUX MR JUSTICE WILLIAM DAVIS MR JUSTICE FORDHAM R E G I N A v CONNORS BUILDING & RESTORATION LTD 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 Write | No:
201903440/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 868
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday 1 July 2020
Part Virtual Court Hearing
B e f o r e:
LORD JUSTICE FLAUX
MR JUSTICE WILLIAM DAVIS
MR JUSTICE FORDHAM
R E G I N A
v
CONNORS BUILDING & RESTORATION LTD
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 J Hodivala QC and Mr I Bridge
appeared on behalf of the
Appellant Company
Ms R Emsley-Smith
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
LORD JUSTICE FLAUX:
Introduction and factual background
1.
Following a trial before Her Honour Judge Brandon and a jury in the Crown Court at Liverpool, on 20 August 2019 the appellant company was convicted of a single count of failing to comply with
section 2(1)
of the
Health and Safety at Work Act 1974
. On 7 October 2019, the appellant was fined £20,000 and ordered to pay prosecution costs of £68,192.15 and a victim surcharge of £170. The appellant company appeals with the leave of the single judge against that conviction. The appellant company argues that the conviction is unsafe because the prosecution against it by the Health and Safety Executive ("HSE") should have been stayed as an abuse of process. The judge on 10
July 2019 had refused an application to stay. It is submitted that the judge erred in her decision to refuse the stay.
2.
The facts of the offence were as follows. On 2 June 2017, an employee of the appellant company, Graham Daley, was working on a rip saw in the new joinery room, sawing a hardwood plank, when an offcut piece of timber kicked back and impaled his right leg, hitting a nerve and the main artery. He was taken to hospital by ambulance and underwent surgery to have the timber removed; he remained an inpatient for six days. He was unable to walk unaided for 16 weeks and was left with a limp and shooting pains which it is thought will continue for the rest of his life. He was unable to return to work until the end of August 2017 and was still taking painkillers for pain from suspected nerve damage at the time of the trial two years later.
3.
Mr Daley had failed to lower the crown guard attached to the saw. He had also failed to use a stand provided to catch the timber as it emerged from the saw. At the trial it was agreed between the experts for the parties that the accident would not have occurred if he had used a stand and/or deployed the crown guard.
4.
As a result of the injury, a report was made to the HSE which carried out an investigation into the incident. Catherine Lyon, an HSE inspector, visited the appellant's premises and obtained material which included the company's method statement and risk assessment for the joinery workshop. She was then appointed the investigating inspector. In April 2018, she completed her investigation and presented her report, which recommended prosecution, to the principal inspector of health and safety, Helen Jones.
5.
The appellant had been invited to make representations and on 3 April 2018 its solicitors wrote a detailed letter to the HSE. They argued, by reference to the Enforcement Policy Statement ("EPS") and Enforcement Management Model ("EMM") of the HSE that,
inter alia
, the public interest for prosecution had not been met and that prosecution was not a proportionate response. The letter focused on the fact that the appellant company had a
single customer, Scottish Power, that a re-tendering process was due and that if the company were prosecuted, Scottish Power would not renew the contract. In that event, it was contended, the company would become insolvent and the workforce, including Mr Daley, would lose their jobs.
6.
Ms Jones gave evidence at the hearing before the judge. She said she had reviewed the information, including the appellant's solicitors' letter and, with the EPS, EMM and the Code for Crown Prosecutors in mind, had concluded that both the evidential and public interest tests were met and agreed with Ms Lyon that prosecution was a proportionate response. In cross-examination, Ms Jones said that she had taken into consideration when looking at the public interest test the point made by the appellant that the effect of prosecution might be to shut the company down. She had also taken account of the previous exemplary health and safety record of the company, together with the evidence as to how the rip saw was being used on the day and the expert evidence.
7.
After the appellant had been notified of the decision to prosecute, its solicitors wrote again to the HSE inviting reconsideration of the decision to prosecute, reiterating that the likely outcome was loss of the Scottish Power contract and the laying off of its 42 workforces. That letter was unanswered.
The ruling under appeal
8.
In her ruling, the judge noted that Ms Jones had applied the EPS and the EMM and in doing so considered the "risk gap" which involves comparing the actual risk arising from the circumstances under consideration and the benchmark risk, that is controlling the risk to an acceptable standard. That comparison produces the risk gap which was assessed as being "extreme". This was on the basis that the potential consequence of kick back on the rip saw was serious personal injury such as occurred in this case. If the saw had been operated appropriately and there had been appropriate training and supervision, the risk of serious injury would have been negligible. The judge noted the prosecution case that the appellant had failed to meet well-known and established standards in the Approved Code of Practice for the Provision and Use of Work Equipment Regulations ("ACoP") available on the HSE website. In failing to meet those standards, there had been a serious breach which had resulted in serious injury.
9.
The judge noted that the EMM advises inspectors that prosecution should be considered in a case where the risk gap is assessed as extreme. Inspectors are provided with another option, described as "Initial Enforcement Expectation" and in an extreme risk case this is an Improvement Notice. The prosecution submitted to the judge that an Improvement Notice could not have been served as the rip saw had been removed after the incident. The defence submitted that prosecution where this was an exemplar company and 40 jobs would be at risk was
Wednesbury
unreasonable and oppressive.
10.
In the Decision section of her ruling, the judge said at paragraph 26, that the conclusion that there was an extreme risk gap was one which Ms Jones was entitled to reach in circumstances where a serious injury was caused and there was readily available guidance in the form of the ACoP establishing the requisite standard for controlling the risk. That conclusion is not challenged on appeal.
11.
The judge concluded at paragraph 29 that in applying the public interest factors for or against prosecution, Ms Jones was entitled to conclude that there had been a serious breach of the health and safety regulations which it was in the public interest to prosecute. That being so, it was not for the Court to intervene in that decision, unless the prosecution amounted to an abuse of process and was oppressive and vexatious. Once the conclusion was reached that prosecution was in the public interest, paragraph 7 of the EMM made clear that the fact that there are alternative enforcement actions do not "fetter the discretion of the inspector" and paragraph 76 confirmed that the "prosecution may go ahead without recourse to alternative sanctions". The judge said in her judgment on the facts of the case and considering the totality of the evidence that the HSE would have been entitled to either issue an Improvement Notice or proceed to prosecution.
12.
The judge found that there was no merit in the submission that the EMM, EPS or Code for Crown Prosecutors were not applied correctly or in a manner which was not justified on the evidence. She concluded that the decision to prosecute was not
Wednesbury
unreasonable and that there was therefore no abuse of process. The question of oppression did not strictly arise, but she addressed it briefly. She referred to the evidence which Mr Connor, the managing director of the appellant, had given before her and to his clear impression that the company would lose the contract with Scottish Power if prosecuted, with the disastrous consequence of termination of employment of the entire workforce. She noted that no enquiries had in fact been made with Scottish Power as to the impact of a conviction. The company would be required to submit to a tendering process and although the judge accepted his evidence that he believed a conviction would result in the company being culled in that process, there was no evidence to confirm that that was the case or that, but for the conviction, the tender would be successful. His evidence highlighted other difficulties with the tendering process as a consequence of the ongoing uncertainty about Brexit. Mr Connor confirmed that no enquiries had been made as to alternative sources of work, saying they had been down that line before and it had not worked. The judge concluded that the submissions as to the potential consequence of a conviction were speculative and so there was no basis for concluding that if convicted the workforce would inevitably lose their jobs. She noted that in any case where a company was prosecuted, it was open to those with whom it did business to reconsider the business relationship. That was an ordinary potential consequence of conviction and could not be oppression.
The grounds of appeal
13.
There are four grounds of appeal:
(1)
That the judge erred in concluding that the prosecution had fully complied with the EPS in reaching the decision to prosecute, in particular in failing to take any or adequate notice of the consequences of a prosecution for the appellant and its employees.
(2)
That the judge erred in finding that the closure of the appellant which would be the likely result of conviction was not oppressive.
(3)
That the judge erred in finding that the decision to prosecute was not
Wednesbury
unreasonable in the sense that it served no purpose and that it was very much against the public interest that the appellant cease to trade. No reasonable prosecutor could have made the decision to prosecute in possession of all the known facts.
(4)
The judge erred in concluding that the consequences of conviction for the appellant were properly matters of mitigation. The level of penalty was of no consequence as conviction would likely lead to loss of the Scottish Power contract and subsequent closure.
The EPS and the EMM
14.
The grounds of appeal quote extensively from the EPS and the EMM. We have had regard to all the provisions to which reference is made but do not propose to set those out in full here. The only provisions to which we would make reference are as follows. Given the reliance now placed by Mr James Hodivala QC for the appellant on the fact that regulation by the HSE is governed by the
Legislative and Regulatory Reform Act 2006
, the Regulators Code 2014 and the
Deregulation Act 2015
, it is worth noting 1.6 of the EPS which provides:
"1.6 This Enforcement Policy Statement is made in accordance with the
Legislative and Regulatory Reform Act 2006
, the Regulators' Code 2014 and the
Deregulation Act 2015
."
15.
So far as prosecution is concerned, the following provisions are relevant: "13.0 Prosecution
13-l Prosecution is an essential part of enforcement, ensuring that where there has been a serious breach of the law, duty holders (including individuals) are held to account. This includes bringing alleged offenders before the courts in England and Wales…
14.1
In England and Wales, we decide whether or not to proceed with health and safety prosecutions. We use discretion when making this decision and we take account of the evidential stage and the relevant public interest factors set down by the Director of Public Prosecutions in the Code for Crown Prosecutors. No prosecution will go ahead unless we find there is sufficient evidence to provide a realistic prospect of conviction and that prosecution is in the public interest.
14.2
We expect, where sufficient evidence has been collected and it is considered in the public interest to prosecute, that prosecution should go ahead.
16.1
Public Interest
16.2
In both England & Wales, and Scotland we expect that, in the public interest, we should normally prosecute or recommend prosecution, where, following an investigation or other regulatory contact, one or more of the following circumstances in the (non-exhaustive) list apply:
[In that list, the only relevant circumstance is]
The gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it.
16.3
We also expect that, in the public interest, we should consider prosecution, or consider recommending prosecution, where following an investigation or other regulatory contact, one or more of the following circumstances apply:
It is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law, and conviction may deter others from similar failures to comply with the law; "
16.
The EMM provides, so far as relevant, as follows:
"7 The EMM is a straightforward linear model and so cannot truly capture all the nuances and complexities of discretionary decision making in all circumstances. While the EMM provides a framework for driving consistency, it is crucial that inspectors’ discretion is not fettered by artificially constraining all decisions to the EMM.
Prosecution
76
The EMM captures the principles of the EPS by providing a framework in which enforcement action is proportional to the breach of the law or per missioning documents and the associated risks. Where the circumstances warrant it, the EPS states that prosecution may go ahead without recourse to previous advice or alternative sanctions.
77
In practice, this will involve a combination of high risk and extreme failure to meet an explicit or clearly defined standard, which is well known and obvious. This is not affected by factors such as the duty holder’s previous record, or other moderating duty holder factors specific to the circumstances of a case.
Public interest
105
As well as providing guidance on the evidential tests, the Code for Crown Prosecutors also applies a public interest test to prosecution decisions. In Scotland, HSE applies the principles of the EPS and the COPFS Prosecution Code in deciding whether to report offences to the Crown. The same principles of evidential sufficiency and public interest apply to all inspector enforcement activities.
106
There are competing demands on the finite resources available to HSE, and a balance has to be achieved based upon risk, potential outcomes, and public expectations. When considering public interest, inspectors are looking to satisfy themselves that the proposed action will produce a net benefit to the wider community in terms of reducing risks, targeting public resources on the most serious risks and the costs of pursuing a particular course of action.
108 Public interest is a difficult issue to assess. Inspectors should ask themselves what a reasonable person would expect from HSE in the circumstances. A further test is whether the particular decision could be justified in any public forum or inquiry."
The law on abuse of process
17.
In the context of decisions to prosecute made by public prosecutors, it is well-established that the decision to prosecute is made by the CPS or other prosecuting body, not by the Court. Only in exceptional cases will the Court disturb the decisions to prosecute of an independent prosecutor: see per Lord Bingham of Cornhill in
R (Corner House Research) v Serious Fraud Office
[2009] 1 AC 756
. The proportionality of a decision to prosecute can only be challenged (save in a very exceptional case of which this is not one) through an application to the Court before which the criminal proceedings are being conducted to stay the proceedings for abuse of process, not by way of judicial review: see for example
Moss & Sons Ltd v CPS
[2012] EWHC 3658 (Admin)
at [23].
18.
In the case of independent prosecutors, it is also clear that to establish abuse of process it is not sufficient to establish a breach of the relevant guidance or policy. The defendant must go on and establish misconduct or oppression of the type explained in
Ex parte Bennett
[1994] 1 AC 42
: see
R v A
[2012] EWCA Crim 434
at [84] per Lord Judge, CJ and [25] of the judgment of the Divisional Court in
Moss
.
19.
That case involved a prosecution by the Gangmasters Licensing Authority, an agency established by the
Gangmasters (Licensing) Act 2004
and thus an agency of the executive government not an independent prosecutor. The CPS had taken over the proceedings. At paragraph 29 of the judgment, the Court said:
"It would, however, be highly undesirable if there was a different standard of review in abuse of process applications dependent upon whether the setting of a policy or guidance and the control of prosecutions were in the hands of an independent prosecutor such as the Director of Public Prosecutions or whether it was in the hands of an emanation of the Executive Government. There must nonetheless be a powerful argument that a court should apply a more stringent standard to prosecution policy devised and implemented by the Executive Government, as the deference to the Director of Public Prosecutions and other independent prosecutors is grounded on his constitutional independence of the Executive Government. Such a decision when not made by an independent prosecutor may be thought to be little different to other decisions of the Executive Government and therefore subject to the same standards of review."
20.
Mr Hodivala QC submitted that, in that case, reference had not been made to either the
Legislative and Regulatory Reform Act 2006
or the Regulators Code 2014. He relied upon the fact that by virtue of
section 24
of
the Act
, the Code is intended to secure that regulatory functions are exercised with regard to the principles in section 21(2), namely that they are carried out in a way which is transparent, accountable, proportionate and consistent and should be targeted only at cases in which action is needed. He relied in particular upon two of the six principles set out in the Code, Principle 1, that regulators should carry out their activities in a way that supports those they regulate to comply and grow; and Principle 3, that regulators should base their regulatory activities on risk.
21.
Although the grounds of appeal accepted at paragraph 12 (iv) and (ix) that it was not sufficient to establish abuse of process to show a breach of the relevant policy, but oppression must also be shown, Mr Hodivala QC sought in his written submissions to resile from that position and submitted that the additional requirement to show oppression would undermine the statutory purpose of the
Legislative and Regulatory Reform Act 2006
and the Regulators Code. This submission was not pursued orally, which we consider was very wise. We note that, as Mr Hodivala QC accepted in his written submissions, the submission is unsupported by any authority. We consider that the suggestion that a requirement to show oppression somehow undermines the intention of Parliament in enacting
the 2006 Act
is misconceived. There is nothing in the provisions of the statute dealing with regulators at sections 21 to 24 in general terms which bears specifically upon decisions by regulators to prosecute, let alone on the law in relation to abuse of process.
22.
We observe that the argument based on
the 2006 Act
was not put forward to the judge. No reference was made before her either to
the 2006 Act
or to the Regulators Code. Nor was the purported significance of
the Act
or the Code foreshadowed in the grounds of appeal. The first time the submission was made was in the appellant's skeleton argument dated 22 June 2020. On the day before the hearing, Mr Hodivala QC served a supplementary skeleton contending that the "growth duty" upon which he relied was in fact set out in
section 108
of the
Deregulation Act 2015
. The argument advanced is misconceived for reasons set out hereafter and none of this was put forward before the judge or foreshadowed in the grounds of appeal.
23.
Like the Divisional Court in
Moss
we consider that it would be highly undesirable for a different standard of review in abuse of process applications to apply to challenges to decisions by the HSE to prosecute than apply to such decisions by the CPS. That is a point which is reinforced by the fact that, as both the EPS and the EMM make clear, in making decisions as to whether prosecutions are in the public interest, the HSE has regard to the DPP's Code for Crown Prosecutors. It would be anomalous if a different, wider standard of review applied to decisions to prosecute by the HSE than apply to such decisions made by the CPS or other prosecutorial bodies.
24.
This analysis is also supported by
R (Barons Pub Co Ltd) v Staines Magistrates Court
[2013] EWHC 898 (Admin)
. That was a case involving local authority prosecution in the context of food safety and a statutory code of practice requiring enforcement policies to ensure that "enforcement action was reasonable, proportionate, risk-based and consistent with good practice": see paragraph 19. The Divisional Court applied
A
and
Moss
and held that the local authority's failure to follow enforcement policy would not be sufficient to constitute an abuse of process, the additional element of "oppression" was required in that context: see paragraphs 32 and 46-49. The Court included within oppression a "decision to prosecute ... made in circumstances that could be described as entirely arbitrary": see paragraph 48.
Was there a breach of the HSE's policies?
25.
As Mr Hodivala QC said in his skeleton argument, the grounds of appeal come down to two essential questions: (i) was there a breach of the HSE's prosecution policies? and (ii) if so, was the judge's decision not to stay the proceedings an unreasonable exercise of her discretion?
26.
In relation to the first question, he submitted that there were two breaches of the policy: (i) wholly inadequate regard to the business and the business consequences of the decision to prosecute and (ii) failure to pursue the least burdensome enforcement action, i.e. the requirement for proportionality. The former was reflected in 1.2 of the EPS which provides:
"As a regulator, we use a wide variety of methods to encourage and support business to manage health and safety risks in a sensible and proportionate way and secure compliance with the law. In making these decisions, we will have regard to economic growth and the impact that our actions are likely to have on businesses."
27.
It was also a facet of the statutory duty on the HSE under
section 21(2)
of
the 2006 Act
to exercise its discretion proportionately and to have regard to economic growth and the impact a decision to prosecute would have on businesses. Mr Hodivala QC accepted that this statutory duty cannot have any impact upon consideration of the evidential test by the regulator. In our judgment, that is an important concession. The assessment made by Ms Jones in considering the evidential test was that the risk gap was extreme and that this was a serious breach of duty which resulted in serious physical injury. That conclusion has not been challenged, nor could it be on the facts of the case.
28.
In the supplementary skeleton served the day before the hearing, Mr Hodivala QC submitted that the "growth duty" on which he relies in fact derives from
section 108
of the
Deregulation Act 2015
. He recognises that
section 111(2)
(b)(i) provides that the regulatory function referred to in
section 108
does not include "a function of instituting or conducting criminal proceedings". He relies on paragraph 508 of the Explanatory Notes to
the Act
which states:
"508. Sub
section (2
)(b)(i) expressly excludes from the definition of regulatory function the function of instigating and conducting criminal proceedings. However, this would not exclude the making of enforcement decisions prior to a decision to prosecute, such as a decision to investigate a matter or the reference to a prosecuting authority with a view to the prosecuting authority considering the commencement of proceedings in relation to the matter."
29.
Mr Hodivala QC submitted that the decision to prosecute was not within the "instituting" of proceedings and was subject to the growth duty. In our judgment, that submission is unsustainable. Given that the decision which is criticised in the present case is the decision to prosecute the appellant, not some prior enforcement decision, the exception to the exclusion being referred to in paragraph 508 of the Explanatory Notes is clearly not applicable. The complaints in this case are not about "investigating" or "the reference to a prosecuting authority". They are squarely about the stage when the "prosecuting authority" is "considering" the "instituting" of "criminal proceedings", from which it follows that they are untrammelled by the growth duty in
section 108
. If there were any doubt about this conclusion, which there is not, it is made absolutely clear by paragraph 1.9 of the statutory guidance on the growth duty published in March 2017:
"In the context of criminal proceedings by a regulator, the growth duty applies to all functions up to and including the decision to refer the case to a prosecutor to review whether criminal proceedings should be instigated. The functions of instituting or conducting criminal proceedings are excluded from the growth duty."
30.
In any event, even if Mr Hodivala QC were right that Ms Jones was subject to the growth duty, this argument is misconceived for the reasons which follow. He submitted that Ms Jones had only given perfunctory consideration to the economic consequences of the decision to prosecute and had not considered at all or sufficiently the consequences which the decision to prosecute would have on local unemployment. It seems to us that there are two fallacies in the appellant's argument. First, we agree with Ms Emsley-Smith for the prosecution that there is no basis for the contention that Ms Jones only gave perfunctory consideration to the economic consequences of a conviction. Her evidence which the judge accepted was that she had weighed in the balance the economic considerations of a conviction for the company alongside other public interest factors. Furthermore, despite Mr Hodivala QC's submissions, there was no failure on the part of the HSE to conduct further investigations as to impact. In other words, on the basis of the judge's findings, the HSE had faithfully complied with its own guidance, including 1.2 of the EPS. Even if Mr Hodivala QC were right that the HSE was under the growth duty under
section 108
of the
Deregulation Act 2015
in making its decision to prosecute, that adds nothing to 1.2 of the EPS which, as 1.6 states, is made in accordance with
the 2015 Act
.
31.
Second, and more fundamentally, the factual premise underlying the submission that there was a breach of the HSE policy in failing to have regard to the economic consequences of a prosecution was that it would lead to the appellant losing the Scottish Power contract and the workforce becoming unemployed. The judge concluded that the submissions on this were speculative and there was no basis for concluding that the workforce would inevitably lose their jobs. That conclusion was open to the judge and, based on what we have been shown and what has been submitted, she was correct to reach that conclusion. Indeed, her view was subsequently vindicated. Despite Scottish Power being aware of the prosecution, the appellant was awarded one of the Scottish Power contracts for a further four years. The other contract was extended for a further two years, but there is due to be a tendering process commencing in about two months' time. Although Mr Hodivala QC relied upon a downturn in business as attributable to conviction, we are not prepared to accept generalised submissions to that effect. As the judge noted, one matter that may have had some impact on this company was the effect of Brexit.
32.
Furthermore, as Ms Emsley-Smith points out, the mitigation submissions for the appellant were supported by a letter from its accountant which confirmed that the company has potential diversification options, including property development. Notwithstanding the level of the fine, the company has stayed in business and the workforce has been retained. As she said, the further contract from Scottish Power provides funds and breathing space for the company to diversify if diversification is required.
33.
We can dispose of Ground 4 at this point. It is that the judge erred "in concluding that the consequences of conviction for the appellant were properly matters of mitigation". The appellant submits that this was an error because consequences – namely that "conviction would likely lead to loss of the Scottish Power contract and subsequent closure" – were relevant to abuse of process. This ground is based on a misreading of a paragraph which appears at the end of the judge's ruling. It came only after the judge had considered, in the context of abuse of process, the evidence as to the consequences of conviction, and after she had specifically rejected as speculative the submission that conviction would lead to closure. The judge made the point at the end of the ruling about the position looking forward in the proceedings. The point was that consequences were a matter for mitigation at any sentencing stage, rather than a matter to be raised before the jury at trial, and that there would need to be a skeleton argument from the appellant were the contrary being suggested. There is nothing in this point.
34.
The submission of Mr Hodivala QC in relation to the requirement for proportionality was that prosecution did not represent the "least burdensome" action which was appropriate in the circumstances. This requirement derived from Principle 1 in the Regulators Code, 1.1 of which provides:
"Regulators should avoid imposing unnecessary regulatory burdens through their regulatory activities1 and should assess whether similar social, environmental and economic outcomes could be achieved by less burdensome means."
35.
Mr Hodivala QC also relied, albeit that it arose in a different context, on what was said about the test for proportionality as set out by Gross LJ at paragraph 32 of
R (Soma Oil) v Serious Fraud Office
[2016] EWHC 1471 (Admin)
.
36.
He relied upon the judge's conclusion at paragraph 29 of her ruling that on the evidence the HSE could either have issued an Improvement Notice or proceeded to prosecution as demonstrating that the HSE had not adopted the least burdensome measure. He submitted that by prosecuting the HSE had departed from its own policy but had not sought to justify that departure.
37.
The issue of what is proportionate depends upon the circumstances. We agree with Ms Emsley-Smith that a less burdensome response than prosecution would not have met the competing public interest considerations the HSE is required to consider. An Improvement Notice is primarily intended to prevent continuation of a breach, which was not the position here since the rip saw had been removed after the incident. Serving an Improvement Notice in the circumstances of this case would have failed to address the public interest considerations in prosecution where there was a serious offence causing serious harm, as indicated in the passages from 16.1 and 16.2 of the EPS which we cited above.
38.
Mr Hodivala QC relied on the judge's observation that the HSE "would have been entitled to either issue an Improvement Notice or proceed to prosecution". This description of alternatives was made in the context of the judge discussing the statement in both the EMM and the EPS that "prosecution may go ahead without recourse to ... alternative sanctions". In any event, what the judge said was alongside her specific finding that "Ms Jones was entitled to reach the conclusion that there had been a serious breach of the health and safety regulations which it was in the public interest to prosecute". The judge was not finding that an Improvement Notice would have been an equally effective 'less burdensome' alternative, given the HSE's public interest assessment. We cannot see how it could have been. In any event, we agree with what was said by the Divisional Court in
Wandsworth LBC v Rashid
[2009] EWHC 1844 (Admin)
at paragraph 33:
"A finding that it would have been reasonable for the borough, in line with the policy, to take another course of action, does not necessarily lead to the conclusion that the course of action they took amounted to an abuse of process".
39.
The same point can be seen in
Moss
where the Divisional Court held that the issuing of a Prohibition Notice would have been open to the local authority as an alternative to prosecution (see paragraph 42), but that did not mean that, in relation to "the issue of proportionality", there had been a breach of the guidance (see paragraphs 44-45).
40.
It is no answer to that point to say, as does Mr Hodivala QC, that in the sentencing document the HSE put this case in Medium Culpability, Harm Category 3 in the relevant Sentencing Guideline. That categorisation was correct in terms of the Guideline, but it does not follow that this was not a serious breach causing serious injury so that the HSE's own policy pointed to it being in the public interest to prosecute.
41.
We also agree with Ms Emsley-Smith that, given the need for consistency, which is one of the objectives of
the 2006 Act
, Ms Jones was right to regard the unemployment figures in a particular area as not being a public interest factor militating against prosecution. As she said, not only would different enforcement decisions based solely on economic conditions in a locality lead to inconsistency, but it would mean that workers in high unemployment areas would have less protection because HSE enforcement powers would be fettered.
42.
We are quite satisfied that the decision to prosecute in this case did not breach any of: the duty under
the 2006 Act
, the duty under
section 108
of the
Deregulation Act 2015
, the Regulators Code, the EPS or the EMM and that the judge was right so to conclude and to conclude that the decision was not
Wednesbury
unreasonable and that there was no abuse of process.
43.
In those circumstances it is not strictly necessary to go on to determine whether the decision was oppressive, but the judge was rightly unpersuaded by the submissions that the company would be put out of business by the prosecution and we consider that the appellant does not begin to demonstrate oppression in the circumstances of this case.
44.
The appeal is dismissed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LORD JUSTICE FLAUX",
"MR JUSTICE WILLIAM DAVIS",
"MR JUSTICE FORDHAM"
] | 2020_07_01-4923.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/868/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/868 | 717 |
d9c34fbb39117ae35892c1f9579f85501f45467eb169f1e200b5d6f19e184fbf | [2009] EWCA Crim 1450 | EWCA_Crim_1450 | 2009-06-25 | crown_court | No: 200805536/A4 Neutral Citation Number: [2009] EWCA Crim 1450 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 25 June 2009 B e f o r e : LORD JUSTICE PILL MR JUSTICE BURNETT HIS HONOUR JUDGE HALL (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - R E G I N A v DAVID PETER MATTHEWS - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill | No:
200805536/A4
Neutral Citation Number:
[2009] EWCA Crim 1450
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 25 June 2009
B e f o r e
:
LORD JUSTICE PILL
MR JUSTICE BURNETT
HIS HONOUR JUDGE HALL
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - -
R E G I N A
v
DAVID PETER MATTHEWS
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr S Climie
appeared on behalf of the
Applicant
Mr C Parry
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE BURNETT: This is a renewed application for permission to appeal against sentence following refusal by the single judge.
2.
On 23 September 2008 the applicant was sentenced by the Recorder of Winchester to a total of three years' imprisonment in respect of three counts of doing acts tending to and intended to pervert the course of justice. 40 days spent on remand in custody was directed to count towards that sentence. The applicant was also fined for two health and safety offences. No complaint is made about those fines. Two other defendants received prison sentences for perverting the course of justice. One of those defendants applied unsuccessfully for permission to appeal against his sentence. A company, owned and substantially run by the applicant and his wife, was fined for health and safety offences.
3.
The applicant had pleaded guilty to one count of perverting the course of justice and was convicted of the other two. In the same trial he was acquitted of manslaughter as was the company. So far as the manslaughter charges were concerned, this was essentially a retrial, the original trial having been aborted very close to its conclusion as a result of the production of fresh evidence to which we will return.
4.
The prosecutions arose from a fatal accident which had occurred on 9 May 2005. The company was a scrap metal business located in Dorset. One of the machines used at the company's premises was used to cut and compact scrap metal. In short what happened on that fateful day was that an old acetylene cylinder was being processed when it exploded. An employee, Tommy Mooney, who was also a close friend of the applicant, suffered extensive burns from which he died later the same day. The applicant himself suffered serious injury which took him out of commission for three months or so.
5.
The machine was in fact being operated dangerously by the applicant and the deceased. They were standing in the hopper with Mr Mooney holding or pushing the object to be cut and the applicant operating the cutter using a remote control device on the end of a cable which was then attached to the control panel of the machine. Under no circumstances should a machine of this nature be operated with people in the hopper.
6.
In the immediate aftermath of the accident the investigating authorities ran into difficulty in getting to the bottom of how it had happened. The applicant, it should not be forgotten, was away from the site at this time and in hospital. There was immediately what amounted to a cover-up by other directors of the company. The remote control cable was removed and placed under a seat in the control cab. The investigating authorities were not told the truth from the outset, that anyone had been in the hopper when the explosion occurred.
7.
As we have indicated, there were health and safety related charges and charges of manslaughter in addition.
8.
There was a trial in the autumn of 2007. It was the prosecution's case that Mr Mooney had been in the hopper when the explosion occurred. The account of all those representing the interests of the company was that that was not so. The applicant gave evidence that he was operating the machine from the cab. That would be a proper place from which to operate it. In essence he said that Mr Mooney had been passing the machine when the explosion occurred.
9.
As the trial was coming to an end a new witness came forward who told the prosecuting authorities that the machine was in fact being operated by use of a remote cable and that two men were in the hopper. The witness concerned was later accepted by all to have been present at the scene. However, when the emergency services first arrived to deal with the explosion one of the exercises they performed was to make up a list of all those who might be witnesses. This particular witness did not appear on that list. It is now clear that he left the scene hurriedly after the explosion had occurred as a result of what he had seen and the immediate trauma that he suffered.
10.
Given the stage which the trial had reached, which was perhaps only a day from closing speeches, and the importance of this potential evidence, the jury were discharged. The trial was re-fixed to take place at a later stage following further investigation by all concerned. It was the evidence of this witness which provided the spark for the counts of perverting the course of justice with which we are today concerned. As we have indicated, the cable had in fact been removed shortly after the accident by one of the applicant's co-accused. However, after the emergence of the witness the applicant instructed one of his co-defendants to reinstate the cable and remote switch but the instruction was to do so in a way which would enable the applicant to sustain the essence of his account, namely that the machine was being operated from the cab.
11.
The overview of what had happened in this case was that a false account of what occurred had been peddled by the co-accused before the applicant returned to work. He continued with it and then when it began to unravel took steps to shore it up.
12.
The first of the offences related to the applicant's instruction to his co-accused to reinstate the cable. It was this count to which the applicant pleaded guilty and in respect of which he received a sentence of two and a half years' imprisonment. The other counts of perverting the course of justice related to his instructing two employees not to mention, if asked, that the new witness had been working on the day of the accident. He was convicted on those two counts after the trial and received a sentence of three years' imprisonment on each. All sentences were ordered to be served concurrently. Both he and the company were acquitted of manslaughter.
13.
Mr Climie, to whose submissions we are indebted, submits that the learned judge gave inadequate weight to a number of particular factors. They are set out in an advice jointly drafted by Mr Climie and Mr Bowes QC which has set out with clarity all the points that can reasonably be advanced in this case. Those factors were as follows. The learned judge failed to give any or any adequate weight to the specific submissions in mitigation including: (a) the loss of his close friend Thomas Mooney; (b) his own injuries; (c) the good record of the company on matters of health and safety; (d) his plea of guilty on one count; (e) the impact of a term of imprisonment on the company; (f) the fact that the original cover-up had commenced without his knowledge and at a time when he was in hospital recuperating from his injuries; (g) the matters referred to in the pre-sentence report, including a lack of risk of reoffending. Mr Climie also submits that the learned judge failed properly to apply the principles enunciated in this court in
Tunney
[2007] Cr App R(S) 565. Before turning to those submissions in a little more detail, we should add that the applicant had a previous conviction for tax fraud in respect of which he was sentenced to a term of imprisonment.
14.
As the judge said in his sentencing remarks, the applicant had lied when he was originally interviewed about the accident towards the end of 2005. He lied again during a reconstruction that had taken place for the benefit of experts during 2006. He lied on oath during the first trial. He lied again when he was interviewed in the early part of 2008. The judge concluded that this was a:
"... carefully woven mixture of truth and fiction designed to produce a plausible explanation for this explosion which very nearly succeeded."
15.
At the heart of it was an attempt to avoid the possibility of a conviction of manslaughter both personally and for the company. The personal consequences of a conviction for manslaughter in these circumstances would almost certainly have been a term of imprisonment. The company was fined a substantial amount of money for the health and safety offences. It is inevitable that had it been convicted for manslaughter those fines would have been much larger.
16.
Looking at the sentencing remarks, it is clear in our judgment that the factual matters identified by Mr Climie were all in the mind of the sentencing judge. His sentencing remarks were exceptionally detailed and they followed a trial during which he was in an unrivaled position to assess the culpability of the applicant and his co-accused.
17.
We would add this in respect of the submission that it is a strong mitigating factor that the applicant lost his friend Thomas Mooney. One of the consequence of the course of conduct which is reflected in the charges is that both the public and the friends and family of Thomas Mooney might have been denied a proper opportunity of learning of the circumstances of his death. There is a very strong public interest in the circumstances of all deaths, and in particular work related deaths, being thoroughly investigated. There is a very strong public interest in those true circumstances being brought into the public domain. It is apparent from the information before us that in parallel with the lies and deceptions that attended the official investigation and prosecution one of the applicant's co-defendants appears to have told a nephew of the deceased the true position and also appears to have provided him with compensation in cash. That to our mind goes nowhere towards dealing with the serious aspect of peddling lies and maintaining deceptions in respect of a death.
18.
Turning then to the factors identified in
Tunney
. Mr Climie has reminded us that they are, first, the seriousness of the substantive offence to which the perverting the course of justice relates. Secondly, the degree of persistence in the conduct in question of the offender. Thirdly, the effect on the course of justice itself. The offence here was one of manslaughter which is one of the most serious in the lexicon. The course of conduct was persistent, albeit that we accept that the period of time during which the offences were committed was relatively condensed. True it is that both the applicant and his company were acquitted of manslaughter so that their attempts to pervert the courses of justice turned out to have been unnecessary, but the whole of the first trial, which occupied some weeks and involved a large number of defendants proceeded on a false premise. Indeed, it can with confidence be said that it was only as a result of the attempts to pervert the course of justice, that in fact commenced shortly after the accident, that there were two trials at all.
19.
Mr Climie has submitted that there is some disparity which should be reflected in a reduction in the sentence for the applicant when one compares his position with that of his co-defendants. One of those co-defendants received a sentence of 15 months after a trial and the other six months after a plea. Looking at the sentencing remarks, and remembering that the judge had presided over a lengthy trial, we are unpersuaded that there is anything in that point.
20.
Secondly, Mr Climie has submitted that the three years imposed in respect of the second and third counts, which we remind ourselves involved telling witnesses to dissemble, is too long when compared with the two and a half years that the judge sentenced in respect of the first count, namely the instruction to change the wiring.
21.
To equate those two sentences properly one needs to gross up the two and a half years to arrive at a figure which would reflect the position had there been a not guilty plea. If that were the case that sentence would have been three years and nine months with the three years standing for comparison. To our mind, telling witnesses to persist in a lie after that lie had effectively been disclosed, with the possibility of continuing a deception that had persisted throughout one trial, represents a serious perversion of the course of justice. It is not of a completely different order from the first count, namely the instruction to interfere with the wiring. We are far from persuaded that there is anything to be said of that point.
22.
We have looked carefully at the material before us, the sentencing remarks of the judge and the admirable advice that is with our papers. We have concluded that it is impossible to discern any error in the learned judge's approach to this sentencing exercise. We do not consider that it is arguable that the sentence of three years was manifestly excessive. In those circumstances this application is refused. | [
"LORD JUSTICE PILL",
"MR JUSTICE BURNETT",
"HIS HONOUR JUDGE HALL"
] | 2009_06_25-1986.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1450/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1450 | 718 |
42ea82a1030a71c4d87f6457582d5aa9063a3bc804270cf5ab3b108cd0793735 | [2006] EWCA Crim 1314 | EWCA_Crim_1314 | 2006-05-03 | crown_court | No: 200506588 A8 Neutral Citation Number: [2006] EWCA Crim 1314 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 3 May 2006 B E F O R E: LORD JUSTICE LATHAM VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE NELSON SIR RICHARD CURTIS - - - - - - - R E G I N A -v- CLIVE THOMAS BOWSER - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 F | No:
200506588 A8
Neutral Citation Number:
[2006] EWCA Crim 1314
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 3 May 2006
B E F O R E:
LORD JUSTICE LATHAM
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE NELSON
SIR RICHARD CURTIS
- - - - - - -
R E G I N A
-v-
CLIVE THOMAS BOWSER
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR J BULLEN
appeared on behalf of the APPELLANT
The CROWN did not appear and were not represented
- - - - - - -
J U D G M E N T
1.
MR JUSTICE NELSON: On 15 September 2005, the appellant pleaded guilty to arson, being reckless as to whether life would been endangered, and to intimidation. He had earlier, on 17 August 2005, pleaded guilty to theft, threatening behaviour, possession of an offensive weapon and damaging property. On 6 December 2005, he was sentenced to imprisonment for public protection for the offence of arson, imprisonment for public protection in respect of the intimidation and the period specified under section 82A of the Powers of Criminal Court (S) Act 2000 was set at three years. For the other matters, to which he had earlier pleaded guilty, he was sentenced to nine months for the theft, four months for threatening behaviour, four months for possession of an offensive weapon and four months for damaging property, all concurrent.
2.
He appeals against the sentence of the three years specified period under the imprisonment for public protection for arson by leave of the single judge. The facts are that at about 8 o'clock in the evening on 24 May 2005, the complainant, Ms Carter, a friend of the appellant's, arrived at his home and was joined there about half an hour later by her son. There was an argument between the appellant and Ms Carter about some jewellery and a DVD player. The Carters left and as they were walking back to Ms Carter's home, the appellant caught up with them and asked for the jewellery that he had earlier given to them to be returned. The jewellery was not returned and an altercation developed. Ms Carter and her son then continued on their way back to her home.
3.
After her arrival there sometime afterwards, her son left and shortly after that she heard a tap on the bedroom window and, when she looked out, she saw the appellant standing with a rock in his hand. He started throwing stones at the window, causing it to break. A number of other pieces of rock came through the broken window and the appellant was shouting, "If you don't come down and give me my chain, I am going to kill you and your son." Ms Carter was fearful of this, believing he might carry out the threats, so she called for help. A security guard in the complex where she lived answered her phone call, came to investigate and saw the appellant standing outside her home, shouting and angry.
4.
He saw that the appellant had a saw blade, which he thought was about 8 inches long. He approached the appellant, asked him to calm down, but the appellant said that he would start on him unless he went away and proceeded to throw more stones at Ms Carter's window. As a result, the security guard called the police and, following their arrival, the appellant was arrested. When he was interviewed, he accepted he had smashed a window and had had a hacksaw blade, which he said he found in a skip. He also accepted threatening to kill Ms Carter, said he had meant it and accepted calling the security guard a black bastard. He said the jewellery he had given her was stolen property because he had seen the police chasing a man from a burglary of a building and the burglar had dropped the jewellery over a wall, so he had picked it up a short while later. He added that he had pawned some of the jewellery. He was charged in relation to those matters and released on bail.
5.
About one week later on 1 June 2005, shortly after 8 o'clock in the morning, Ms Carter was in her flat when she became aware of someone trying to push something through her letter box. She looked through the spy hole in the front door and saw the appellant, so held the inside of her letter box shut so that he could not push anything through. She continued to watch him in the porch area and he appeared to be tampering with her electric and gas meters. He then left. A few minutes later, however, the fire alarm in her flat sounded. She checked and found nothing within the flat, but she did see smoke coming from under the front door and when she checked through the spy hole, saw flames outside. She put a fire extinguisher nozzle from an extinguisher she had in her flat through the letter box and put the fire out.
6.
The police were summoned, the area was cordoned off. The meters were checked, and a broken jar, in the bottom of which were several screws and white spirit with what appeared to be a wick and something fashioned like a wick wrapped in fabric, was recovered from the porch. The device was examined and it was found that it would not explode and could not function as an explosive or anti-personnel device, but it gave the impression that it was intended to function as such a device. The appellant was arrested and his clothing and various items from his flat were seized.
7.
When interviewed, he denied the offence, saying the last time he had seen Ms Carter was on the day of the previous offences and that he had a doctor's appointment at the time of the arson. He explained the presence of white spirit on his clothing as a result of his work as a cleaner at a computer club.
8.
He was born on 8 June 1959 and is 46. He had some 14 convictions for some 22 offences, including two for assault, three of drunk and disorderly and several for dishonesty. A pre-sentence report of November 2005 recognised the likelihood of a sentence of imprisonment for public protection, given the high risk of his reoffending and the high risk of serious harm to a known adult, Ms Carter. He appeared unwilling to address his problematic behaviour towards her. Although he had pleaded guilty to the arson, he said that this was only to save the court time and denied, when he was seen by a psychiatrist, that he had in fact committed the offence of arson.
9.
The psychiatrist also reported in November 2005, and concluded that he had a significant past history of alcohol dependence, but there was no evidence he was suffering from any mental illness or psychiatric disorder. His adamant denial that he had not committed the offence of arson meant assessing the risk he posed was difficult. But until he was able to acknowledge he had committed the offence, the future risk of fire-setting was unknown. He tended to minimise his offending.
10.
When the judge sentenced him, he said that most of these offences had arisen out of the breakdown of his friendship with Ms Carter. By far the most important part was the arson, the judge said and the intimidation. He had gone to her flat and left a device, with which he set fire to the front door; she did not realise what was going on until the fire alarm went off, and she was then able to extinguish the fire. There was some damage to property, but the offence was clearly serious because he had done it deliberately and knew she was at home. He did have a record, but for nothing as serious as this.
11.
Imprisonment for public protection was necessary for the arson and intimidation, credit would be given for the plea, but there were serious risks associated with him should he become intoxicated and fall out with someone again. Had he contested the arson, the judge said he would have received nine years. Allowing him a third off for his plea took it to six years, so that the minimum period, according to the manner in which such sentences are dealt with, would be half of that, making it three years on the arson count and the intimidation count. The other sentences would run concurrently.
12.
In the grounds of appeal, it is submitted that the judge adopted too high a starting point for the arson; that was much more appropriate for arson with intent rather than reckless arson. Before us today in his helpful and succinct submissions, Mr Bullen has submitted that the judge did not appear to have taken account of the fact that, although he had originally been charged with arson with intent, the indictment had been subsequently altered to reckless arson. It was to that offence, reckless arson, to which the appellant had pleaded guilty.
13.
In his sentencing remarks at the end of the first paragraph on the first page, the judge actually said:
"But by far the most serious part of all this is arson with intent, and intimidation."
That suggests that the judge wrongly had in mind the wrong offence when sentencing.
14.
This is highly material, Mr Bullen submits, because the authorities suggest that there is a difference in sentencing levels for reckless arson compared with arson with intent. Thus, in the case of the Attorney General's Reference number 66 of 1997, the case of
Anthony Charles Roberts
, where there was arson with intent to endanger life, an offence committed at night with people asleep, several fires lit, petrol placed on the carpet, the court, when dealing with the case, said that a sentence the court would have expected, following a trial, would have been within the range of eight to 10 years.
15.
Mr Bullen also relied upon the case of
R v Harding
2000 1 Cr.App.R. (S) 327, in the same volume as the Attorney General's Reference 66 of 1997, and pointed out that in that case, where reckless arson was charged, the sentence was one of four years which was upheld in the Court of Appeal, where there had been more serious damage than had occurred here and there had been a number of fires, indeed there had also been damage to the next-door house.
16.
We have considered those submissions; there is no doubt at all that this was a serious offence. The appellant sought to put, effectively, a homemade firebomb through the letter box of the complainant's flat, with, inside the jar, not merely a wick and white spirit, but screws. Had the complainant not kept her letter box shut, the lighted jar could have caused fire damage and, had she not had the presence of mind to pick up a fire extinguisher and put out the flames -- through the letter box -- of the firebomb left outside her front door, damage may well have been caused to the outside of her flat.
17.
This was not a reckless arson case, as sometimes occurs, of a disturbed person making what is, in effect, a cry for help, but a deliberate, albeit incompetent, attempt to do what could have been very serious damage. Even though the device could not explode, it appeared as if it was intended to do so and it was certainly capable of causing damage by fire. It looked as if it was intended to cause fear, as inevitably it did. The appellant was also hostile to Ms Carter, as demonstrated by the attempt and his attitude afterwards.
18.
In these circumstances, it was not surprising but inevitable that the sentence of imprisonment for public protection was passed as the judge rightly regarded this as a very serious offence. This court, however, considers that the sentencing in court did not pay sufficient attention to the difference between arson with intent and reckless arson when considering the specified period. Indeed it does appear as if the judge may, unfortunately, have had arson with intent in mind, even though it was reckless arson to which the appellant had pleaded.
19.
The sentencing bracket is higher for arson with intent rather than reckless arson, although this court is quite content that this is at the upper end of a reckless arson case. The appropriate sentence, given all the circumstances in the view of this court for the specified number of years under section 82A of the 2000 Act, is one of six years. From that must be deducted two years to allow for the plea of guilty. Fifty per cent of that should then be taken to produce a sentence of a specified term of two years. That will be substituted for the specified period of three years passed by the judge.
20.
There are two other matters that need to be dealt with. First of all, it should be noted that the offence of imprisonment for public protection could not, in fact, have been passed, as it was for the offence of intimidation; this is not a specified offence under the
Criminal Justice Act 2003
. A determinate sentence should therefore have been passed. In the circumstances, the sentence of imprisonment for public protection must be quashed. The appropriate determinate sentence, in the view of this court, is one of three years, which is substituted for the sentence of imprisonment for public protection.
21.
Secondly, the maximum term of imprisonment for criminal damage at the level of value, as occurred in this case, is one of three months. The judge passed a sentence of four months, which is above the maximum. The appropriate sentence, taking into account all the circumstances and the pleas, is one of two months' and accordingly that will be substituted for the sentence of four months in respect of the criminal damage.
22.
To this extent, the appeal is allowed. | [
"LORD JUSTICE LATHAM",
"MR JUSTICE NELSON",
"SIR RICHARD CURTIS"
] | 2006_05_03-796.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1314/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1314 | 719 |
47054412d9a4850cefd1b6001d0a3e0a7a5ca21b01bb54ac37e97348fd4e36af | [2009] EWCA Crim 1623 | EWCA_Crim_1623 | 2009-07-10 | crown_court | No: 2009/2829/A6 Neutral Citation Number: [2009] EWCA Crim 1623 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 10 July 2009 B e f o r e : MR JUSTICE WILKIE MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER NAGY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 | No:
2009/2829/A6
Neutral Citation Number:
[2009] EWCA Crim 1623
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 10 July 2009
B e f o r e
:
MR JUSTICE WILKIE
MR JUSTICE FLAUX
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
CHRISTOPHER NAGY
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss S Watson
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE FLAUX: On 14th April 2009 this appellant, who is 23 years old, appeared at Preston Crown Court and pleaded guilty to a count of putting a person in fear of violence by harassment, contrary to
section 4 of the Protection from Harassment Act 1997
. No evidence was offered in relation to a second count of having an article with a blade or point and a not guilty verdict was recorded. On 15th May 2009 he was sentenced by Mr Recorder Murray to 12 months' imprisonment for the harassment and one month's imprisonment for breach of a conditional discharge in relation to criminal damage, to be served consecutively. He appeals against sentence with the leave of the single judge.
2.
The facts of the matter are as follows. The appellant had been in a relationship with the complainant for some four years until a few months before the incident when the relationship ended and they stopped living together. There were two children of the relationship.
3.
At about 1.00 in the morning on 28th December 2008 the complainant and her children were upstairs in bed at her house. She was woken up by the appellant banging on her front door. He was extremely drunk. He shouted: "You slag, get the door open." She went downstairs and told him to leave. He asked who she had in her bedroom and she said, "No one" and that he could check if he wanted to. He then left because their son came downstairs crying. She locked the door, put the chain on and went back to bed.
4.
He returned a few moments later, banging on the door and shouting: "Get down here you fucking slag." She opened the bedroom window and told him to go. He picked up a brick and said: "I'll put this through the window if you don't let me in." She 'phoned the police whilst he still continued to threaten her. She saw him opening a downstairs window and ran down while still on the telephone and found he was in the house. Knowing that the police were coming he locked the door from the inside and took the keys. There was then a scuffle. The police arrived but the complainant said she did not wish to pursue the matter. The police officers left but they were sufficiently concerned that they remained in the area.
5.
About 5 minutes later the complainant heard a noise in the back garden. The appellant entered the living room where she was sitting down on the telephone. He shouted: "Who are you on the phone to?" She put the phone down and saw that he had a knife in one hand and a beer bottle in the other. A violent and unpleasant altercation ensued in which he called her a slag. He said: "I could fucking kill you this time if I wanted. I could kill you right now." He threw beer over her and spat in her face, pushing her back down when she tried to stand up and slapping her face. He threatened her with the bottle, swinging it round. When she asked what he was going to do with it he said: "I'll show you." She kicked him and then he dragged her around the floor, saying: "You know what I could do to you now?" At that point he stabbed the television with the knife, the blade of which broke inside the television.
6.
The police officers had heard a commotion and returned. They looked through a window and saw the end of the incident. They could see that the complainant was distressed. They entered the house and arrested the appellant. The complainant suffered colouring beneath her left eye and a sore chin. With the assistance of the domestic violence unit she was moved to a new address and although there is contact for the children, there has been no direct contact between the appellant and the complainant.
7.
The appellant has a number of previous convictions, mainly for theft, burglary and criminal damage. Indeed, it was for breach of a conditional discharge in October 2008 imposed for an offence of criminal damage, that he was sentenced to the one month's imprisonment consecutive. Most relevantly he had a conviction for an assault occasioning actual bodily harm for which he was sentenced to 12 months in a young offender institution in February 2004.
8.
In sentencing the appellant, the learned Recorder said that how he had treated the complainant was a disgrace and it was astonishing that she was not more seriously injured. He referred to the guidelines in regard to such offences, evidently a reference to the decision of this court in
Liddle and Hayes
[2000] 1 Cr.App.R (S) 131. He said that the offence was a particularly bad and sustained example of a
section 4
offence, although described as one-off. He thought that only a sentence of immediate imprisonment for 12 months was appropriate.
9.
Miss Sharon Watson, who appears for the appellant, referred us in detail in the skeleton argument which she helpfully submitted to the court yesterday to
Liddle and Hayes
. In that case, which was of course a section 2 case of pursuing a course of harassment and did not involve the more serious offence under
section 4
which involves violence, this court set out by way of guidance on sentencing for offences under the Act a number of considerations. They said this:
" first, is the offence a section 2 or a
section 4
offence? (2) is there a history of disobedience to court orders in the past, whether they are orders under the act or civil orders? Thirdly, the seriousness of the defendant's conduct, which can of course range from actual violence through to threats, down to letters, which of course may even express affection rather than any wish to harm the victim. Fourthly, is there persistent misconduct by the defendant or a solitary instance of misbehaviour? Fifthly, the effect upon the victim, whether physical or psychological?
Question: does the victim require protection? Further question: what is the level of risk posed by the defendant? Usually that risk is to the victim, but it may of course include the children or family of the victim.
Sixthly, the mental health of the offender, and a sentencer should devote his attention to whether the defendant is willing to undergo treatment or have the necessary help from the probation service which is readily available under special schemes. Seventhly, what is the offender's reaction to the court proceedings? First, is there a plea of guilty? Secondly, is there remorse? Thirdly, is there recognition of the need for help? A range of sentences are obviously available for the court. We would think that for a first offence a short sharp sentence may be appropriate, though much will depend on the factors of repetition and breach of court orders and the nature of the misconduct. Obviously, the facts of each case vary and the facts of any particular case may require a longer sentence."
10.
Miss Watson relies on the reference to a "short sharp sentence" being appropriate for a first offence. She submits that the learned Recorder failed to have proper regard to the considerations set out by the court in that case. She contends that the length of sentence was too long and it should in any event have been suspended. In particular she submitted that the learned Recorder had had insufficient regard to the following matters: First, that this was an isolated incident. Although the police had been called out previously on a report of a verbal argument between the couple, there had been no history of violence by the appellant against the complainant. Secondly, although he had a previous conviction for violence it was against a male and did not involve the complainant. Thirdly, there was no victim impact statement, so no evidence of any lasting physical or psychological effect on the complainant. Fourthly, he had complied with the stringent bail conditions requiring that he had no direct contact with the complainant and there was no history of disobedience to court orders in the past. Fifthly, he had pleaded guilty at the PCMH and had shown signs of remorse. Sixthly, he was anxious to engage with professional agencies to ensure the behaviour was not repeated, being willing to attend the domestic violence programme. He was concerned to receive support for the sake of his children. Taking those matters together by reference to the considerations in
Liddle and Hayes
, Miss Watson submits that the only aggravating feature here was the use of actual violence while in possession of a knife. Accordingly at most the sentence should have been a short custodial one.
11.
Attractively though these submissions were put, we cannot accept them. It is important to have well in mind the point made at the end of the passage quoted from
Liddle and Hayes
that the facts of each case vary and the facts of any particular case may require a longer sentence. We are not sure that the court in that case can really have had in mind that where there was a
section 4
offence involving violence a short sharp sentence was appropriate. However, whatever the position was in that case, this case did have two aggravating features which seem to us to justify an immediate custodial sentence of greater length than might otherwise have been the case. First, although there was no history of violence against the complainant, the appellant was no stranger to violence having served a period in custody for a section 47 assault and having committed a number of offences of criminal damage, indicative of an inability to keep his temper. Secondly, although counsel seeks to categorise this as an isolated incident, we agree with the learned Recorder that it was a particularly bad and sustained example of this type of offence involving violence and foul language to a young woman.
12.
The presence of those aggravating features is also the answer to the alternative submission that the court should in effect approach the matter in the same way as a summary offence of common assault for which the maximum sentence would be six months' imprisonment. Counsel submitted that the injuries inflicted were consistent with common assault and that the matter was only charged under the Harassment Act because the appellant had visited the complainant, argued with her and then left only to return shortly thereafter and assault her. We cannot accept that this offence should be treated as if it were some relatively minor assault. It was a nasty, violent attack with the aggravating features we have identified, which is no doubt why it was charged as an offence under
section 4
of the Act rather than as a common assault.
13.
Notwithstanding all the matters put forward by Miss Watson in mitigation, those aggravating features alone seem to us to justify the sentence of 12 months' imprisonment. There is nothing in the suggestion that the learned Recorder should not have imposed a consecutive sentence for the breach of the conditional discharge. That was another aggravating feature of this case which justified the additional term. This appeal is dismissed. | [
"MR JUSTICE WILKIE",
"MR JUSTICE FLAUX"
] | 2009_07_10-2012.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1623/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1623 | 720 |
9302a15b3050c29113cbf18408002d5c0a44ef58194103292711f6c26cfb216c | [2017] EWCA Crim 2209 | EWCA_Crim_2209 | 2017-12-14 | crown_court | Neutral Citation No. [2017] EWCA Crim 2209 Case No:No: 201703707/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 14 December 2017 B e f o r e : LORD JUSTICE IRWIN MRS JUSTICE CHEEMA-GRUBB DBE HIS HONOUR JUDGE DEAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID TAYLOR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd | Neutral Citation No.
[2017] EWCA Crim 2209
Case No:No: 201703707/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 14 December 2017
B e f o r e
:
LORD JUSTICE IRWIN
MRS JUSTICE CHEEMA-GRUBB DBE
HIS HONOUR JUDGE DEAN QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
DAVID TAYLOR
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd trading as DTI,
165 Street London EC4A 2DY,
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A Waldman
appeared on behalf of the
Applicant
Miss K Appleton
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
LORD JUSTICE IRWIN: On 15th June 2017 in the Liverpool Crown Court, the applicant underwent a trial in relation to a single count of burglary before His Honour Judge Trevor Jones and a jury and he was acquitted by the unanimous verdict of the jury.
2.
On 6th July 2017, before the same judge, he was made the subject of a restraining order for a period of three years with conditions firstly that he was not to contact the complainant, MW, directly or indirectly by any means whatever, secondly, that he was not to enter the Rose of Mossley Public House, and thirdly, that he was to pass by the road in which that public house is situated only in a vehicle.
3.
The applicant sought leave to appeal against the sentence and the application has been referred to the full court by the Registrar of Criminal Appeals who granted a representation order for counsel. We grant leave to appeal.
4.
The facts can be stated as follows. The complainant, MW was the landlady of the Rose of Mossley Public House and she lived in a flat above the pub, which was accessed via a storage area clearly marked for entry by staff only.
5.
On the evening of 20th December 2016, following a private function in the pub, the premises were locked up and secured in the usual way and the burglar alarm was set. During the early hours of the next morning, the complainant was woken several times by the alarm going off. Each time she went downstairs and checked the premises, but eventually switched off the alarm system, since she considered that there was likely to be a fault in the system because it had gone off so often. She left the lights on.
6.
At 8 o'clock in the morning the regular cleaner arrived, and the complainant left the door to her flat open whilst she assisted the cleaner clearing up the pub.
7.
Just before 9 o'clock in the morning, a gas engineer attended and found the applicant in the storage area of the pub. He was initially observed by the gas engineer to be a bald man but he then put on a wig and glasses before leaving the premises. The complainant chased him, and as he ran away the applicant pulled off his wig and replaced it with a trilby hat.
8.
When she returned to the pub the complainant found that the previous night's takings, which she estimated to be between £3,200 and £3,400, were missing from the safe which was located inside her flat.
9.
At 9.30 or so in the morning the applicant was stopped by police. In the process of being detained he threw a set of keys over a wall, which were later identified as having been taken from the complainant's flat. He was found to be in possession of £3,305.25 in cash. He also had on his person a written note which described being locked up in the pub toilets, being unable to get out of the pub during the night and included an apology.
10.
There was CCTV footage from inside the pub. The appellant was interviewed and he gave an account generally consistent with his account at trial. He had been drinking during the day, he said, and had accepted a cigarette from someone which he suspected had contained cannabis, that is to say while he was in the pub during the evening. When he saw the pub lights were on he went inside to use the toilet, but must have passed out. He awoke at 3 o'clock in the morning and during several attempts to leave, he said, he set the alarms off. When the landlady came downstairs to investigate, he hid so as not to frighten her. Next morning he found the keys and then took his opportunity to leave. He denied stealing any cash and he said that the cash which had been found in his possession was withdrawn recently from his bank. He was a man of means.
11.
He did not give evidence in the trial himself, but he did call witnesses to confirm that he had been dressed oddly earlier in the evening. He also presented evidence of his means in the form of bank statements in the course of the trial.
12.
Following the acquittal, the landlady made a second victim personal statement in which she expressed real concern about the appellant. Her concern was in our view very understandable. On any view he had hidden in her premises throughout the night, moving about and behaving rather bizarrely. Setting aside any question of financial loss, she was disturbed by the thought of him returning to the premises or indeed approaching them, or her. Her concern was raised because it transpired that the appellant's brother lives close by. Hence the prosecution responded by applying for the restraining order.
13.
The application was very short. The judge of course knew the circumstances since he had conducted the trial. However, he was shown the very recently obtained victim personal statement (the second statement) which had only come to light on the day of the hearing.
14.
The prosecution did not take the judge to the relevant section within the statute nor indeed to any authority. To be fair to Miss Appleton the prosecution had little time to prepare. As we shall see, however, this was an error and it did not help the court.
15.
The judge was clearly sympathetic to the landlady, as anyone would be. In the course of the hearing counsel for the appellant, Mr Waldman, who appeared before us and who expressed his submissions in this case in an admirably clear way, objected to the proposed order in the following terms:
i.
"Section 5A of the Protection from Harassment Act, which relates to restraining orders on acquittal and the test within the statute itself is that a court before which a person is acquitted of an offence, if it considers it necessary to do so, to protect a person from harassment by the defendant, may make an order prohibiting the defendant from doing anything which proscribed the order."
16.
Mr Waldman was paraphrasing, but accurately paraphrasing, the contents of the Statute. He went on:
i.
"Your Honour, there is no suggestion the defendant was known to the complainant at all before this incident. Of course your Honour decides the evidence having heard the evidence, but taken at its highest it was a one-off isolated incident. There is no suggestion that this complainant was targeted in any way and in fact the statement that has been drafted and sent this morning can set out no other incidents that relate to this defendant and so, in my submission, it is not necessary [by which Mr Waldman meant the standard 'necessary' specified in the section] because there is no evidence that there is harassment or would be harassment."
17.
Mr Waldman maintains that challenge before us.
18.
We turn to the law. The power to make an order following an acquittal is set down by section 5A of the Protection from Harassment Act 1997, as amended by the Domestic Violence, Crime and Victims Act 2004, section 12(5). The relevant text of the section reads as follows:
i.
"5A.
(1)
A court before which a person ('the defendant') is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order."
19.
A number of authorities have considered this section and for our purposes the most notable is
Smith
[2013] 1 WLR 1399
,
[2012] EWCA Crim. 2566
. In that case this court looked at the meaning of section 5A(1), and the relevant passage of the judgment reads as follows:
i.
"29. There are other fundamental problems with the order. Since the purpose of such an order is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of s1. Pursuit of a course of conduct requires intention ...
ii.
30. Further, the power to make an order under s5A is circumscribed by the important words 'necessary ... to protect a person from harassment by the defendant'. The word 'necessary' is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful, on pain of imprisonment, is an interference with that person's freedom of action which could be justified only when it is truly necessary for the protection of some other person."
20.
It is sufficient to refer to one other case, again a decision in this court and in this case it is the case of
R v Jinny Jose
[2013] EWCA Crim. 939
. In that case this court stated as follows:
i.
"9. From the judgment of this court in Smith
[2012] EWCA Crim 2566
the following material principles emerge."
21.
For clarity I read the principles only, rather than the paragraph numbers which divide them:
i.
"1. Since the purpose of an order under section 5A is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of section 1 of the Act. See Smith at paragraph 29.
ii.
2. It does not follow that because references to harassing a person include alarming a person or causing a person distress, that therefore any course of conduct which causes alarm or distress amounts to harassment. Essentially harassment:
iii.
'... involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress.'.
iv.
See Smith at paragraph 24.
v.
3. The power to make an order under section 5A is circumscribed by the important words:
vi.
'necessary ... to protect a person from harassment by a defendant.'
vii.
The word 'necessary' is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful on pain of imprisonment is an interference with the person's freedom of action which can be justified only when it is truly 'necessary' for the protection of some other person. See Smith at paragraph 30.
viii.
In Lawrence
[2012] EWCA Crim 1164
this court at paragraph 10 reiterated, following on observations made in Major
[2010] EWCA Crim 3016
, the requirement that the judge is required to identify the factual basis for imposing an order and that it must not be overlooked that, absent a conviction, it may not be possible to determine such factual basis. It is always incumbent on the court imposing the order to state its reasons for doing so."
22.
Mr Waldman argued and argues that it has not been established here there was any persistent conduct by the appellant towards the landlady, that there is no evidence that he knew of her before the night in question or singled her out in any way. Nor is there any other evidence of an intention to repeat this conduct. There is no evidence of past harassment, or a likelihood of future harassment, and thus no evidence upon which this court could properly conclude that it was necessary to make such an order. In addition, as the passage from
Jinny Jose
makes clear, there was an obligation on the judge to set out the evidence on which he relied. The failure to do so, says Mr Waldman, is an important procedural defect.
23.
In response, Miss Appleton does suggest that this was bizarre behaviour, but concedes it took place over one night, that it was an isolated incident, that there was no real basis for repetition, that there was no evidence that the pub or the pub landlady was targeted in any coherent way, and it was not suggested in the course of the trial that it was a question of targeted behaviour.
24.
It is unfortunate that Miss Appleton was not able to take the judge to the relevant authority. Looking at the transcript, she made the application in outline, the objections were lodged by Mr Waldman and the judge proceeded to indicate his intention to make the order without hearing any more from the Crown. It would have been better had Miss Appleton applied the judge's mind to the relevant authority, before Mr Waldman got up to object. But of course the judge could have himself considered the section and the authority in advance of hearing the application.
25.
We consider that the criticisms by Mr Waldman are well-founded. Parliament has been careful to limit the circumstances in which such an order can be made, particularly since breach of the order is criminal. We restate the principles set down by this court in the earlier authority we have quoted. It is easy to understand the caution of Parliament and the limits of the power given to the courts by Parliament in the context of an individual who has just been acquitted of any offence. We have granted leave to appeal. The appeal succeeds and the order is quashed.
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 IRWIN",
"MRS JUSTICE CHEEMA-GRUBB DBE",
"HIS HONOUR JUDGE DEAN QC"
] | 2017_12_14-4127.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2209/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2209 | 721 |
3c7a637cccb1a312f52ac5b52d371e61379c2cfc839ad75141d8d724e0cd9341 | [2020] EWCA Crim 1442 | EWCA_Crim_1442 | 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.
Neutral Citation No.
[2020] EWCA Crim 1442
No. 202002170 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Wednesday, 14 October 2020
Before:
LADY JUSTICE SIMLER DBE
MR JUSTICE JEREMY BAKER
HIS HONOUR JUDGE MENARY QC
REGINA
V
STEPHEN BROWNLEE
__________
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 R. VARDON
appeared on behalf of the Appellant.
________
J U D G M E N T
MR JUSTICE JEREMY BAKER:
1
On 6 August 2020 Stephen Brownlee appeared at Chester Crown Court and, having previously entered guilty pleas in relation to three indictments, was sentenced to a total of three years' imprisonment comprised of the following concurrent terms:
The first indictment
Count 1, being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, contrary to s.170(2)(b) of the Customs and Excise Management Act 1979 - three years.
Count 2, possessing a prohibited weapon, contrary to s.5(1)(b) of the Firearms Act 1968 - three years.
Count 3, attempting to convert an article which was so constructed as to be incapable of discharging any missile through its barrel into a firearm, contrary to s.1(1) of the Criminal Attempts Act 1981- three years.
The second indictment
Possessing a controlled drug of class B, namely cannabis, contrary to s.5(2) of the Misuse of Drugs Act 1971 - seven days.
Third indictment
Count 1, possessing extreme pornographic images, contrary to s.63(1) and (7) of the Criminal Justice and Immigration Act 2008 - seven days.
Count 2, possessing extreme pornographic images, contrary to s.63(1) and (7) of the Criminal Justice and Immigration Act 2008 - seven days.
OPUS 2 DIGITAL TRANSCRIPTION
2
Steven Brownlee now appeals against sentence with the permission of the single judge.
The circumstances of the offences
3
The offences came to light following a multinational law enforcement operation known as “Operation Bayonet”, which targeted internet sites operating on the dark web, in particular one known as AlphaBay, which used sophisticated encryption software called “Tor” which enabled anonymous communications between users who could then trade in illegal items, including drugs, weapons and fraudulently obtained credit cards, that could be paid using crypto currencies.
4
The appellant was an AlphaBay user with the profile name "Groovebox" and had made a number of purchases, including manuals with the titles "How to build your own 9mm sub-machine gun", a do-it-yourself manual on how to make your own explosives, "How to build your own guns", "How to make a sonic gun", "How to do your own gunpowder: a professional manual," "Where to buy a 9mm Glock replica black gun in Europe with no customs," and "The big book of secret hiding places, sneak it through, smuggling made easier."
5
On 26 May 2020 the North West Regional Organised Crime Unit executed a search warrant at the appellant's home in Warrington in Cheshire. The appellant admitted to officers that there was a blank-firing gun in the premises that he had purchased online from Spain along with some ammunition and shotgun cartridges. The police recovered a 9mm Zoraki model 917 gas and signal firing self-loading pistol, which was a prohibited weapon under s.5(1)(b) of the Firearms Act 1968 as it was capable of firing flares and noxious substances. The stock and trigger mechanism from a shotgun were also found, although no charges arose from those items. Officers also found two jars containing cannabis and a copy of "The Anarchist Cookbook," which provided guidance on how to manufacturer explosives and convert firearms.
6
Upon his arrest for the importation of the prohibited weapon, the appellant replied, "It's just
inquisitiveness, isn't it?” Subsequently, during his police interview, the appellant said that he had purchased the pistol to deter potential burglars and that he had acquired that model after receiving advice via an undisclosed internet forum. He denied having any intention to convert it into a firearm. He said that he could not remember downloading the manual which related to smuggling and converting firearms. When asked about the stock and trigger mechanism from a shotgun, the appellant said he had been given them 15 years earlier and intended to make a crossbow from them. He also admitted purchasing the cannabis via AlphaBay.
7
Forensic examination of the pistol revealed damaged to the threads and marks on the barrel obstruction, which appeared to have been caused by a drill. A partial drilling out of the obstruction in the barrel constituted the offence in count 3. Checks with other law enforcement agencies in the country confirmed that the appellant had no known links to any terrorist or similar organisation. Forensic examination of the appellant's computer revealed 98 videos containing extreme pornographic images, some portrayed sexual acts involving animals and others sexual acts that involved non-consensual penetration of a person's mouth, anus or vagina.
The appellant
8
The appellant is 49 years of age and has no previous convictions. Prior to his arrest, he was in full-time employment working for an IT company and he lived with his 80-year-old father, who suffered from some ill health.
9
In discussion with the author of the pre-sentence report, the appellant stated that the firearms offences were committed as a result of his naivety, due to his own inquisitiveness and a need to protect his family who had previously been subjected to a burglary in their own home in the late 1990s. He stated that he had no intention to convert or use the firearm. He also
stated that he had a limited understanding of the dark web and only used it to purchase cannabis because he did not wish to engage with local drug dealers. He stated he had been using the drug for a period of about 10 years. There was no discussion about the extreme pornographic images found on his electronic equipment, as these had not been discovered at the time.
10
The author of the pre-sentence report observed that she had reservations about some of the claims made by the appellant. She noted the possession of a publication concerning the conversion of weapons and the attempt to do so in this case. She stated that whilst the Ministry of Justice risk assessment tool, which is based on the nature and number of previous convictions, would suggest the appellant was at low risk of re-offending, she disagreed and was concerned that as his first offences were serious ones using sophisticated anti-detection measures, this raised the possibility of a willingness to act in further offences. Moreover, whilst the offences themselves had not caused any actual harm, the risk of harm arising from them was of significant concern.
11
There were letters before the court from those who knew the appellant, including one from his brother who gave evidence to the effect that the appellant was a socially-isolated immature man with time on his hands, who had let curiosity get the better of him in a naive and unworldly way and who posed no risk of danger to society.
12
In submissions this morning we understand that there was further evidence from the prosecution by way of the police officer who had attended at the appellant's home, who noted that the appellant lived in one area of his father's home which was of a chaotic and filthy nature, characteristic of a recluse.
The sentencing remarks
13
In his sentencing remarks the judge, after determining that the appellant was entitled to a 25
per cent reduction to reflect his timely pleas of guilty, observed that it was:
"…suggested that your actions were simply naive and your motivation was no more than to have in your possession an imitation firearm which you could if necessary use to deter burglars in your house. You have been given the opportunity to give and to call evidence in respect of that matter in a
Newton
Hearing and you have chosen not to do that, although the submission has been made orally before me based on the papers. I'm afraid I reject your explanation. I reject it in the light of your plea to count 3. I reject it in the light of the other material that you have obtained on the dark web and also the level of knowledge and sophistication that inevitably was required in order to source such items as these. As the author of the pre-sentence report points out and indeed echoed by your own counsel, you are an intelligent person. The author of the pre-sentence report takes the view that you are an insightful person. You clearly have disclosed an interest in firearms. You are an informed person. Quite simply, the assertions you made do not fit with the admitted evidence before this court."
14
The judge went on to consider the questions posed in
Avis
[1998] 1 Crim App R 420 and concluded that:
"The gun was a blank-firing handgun, although an attempt had been made to adapt it so it was capable of discharging. There is no evidence it had been used. You are a person of previous good character. I am satisfied that you had intended to seek to make it capable of use and, as such, inevitably, any use of that weapon would have been illegal."
15
The judge dealt with the risk posed by the appellant and stated that:
"I accept the assessment statistically that the risk of you further offending is low, but, like the author of the pre-sentence report, I have concluded that such an assessment would be inappropriate and that the real risk that you present is higher than a low risk and the risk if it were to come about is one of very serious harm potentially on members of the public."
16
Finally, the judge determined that, after taking into account the mitigation available to the appellant, the offences were too serious to be dealt with in any other way than by the imposition of an immediate custodial sentence.
The grounds of appeal
17
In his grounds of appeal, Mr Vardon, who appears before us today as he did in the lower court, submits that the judge failed to have regard to the reality of the firearms offences and the nature of the appellant. He submits that the weapon was not converted and could only be converted with skill and tools not available to the appellant. He submits that the attempt to convert the weapon while made out in law was half-hearted and not repeated during the 13-month period he was in possession of the weapon and that the appellant represented no danger to the public and, on the contrary, required help to end his social isolation.
Discussion
18
On any view, it was the firearms offences that formed the most serious aspect of this case, which, as appreciated by the sentencing judge, were required to be considered in the light of the answers to the questions posed in
Avis
as endorsed and updated in
Wilkinson
[2009]
EWCA Crim 1925. True it is that the weapon which was prohibited under s.5(1)(b) of the Firearms Act 1968 was a gas and signal blank-firing self-loading pistol, as it was capable of firing flares and noxious substances: see
Rose
[2015] EWCA Crim 155
. Moreover, there was no evidence as to its use by the appellant. However, in light of the prosecution evidence and in the absence of any contrary evidence from the appellant at an offered
Newton
Hearing, the judge was entitled to find that the appellant had intended to make it capable for use as a firearm. Indeed, the appellant's plea of guilty to count 3 on the first indictment acknowledged that he had already attempted to do so.
19
We readily accept that these factors have to be set within the context of the appellant's lack of previous offending, his good employment record, his care responsibilities and his social isolation. Moreover, we accept that the attempts to convert the weapon into a firearm had by then only reached a relatively early stage. Nevertheless, it is clear from the expert evidence that there was damage to the threads of the muzzle and marks on the barrel
obstruction, which appear to have been caused by a drill. We acknowledge that the appellant had been in possession of the weapon for just over a year and that that is as far as the attempts had got by that stage, but we respectfully disagree that there was any particular sophistication or specialised equipment required to have converted this weapon into a firearm and we do not accept that the judge was not entitled to reach the view that he did concerning it. Furthermore, just as the author of the pre-sentence report and the sentencing judge expressed scepticism concerning the appellant's claimed naivety and inquisitiveness as an explanation for these offences, we too have similar concerns arising not only from the use of the dark web, but in particular the type of publications which the appellant had purchased.
20
In these circumstances, we consider that not only was a custodial sentence justified for these offences, but that having regard to the Sentencing Council's guidance on the imposition of community and custodial sentences, the judge was entitled to determine that having regard to risks to the public, the appropriate punishment could only be achieved by the imposition of an immediate custodial sentence.
21
In so far as the period of imprisonment is concerned, given the reduction of 25 per cent to
reflect the timing of the appellant's pleas of guilty, this represents a post-trial period of four years' imprisonment. Moreover, it has to be borne in mind that the overall sentence not only takes into account the firearms offences, but the criminality involved in the other indictments and, in particular, the third indictment.
Conclusion
22
In these circumstances, given the very concerning aspects of this case which we have set out in the course of this judgment, we are not persuaded that the sentence imposed in this case after taking into account the mitigation that was available to the appellant, was either wrong in principle or indeed manifestly excessive and the appeal, accordingly, is dismissed. ________________
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Transcribed by
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] | 2020_10_14-4993.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1442/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1442 | 722 |
d7604b1e1508b704888ff3a3422d2651cbf6168f1ac45889d7816217540c3e69 | [2003] EWCA Crim 5 | EWCA_Crim_5 | 2003-01-21 | supreme_court | Case No: 200206367R2, 200204828R3 & 200206363R3 Neutral Citation No: [2003] EWCA Crim 05 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE ATTORNEY GENERAL Royal Courts of Justice Strand, London, WC2A 2LL Date: 21 st JANUARY 2003 Before : LORD JUSTICE MANTELL MR JUSTICE BELL and MR JUSTICE ANDREW SMITH - - - - - - - - - - - - - - - - - - - - - Between : THE ATTORNEY GENERAL - v - C.C. E. N. J. K. & T. A. G. - - - - - - - - - - - - - - - - - - - - - - - - - | Case No: 200206367R2, 200204828R3 & 200206363R3
Neutral Citation No:
[2003] EWCA Crim 05
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE ATTORNEY GENERAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21
st
JANUARY 2003
Before :
LORD JUSTICE MANTELL
MR JUSTICE BELL
and
MR JUSTICE ANDREW SMITH
- - - - - - - - - - - - - - - - - - - - -
Between :
THE ATTORNEY GENERAL
- v -
C.C. E.
N. J. K.
&
T. A. G.
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
HER MAJESTY’S ATTORNEY GENERAL
(
LORD GOLDSMITH) and Mr S Denison
appeared
Mr J. Hankin
(instructed by
Registrar
) for the Offender CCE.
Mr J. Taylor
(instructed by
Registrar
) for the Offender NJK.
Mr R. L. Smith QC
(instructed by
Registrar
) for the Offender TAG.
Hearing dates :
16
th
December 2002
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lord Justice Mantell:
1.
On 16
th
August 2002 at Plymouth Crown Court, TAG was found guilty on two counts of cruelty to a child contrary to Section 1 (1)(a) of the
Children and Young Persons Act, 1933
, two counts of indecent assault and two counts of rape. On 4
th
October 2002 he was sentenced to a total of eight years imprisonment.
2.
On 8
th
April 2002 at Swindon Crown Court, NJK pleaded guilty to two counts of indecent assault and four counts of indecency with a child. On 18
th
July 2002 he was sentenced to a community rehabilitation order of three years duration.
3.
On 2
nd
August 2002 at Worcester Crown Court, CCE pleaded guilty to three counts of indecent assault. He was sentenced in total to six months imprisonment coupled with an extended licence period of two years.
4.
In all three cases, which involve sexual offences against young girls, the Attorney General considered that the sentences imposed were unduly lenient. Accordingly, on 16
th
December 2002 he sought and was granted leave under
Section 36 of the Criminal Justice Act 1988
to refer them to this court.
5.
At the invitation of the Attorney General we agreed to consolidate the three references which we proceeded to hear on that date.
6.
Although in each case we announced our decision, we chose to reserve our reasons. They now follow.
7.
In opening his submissions the Attorney General has helpfully referred us to the recent decision in
R –v- Millberry and Others
9
th
December 2002 in which this court presided over by the Lord Chief Justice and including the Vice President in its constitution accepted the advice of the Sentencing Advisory Panel in formulating revised guidelines for sentencing in cases of rape. Whilst only one of the present cases is concerned with offences of rape the Attorney General submits that similar dimensions should apply to other categories of sexual offences. In
Millberry
at paragraph 8, giving the judgment of the court, the Lord Chief Justice said this:
“The Panel begins its proposals by suggesting that:
“there are, broadly three dimensions to consider in assessing the gravity of an individual offence of rape. The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk proposed by the offender to society.”
We accept that courts should consider each of these dimensions whenever a sentence for rape is imposed. We endorse what was stated by Lord Lane in
Billam
, and repeated by the Panel in its advice, that while rape will always be a most serious offence, its gravity will depend very much upon the circumstances of the particular case and it will always be necessary to consider an individual case as a whole taking into account the three dimensions to which we have already referred.”
8.
For our part we readily accept the submission that it will be necessary to take account of similar considerations in all cases of sexual interference whether amounting to rape or not. However, that is not all. In all classes of sexual offences, there will also be the need to deter others from acting in a similar fashion.
9.
The Attorney General further submits that standing alone, the fact that the offences are of some age is not necessarily a sufficient reason for imposing a lesser sentence than might otherwise have been the case. He draws our attention to what was said in
Millberry
at paragraph 17 “in relation to ‘historic’ cases where the offence is reported many years after it occurred”:
“In these cases, also, we consider that the same starting point should apply. The fact that the offences are stale can be taken into account but only to a limited extent. It is, after all, always open to an offender to admit the offences and the fact that they are not reported earlier is often explained because of the relationship between the offender and the victim, which is an aggravating factor of the offence. A different factor that could cause the court to take a more lenient view than it would otherwise is the consequences which result from the age of the offender. In these cases the experience is that the offender may be only a danger to members of the family with whom he has a relationship. So this is a dimension which can be taken into account if there is a reduced risk of re-offending.”
Again we accept the Attorney General’s submission and allow that the same approach is equally applicable to all categories of sexual offending. Indeed it is a common feature of the instant cases that the victims have kept secret what had happened, sometimes following threats made or inducements offered and sometimes out of a sense of shame about what has been done to her. This, of itself, can aggravate the harm caused by the offence, as is demonstrated by impact statements from two of the victims. We agree, therefore, that before passing a lighter sentence because the offences are stale, the court should weigh the impact on the victim of the matter having remained secret for so long.
10.
We turn to the individual cases.
TAG
11.
The first offence of cruelty (count 1) involved the offender’s son born in 1966. If the boy cried the offender would pile bedding on his face, flick and pull his ears, poke his eyes and pull his legs. At age seven, the boy picked up some sexually explicit pictures belonging to the offender and was severely smacked for having done so. In about 1974, at age eight the boy was made to stand on a chair in the presence of his sister as a prelude to the offender pulling down the boy’s trousers and underpants and whipping him several times with the buckle end of a belt which resulted in the boy’s legs and bottom being cut and bruised.
12.
The offender’s daughter was born in 1968. The most minor transgressions on her part were visited with extreme violence on his. If she interrupted at table he would strike her with his knife. On other occasions he would throw her about the room and abuse her verbally. He carved “I hate you” on her bed head. On one occasion he picked her up from the table, put her in the lavatory and banged her head on the door. This conduct resulted in a further charge of cruelty to a child.
13.
When about eight or nine and not feeling well the daughter got into bed with her parents and lay between her mother and the offender. She was wearing a nightdress but no knickers. She woke up to find the offender’s hand pressing on her vagina. That incident resulted in one of the charges of indecent assault.
14.
The second charge of indecent assault concerned a friend of the daughter’s, TM. The offender had set up what the offender called a “video-club” in his garden shed. There he would encourage his children and their friends to drink alcohol and watch pornographic and violent films. TM was a frequent visitor to the house and the video-club. When at the club the offender would frequently feel her breasts.
15.
More seriously in late 1980 or early 1981 when TM was aged thirteen and visiting the offender’s daughter she was told by the daughter to wait in the daughter’s bedroom. The offender came into the room, pinned her against the wall, forced her to the floor and raped her. He threatened to kill her if she told anyone what had happened. At the time TM was a virgin and she has since suffered repeated nightmares. Even as an adult TM has had matrimonial problems and needed counselling all of which, it is suggested, may refer back to this dreadful experience. That was the subject of count 10.
16.
The second offence of rape concerned another of the daughter’s friends, RSC at a time when she was twelve or thirteen and going out with the offender’s son. That was sometime between August 1980 and August 1982. The offender offered RSC a ride on his motorcycle which she accepted somewhat unwillingly. He then took her to a field saying he had something to show her. Once there, he forced her to the ground, put his arm round her throat, slapped and raped her. Afterwards her lip was bleeding which the offender blamed on her having struggled.
17.
The offender is now aged fifty-four. He was convicted of rape in 1969 when twenty or twenty-one years of age for which he was given a suspended sentence of two years. The author of the pre-sentence report considers that “the risk of further offending is high”.
18.
The sentencing judge, who also presided over the trial, imposed sentences of three years for each of the offences of cruelty, nine months for each of the offences of indecent assault and eight years for each of the offences of rape. He ordered that all those terms be served concurrently so producing a total of eight years imprisonment.
19.
The Attorney General has two main criticisms. First of all he submits that each of the offences of rape, in itself, merited a sentence of at least eight years. He refers once again to the case of
Millberry
and invites the court to take note of the fact that in each case the victim was a child, that in each case there was a relationship of trust existing between the offender and the victim, and that in one case a threat was issued and in the other an abduction followed by the use of force. It is the Attorney Generals further submission that the offences of cruelty should have been marked by sentences imposed consecutively to those for the rapes. We accept those submissions. Either offence of rape taken alone called for a sentence of at least eight years imprisonment in view of the age of the victim and the other circumstances to which we have referred. If it is considered appropriate to impose concurrent sentences, and we agree that it is, then having regard to the principle of totality we have come to the conclusion that a sentence of twelve years for each of these two offences would have been appropriate.
20.
We also consider that the sentences for the offences of indecent assault fall short of what was required. We underline the ages of the victims, their vulnerability and the fact that the offender was in breach of trust. We consider that the least sentence that would have been appropriate in each case would have been one of fifteen months imprisonment. The Attorney General does not criticise the decision to order those sentences to be served concurrently with the sentences for the rapes and nor do we.
21.
There is no criticism, as such, of the length of sentence imposed on each of the two offences of cruelty. It is submitted, however, that the offences being different in kind from the rapes and indecent assaults that any sentence imposed should was been ordered to run consecutively. We agree with that submission.
22.
From all of which it would follow that in our view the total sentence should have been one of fifteen years imprisonment made up of concurrent sentences of three years for the offences of cruelty together with consecutive sentences of twelve years for the offences of rape and fifteen months for the offences of indecent assault, those sentences being concurrent as between themselves. As was stated on the last occasion we have regard to the principle of “double jeopardy” in substituting sentences of eleven years for each of the rapes and two years of each offence of cruelty thus producing a total sentence of thirteen years imprisonment.
NJK
23.
The victim was a friend of the offender’s daughter. She is now sixteen or seventeen years of age and the offences to which the offender pleaded guilty took place over a period of about two years between 1993 and 1995 when the victim was only seven or eight years of age. They represent two occasions (counts 1 and 4) when the offender put his hand down the little girl’s top and rubbed her bare chest; two occasions (counts 2 and 5) when the offender made the little girl masturbate him; and two occasion (counts 3 and 6) when the little girl was made to take part in oral sex.
24.
It seems that the victim used to visit her friend at the offender’s house sometimes staying over night. Whilst there the offender would manufacture opportunities when he and the little girl would be alone, sometimes by arranging a game of hide and seek. He told the victim that if she mentioned what had been happening to anyone his daughter would be taken away from him and she, the daughter, would consequently lose her father. He also said that he would buy the victim’s mother a present if the victim kept the matter to herself. The victim did in fact keep the matter secret until November 2001 when she told the mother of her boyfriend and it was by that route that the offender came to be arrested and interviewed. At first he denied the offences but later indicated that he would be pleading guilty.
25.
The offences have had a profound effect upon the victim and her family. The girl finds it difficult to trust men and has become paranoid and depressed. Her relationships with others have suffered, particularly with her mother. The mother feels guilty for making the daughter stay overnight at the offender’s home and has needed anti-depressants.
26.
The offender is forty-four years of age. He has no previous convictions. He admitted the offences at an early stage and pleaded guilty. The Attorney General accepts that he feels, and has expressed, genuine remorse. He is not considered to be a high risk to others in the future. However, the author of the pre-sentence report was concerned that he should undertake a sex offender’s programme. There is no doubt that he is willing to undertake such a course and that was something which influenced the learned judge in taking the course he did. He was facing a dilemma not unfamiliar to those responsible for sentencing for relatively minor sexual offences and a problem alluded to by this court in
Attorney General’s Reference 39/2002 Peter McKenna
(3
rd
June 2002), that is, unless an offender is sentenced to a term of something like three or four years imprisonment, it is unlikely that any sex offender’s course will be made available to him in prison.
27.
Initially on 5
th
July 2002 this experienced judge pronounced a sentence of nine months imprisonment with an extended licence period of two years and three months but later appreciated that such a sentence was unlawful because the offences had been committed before 30 September 1998. So it was that on 18
th
July 2002 he substituted a community rehabilitation order for three years in respect of each offence.
28.
However, whilst recognising the difficulty which troubled the sentencing judge, we are satisfied that the gravity of these offences was such that only a custodial sentence was appropriate. It is for that reason that we expressed the view on 16
th
December 2002 that these sentences were unduly lenient and indicated that an appropriate sentence at first instance would not have been less than four years in total. We stated the terms which would have been appropriate for each of the offences on the basis that they were to be served concurrently. We then had regard to the principle of “double jeopardy” and we substituted a total sentence of three years imprisonment. For the sake of convenience we repeat what was said on the earlier occasion namely that the sentence of three years, as substituted, consists of sentences of three years on each of counts 3 and 6, thirty months for each of counts 2 and 5 and fifteen months for each of counts 1 and 4, all of which are to be served concurrently and to start to run from the date when the offender surrenders to custody.
CCE
29.
The offender, now aged fifty-five, had a window fitting business and in June or July 1991 was engaged to fit some windows at a house where a little girl of six was living with her parents. The work continued over a period of about three weeks during which the offender put his hand down the little girl’s underpants and touched her vagina more or less on a daily basis. On one occasion, he persuaded the victim to place her hand on his penis and move it up and down.
30.
The little girl said nothing about it for ten years but all the time remained upset and angry and increasingly so. Her education began to suffer. It was thought that she was suffering from learning difficulties. She was self-conscious about her body and would fake excuses to avoid sport at school. She argued with her parents and was referred to a psychologist. She was suspected of harming herself. As the sentencing judge, himself, remarked:
“One of the things this case demonstrates is how such abuse can blight the life of such a child for years on end.”
31.
The offender was charged with three counts of indecent assault, two relating to touching the girl’s vagina and one to the occasion when he required the girl to touch his penis. To begin with, he declined to respond to questions, but having been identified on an identification parade by the victim he eventually changed his pleas of not guilty to guilty at what the sentencing judge described as “a very early stage”.
32.
In 1995 the offender was sentenced to twelve months imprisonment for indecently assaulting a girl in not dissimilar circumstances to those with which this court is concerned. He has stated that prison was a helpful experience and there is no suggestion that he has committed further offences since that date. He is now fifty-five years of age. His health is poor and he suffers severe and chronic back pain following an accident at work in 2000. He and his wife have separated as a result of these offences. The author of the pre-sentence report offers the view that the offender is genuinely aware of the terrible psychological harm he has caused to the victim and hates himself for it, having himself suffered sexual abuse as a teenager. It is also the opinion of the author of the report that the offender will continue to present a risk “not only in terms of re-offending but also in terms of causing serious psychological harm to young females” unless and until he receives treatment.
33.
It is against that background that we are invited to review the total sentence of six months imprisonment made up of like concurrent terms for each of the three offences. The Attorney General criticises the judge’s approach, which was to ask himself what the total sentence might have been had the offender fallen to be sentenced for these offences on the occasion he appeared before the court in 1995. It was the judge’s view that the offender would have received a longer sentence than the twelve months which was imposed but not by more than six months. The Attorney General acknowledges that the sentencing judge was attempting a principled approach to the problem but suggests that he fell into error in attempting to second guess what might have happened on the earlier occasion rather than asking himself what a proper sentence would be for these offences having regard to all the circumstances and the effect upon the victim. After all, it is no one’s fault but the offender’s that these offences were not dealt with in 1995. It may be that had he admitted them at that time the effect might have been, as the sentencing judge envisaged, to produce a shorter term of imprisonment in total than would otherwise be the case. But he did not admit these offences in 1995 and the consequence has been that the victim has had to live with her secret for a further six years. Accordingly, we accept the Attorney General’s submission, and at the previous hearing we expressed the view that the sentences imposed were unduly lenient stating that in our view the concurrent terms should have been no less than eighteen months on each count. And so, having regard to the principle of “double jeopardy”, we quash the sentences of six months on each count and substitute terms of twelve months.
34.
We now fulfil our promise made on 16
th
December 2002 to revert to the question of the licence period. It seems that the judge made the same error as, until corrected, occurred in the case of NJK. He overlooked the fact, that these offences having been committed before 30 September 1998, the powers conferred under
Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000
were unavailable to him. Nor, it seems, did anyone point out the error. However, the court did have power under Section 86 of the Act to extend the licence period until the end of the custodial term regardless of the date upon which the offender obtains his release. In deciding whether to extend the licence period, as we have power to do under
Section 36 of the Criminal Justice Act 1988
, it is necessary to have regard to the need to protect the public from serious harm from offenders and the desirability of preventing the commission by them of further offences and securing their rehabilitation. Having regard to all those matters we do consider it right and proper for the offender to remain on licence until the end of the term of his twelve months sentence, and we so order. | [
"LORD JUSTICE MANTELL",
"MR JUSTICE BELL",
"MR JUSTICE ANDREW SMITH"
] | 2003_01_21-4.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/5/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/5 | 723 |
8656cdbce4958e8d1f5ac7794e057f69fd5eb147fd79e821e8cba2226c2a8637 | [2024] EWCA Crim 464 | EWCA_Crim_464 | 2024-04-19 | 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.
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Neutral Citation Number:
[2024] EWCA Crim 464
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2024/00517/A3
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 19
th
April 2024
B e f o r e:
LORD JUSTICE SINGH
MR JUSTICE JAY
THE RECORDER OF NORTHAMPTON
(
His Honour Judge Mayo
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
____________________
R E X
- v –
KRUNAL PRAJAPATI
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower
Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
____________________
Mr P Jarvis
appeared on behalf of the Solicitor General
Mr J C Dawes KC
appeared on behalf of the Offender
____________________
J U D G M E N T
(
Approved
)
__________________
Friday 19
th
March 2024
LORD JUSTICE SINGH:
Introduction
1.
On 24
th
November 2023, in the Crown Court at Snaresbrook, the offender was acquitted by the jury of murder but convicted of the alternative charge of manslaughter. The victim was his 11 week old baby daughter, Hazel.
2.
On 12
th
January 2024, the offender was sentenced by May J to ten years' imprisonment.
3.
His Majesty's Solicitor General applies, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), for leave to refer the sentence to this court on the ground that it was unduly lenient.
The Facts
4.
We take the facts for present purposes from the Final Reference submitted on behalf of the Solicitor General. In summary, when his daughter was 11 weeks old, the offender assaulted her in the bedroom when his wife was in the kitchen making dinner. As a result of the assault, Hazel sustained a number of serious injuries, which would have caused her an immense amount of pain. Later that evening she went limp. She died three days later in hospital when staff switched off her ventilator.
5.
In 2021, the offender and Rinkalben married in Gujarat, India. Shortly afterwards, the couple came to the United Kingdom to live. They moved into a three bedroom maisonette, which they shared with their landlady's son.
6.
Hazel, was born on 1
st
July 2022. She was well cared for, and her parents loved her very much. After her birth, Hazel slept in the same bedroom as her parents.
7.
On the evening of 16
th
September 2022, the offender returned home from work at around 7.30 pm. Rinkalben went into the kitchen to make dinner while he stayed in their bedroom with Hazel.
8.
After dinner, at around 9.30 pm, Hazel collapsed. The offender called a taxi, and he and Rinkalben rushed Hazel to the hospital. When they arrived she was lifeless.
9.
The staff at the hospital were able to revive Hazel but it was obvious by then that she was gravely ill. She survived on a ventilator for three days before tests revealed that she was brain dead. The hospital ceased ventilation, after which her heart stopped and she died.
10.
A post-mortem examination of Hazel's body revealed a number of injuries. They are described in the following way in the judge's sentencing remarks:
"Investigations … indicated a skull fracture and catastrophic hypoxic-ischaemic brain injury. Post-mortem tests and examinations of ribs, skull, eyes and brain showed all the classic signs of a severe shaking injury. … in addition to the 47 front and back rib fractures and the metaphyseal fractures of arms and legs consistent with gripping and violent shaking, Hazel's head had clearly received two separate blunt force injuries – one causing a complex comminuted fracture on her left side from a point above her ear up over the top of her head and another causing a deep, long bruise further forward on her left forehead. There was also a separate spiral fracture of Hazel's left leg consistent with it being gripped in two hands, twisted and pulled, entirely breaking her tibia. All of these injuries, according to the expert paediatrician, would have been intensely painful to Hazel."
11.
Having set out those injuries, the judge then said that, having heard the evidence at the trial and in the light of the jury's verdicts, she was certain that the offender caused all of those injuries to Hazel.
12.
It follows, according to the Solicitor General's Final Reference, that the offender must have caused those injuries to his daughter when he was alone with her in the bedroom. The judge concluded that the offender must have lost his temper with Hazel, which led to him acting out of character in the way he did.
13.
Subsequently, on 18
th
September 2022, the offender was arrested and interviewed by the police. He said that neither he nor his wife had done anything to hurt Hazel. He said that after dinner they had taken Hazel into the bedroom because she was crying, and it was then that she fell asleep and stopped moving, prompting them to call a taxi to take them to hospital.
The Procedural History
14.
The offender and Rinkalben were charged and made their first appearance at the magistrates' court on 5
th
October 2022, from where their case was sent to the Crown Court.
15.
They both pleaded not guilty to the murder of Hazel, and to an offence of causing or allowing the death of a child. Their case was set down for trial.
16.
By the time of the trial, the offender had admitted that he had dropped Hazel while changing her nappy, causing her to fall to the floor and hit the back of her head. However, he denied unlawfully harming his daughter.
17.
By their verdicts, the jury acquitted Rinkalben of both charges against her. They acquitted the offender of the charge of murder but convicted him of the alternative charge of manslaughter. The second count was directed to lie on the file on the usual terms.
The Sentencing Process
18.
The offender was born on 15
th
October 1995. He was aged 26 at the date of the offence and is now aged 28. He had no previous criminal record.
19.
There was no Victim Personal Statement. Nor were there any reports.
20.
There was a handwritten letter from the offender to the judge, in which he admitted that he had initially lied to the police and to his wife about what had happened to Hazel. Four weeks before the trial he told his wife that he had dropped Hazel. That was the account he had advanced at trial and which he maintained. The offender stressed in his letter that he loved his daughter and had lied initially because he did not want to lose his wife.
The Judge's Sentencing Remarks
21.
In the course of her sentencing remarks, the judge said this:
"Taking account of all the various injuries which I am sure you did inflict on your daughter that night, I am quite satisfied that your culpability falls into category B of the sentencing guideline where there is a starting point of 12 years, range eight to 16. The jury acquitted you of an intent to kill or to cause grievous bodily harm, but bearing in mind the nature of the injuries which must have been caused separately from the shaking – the skull fracture, the forehead impact and the spiral fracture to her leg – I conclude that Hazel's death was caused in the course of an unlawful act which involved an intention, albeit in the moment only, to cause harm falling just short of grievous bodily harm. I am also satisfied that your act in shaking your daughter, resulting as it did in 47 rib fractures and the metaphyseal fractures to all her limbs, in addition to the extent of the widespread hypoxic injury and severe damage to both eyes, is properly characterised as an unlawful act which carried a high risk of death or grievous bodily harm which was or ought to have been obvious to you. The undisputed expert evidence at trial was that severe force must have been used to cause such serious shaking injuries."
22.
As to matters of aggravation, the judge found: first, that the offence involved a breach of trust; and secondly, that the offender had cast a shadow of blame over his wife, who spent a year on remand in custody before she was acquitted by the jury of being involved in any way in her daughter's death.
23.
As to matters of mitigation, the judge observed: first, that the offender had otherwise been a loving father to Hazel; secondly, that his unlawful acts had not been premeditated; thirdly, that he had not used violence against Hazel before; fourthly, that he was a man of hitherto good character; and fifthly, that he was now deeply remorseful.
24.
The judge did not consider that Hazel's extreme youth and vulnerability were aggravating factors because those features contributed to placing the facts into culpability B.
25.
The judge concluded that the offender was not dangerous because this was a one-off episode of loss of temper and violence, for which he had expressed genuine regret and remorse.
26.
The judge concluded that the mitigating factors outweighed the aggravating factors, thus leading to the reduction in sentence to one of ten years' imprisonment. She made no other orders.
The Sentencing Guidelines
27.
The maximum sentence for manslaughter is life imprisonment. The Sentencing Council has issued a definitive guideline for unlawful act manslaughter with effect from 1
st
November 2018. There are four categories of culpability in the guideline: category A (very high culpability); category B (high culpability); category C (medium culpability); and category D (lower culpability). There are four factors that can indicate high culpability. The first is that death was caused in the course of an unlawful act which involved an intention to cause harm falling just short of grievous bodily harm. This is a subjective factor. Secondly, that death was caused in the course of an unlawful act which carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender. This is an objective factor. The guideline also states that very high culpability may be indicated by either the extreme nature of one or more high culpability factors or a combination of culpability B factors.
28.
A very high culpability case has a starting point of 18 years' custody, with a category range of 11 to 24 years. A category B case has a starting point of 12 years' custody, with a category range of eight to 16 years. A category C case has a starting point of six years' custody, with a category range of three to nine years.
The Submissions on behalf of the Solicitor General
29.
On behalf of the Solicitor General, Mr Jarvis submits that the sentence of ten years' imprisonment in this case was unduly lenient. Mr Jarvis acknowledges that the prosecution submitted to the judge that this was indeed a category B case. The defence submitted that it fell between categories B and C. The judge agreed with the prosecution. However, submits Mr Jarvis, neither the parties nor the judge appear to have considered whether the combination of the two high culpability factors which the judge herself had found existed should have had the effect either of moving the case up into category A, or of requiring a significant upwards movement within the category B range.
30.
Mr Jarvis submits that that is the approach which this court took in
Attorney General's Reference (R v Parry)
[2023] EWCA Crim 421; [2023] 2 Cr App R(S) 35 (in particular at [29] in the judgment delivered by Macur LJ). This is the mainstay of Mr Jarvis' submission on behalf of the Solicitor General before us. He submits that similar reasoning applies to the facts of the present case. The combination of the offender's subjective intention and the objective risk arising from his actions should have moved the starting point up either into category A or towards the top of the category B bracket.
31.
Mr Jarvis accepts that this runs contrary to the submissions that were advanced to the judge by the prosecution. He reminds us, however, that the law officers are not bound by the submissions of prosecution counsel: see
R v Stewart
[2016] EWCA Crim 2238; [2017] 1 Cr App R(S) 48 (in particular [34] and [36] in the judgment of the court delivered by Davis LJ).
32.
Mr Jarvis submits that it may be that if the parties had been aware of the decision of this court in
Parry
, then the prosecution would have adopted a different approach before the judge. No criticism is made by Mr Jarvis of the judge's decision not to count Hazel's particular vulnerability as an aggravating factor, because that contributed to the objective risk of her dying or suffering grievous bodily harm. Nevertheless, Mr Jarvis submits that there were here a number of aggravating factors: first, Hazel experienced significant physical suffering; secondly, by denying responsibility for the deliberately inflicted injuries that Hazel sustained, the offender implicitly sought to place the blame on his wife; and thirdly, the offence was committed in breach of trust.
33.
On the other hand, Mr Jarvis accepts that there were the following mitigating factors: first, the offender had no previous convictions; secondly, he had shown remorse; thirdly, the offence was not premeditated; fourthly, there was evidence of good character beyond the lack of previous convictions, most notably the care which the offender had previously shown towards Hazel; and finally, there was some evidence of immaturity, even in this 26 year old offender.
34.
The judge concluded that the mitigating features in this case outweighed the aggravating features and merited a further downward reduction of two years from the starting point. Mr Jarvis submits that that was a very generous approach to take. However, even if she had been entitled to make that adjustment, he submits that it should have been an adjustment from a much longer sentence than 12 years' custody, with the result that the final sentence should have been significantly longer than ten years' imprisonment.
The Submissions on behalf of the Offender
35.
On behalf of the offender, Mr Dawes KC submits that the overall sentence is not out of kilter with similar cases which have been considered by this court, copies of which he has drawn to our attention. He acknowledges that each case depends on its own facts, but submits that this should give the court some comfort that the sentence in the present case was not unduly lenient.
36.
Mr Dawes also submits that the guidelines themselves make it clear that the court should avoid an overly mechanistic application of the factors set out in it. Mr Dawes submits that the decision in
Parry
concerned its own particular, very different circumstances. In that case there was no need for the sentencing judge to decide the factual basis of sentence, because the offender's intention and the unlawful act of dangerous driving were caught on dashcam footage which had audio. This also had the consequence that the Court of Appeal was in precisely the same position as the trial judge to say if that case was an extreme example of a finding as to the offender's intention. In contrast, submits Mr Dawes, in the present case the trial judge had to be the arbiter of the extent of both the intention of the offender and its objective assessment. The Court of Appeal is not in as good a position as the trial judge was.
37.
More fundamentally, Mr Dawes submits that there is a real danger of double counting as between the objective risk of death and the subjective appreciation of that risk. Where there is a high risk of death caused by an unlawful act, the offender will rarely be unaware of the obvious risk. Mr Dawes submits that that will be true of most, if not all, baby shaking cases. He also emphasises that the danger of double counting was stressed by this court in
Parry
itself.
38.
Finally, Mr Dawes submits that the trial judge was particularly well placed to make the assessments which were required in this case.
Our Assessment
39.
The principles to be applied on an application under section 36 of the 1988 Act are well established and were summarised in
Attorney General's Reference (R v Azad)
[2021] EWCA Crim 1846; [2022] 2 Cr App R(S) 10, at [72], in a judgment given by the Chancellor of the High Court, as follows:
"1.
The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.
2.
A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.
3.
Leave to refer a sentence should only be granted by this court in exceptional circumstances and not in borderline cases.
4.
Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into 'gross error'.
…."
40.
In giving the judgment of this court in the seminal case of
Attorney General's Reference (No 4 of 1989)
(1990) 90 Cr App R 366, at 371, Lord Lane CJ said that even where this court considers that a sentence was unduly lenient, it has a discretion as to whether to exercise its powers. He also emphasised, as this court has done ever since, that its role is not simply to retake the sentencing decision as if it were the sentencing court, and that mercy is a virtue and does not necessarily mean that a sentence was unduly lenient.
41.
With respect to Mr Jarvis' submissions, we do not consider that the judgment in
Parry
can be read out of context. Its factual context was a world apart from that of the present case. The facts of
Parry
can be taken from the headnote:
"V was a member of the Cornish-based motorcycle group called the Red Chiefs, who described themselves as a 'support club' of the Hell's Angels – an international 'outlaw' motorcycle organisation. BP, TP and CB were all members of the Plymouth-based branch of another international 'outlaw' motorcycle group called the Bandidos. CB was the President. The Red Chiefs and the Bandidos were rival groups. The wearing or flying of the group's 'colours' on the other's territory was regarded as insulting and provocative.
One evening, members of the Red Chiefs and Hell's Angels (both wearing their colours) had gathered at a retail park in Plymouth. Members of the Bandidos became aware. There was telephone contact resulting in TP, CB and BP becoming aware of the presence of the Red Chiefs. TP and CB drove towards Plymouth and attended where the Red Chiefs were. Most of the Red Chiefs drove away. However, V drove off in a different direction (that being the direction in which he lived). CB and TP pursued V, and were on the telephone to BP during the pursuit. BP then travelled to the scene. BP struck V's motorcycle causing V's body to [be thrown] upwards and onto the bonnet. The vehicle ran over the motorcycle and V fell underneath the vehicle and became trapped. BP continued to drive and after about 900 metres, V's body came free of the vehicle. V died from his injuries. The post-mortem examination revealed numerous injuries to the body and were in keeping with a prolonged period during which he was trapped/dragged along under the van. The cause of death was multiple injuries."
42.
The application for leave to refer the sentence in that case was granted. In giving the judgment of the court, Macur LJ said at [26] that the court agreed with the submission for the law officers in that in so far as it is necessary for the court to do so, this court was in as good a position as the trial judge to assess the objective element of the fatal incident.
43.
The court did not disagree with the trial judge that the unlawful act, which he described in accurate and measured terms, carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender. Further, the court was satisfied that the judge sufficiently well recognised the aspect of vigilantism and correctly identified all aggravating features for the purpose of sentencing the three offenders.
44.
At [29] Macur LJ said the following:
"However, despite the measure of our agreement with the judge, we are persuaded that he failed to adequately reflect BP's subjective intent
and
the objective high risk he created of GBH or death into the assessment of overall culpability. There is an overlap between these factors
in this case
[our emphasis], but these are not two sides of the same coin. Although the judge was not unreasonable, and we find he was right, to 'temper' what would otherwise be arguably the 'extreme' character of the objective risk by reason of the comparatively lesser subjective intent, we consider that the combination elevated the offence into the category of very high culpability. We are persuaded that this error did lead the judge to pass an unduly lenient sentence in respect of BP, and that we should exercise our discretion to re-sentence him for the offence of manslaughter."
45.
Before leaving that judgment we should note that at [30] Macur LJ herself emphasised the need to avoid an overly mechanistic application of factors used in the guideline. We entirely agree.
46.
In our view, drawing on the experience of each member of this court, baby shaking cases such as the present raise their own difficult and sensitive issues which are far removed from those in
Parry
. We also bear in mind that the definitive guideline does not state that in every case the sentencing court must increase the culpability from category B to category A. Rather, what the guideline says is:
"The characteristics set out below are indications of the level of culpability that may attach to the offender's conduct; the court should balance these characteristics to reach a fair assessment of the offender's overall culpability in the context of the circumstances of the offence. The court should avoid an overly mechanistic application of these factors."
Then, under the heading "A – Very high culpability", the guideline continues:
" Very high culpability
may
be indicated by:
•
the extreme character of one or more culpability B factors and /or
•
a combination of culpability B factors."
We emphasise that the bold font is in the original text as issued by the Sentencing Council, no doubt to reflect its desire to convey the importance of the word “may”.
47.
As that passage itself makes clear, the court should avoid an overly mechanistic approach. In our judgment, that is precisely what the judge in the present case did avoid. Further, we consider that the judge in the present case, who not only had the advantage of seeing all the evidence at the trial but is a very experienced judge in cases of this kind, dealt carefully with all aspects of the sentencing exercise that were called for.
48.
We have reached the clear conclusion that the sentence passed in this case can properly be described as merciful, but it was not unduly lenient.
49.
Accordingly, we refuse the application by the Solicitor General under section 36 of the 1988 Act.
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______________________________ | [
"LORD JUSTICE SINGH",
"MR JUSTICE JAY"
] | 2024_04_19-6126.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/464/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/464 | 724 |
25cdf51d85af51110eea80463e42988e0b84848fc998d3b6138f3b6ab61ba021 | [2017] EWCA Crim 248 | EWCA_Crim_248 | 2017-03-14 | crown_court | Neutral Citation Number: [2017] EWCA Crim 248 Case No: 2016/02279/C2 & 2016/02281/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 14 March 2017 B e f o r e : LORD JUSTICE ELIAS SIR JOHN SAUNDERS HIS HONOUR JUDGE GRIFFITH-JONES (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A V MIN FU - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International L | Neutral Citation Number:
[2017] EWCA Crim 248
Case No:
2016/02279/C2 & 2016/02281/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday 14 March 2017
B e f o r e
:
LORD JUSTICE ELIAS
SIR JOHN SAUNDERS
HIS HONOUR JUDGE GRIFFITH-JONES
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
V
MIN FU
- - - - - - - - - - - - - - - - - - - - -
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 A Hallworth
appeared on behalf of the
Appellant
Mr S Rippon
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
LORD JUSTICE ELIAS
: This is an appeal against conviction and a renewed application for permission to appeal against sentence. It arises from a sentence of 10 years imposed on the appellant in relation to three counts: one of blackmail, for which he was sentenced to 10 years, one of common assault, for which he received six months concurrent, and one for violent disorder, for which he received four years concurrent. That followed his unanimous conviction on all these counts on 26th April 2016 at the Crown Court at Birmingham before His Honour Judge Wall and a jury.
2.
The background to the offending is as follows. On 9th October 2015 the appellant and a second Chinese man, Ah Qiang, attended the complainant's (that is Feng Li's) hairdressing business, So Hair, in Birmingham's Chinatown. They spoke to Li and, according to the prosecution, demanded between £3,000 and £4,000 as protection money. Li refused and they threatened to smash up the shop.
3.
On 24th October, the appellant and Qiang returned. They made similar demands and threats. They returned again three days later, this time accompanied by four unknown black men. When Li refused to pay any money he was assaulted by all six men. He suffered minor bruising. Before departing the appellant made a further demand for money of £10,000. The police were contacted.
4.
On 28th October the appellant and Qiang returned to Li's again. This time he was not present, but further demands were made through his staff.
5.
Later that evening Li attended a private function at a particular bar in Birmingham. The appellant, Qiang and a large group of men entered the bar. They were armed with knives, machetes and bars. Li and his party barricaded themselves into a function room whilst the gang threw bottles, smashed at the door. They caused damage to a value of some £3,500. The disorder lasted for several minutes.
6.
The appellant was subsequently arrested. In interview he admitted presence on each of the occasions described by Li and he accepted that he asked for money which he said Li owed to others. He denied making any threats. He did not use any violence at any time. He did not see any weapons when they were in the bar. He said that Li owed a debt to a foreign student with whom the appellant was acquainted and that he was assisting the student to try and obtain repayment. At no time did he threaten Li with violence or inflict any violence. He was at the bar for an entirely innocent purpose. He did not even know Li was present on that occasion.
7.
Li set out his allegations against the appellant in three statements dated 27th and 29th October 2015 and 2nd November 2015. These not only set out his account of events, but they also demonstrated the fear he had of the appellant and those with whom he was involved.
8.
On the first day of the trial he failed to attend court. The Crown applied to read his statements pursuant to section 116(2)(e) of the Criminal Justice Act 2003. They relied not only on the assertions of fear contained in the witness statements themselves, but also similar assertions made in a statement dated 29th March 2016 and also a statement from an officer in the case, DC Bebb, dated 20th April 2016 (that is the first day of the trial itself). In DC Bebb's statement there is a reference to Li's wife saying that her husband had gone away and would not be returning during the dates of the trial.
9.
There was opposition to the statements being admitted. Section 116 sets out certain circumstances where statements evidence may be admissible without the witness appearing. One of these is where "through fear the relevant person does not give or does not continue to give oral evidence in the proceedings ..." Section 116(3) notes that fear is widely construed and includes fear of death or injury of another person or of financial loss. Subsection (4) provides that leave should be given in relation to subsection (2)(e) - that is the provision relating to fear - only if the court considers that the statement ought to be admitted in the interests of justice and there are a number of matters which are set out which a judge has to consider when deciding whether admission is in the interests of justice or not.
10.
In this case the application was opposed. It was alleged that the fear was not particularised, that it was uncorroborated and had been untested and that in all the circumstances it would be against the interests of justice to allow the evidence to be admitted.
11.
The judge ruled that the statements were admissible and directed that they should be read to the jury. He indicated that he would take the usual steps which a judge has to take in these circumstances of ensuring that the jury are not informed why the witness has failed to give evidence, and to put fully and fairly before the jury the points which the prosecution might wish to make.
12.
The judge did not in fact at that point give his ruling as to why he was willing to have this evidence admitted in this way. He reserved his reasons. Subsequently, following a luncheon adjournment on that same day, 20th April, the Crown were informed that Li was in fact at his place of business - it had been thought that he was not available. At that point a further application was made for Li to be brought to court. The judge refused that but asked for a further statement to be taken from Li. That was provided on the following day, 21st April. Following representations from the Crown in chambers and from the defence in open court, that statement was not disclosed to the defence. The judge said it did not in his view pass the test for disclosure, but he did think it was necessary to alert the defence to part of that statement and so the following statment was made to the defence and later was placed before the jury:
"Li Feng made a further statement to police on 20th April 2016 in which he stated he had not been threatened since the time of the defendant's arrest and that his fear was due to the circumstances of the crimes. The fact that he could be found by anyone who wanted to find him and he had a fear of reprisals being taken against him, his family or his property."
13.
It was suggested by the appellant that there was an inconsistency in what was being now said by Li and what he had allegedly said to the police officer in the police officer's statement. In that statement he had made an observation which, at least on one reading, could be treated as a complaint or an allegation that there had been threats made against him of reprisals if he were to go and give evidence. In the circumstances, the appellant sought to have the judge take action to bring the witness to court so that he could be further cross-examined about this and it could be tested whether he was genuinely in fear and if so, what the source of that fear was.
14.
The judge was not willing to take that step. He was satisfied that notwithstanding that the witness was available, it was not necessary to call him back to court and furthermore he did not think that the potential conflict - the judge in fact thought that there was a conflict - in any way undermined the basic conclusion he had already reached that in the circumstances this evidence should be allowed to be admitted without any oral evidence being given by the witness. The judge said this in an addendum to his reasons for allowing the evidence:
"Defence counsel addressed me on the basis that there was a difference between what DC Bebb says that the complainant told him and that which the complainant asserts in his own statements: ie as to whether his fear is directly related to the allegations in this case or, at least in part, to other events. I accept that there is such a discrepancy. However, in reaching my conclusions yesterday I relied on that which was in the complainant's statement rather than that which was reported in the statement of the officer alone. The complainant in his written statements has been clear that he has been put in fear by what he alleges happened to him which now forms the subject matter of this indictment. The statement of DC Bebb is not such as to make me conclude that the complainant is a witness of such apparent unreliability about the cause of his fear that I should not admit the statements into evidence."
15.
We have heard submissions today from Mr Hallworth. The argument has been narrowed a little from that which was advanced in the original grounds. It is accepted that in principle it was open to the judge in this case to conclude that there was fear and that in the circumstances the relevant statutory test was satisfied. But Mr Hallworth submits that nonetheless there was real prejudice to his client in not being able to cross-examine Mr Li about certain key aspects of the case, in particular whether or not there had been threats made against Li by his client and others in the way that was alleged. He submits that in the circumstances it was necessary for the judge to have taken greater steps than he did to seek to bring Li to court and to allow him to be subjected to cross-examination, perhaps on a voir dire, in order to determine whether or not he really was in fear for the reasons that he gave. It is submitted that if this had been done, it may have been apparent that the fear was not as significant as the judge thought. It may have been appropriate in those circumstances for the judge to refuse the application of the Crown and that would necessarily have had a significant impact upon the course of the trial.
16.
In our judgment, the judge was entitled to take the view that he did. It is true that other judges may have gone further and sought to take positive steps to compel Li to come to court, but it seems to us that was a difficult decision for the judge to make, not least because all the evidence before the judge suggested that there was genuine and very real fear. That was supported by the fact that the CCTV evidence, which there was in relation to events in the bar, demonstrated that there had been activity, apparently directed by the appellant, which would necessarily put somebody in fear that he was the target of that activity.
17.
The judge had to make a judgment about whether or not in the circumstances there would be anything to be gained by seeking to compel this witness to come to court. It would have been difficult for the judge if the witness had refused to respond to a witness summons, for example, perhaps through fear. Given the obvious fear he displayed to the officer, as reflected in the officer's statement, and his own claims to be afraid reflected in the whole series of statements that he had made, the precise source of that fear may be thought to have been not particularly important in the circumstances of this case. Certainly, the possible discrepancy in the accounts he had given as to whether or not he had been threatened specifically does not in our view begin to undermine the judge's conclusion that there was genuine fear and that this man was not willing to come to court. The police officer explained in his statement that he had taken steps to ensure that the witness was aware that special measures could be taken to seek to minimise any adverse consequences of his giving evidence, but in the circumstances that was not considered satisfactory by the witness himself and the judge observed that he could understand why.
18.
Accordingly, we do not think there was any procedural defect by the judge such as to render it unfair for him to have taken the decision he did to admit these statements. It is not disputed that once they were admitted the judge dealt with them fairly in his summing-up. He dealt with the absence of the witness perfectly properly. He pointed out the discrepancies in the statements and observed that they were relied upon by the appellant to demonstrate the unreliability of the witness. Nonetheless, the jury has convicted him of these various offences. Therefore we reject the appeal against conviction.
19.
We turn to the renewed application for leave to appeal against sentence. The judge summed up the heart of his analysis as follows:
"People who set up illegal protection rackets such as this must be stopped, especially people such as you who do so in an organised and ruthless way. It is serious enough that you threatened a vulnerable person and put him in fear for his future but you are one of the few who go on to from that determinedly and try to make good on his threats. Mr Li was too afraid even to come to court for this trial. I am sure that this is a sign of the deep and lasting fear you put in him, and of the likelihood that this fear will not even end with your conviction today.
I have concluded that I should pass a sentence on the blackmail count that reflects the entirety of your offending. I do this because counts 2 and 3 are, in reality, severely aggravating aspects of the blackmail and not entirely separate criminal enterprises. You did not plead guilty and get no credit for remorse."
The judge then indicated that he took into account the fact that there were no relevant previous convictions.
It is submitted that it was wrong for the judge to describe this as a protection racket and that in any event a sentence into double figures was simply too high given the nature of this offending.
20.
We disagree. This was a protection racket. The fact that it related to only one business is neither here nor there. These are extremely serious offences. They adversely affect commerce. They adversely undermine the confidence people have in the system of justice and the rule of law. There was significant violence and threatened violence committed in the course of these blackmail activities. In our judgment the judge was entirely justified in reaching the conclusion that a condign sentence was required and one of 10 years was not in our view manifestly excessive. Therefore we refuse permission to appeal. | [
"LORD JUSTICE ELIAS",
"SIR JOHN SAUNDERS",
"HIS HONOUR JUDGE GRIFFITH-JONES"
] | 2017_03_14-3948.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/248/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/248 | 725 |
920f5d7a5c72da38ba17727fc2ef1ec4ea6fb374385837376031298f7c0e7870 | [2008] EWCA Crim 3177 | EWCA_Crim_3177 | 2008-12-18 | crown_court | No: 200800203/D1 Neutral Citation Number: [2008] EWCA Crim 3177 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 18th December 2008 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE MADDISON HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v TOMASZ JASTRZEBSKI HOUSE OF LORDS PRONOUNCEMENT - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Li | No:
200800203/D1
Neutral Citation Number:
[2008] EWCA Crim 3177
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 18th December 2008
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE MADDISON
HIS HONOUR JUDGE STEPHENS QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - -
R E G I N A
v
TOMASZ JASTRZEBSKI
HOUSE OF LORDS PRONOUNCEMENT
- - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - -
Counsel for the Appellant did not attend
Counsel for the Crown did not attend
- - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RICHARDS: This is a matter in which the full court, differently constituted, but with Maddison J as a member of the constitution, dismissed an appeal in April 2008.
2.
There was subsequently an extension of time granted for lodging an application for a certificate of a point of law of general public importance and leave to appeal to the House of Lords.
3.
Applications were received. They have been considered by the members of the constitution of the court that determined the appeal. The decision has been reached that all the applications, that is to say both for a certificate and for leave to appeal, are to be refused. | [
"LORD JUSTICE RICHARDS",
"MR JUSTICE MADDISON",
"HIS HONOUR JUDGE STEPHENS QC"
] | 2008_12_18-1757.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/3177/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/3177 | 726 |
9ef0ba221900d21b009b7303598f171440b569e6fa0ea967f5690d539887fc65 | [2024] EWCA Crim 519 | EWCA_Crim_519 | 2024-05-01 | 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. 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 202301562/B3
Neutral Citation Number:
[2024] EWCA Crim 519
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 1 May 2024
Before:
LORD JUSTICE LEWIS
MR JUSTICE GOSS
HER HONOUR JUDGE MONTGOMERY KC
(Sitting as a Judge of the CACD)
REX
V
LEE HAMMILL
__________
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)
_________
MS N ROBERSON
appeared on behalf of the Applicant.
_________
J U D G M E N T
1.
LORD JUSTICE LEWIS: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Consequently, 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 the offence.
2.
On 17 April 2023, in the Crown Court at St Albans, the applicant, Lee Hammill (then aged 31), was convicted of a number of offences. Two were offences of rape of a child under the age of 13. Two were offences of assault of a child under 13 by digital penetration and two similar offences by penetration with his tongue. Nine others were offences of sexual activity with a child. The applicant was sentenced to a total of 12 years, comprising a custodial term of 11 years and an additional 1-year licence period. The applicant’s application for leave to appeal against conviction was refused by the single judge. He renews his application for leave to appeal against conviction.
3.
The facts can be stated shortly. The complainant was a child whom we will refer to as “AB”. A member of her family was in a relationship with the applicant. The prosecution alleged that from the age of 11 to 14, the applicant penetrated AB’s vagina with his fingers and his tongue, and anally raped her on two occasions. When AB was between the ages of 13 and 14, the applicant was again accused of penetrating her vagina with his fingers and his tongue and, on occasions, penetrating her anus with his penis.
4.
The prosecution relied upon evidence from AB. There was also evidence from others including AB’s first partner. The applicant also gave evidence. He has autism and very shortly before he gave evidence it was decided that he would have an intermediary to assist him. The applicant denied that any sexual activity had occurred between him and AB. AB’s mother also gave evidence on behalf of the prosecution. She in fact said that AB had made it all up and she was cross-examined and asked questions in re-examination by the prosecution. It is clear, having read all the material put before us, that the central issue in the case was whether the prosecution had made the jury sure that each alleged event on each count had in fact happened.
5.
On behalf of the applicant, Ms Roberson has made very detailed, very clear and very helpful written and oral submissions. She advanced four grounds of appeal. Grounds 1 and 2 can be taken together, but it is important to remember that that Ms Roberson submits that the grounds individually but also cumulatively give rise to questions about the safety of the conviction.
6.
In relation to ground 1, Ms Roberson submits that the Recorder usurped the role of the jury by making repeated pro prosecution comments in the summing-up. Ms Roberson has set them all out in her detailed skeleton argument. She took us through a number of those, drawing attention in particular to items in paragraph 9 of her written argument and to what are said to be improper comments set out in paragraph 17 of her skeleton argument, drawing attention to some of those points in particular.Ms Roberson relied upon the decision in
R v Mears
[1993] 1 WLR 818 that, if a summing-up is fundamentally imbalanced, it cannot be corrected simply by the judge telling the jury that the assessment of the evidence was a matter for them. Alternatively, in relation to ground 2, Ms Roberson submits that the Recorder gave a summary of evidence that was so diffuse and unstructured as to be of no assistance to the jury.
7.
Ground 3 is that the judge failed to allow the intermediary to assist the applicant to the best of her abilities during his evidence. Again, in her written submissions and orally, Ms Roberson took us through the various examples that she submitted exhibited those errors. She pointed out that the ground rules hearing, by which the rules relating to how the evidence was going to be taken from the applicant, had not been done in a way that met the recommendations of the Advocate’s Toolkit. The applicant did not have the ground rules hearing until shortly before he gave evidence even though Ms Roberson had asked for a ground rules hearing on the previous day. After 90 minutes the applicant stopped giving evidence and then, over a period of time, counsel reformulated his questions to make them more comprehensible by the applicant but, by that stage, Ms Roberson submitted that it was too late and the impact of the 90 minutes could not be minimised because the applicant would by then have felt confused. She submitted that the judge overruled the intermediary at a number of points. Not, it seems, expressly turning down anything the intermediary says but rather when the intermediary said something or raised her hand in an attempt to assist the applicant, Ms Roberson submitted that the Recorder effectively ignored the intermediary. There had been a recommendation for breaks at periodical intervals. There had not been a break. The intermediary requested a break but one was refused and the taking of evidence from the applicant continued.
8.
Ground 4 concerns the fact that Ms Roberson submitted that the Recorder erred by allowing the prosecution to cross-examine their own witnesses. That is a reference to AB’s mother in particular, although it is said the error occurred in relation to AB’s father in evidence as well. In relation to AB’s mother, two particular points that Ms Roberson made was that the prosecution, in re-examination, was allowed to ask whether the mother had said in the written statement that she made to the police that her daughter had made it all up, and the mother said it was something she had told the police but the policeman had not written it down. Ms Roberson submits that although it was not expressly said by the prosecution, it is implicit, or the inference was, that the mother was making that part of her evidence up. The second point concerned re-examination on the question of timings and the time at which AB ceased to live at the parental home and went to live with her partner. There was an issue as to whether she had simply stayed with her partner from Christmas onwards and moved in with him in February, or whether she had in effect moved out of the family home in December.
9.
We have read very carefully all the material submitted to us for this hearing, including the entirety of the summing-up and the transcripts of the re-examination of AB’s mother. We have also read the transcripts of the cross-examination and re-examination of the applicant, and we have read the autism spectrum disorder assessment and the intermediary report, although the intermediary at the hearing was a different one from the one who made the report.
10.
We remind ourselves that the question for this Court in deciding whether to grant leave to appeal is whether the conviction is arguably unsafe. Having read the transcript of the summing-up in its entirety, we do not consider that it demonstrates that the Recorder usurped the role of the jury. The summing-up went through the Route to Verdict document explaining what the jury had to be sure of before they could convict the applicant on each of the counts. The Recorder reminded the jury that the applicant was of good character, which supported his credibility and made it less likely that he had committed the offences. The central issue in the case was whether or not the jury were sure that the conduct alleged in each count had in fact happened.
11.
The Recorder summarised the evidence of AB. She also summarised the evidence given by the applicant. She set out his answers, including those where he said he had never shared a bed with AB or massaged her. He had never put his fingers or his tongue in her vagina and he said he had never put his penis in her anus. That was what the jury had to assess. It is correct that the Recorder said once, in the course of the transcript of the summing-up that “we suggest”, when, of course, it was the prosecution who was bringing the case and making submissions. The judge was not suggesting anything. The judge was presiding over the trial. The Recorder did however correct herself. We do not regard this error, unfortunate though it was, as demonstrating that the summing-up was fundamentally biased. Nor do we think that the summing-up was so diffuse or unstructured as to be of no assistance to the jury. Reading the summing-up as a whole and fairly, it was clear what the jury had to decide and what the central issues were, namely whether or not they were sure that the events in each of the counts had happened. They were told what the evidence was and what the defence case was. Grounds 1 and 2 do not arguably demonstrate that the conviction was unsafe.
12.
In relation to ground 3 and the intermediary, we make the following observations. Intermediaries are important in a criminal trial. They assist vulnerable witnesses to give their evidence in the best way possible. It is important that consideration be given to how the arrangements are going to be operated and what needs to be done to enable the intermediary to function properly and to give his or her assistance to the witness. There are recommendations which deal with that.
13.
Dealing with the criticism advanced here. The first concerns the fact that the arrangements did not provide for a ground rules hearing before or adequately before the start of the trial. That is obviously important because it allows people to focus and preparation to be made on the basis of how the intermediary is going to operate. However, we have to bear in mind the question here is the safety of the convictions. The fact of the matter is that a ground rules hearing was held shortly before the applicant gave evidence. The intermediary who was going to be present and acting as the intermediary at the trial did highlight certain points that she thought were important and which we understand were agreed to be the points that needed to be taken into account. They were that there were to be breaks to be taken every 40 minutes for 15 minutes, the appellant was to be reminded that he was not guessing, there be short and specific questions, common language was to be used, counsel was to avoid dates and refer to events instead, counsel was to signpost topic changes and these were to be ordered chronologically wherever possible, additional processing time should be allowed for the applicant to process the question and advocates were to speak slowly. Despite the criticism therefore of the timing of the holding of the ground rules hearing, it was held and the relevant points that the intermediary wanted brought out were brought out.
14.
In terms of the report that had been prepared, that did refer to questions being written out. But, as far as we can see, that was not something that the intermediary raised on the day. There is no ground of appeal in relation to that and no complaint about that matter is made in the written skeleton argument.
15.
So far as the starting of the cross-examination and the first 90 minutes is concerned, the position was this. Prosecution counsel has said that he had begun cross-examination without having time to rework his questions. In fact, he did rework his questions over the Easter weekend break. No examples were shown to us, where, in our judgment, on a fair reading of the transcript, the applicant was unable to give his evidence. On the question of the breaks, that came towards the end of the cross-examination. It was apparent there was a short time left and, when it was raised, the applicant indicated he did not want a break and he could, and did in fact, continue to give evidence without apparent difficulty. He also confirmed that the question and answers that he had given in response to the police interview were correct and the jury had that material as well.
16.
We do not see any evidence that the judge overruled the intermediary, and in all the circumstances, reading the transcripts fairly, and considering the effect of what happened, we do not consider that it is arguable that the way in which the intermediary was dealt with gives rise to an arguable ground that the conviction was unsafe.
17.
On ground 4, having read the examination and the re-examination, it seems to us that what happened in re-examination was that the Crown had confirmed with the witness that the reference to the witness’s daughter having made these allegations up was not in the statement and the witness explained why. She said she had given the information to the police but the policeman had not written it down. That was a matter for the jury to assess.
18.
So far as the timing in relation to when AB moved out - was it Christmas or was it technically later in February? -we do not see that that matter could possibly affect the safety of the conviction, whether or not it was a question that should have been asked. So we do not see that ground 4 raises any arguable issue of the safety of the conviction.
19.
Standing back from the four individual grounds of appeal, we have considered the four grounds cumulatively to see whether the effect of what Ms Roberson criticised has arguably rendered this conviction unsafe. We are satisfied that the errors that she says occurred do not in fact make an arguable case that the conviction was unsafe. For those reasons, we refuse leave to appeal.
20.
We understand that maybe disappointing for the family. We thank them for the dignity they have shown in Court as they have listened to what must be a difficult judgment and we are grateful to Ms Roberson, for her written argument and helpful oral arguments.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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"LORD JUSTICE LEWIS",
"MR JUSTICE GOSS",
"HER HONOUR JUDGE MONTGOMERY KC"
] | 2024_05_01-6139.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/519/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/519 | 727 |
2166f3db1590022b49fa099568b075b5163291d8b750d79226548de80c023f02 | [2011] EWCA Crim 1255 | EWCA_Crim_1255 | 2011-05-18 | crown_court | Neutral Citation Number: [2011] EWCA Crim 1255 Case No: 2010/05694/B5 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE RAFFERTY and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : R - v - Dobson - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Mark Ellison QC and Miss A Morgan for the Appli | Neutral Citation Number:
[2011] EWCA Crim 1255
Case No:
2010/05694/B5
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/05/2011
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE RAFFERTY
and
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Dobson
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Mark Ellison QC and Miss A Morgan for the Applicant
Mr Timothy Roberts QC and Mr S Moses for the Respondent
Hearing dates : 11
th
– 12
th
April 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
Introduction
1.
On 22
nd
April 1993, just after 10.35 in the evening, a young man, Stephen Lawrence, then 18 years old, was waiting at a bus stop at Eltham with a close friend of the same age, Duwayne Brooks. As they waited peacefully for the bus, a group of white youths crossed the road towards them. One of the youths used abusive racist language. This was followed by a sudden and immediate attack, as the group converged on or charged at them. Duwayne Brooks managed to make his escape, but Stephen Lawrence was felled. He was stabbed twice to the upper torso: one wound tracked vertically downwards from 10cm to the right of the mid line, and the second tracked more or less horizontally, but in an upward direction, from the outer aspect of the left shoulder. Major blood vessels were severed. The injuries were fatal. The position and angle of the wounds suggested that Stephen Lawrence was likely to have been upright when the wound to the right side was inflicted, but may have been lying on the ground when stabbed on the left shoulder. Apart from the stabbing wounds, the only further injuries noted at post mortem were an incised injury to the left side of the chin and abrasions to the cheek and the back of the right hand. Mortally wounded, Stephen Lawrence managed to get to his feet. He ran after Duwayne Brooks, but after a little while, he collapsed on the pavement. He died shortly afterwards in hospital.
2.
The murder of Stephen Lawrence, a young black man of great promise, targeted and killed by a group of white youths just because of the colour of his skin, scarred the conscience of the nation. This was indeed a calamitous crime, and to date no one has been convicted of involvement in it.
3.
Stephen Lawrence’s parents began a private prosecution and, in April 1996, Gary Dobson, Luke Knight and Neil Acourt were tried for murder at the Central Criminal Court before Curtis J and a jury. Following the judge’s ruling that purported identification evidence was not admissible, there was insufficient further evidence to justify the continuation of the prosecution. The jury was directed to acquit the defendants. Not guilty verdicts were entered .
4.
This is an application by the prosecution for the acquittal of Gary Dobson to be quashed and for a re-trial to be ordered under
section 76
of the
Criminal Justice Act 2003
. No application to quash the acquittals of Neil Acourt and Luke Knight is before the court, but another suspect, who was not a defendant at the earlier trial, David Norris, was arrested in September 2010 and charged with murder. His trial will take place at the Central Criminal Court in November 2011. If the acquittal of Gary Dobson is quashed and a re-trial ordered, the prosecution propose that he and David Norris will be tried together.
The Background
5.
Within a few hours of the attack on Stephen Lawrence, the police received anonymous telephone calls and letters which suggested that members of a group of white youths were responsible. Five suspects - Neil Acourt, Jamie Acourt, Luke Knight, David Norris, and Gary Dobson – were identified. Dobson (as we shall, for convenience, hereafter refer to him) was then 17 years old. He was living with his parents at 13 Phineas Pett Road in Eltham, very close to the scene of the murder. For present purposes the physical description of the suspects is irrelevant. Arrests were postponed until a number of inquiries had been pursued in an endeavour to gather what the police regarded as real or hard evidence against the suspects. This decision was later the subject of considerable criticism.
6.
During house-to-house inquiries on 25th April, Dobson told the police that from about 5.30pm he had been at home throughout the evening of 22nd April. On the basis of his own later admission that was untrue.
7.
With the police under pressure to make progress, in May and June 1993, at various times, five suspects were arrested. When Dobson was arrested a number of items of clothing were seized from his home. These included a distinctive grey, sometimes called grey/yellow, bomber jacket which was recovered from his bedroom, (LH/5) and a multi coloured Marks and Spencer cardigan found in the wardrobe in his parents’ bedroom. (ASR/2) Although the delayed arrest impacted on the strategies adopted by the scientists when they received these two items of clothing in October 1993, scientific evidence relating to them is now the critical feature in the present application. It will be addressed in detail later in this judgment.
8.
Following his arrest, Dobson was interviewed under caution. He told the police that on 22
nd
April he had left his house at about 11.45pm after his parents had gone to bed to go round to the home of Neil and Jamie Acourt to pick up a Bob Marley CD. While he was there another young man, Mattie White, arrived, and told them all that a boy had been murdered. When he was asked why he had not told the police on 25
th
April that he had been out that night to the home of the Acourts, he responded that he “didn’t find it necessary…”, adding “I know I should have now”. In interview he denied knowing David Norris. He accounted for the grey “bomber jacket”, saying it had been given to him some years before, but that it was “miles” too big for him and that neither he, nor anyone else, had worn it for ages. That assertion, too, is now called into question by the scientific evidence. But at that stage of the inquiry, there was insufficient evidence to justify charging Dobson with any offence.
9.
Following their arrests, Knight and Neil Acourt were charged with the murder of Stephen Lawrence, after each of them was identified on identification parades by Duwayne Brooks as part of the attacking group of white youths. However the reliability of these identifications was called into serious question. On any view Brooks had found himself in a frightening situation, with only a brief opportunity for making a correct identification at night, under artificial light, in a desperately fast-moving incident. Moreover, after he had identified Knight, he himself confirmed to an independent police officer that he had not actually seen the faces of any of the attacking group, but had been given a description of them before he took part in the parades. Accordingly, the prosecution of Knight and Neil Acourt was discontinued. As to Dobson, he was never identified by anyone.
10.
Thereafter, notwithstanding the continuing police investigation, the Crown Prosecution Service concluded that there was insufficient reliable evidence to justify any prosecutions arising out of the attack on Stephen Lawrence.
11.
A second police investigation began in May/June 1994. This investigation, in effect, followed up the information (and it was never any more than that) which suggested that the five original suspects were responsible. During the course of this investigation covert surveillance was carried out at the flat then occupied by Dobson. Video and audio footage demonstrated that apart from Jamie Acourt, who was on remand in custody throughout this period of surveillance, the remaining four suspects were present together on a number of occasions at the flat then occupied by Dobson. All four may have known that they were subject to surveillance, but they were recorded from time to time making racist comments, brandishing knives, and apparently going out into the street carrying knives. Some language used in these conversations was alarmingly and aggressively racist, and some extremely violent gestures were also recorded. Although different things were said by different members of the group, it seems apparent that all were party to this kind of language and behaviour. On the other hand nothing said by any one of them, as recorded on the audio and video probes, involved an express or implied admission of involvement or participation in the attack on Stephen Lawrence. In any event, before the enactment of
the 2003 Act
, this material would probably not have been admissible in evidence: nowadays there is a respectable argument that it should be admitted. That would be a decision for the trial judge in the light of the issues arising in any trial.
12.
At the conclusion of the second investigation, the view of the Crown Prosecution Service was that no sufficient admissible evidence was available to justify prosecution. This was a balanced objective assessment of the forensic realities: the prospects of a successful prosecution were negligible.
13.
Accordingly, perhaps in despair at the inadequacies of the investigative process and the fact that no one had been brought to justice for the murder of their son, members of the Lawrence family decided to start a private prosecution. In April 1995 Neil Acourt, Knight and Norris were arrested, Jamie Acourt was arrested two days later and Dobson was eventually arrested in late August.
14.
Just before Dobson’s arrest committal proceedings against Neil Acourt, Jamie Acourt, Knight and Norris began. At the end of the committal the prosecution did not seek the committal of Jamie Acourt for trial, and the committing Magistrate discharged Norris. Neil Acourt and Knight were committed for trial at the Central Criminal Court on 11
th
September 1995. Following separate committal proceedings against Dobson, in December 1995, he too was committed for trial.
15.
The trial of Neil Acourt, Knight and Dobson began on 16 April 1996. The evidence of Brooks was crucial to the success of the prosecution, but as we have indicated, it was flawed. The question whether his evidence should be placed before the jury was examined in detail at a voir dire. Brooks gave evidence on three days. After hearing argument, Curtis J concluded that his evidence of identification of any of those involved in the attack on Stephen Lawrence was inadmissible. The judgment was impeccable, the reasoning clear, and the conclusion unavoidable.
16.
In very brief summary, there was no true recognition of any assailants at the time of the offence, and although the judge was sympathetic to Brooks, who when all was said and done had been an intended victim of the attackers, he had over the investigations identified three or four different individuals as the main person who attacked Stephen Lawrence. In reality he did not know whether he was “on his head or his heels”. The identifications made by Brooks were open to serious question on the ground that there was no true recognition at the time when the purported identifications took place, and that the identifications thereafter were tainted by the knowledge and information gleaned in gossip and discussion in the locality in the weeks after the murder. To admit this evidence of identification would amount to an injustice, and the injustice suffered by the Lawrence family could not be cured by adding another to the one they were already suffering. The entire judgment of Curtis J is attached to this judgment as Appendix A.
17.
On 25
th
April 1996, the prosecution having considered its position, indicated that without the identification evidence made by Brooks the remaining evidence did not provide a sufficiently reliable basis to enable the jury to infer the guilt of any of the three defendants. That conclusion, too, was inevitable. No further evidence was offered against them. On Curtis J’s direction, the jury entered “not guilty” verdicts. The verdict in relation to Dobson is the subject of the present application.
The statutory criteria
18.
Until Part 10 of the
Criminal Justice Act 2003
(
the 2003 Act
) came into force the ancient rule against double jeopardy represented an insuperable barrier to a second prosecution of any of those acquitted at the Central Criminal Court in April 1996. The rule has been subject to limited statutory abrogation in relation to a number of qualifying offences, of which murder is one.
19.
Section 78
of
the 2003 Act
provides:
“(1) The requirements of this section are met if there is new and compelling evidence against the acquitted person…
(2)
Evidence is new if it was not adduced in the proceedings in which the person was acquitted…
(3)
Evidence is compelling if –
(a)
it is reliable,
(b)
it is substantial, and
(c)
in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.
(4)
The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted…”
20.
Thus “compelling evidence” for the purposes of
section 78
is defined in the section itself. It does not mean that the evidence must be irresistible, or that absolute proof of guilt is required. In other words, the court should not and is certainly not required to usurp the function of the jury, or, if a new trial is ordered, to indicate to the jury what the verdict should be. Our attention has been drawn to the observations of the Vice President, Lord Justice Hughes, in
R v (G), B (S)
[2009] EWCA Crim 1207
where the proposed new evidence, of a co-accused who had been convicted at the original trial, did not satisfy the test of reliability. At para 5 of the abbreviated judgment, the Vice President observed that it is “only where there is compelling new evidence of guilt, of the kind which cannot realistically be disputed, that the exceptional step of quashing an acquittal will be justified”. The purpose of this observation, as para 9 makes clear, was to highlight that the quashing of an acquittal is an exceptional step, which indeed it is, and can only be ordered if the statutory requirement in relation to the “reliability” of the new evidence is clearly established.
21.
However the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of
section 78
it is compelling: otherwise it is not.
22.
Section 79
of
the 2003 Act
addresses the separate question which arises once the court is satisfied that new and compelling evidence as defined by
section 78
is available. It provides:
“(1) The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order…
(2)
That question is to be determined having regard in particular to –
(a)
whether existing circumstance make a fair trial unlikely;
(b)
for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;
(c)
whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition.
(d)
whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.
(3)
…
(4)
Where the earlier prosecution was conducted by a person other than a prosecutor, sub-section (2)(c) applies in relation to that person as well as in relation to a prosecutor.”
23.
The interests of justice test requires attention to be focussed on the express statutory criteria provided in
section 79
, but these criteria, although wide ranging, are not exhaustive. They are partly directed to events during the original investigative and trial process, a requirement designed to avoid delay in the administration of justice as well as inefficiency and lack of direction which might result from a perception that what we shall describe as a second bite of the cherry may eventually become available to the prosecution. Thus if the new evidence relied on by the prosecution would have been revealed for use at the first trial by a competent investigative and/or prosecutorial process, then the interests of justice may, on this ground alone, lead to the application being refused. The interests of justice have also to be addressed in the context of the date when any new trial may take place, with particular emphasis on any failure of due diligence or expedition since the original trial and on the impact of any delay (whether culpable or not) on the fairness of the proposed second trial. However compelling the new evidence may be, it is elementary that any second trial should be a fair one. For this purpose the court will examine all the known facts, and consider any material drawn to its attention on behalf of the potential defendant, including any potentially prejudicial publicity attracted by the case, which may make it “unlikely” that a fair trial can take place.
24.
If this court is satisfied that the requirements of both
sections 78
and 79 are met, the order must be made: otherwise the application must be dismissed (see s77). In the context of the present application it should perhaps be highlighted that the legislative provisions which abrogated the double jeopardy principle make no distinction between an acquittal following a prosecution by the Crown in the usual way, or an acquittal following a private prosecution. This approach to the legislation is reinforced by the continuing power of the Director of Public Prosecutions under
section 6(2)
of the
Prosecution of Offences Act 1985
to take over the conduct of a prosecution begun by a private individual, and thereafter to serve notice of discontinuance, or alternatively, to ensure its more efficient conduct. Accordingly in the present application we cannot apply any less stringent test to the legislative requirements merely because there was no realistic prospect that the private prosecution would succeed.
The issue under
section 78
in this application
25.
The present application depends on the reliability of new scientific evidence which by reference to the grey bomber jacket (LH/5) and the multi-coloured cardigan (ASR/2) closely links Dobson with the fatal attack on Stephen Lawrence. It does not and could not demonstrate that Dobson wielded the knife which caused the fatal wound, but given the circumstances of the attack on Stephen Lawrence, that is, a group of youths in a violent enterprise converging on a young man, and attacking him as a group, it would be open to a jury to conclude that any one of those who participated in the attack was party to the killing and guilty of murder, or alternatively manslaughter (a verdict which would, if there had been sufficient evidence, also have been available at the first trial). If reliable, the new scientific evidence would place Dobson in very close proximity indeed to Stephen Lawrence at the moment of and in the immediate aftermath of the attack, proximity, moreover, for which no innocent explanation can be discerned.
26.
On behalf of Dobson, Mr Timothy Roberts QC, in a meticulously careful submission submits that this evidence is unreliable and of no sufficient probative value, simply because the results of the new examination of Dobson’s clothing are likely to be the product of contamination over the years, that is, by contact with Stephen Lawrence’s blood and his clothing. On this basis, even if the scientific evidence is reliable in itself, the apparent links with Stephen Lawrence are unconnected with Dobson’s presence and involvement at the scene, but rather are the result of outdated or incompetent storage or packaging or transporting arrangements, and therefore they are not probative at all, and certainly not highly probative.
Evidence relating to clothing at the first trial
27.
At the time of the fatal attack, Stephen Lawrence was wearing the following layers of clothing on his upper body:
(a)
A “Raiders” jacket (SP/3)
(b)
A body warmer (SP/4);
(c)
A blue cardigan (SP/2);
(d)
A red polo short (SP/5); and
(e)
A vest (SP6)
28.
After his arrival at hospital, his bloodstained upper clothing was cut from him, the cut being made through all the layers of clothing simultaneously, along the full length of one arm and across the body, and passing over the site of one of the bleeding stab wounds. These clothes were bundled together and placed in a plastic hospital sack (SP/1). His lower garments were also removed, and placed in another hospital sack (SP/7). In due course they were seized as part of the investigative process.
29.
As we have explained, a number of items of clothing were also seized from the home of Dobson during the course of the search at the time of his first arrest on 7
th
May 1993. These were the grey bomber-type jacket with black cuffs and waistline, and bright yellow trim to the pockets and collar, found in a bedroom occupied by Dobson at his home address (LH/5) and an extra large multi-coloured “St Michael” wool cardigan with horizontal patterns found within a wardrobe in his parents’ bedroom (ASR/2).
30.
In the early stages of the investigation, scientific testing was carried out initially by the Metropolitan Police Forensic Science Laboratory and then by the Forensic Science Service. For present purposes nothing turns on the distinction between the two, and for convenience we shall therefore refer to the “FSS” throughout. When the clothing of Stephen Lawrence and the suspects was scientifically examined for the first time by FSS, the view was taken that it was not a worthwhile exercise to search the clothing of the suspects for fibre transfer from Stephen Lawrence’s clothing. Principally that was because of the delay of two weeks between the time of the stabbing and the arrests and seizing of clothing from the suspects. A further reason was that in any event any contact between Stephen Lawrence and his attackers could only have been brief. There was therefore thought to be only a very slim chance that any fibres from his clothing would be found on the clothing of the suspects even if they were involved in the attack. However a search was made for fibres which might have transferred the other way, that is from the clothing of the suspect to his clothing. This process produced only limited results, which can be summarised as follows.
31.
Textile fibres were removed from the inside of the plastic bag into which Stephen Lawrence’s right hand was placed (RC/4). They included two purple/brown wool fibres which were found to have the same microscopic, colour and dye characteristics as constituent fibres found on the multicoloured cardigan (ASR/2) recovered from the bedroom of Dobson’s parents. At the time this was thought to provide no more than “weak support” for the assertion that the two fibres had originated from that cardigan. In addition to the two brown fibres, a single white polyester fibre with the same microscopic characteristics as constituent fibres from the jacket (LH/5) seized from Dobson’s bedroom was found in the right hand bag (RC/2). In addition a single grey cotton fibre with the same microscopic and dye characteristics as the constituent fibres of the jacket (LH/5) was recovered from within the plastic sack (SP/7) into which Stephen Lawrence’s lower clothing had been placed at the hospital. The opinion expressed at the time was that this provided only “very weak” support for the assertion that the white polyester fibre and the grey cotton fibre may have originated from the jacket (LH/5).
32.
The jacket (LH/5) was visually examined for blood, and the then usual KM screening test was carried out. The presence of blood was not detected.
33.
In August 1995 an independent forensic scientist, Dr Gallop, was instructed by the solicitors conducting the private prosecution. She took the view that it was appropriate to look for any fibre transfer from Stephen Lawrence’s trousers to the trousers of the suspects, since the deceased’s trousers were made of a material which could be expected to shed fibres, and the nature of the attack could have involved direct contact between the lower limbs of the attackers and the victim. That examination was carried out, but revealed nothing of significance.
34.
Thus at the time of the unsuccessful prosecution in April 1996, there was no evidence of any transfer of blood from Stephen Lawrence to any suspect, and no evidence of any fibre transfer other than the four fibres, of common types, to which we have already referred. Therefore the scientific evidence at the date of the trial, on its own, failed to produce any link sufficient to place Dobson, or either item of clothing found in his home, at the scene of the fatal attack on Stephen Lawrence. As there was not even a purported identification of him by any witness, there was no case for him to answer.
The investigative process
35.
The investigative process which has culminated in the fresh scientific evidence is long and convoluted. We shall provide a brief narrative account of these events, but first we must make some general observations.
36.
Dealing with it generally, the process of investigating this murder was marred by incompetence. The criticisms are manifold. When the Kent Constabulary investigated the complaint by Stephen Lawrence’s family against the Metropolitan Police on behalf of the Police Complaints Authority, the report which became available in December 1997, concluded that “there were a large number of oversights and omissions which resulted in the murder investigation failing to operate to an acceptable standard.”
37.
The Stephen Lawrence Inquiry chaired by Sir William Macpherson published its report in February 1999, and again identified considerable deficiencies in the initial investigation into the murder.
38.
The Inquiry stated in unequivocal terms that the first police investigation was “palpably flawed and deserves severe criticism” and went on to observe that the second police investigation “could not salvage the faults of the first” investigation. Some of the criticism was directed at the police failure to deal with Brooks in a sufficiently sensitive and unsceptical way. Ample evidence sent to the police in the early stages of the investigation suggested that the “Acourt gang” was responsible for the attack, and that this notorious group was known for carrying knives and threatening behaviour, but there was insufficient police action to ascertain whether supportive information might be obtained from other sources.
39.
There is no advantage in detailing all the many criticisms made of the investigative process by the Stephen Lawrence Inquiry, nor indeed to repeat the criticisms made by others. We must, however, note a police report in March 2001 which was very critical of the handling of the exhibits in the case, and suggested that the record-keeping in relation to the movement of exhibits and their storage made it impossible to vouch for the integrity of each exhibit. Perhaps all the ingredients of the sorry story are encapsulated in the fact that as recently as 2008, a very experienced police officer with a most important role in examining the storage and continuity of exhibits, with a view to rebutting criticisms based on potential contamination, was removed from his post. In response to that removal, he apparently sabotaged the integrity of the continuity chart that he was preparing. In short, therefore, from start virtually to finish, the investigation was bedevilled with difficulty.
40.
There are two questions for us arising from the unhappy history of the investigations into the death of Stephen Lawrence. The first is whether these difficulties in the investigative process, both at the time, and since, as the case has been examined and re-examined, should lead us to doubt the reliability of the findings now made by the forensic scientists’ re-examination of the jacket (LH/5) and the cardigan (ASR/2). The second is to address the possible impact of the history of incompetence in the context of the “interests of justice question” which falls to be considered under
section 79 (2)
(c), that is, whether the absence of this new evidence from the first trial resulted from investigative failings.
41.
It is perhaps worth underlining that the Macpherson Inquiry directed no criticism at the forensic scientists, but rather criticised a number of aspects of the investigation which, as the scientists made clear, made their task more difficult. In the meantime although a number of different investigations of possible new lines were identified, and the murder has been under continuous review until today, the results of these investigations have not produced any new reliable and admissible evidence on which to base the present application, beyond the new scientific evidence which we have been asked to consider. We must now address that evidence, and then having done so, assess it in the light of the submission that the evidence is unreliable as an indication that Dobson was involved in the attack.
42.
Within that general context we shall briefly summarise the history of the scientific investigations. This is largely taken from the Crown’s analysis of the relevant dates and history. These were not challenged at the hearing before us.
43.
The first exhibits submitted by the police were received by the FSS on 28
th
April, 1993, that is before any of the original suspects were arrested. They were accompanied by a narrative account of the attack, and the initial emphasis was on the items recovered from around the scene of the attack as potential weapons to be examined for blood. At that stage in the investigation it was thought that the victim had been struck with a “metal bar or piece of wood”.
44.
Thereafter the results of the searches from the homes of the original suspects were submitted on 15
th
May 1993. At the time it was routine for fibre comparisons to be undertaken, but on 15
th
June, Mr Wain of the FSS indicated that it was “unlikely” that fibres would be found on the suspects clothes as they were not arrested, and the clothing was not seized until two weeks or more after the offence. In any event in view of the history of the attack, and the items of clothing themselves, he was extremely guarded about the possibility of establishing any links between the victim and the suspects. The fibre examination would therefore concentrate on the clothes of the victim to see whether there were any matching fibres from the suspects. In July 1993 the FSS confirmed the view that searching for fibres from the deceased’s clothes on the clothes of the suspects would not be “worthwhile”.
45.
In August 1993, the jacket (LH/5) and the cardigan (ASR/2) were first submitted for examination. On 28
th
October, they were examined by Mr Wain’s assistant, Yvonne Turner, whose work that day also included the examination of a set of exhibits from an entirely unconnected robbery investigation (reference number SW/2746/93). At that time she recorded that no tapings were made in relation to LH/5 and ASR/2 when, as we shall see, the Crown relies on taping examinations of these clothes made at the time. We shall return to this clear discrepancy at a later stage, and consider in more detail the evidence to the tapings in question: AW/47 in relation to LH/5, and AW/44 in relation to ASR/2.
46.
In brief summary, however, the work carried out by the FSS at this stage was to look for any fibres from the suspects’ clothes on the deceased’s clothes and for any evidence of blood on items recovered from the scene, in particular any potential weapons, and on the clothing recovered from the suspects. The search for blood involved, in accordance with standard practice at the time, screening with chemicals and a visual examination, with the naked eye, but only involved the use of a low power microscope in relation to specific areas such as seams. No blood was found on any of the potential weapons, and such blood as was found on the clothing could not have come from Stephen Lawrence. The outer clothing of Stephen Lawrence was examined for fibres which may have come from the suspects, but, as we have seen, the exploration/assessment of possible transfer of fibres from Stephen Lawrence’s clothing to the suspects was not believed to be a worthwhile exercise because of the lapse of time between the attack and the seizure of the items of clothing. This was in accordance with accepted research at the time.
47.
Over the years greater experience and increased knowledge and expertise have produced incremental improvements in the way in which questions of this kind are examined and scientists have reconsidered the way in which they should be conducted. In 2006, a re-investigation of a number of historic or “cold” cases, including this one, began. The new strategy began with an examination, by a new team of scientists from LGC, of the FSS tapings made of Stephen Lawrence’s outer clothing for evidence of any paint which could have been transferred from a scaffold pole recovered from near the scene. This examination exposed a series of connected findings which culminated in the discovery of the new evidence. Dealing with it shortly, during the examination of the FSS taping (AW/2) from Stephen Lawrence’s jacket (SP/3) a significant number of red fibres were observed. One possible source of these red fibres was the red polo shirt (SP/5) worn by Stephen Lawrence underneath his jacket and his cardigan. Similar red fibres were also found on a taping (AW/5) taken from his green corduroy trousers. Before these discoveries the red polo shirt (SP/5) had not been considered as a possible source of fibre transfer, just because it was worn beneath Stephen Lawrence’s outer clothing. However the discovery of the red fibres led to an examination of AW/47, the FSS taping of the jacket (LH/5), which revealed seven pink/orange fibres and four red/orange fibres which also matched fibres in the red polo shirt (SP/5). From these a search was made for any other fibres from Stephen Lawrence’s clothing on the FSS tapings of other items of the clothing of the original suspects, and two green/blue acrylic fibres on AW/47, and three more on AW/44, the tapings from ASR/2 were found, which matched the fibres in Stephen Lawrence’s clothing. As the testing proceeded, one particular test using an instrument which provides an objective assessment of the colour returned a result from a component normally associated with the presence of blood on one of the pink/orange fibres found on AW/47, the tapings from the jacket (LH/5) which matched the fibres in the red polo shirt (SP/5). This led the investigation to reflect on the possibility that there might be blood on the jacket (LH/5) notwithstanding the negative results for blood when the item was examined on earlier occasions, and indeed when it was first screened for blood in the initial stages of the new investigation.
48.
In earlier days it had not been standard practice in relation to the examination of blood and fibres to examine debris which may have fallen off any exhibits within the bag in which the exhibit was sealed. The debris which had been collected by LGC from the original exhibit bag containing the jacket (LH/5) was also now examined, and this led to the discovery of tiny flakes of blood in the debris. One of the blood flakes had two blue acrylic fibres embedded in it. These fibres matched fibres in Stephen Lawrence’s cardigan (SP/2). Testing of the flake containing the fibres and other blood flakes from the same debris in the original exhibit bag produced DNA profiles matching Stephen Lawrence. Thereafter attention switched back to the jacket (LH/5) itself. As the earlier examinations using techniques which were still standard up to 2006 had not produced any positive results, it was decided that the garment should be subjected to a comprehensive wholesale microscopic search. It was this examination which revealed a tiny blood stain on the back of the collar that had absorbed into the weave of the fabric, from which an almost full DNA profile matching Stephen Lawrence was obtained. The more extensive examination also revealed further adhering tiny blood flakes in other places on the jacket. A partial DNA profile, again matching Stephen Lawrence was obtained.
49.
Thereafter the FSS taping made in autumn 1993 of the jacket (LH/5) was re-examined. More tiny blood flakes were then discovered, although when DNA testing was carried out, the result was inconclusive.
50.
In summary, the revelation of the material which is now relied on by the Crown resulted from careful re-examination of available material using different techniques, and following up each new result as and when it became available to see whether new techniques might produce yet further fresh evidence. We shall summarise the results.
The new evidence concerning clothes found at Dobson’s home
The grey jacket (LH/5)
(a) A tiny blood stain was found on the exposed part of the collar when the collar is folded down. The stain is very small indeed, with a visible area of 0.5mm x 0.25mm. It was partly soaked into the white yarn of the fabric with some thicker parts on the surface, and heavy in the centre. It had a different overall appearance to the flakes adhering to the grey polyester outside surface. An almost full DNA profile matching Stephen Lawrence was obtained. (1:billion).
(b) 43 blood flakes were also found, mostly on the grey fabric on the outside of the jacket, but also on a part of the inner padded lining of the jacket, which was exposed when part of the outer material was cut away in the course of the scientific examination in the 1990s. These flakes adhered to the jacket as discrete flakes, and were not absorbed into the weave. Some of the fragments have been tested and have been identified as blood, and the others which have not been tested appear to be blood. By aggregating a number of fragments it has been possible to obtain an incomplete DNA profile matching the DNA profile of the deceased (1:500).
Tapings from LH5 made during the course of the original investigation (AW/47)
(a) Flakes or fragments were found on the tapings taken from the outer surface of LH/5 which gave a positive reaction for blood when tested, but without providing any conclusive DNA profiling.
(b) Four rare red-orange polyester fibres and seven quite common pink-orange cotton fibres, all of which were microscopically indistinguishable from the fibres in Stephen Lawrence’s polo shirt (SP/5) were found on the tapings.
(c) One of the pink-orange fibres gave a spectrum result which corresponded to a bloodied fibre from SP/5, and was more likely to have produced that result due to the presence of blood than because of colour variation.
(d) Two quite rare green-blue acrylic fibres which were microscopically indistinguishable from the fibres in the cuffs/waistband of Stephen Lawrence’s jacket SP/3 were found.
(e) Five grey cotton fibres of no probative significance were also found.
Debris from the original packaging of LH/5, collected by LGC during the recent investigation.
(a) A taping of debris from the inside of the original bag of LH/5 revealed an apparently neat blood fragment encasing two blue acrylic fibres. The blood fragment was found to have an almost full DNA profile matching Stephen Lawrence (1:billion). One fibre was a quite rare long blue acrylic fibre which entered and exited the blood fragment. The other was a shorter blue acrylic fibre, also quite rare, which was encased within the blood fragment and only discovered when the fragment was broken open. These fibres must have come into contact with the blood when it was wet. Both these fibres are similar to each other, and could have come from SP/2, Stephen Lawrence’s blue cardigan.
(b) Fragments of blood were found within the debris. Three of these were combined and found to have a full DNA profile matching Stephen Lawrence (1:billion).
(c) One red-orange polyester fibre of a rare type which is microscopically indistinguishable from the fibres in the deceased’s polo shirt (SP/5) was found inside an exhibit bag which had been used to repackage LH/5.
The new evidence concerning the multi-coloured cardigan (ASR/2)
Taping taken from ASR/2 during the original examination (AW/44).
(a) A single flake was found on this taping which gave a positive reaction for blood. Three quite rare blue-green acrylic fibres microscopically and instrumentally indistinguishable from the cuff/waistband of the deceased’s jacket (SP/3) were found.
Taping taken during original investigation from Stephen Lawrence’s jacket (SP/3) (AW/2)
Three common blue wool fibres which could have come from ASR/2 were found of this taping. However the significance of these fibres is debatable because ASR/2 is made up of so many colours and shades of wool that there must be a greatly increased chance of finding matching wool fibres on an item selected at random compared to finding a wool fibre from an item which contains only one shade of wool.
Taping taken during the original scientific examination from Stephen Lawrence’s trousers (SP/8) (AW/5)
One common turquoise blue fibre was found on this taping which was microscopically and instrumentally indistinguishable from the same fibres in ASR/2.
We shall not repeat the findings which were before the court in 1996.
51.
Expert evidence produced by the prosecution summarises the significance of these new findings in relation to the jacket (LH/5). The findings in relation to fibres provide:
“Extremely strong scientific support for the assertions that the evidential fibres found within the material recovered from the grey jacket (LH/5) originated from the clothing of Stephen Lawrence, rather than being due to chance matches…the numbers of matching fibres present on the jacket are …higher than one might expect if they were from secondary transfer and far more so than if they were due to a tertiary transfer…the presence of the fibres provides at least moderately strong scientific support for the assertion that they arrived as a result of primary contact with the clothing of Stephen Lawrence rather than having arrived by an indirect route.”
52.
Addressing the new findings in relation to blood and fibres together:
“The simplest explanation is that the wearer of the jacket was involved in the attack and the blood and fibres that were found were what remained of the evidential material transferred…it is extremely unlikely that blood just happened to fall upon or come into contact with fibres already transferred to the jacket, and far more likely that the blood stained fibres found were transferred to the jacket in an already bloodied state. If collectively or individually they did not arise from primary transfer, the blood, the blood-stained fibres and the un-bloodied fibres (in the number and range of types found) would all have had to have been deposited by some indirect route or routes, involving contact with the jacket when some of the blood at least was still wet…when considered in combination, the explanation that blood, bloodstained matching fibres and non-bloodstained fibres deposit by secondary transfer is, in my opinion, an unlikely explanation for the evidence that has been found. The evidence is even less likely to have been found if it is proposed that the fibres were acquired by the jacket during a secondary transfer event and the blood and bloodstained fibres by a separate transfer event…the combination of blood/DNA and fibres provides extremely persuasive evidence to link the wearer of the grey jacket (LH/5) to the attack itself and/or to contact with the perpetrators soon afterwards.”
53.
The possible conclusions in relation to ASR/2 are more limited. In particular, although the finding in relation to the three green-blue acrylic fibres provides strong scientific support for the proposition that the fibres originated from SP/3, and moderate scientific support for the assertion that they were transferred as a result of primary contact between the two items of clothing, the findings in relation to the three blue wool fibres and the one turquoise fibre lack significance because ASR/2 contains so many colours and shades of wool.
54.
These new findings, relating to garments which can be linked to Dobson are crucial to the present application. The question is whether they have revealed items of blood flakes and blood stains and fibres which demonstrate that Dobson was in very close proximity to Stephen Lawrence at or in the immediate aftermath of the fatal attack, or whether some reasonable alternative explanation for them, either as a result of contamination, or the absence of sufficient security against the risk of contamination, or the consequence of the process of the original examinations and tests themselves may be available. It is virtually self-evident that this is substantial highly probative evidence of the involvement of Dobson in the killing of Stephen Lawrence, provided, and it is a very important proviso, it is established that it is reliable, not so much in the sense that the integrity or competence of the current scientific conclusions may be open to question, (which has not been contended before us) but, much more important, that the findings may be explicable on some reasonable alternative basis, such as possible contamination, even if entirely inadvertent and accidental. In essence, this is the core of the submissions by Mr Roberts, and he relies on the fact that none of the material now relied on was found during the course of the long history of investigations and examinations of the jacket (LH/5) and the cardigan (ASR/2) over the years.
55.
His submission is illustrated by reference to a specific feature of the case, that Dr Gallop, when she conducted her investigation for the purposes of the first trial, had said that the polo shirt (SP/5) was not a suitable source for the transfer of fibres because it was an undergarment, and that the jacket (SP/3) was not made of material which would be expected to retain fibres. Now, Mr Roberts pointed out, the Crown asserts that the polo shirt (SP/5) shed fibres on to the deceased’s outer garment to such an extent, and his jacket (SP/3) retained those fibres to such good effect, that no fewer than eleven fibres from SP/5 are said to have been transferred to the jacket (LH/5) found in Dobson’s bedroom. That he suggests is inherently implausible. The more realistic explanation, he submits, is to be found in the way in which the exhibits have been handled over the many years since the jacket (LH/5) was seized by the police.
56.
We must examine the submissions made by Mr Roberts in sufficient detail to explain them, and our understanding of them, but we shall not prolong the judgment by reference to the many hundreds of pages of material which we have examined.
57.
Mr Roberts began by making a general submission about the way in which the exhibits in this case were packaged. He pointed out that the long-established practice of packing exhibits in paper bags sealed with sellotape is out of date, and in the context of a case which has continued over many years, is inherently unreliable. With the passage of time, the sellotape loses its adhesive quality and the result is that the seal of the bag will eventually break, either in full or in part. When that happens all or part of the bag may gape open, and thus an opportunity for tiny particles to enter into it and come to rest on the exhibit within is provided. As the exhibit bag is handled and moved about, the break in the seal may be caused to gape and then to close, so it is impossible to predict when the seal has failed, or whether it has failed: much may depend on the precise type of sellotape used for the purpose, and the temperature of the room in which the bag sealed by the sellotape is stored. There was no system for periodic inspection or renewal of the sellotape seals. There is no industry standard which suggests the appropriate period for which sellotape should be regarded as providing a reliable seal for a paper bag. The failure of a seal may only be identified after it has failed, by when, it will already be too late to preserve the integrity of the exhibit contained in the paper bag.
58.
Mr Roberts supported this submission by drawing our attention, first, to an internal police report prepared by Detective Chief Superintendent Webb, which referred to a problem he had raised with the forensic scientist, Mr Wain, namely “that of the deterioration of the packaging of the clothing exhibits…the original sellotape seals used when the items were seized in 1993 had become so ineffective, that in Adrian Wain’s view, in the event of alien blood cells being found on the suspects’ clothing in any subsequent examination, he would be unable to rule out the possibility of contamination having occurred at the point of storage”. Mr Roberts came to the report of the review of the exhibits carried out by DC Sloper in 2001. This review documented a number of exhibit bags which were not securely sealed. Thus the sack (SP/1) was sealed and secure, but of the exhibit bags within it, those containing both the cardigan (SP/2) and the jacket (SP/3) of the deceased were “open at sellotape seal line”: so too was the exhibit bag containing the multi-coloured cardigan (ASR/2).
59.
Mr Roberts addressed the prevailing view during the 1990s that once a scientific examination had been completed, it was no longer of great importance to handle the exhibits carefully. Thus, by way of example, he suggested that the handling of exhibits at court paid little or no heed to the necessity to preserve the integrity of the exhibits for the future, and to avoid the risk of fibres or other debris being shed into the exhibit packaging, or even on to another exhibit. He pointed to the particular feature that the unsuccessful prosecution in 1996 was conducted privately, with the result, he suggests that there can be no confidence that the proper procedures were followed, or at any rate no sufficient confidence that they were.
60.
Mr Roberts moved to the evidence that exhibits were “over bagged”. In short, this means the placing of one or more wrapped exhibit into a larger bag or sack for ease of transport or storage, which clearly happened in this case, without any attempt to avoid mingling wrapped exhibits from more than one source in the same sack. It is, however, important in this context to underline that each of the exhibits within the larger bag or sack would itself continue to be wrapped in its own individual bag. Mr Roberts highlighted a number of risks, and the scientists who gave evidence before us agreed with him that they included: the possibility that the seal of an exhibit bag might fail; or without proper procedures, that even a sealed exhibit bag may bear on its outer surface fibres or fragments of blood which have fallen from the exhibit before it was packaged and sealed. Movement of the packages within the larger bag may then cause such fibres or fragments to be dislodged from the outer surface of one bag and to land on another bag; if the seal of the second bag happens to have failed, so that it is open, fibres or fragments might enter it and come to rest on the exhibit within, or indeed fall into the debris, with the result that an entirely spurious finding might then arise; and finally, even if the seal of the second bag is intact there is an opportunity, in the event of inappropriate exhibit-handling, for the exhibit to pick up fibres or fragments from the outer surface of its bag.
61.
Mr Roberts went on to submit that there was clear evidence to indicate that from time to time poor practice was adopted or inadequate care taken with the handling of exhibits. The particular examples, which go beyond the general account of incompetence to which we have already referred included:
i)
The Macpherson Report noted that one exhibit had been lost altogether, in circumstances which were condemned as “unforgivable”.
ii)
In the later 1990s Kent Constabulary investigated a complaint against the Metropolitan Police in relation to this case, and thereupon took possession of all the exhibits. Once they were returned to the Metropolitan Police, a review found that 14 items could not be traced; 56 items were present which had not been recorded an at earlier stage; and the Kent Constabulary had returned over 300 exhibits in five boxes without any form of continuity documentation.
iii)
The Sloper Report in 2001, which set out the impossibility of vouching “for the integrity of each exhibit”, although the Report went on to conclude “that in the vast majority of incidents in this case the integrity of the exhibits is sound and strong rebuttal of any alleged contamination can be made. There being very few occasions when exhibits have been co-mingled, and where they have, most of the exhibit packaging has been sealed and secured. The only doubt I had is what happened to the exhibits at the private prosecution”.
iv)
The photographs showing that two exhibits were in turn removed from their packaging and placed onto the same piece of carpet in order to be photographed, a demonstration of a clear opportunity for the exhibit which was photographed second to pick up fibres or fragments from the exhibit which had been photographed first.
62.
Mr Roberts concluded this part of his submission by reminding us of the actions of the officer engaged in conducting a detailed review of the exhibits, who following his arrest for an incident of disorder while on holiday, was removed from the case, and deliberately altered some of the computerised records. Mr Roberts underlined that no one can know how extensive the alterations were, because only the officer himself knows for sure.
63.
Turning to particular matters highlighted by Mr Roberts, particular emphasis was placed by him on the potential contamination arising from what happened at hospital. Naturally the concern of the hospital staff was to do everything possible to save Stephen Lawrence’s life. The process of cutting away the upper clothing from his body would have released fibres from each of the garments, and blood (wet at that stage but later dry) would have fallen from any of those garments which were bloodstained. Therefore the plastic sack (SP/1) into which all the upper clothing was placed would have contained within it a potent source of material which could be transferred onto another exhibit if proper exhibit-handling procedures were not observed. If that occurred, it would be a matter of chance which fibres were transferred: thus the recipient garment might end up bearing fibres from all or any of the Stephen Lawrence’s upper garments. Mr Roberts reinforced his point by noting that Stephen Lawrence’s cardigan (SP/2) was so heavily bloodstained that at a much later stage it was used as a source of dried blood flakes for some recent scientific investigation. Turning from the general observations, he made a specific submission in relation to the important bloodstain on the jacket collar (LH/5) and the fragments of blood or apparent blood recently found on that jacket. He suggests that the finding of blood fragments on the inner lining of the padding of the jacket, an area which would not have been exposed at the date of the fatal attack, and was exposed by later being cut open in the laboratory, clearly shows that the blood fragments must have come onto the jacket at a later date than the time of the fatal attack. The suggested explanation is that the presence of these fragments is an artefact of Phadebas testing on the jacket itself.
64.
Dealing with it as briefly as we may, Phadebas testing is a test for the presence of saliva. The test is performed by wetting the garment which is to be tested and placing on to it a sheet of paper which has been treated with a reagent. The paper is then covered with a sheet of glass, on to which weights are placed. The paper is then examined at intervals for the staining which is displayed if saliva is present. This testing process was carried out in relation to the jacket (LH/5), not as part of the initial scientific examination of the jacket, but at a much later date. Mr Roberts makes the point that no blood was found on the jacket before the Phadebas test was carried out, but blood was found on it afterwards.
65.
A series of detailed experiments were carried out to see how fragments of blood behave if they are present on a garment which has been made the subject of the Phadebas test. They show that when dampened the fragments resolubilise and acquire a gel-like consistency which can cause them to adhere to the surface of the garment. On this basis the possible explanation for the presence of the 43 fragments of blood or apparent blood on jacket (LH/5) is that fragments of dried blood have come on to it after its initial examination, having been resolubilised when the jacket was dampened for the purpose of the Phadebas testing, and so they adhered to the garment. That possibility was accepted by Mr Edward Jarman, an expert called before us by the Crown, and we did not understand the Crown to argue to the contrary.
66.
It is the next stage in the submission which is perhaps more important. Mr Roberts submitted that the tiny blood stain on the collar of the jacket (LH/5) may also be an artefact, produced in a similar way. Mr Jarman accepted that he could not exclude that proposition as a scientific possibility, because the situation was complex with a number of variables, and he was unable to discern the precise composition of the bloodstain. He was however able to say that the blood had soaked into the collar, and therefore the blood which caused the stain appeared to have been deposited when wet. In detailed experiments he had been unable to produce a similar stain: resolubilisation of a dried blood fragment did not in his experiments reproduce or mimic the tiny stain found on the collar. Thus the experiments which did show that the fragments of blood or apparent blood on the jacket could be an artefact of the Phadebas testing did not produce such a result in relation to the bloodstain on the collar. Mr Jarman therefore maintained the view expressed in his written statement (which stood as his evidence in chief for the purposes of this hearing), that the bloodstain on the collar was in a different category to the fragments of blood or apparent blood on the jacket, and while he accepted the scientific possibility that the collar stain, too, could be an artefact of the Phadebas testing, he thought it unlikely. He expressed his conclusion in strong terms. The collar stain was “far more likely” to have the characteristics which he observed if it was related to the fatal attack than if it was a consequence of the Phadebas testing.
67.
Mr Roberts attached significance to the fact that there was no stain on the jacket (LH/5) which could indicate the earlier presence of a spot of blood which had fallen off and thereby created the fragments of blood which subsequently adhered to the jacket. This, he submitted is a feature which is consistent with the view that the fragments of blood recently found on the jacket (LH/5) are the result of cross-contamination. However we were told by Mr Jarman that when a spot of blood dries and falls off a garment, the scientists will not always find any visible stain or other trace that it has been there. He also told us that the total amount of blood present on the jacket was very small. The aggregate quantity was such that all the 43 fragments could have had their origin in a spot of wet blood on the collar, some of which had fallen off when dry, thus producing the tiny fragments of blood loose within the exhibit bag as well as the small stain on the collar.
68.
The other specific target at which the submissions by Mr Roberts were directed was the tapings AW/47. We must begin with a slightly more detailed history. On 28
th
October 1993 Mrs Turner worked both on the present case, and on an unrelated case of armed robbery. This was the only date on which she was engaged working on both these cases. The FSS reference for the present case was M/1595/93; the reference for the armed robbery was SW/2746/93. In the robbery case there was neither an exhibit LH/5 nor an exhibit ASR/2. Although Mrs Turner examined fibres in the robbery case, they were not of the same type as the fibres with which the present case is concerned. On that day Mrs Turner made handwritten notes of her examinations of LH/5 and ASR/2. However her handwritten notes were initially marked by her with the case reference SW/2746/93, plainly a clerical error, and later corrected by over-writing the reference M/1595/93. There is no evidence before us about precisely when this was done, but there is clear evidence, undisputed for present purposes, that it had been completed by July 1995 when the notes were sent to Dr Gallop prior to the private prosecution.
69.
In the body of her notes relating to the two garments, Mrs Turner recorded in each case that she had taken a fibre sample, but also wrote down in each case “no tapings made”. She later compiled a “fibre examination sheet” relating to these and other exhibits, which she told us she produced by referring to her examination notes, so unsurprisingly, this sheet repeated the record in relation to both LH/5 and ASR/2, “no tapings made”. All those documents were checked at the time by Mr Wain, and he did not notice that any error had been made.
70.
As we have already indicated, Mr Wain had taken the policy decision that it would not be worth looking for any sign of fibre transfer from the deceased’s clothes to the clothing of the suspects, and he acknowledged in his evidence before us that a decision not to take any tapings from either LH/5 or ASR/2 would be consistent with that policy decision. However, notwithstanding the policy, and despite having written the words “no tapings made” in her notes, Mrs Turner’s evidence was that she did take tapings from both garments. Unfortunately, she repeated her clerical error by giving AW/47, tapings from LH/5, the case reference SW/2746/93. At a much later stage, when Mr Wain was looking for AW/47 he found AW/47 not in the file relating to the present case, but rather in the file relating to the armed robbery.
71.
Mrs Turner accepted that her contemporaneous notes record an unequivocal statement which is the exact opposite of her evidence, and she accepted that it was an aberration for her have made the notes she did when she had in fact taken tapings from both garments. Mr Wain was referred to a note he made in 2001 in which he expressed the conclusion that LH/5 was taped in 1995. He told us that he could not now remember why he had expressed that conclusion which he no longer believed to be correct. He felt that he had been trying to reconcile Mrs Turner’s note of “no tapings made” with the fact that Dr Gallop undoubtedly did examine AW/47 in 1995, so he had assumed at that time that the tapings had been taken then.
72.
We do not underestimate the difficulty for the Crown in proving that the tapings AW/47 were taken on 28
th
October 1993. What however is clear is that on that date clerical errors were made, and so (subsequently) were filing errors, in the sense that AW/47 was found not in the file relating to the present case (to which it undoubtedly related) but in relation to the armed robbery. The evidence of both Mrs Turner and Mr Wain was to the clear effect that if the tapings had been taken at some later date, that is later than 28
th
October 1993, there would have been a separate record of what she had done, and that the incorrect case reference from AW/47 is only explicable on the basis that she had been working on both cases at that date. It seems to us highly likely that Mrs Turner did indeed take the tapings AW/47 on 28
th
October 1993, but in any event, our decision overall is not exclusively based on the current scientific findings in relation to AW/47.
73.
We have examined Mr Roberts’ submissions in the light of the evidence before us, which includes a Report on the continuity and integrity of significant exhibits dated March 2011 by DS Taylor. The officer has examined every detail of the available evidence about these exhibits. The result of his work has been submitted to another witness, Mrs Hammond, who has specifically considered all the criticisms and suggestions made by Mr Roberts on behalf of the respondent about how and when cross-contamination between exhibits may have occurred. For this purpose she assumed the worst-case scenario in relation to matters which were not the subject of clear evidence. Her overall conclusion was that she accepted there had been a number of hypothetical opportunities for cross-contamination to have occurred, but on detailed examination the risk of such cross-contamination was so remote that it could safely be excluded. We have considered all her written and oral evidence together with each of the factual situations to which she has referred, but it is unnecessary and inappropriate to recite the details in this judgment.
74.
We take one example. It was pointed out on behalf of the respondent that when the jacket (LH/5) was returned to the police by the FSS in November 1995, it was over-bagged with the deceased’s jacket (SP/3). Mrs Hammond accepted the hypothetical possibility that blood flakes and fibres could have been present on the outside of the bag containing SP/3, could then have been transferred to the outside of the bag containing LH/5, and then could later have come on to exhibit LH/5 itself. But, having conceded this as a hypothetical possibility, she explained that it is so unlikely that, in practical terms, this sequence of events is effectively impossible. There would have had to be a surprising combination of events, each of which, on its own, was unlikely, and any such contamination in or after November 1995 would be a remarkable coincidence having regard to the findings on the tapings (AW/47).
75.
More generally, Mrs Hammond gave evidence that she can see no
realistic
possibility of contamination in relation to tapings having occurred in this case or that the new evidence was affected by cross-contamination. The new evidence is mainly based on tapings taken in the laboratory, tapings which are secure, and so the only period which needs to be considered is the period before they were taken. The possibility of transfer between the packages is extremely remote because if there was anything on the outside of the packaging it would only remain there for a limited period, and on every occasion the package is handled, a proportion of any such material would be lost, so reducing yet further the possibility of a later transfer. Dealing with it generally, we accept the evidence of Mrs Hammond and her conclusions.
76.
We would simply add that the answers given by Dobson when he was first questioned about the jacket (LH/5) were not merely that he had not been wearing it at the scene of the fatal stabbing, but that no one had worn it for ages. On this account, the combination of improbable coincidences required for the suggested “accidental” contaminations would have had to have occurred in relation to a garment which, according to Dobson himself, had not even left the home of its owner for a long time. That seems a remote possibility.
77.
In summary, therefore, we accept the evidence of Mrs Hammond that there has been no realistic opportunity for cross-contamination to have occurred in a way which would or could affect the new evidence, and this evidence is highly probative of the conclusion that the fibres and blood to which we have referred were indeed present on the jacket (LH/5) and the cardigan (ASR/2) because those clothes were worn by a person or persons who were in very close proximity to the attack on Stephen Lawrence rather than as a result of some later contaminating event or events. We also accept Mr Jarman’s evidence that none of his experiments with resolubilisation reproduced a stain such as that found on the collar of LH/5, and while we respect his view that there is a scientific possibility which cannot be excluded, we are also satisfied that his evidence as a whole is highly probative of the conclusion that the explanation for that stain does not lie in resolubilisation. In effect therefore we accept the Crown’s contention that the new scientific evidence provides reliable evidence that both the jacket (LH/5) and the cardigan (ASR/2) were being worn by an individual or individuals who participated in the attack on Stephen Lawrence.
78.
Stripped to essentials, it comes to this. On the jacket found in Dobson’s bedroom (LH/5) there were small blood flakes providing an incomplete DNA profile with Stephen Lawrence, and a very small bloodstain on the collar which provided a match of 1: billion. Within the package in which that jacket was contained, a blood flake with another DNA match of 1: billion, encasing two blue fibres linked with Stephen Lawrence’s cardigan, deposited while the blood flake was at least partially wet, were found, together with a fibre linked to Stephen Lawrence’s red polo shirt. The jacket was placed within the package and we have not found a shred of evidence to suggest that any other object was placed in the package at any time. We recognise the more limited conclusions which may be drawn in relation to the cardigan found in Dobson’s parents’ bedroom, but they are at the very lowest, consistent with the links between the jacket and Stephen Lawrence. However, viewed cumulatively, even allowing for the contentions advanced by Mr Roberts, this provides formidable evidence.
79.
The potential significance of the material which we have examined can be readily understood. Is the newly discovered evidence reliable, substantial, and highly probative of the Crown’s allegation that Dobson was a party to the attack on Stephen Lawrence? The new evidence demonstrates that the answer to that question is that there is a high probability that he was. Assuming that a new trial is ordered, it would be for the jury to decide whether his guilt was established to the criminal standard of proof, and if so whether of murder or manslaughter. For this purpose it would no doubt consider all the relevant and admissible evidence, including the clear and direct lie apparently told by Dobson when he was first asked to account for his movements on the fateful evening. On his own admission to the police when formally interviewed, that was untrue, but that falsehood was of relatively minor significance compared to the significance of the falsehood which would have been uttered if the jury were satisfied that the scientific evidence demonstrated that Dobson was indeed one of the group of assailants who attacked Stephen Lawrence.
The “interests of justice” under
section 79
Publicity
80.
There can be no doubt that this case has attracted an unusually high level of media attention. We have been supplied with a vast volume of material based on media references to the murder of Stephen Lawrence. We doubt whether very many individuals, other than those directly involved in this case, will have seen this encyclopaedic volume, and in relation to newspaper cuttings, each entry will have formed part of the entire newspaper and lacked the stark impact of an article standing on its own. It is possible to discern a number of reasons why the case has continued to attract public interest. In part it is because every decent individual in this country (whatever his or her racial background) had come to hope that racism with such desperate consequences had been eradicated from our society. It is caused in part by the overwhelming wave of public sympathy for the parents of Stephen Lawrence and the dignified way in which they have endured the disaster that has overtaken them. And it is also caused in part because, for whatever reason, no one has been brought to justice for a killing which occurred on the streets of London. Nothing reported by the media before the trial was open to criticism, and as far as we know the reporting was not criticised before or at the trial before Curtis J and the jury at the Old Bailey. Similarly, no real criticism can be directed at the reporting of the trial process or the verdicts. However the reality is that once the defendants were acquitted, the rule against double jeopardy meant that there was no prospect of a second trial for the acquitted men, and as a matter of reality, no realistic prospect of any trial of the remaining two of the original suspects. There was no reason at all for any newspaper or television company to be circumspect in its reports and comments, or, subject only to the laws of defamation, to hold back from expressing robust views about the case, or the investigative process, or even the identity of those believed to have been involved in or responsible for the death of Stephen Lawrence. The enactment of
the 2003 Act
, as we have explained, abrogated the rule against double jeopardy, and in the strictly limited situations identified by
ss 77
and 78 of
the 2003 Act
, the court was vested with jurisdiction to quash an acquittal and order a new trial. By then, however, the case was more than a decade old, and until recently there was nothing to suggest that evidence might emerge which could bring this particular case within the ambit of the new statutory arrangements. Indeed the overwhelming proportion of material drawn to our attention entered the public arena before 2002.
81.
News “spikes” have continued since the collapse of the prosecution in April 1996. Particular features which re-ignited media attention took place in February 1997 when the five original suspects gave evidence at the inquest into the death of Stephen Lawrence, in June 1998 when all five attended the well known Macpherson Inquiry, and again in February 1999 when the Inquiry’s report became available; in April 1999 when the five suspects gave television interviews, denying any involvement in Stephen Lawrence’s death, and in the case of Dobson, also gave a radio interview; in Spring 2000 a BBC Crimewatch programme about the case attracted a further “spike”; in July 2006 BBC Television broadcast a documentary about the five suspects entitled “
The Boys Who Killed Stephen Lawrence”
; in November 2007 there were reports of a forensic breakthrough in the case, and in July 2010 further reports were published about recent developments in the investigation.
82.
Quite apart from these “spikes” the Daily Mail, which appears to have taken a particular interest in this case, alleged in express terms on 14 February 1997 that the five suspects were “murderers”, directly accusing them of involvement in the murder, and challenging them to sue for libel if the allegations were wrong. The same headline appeared on the front page of the Daily Mail on 27 July 2006, immediately after the broadcast of the documentary
The Boys Who Killed Stephen Lawrence
.
83.
Mr Roberts identified two strands to the publicity, the first of which involved allegations of discreditable or criminal conduct or facts connected with one or other of the original suspects detrimental to them, and the second, expressions of opinion that they, or some of them, were indeed responsible for the attack on Stephen Lawrence and guilty of his murder. He suggested, too, that some of the publicity followed a deliberate attempt to attract publicity to the work that was being done by those responsible for the new investigation, LGC. We have examined the material with the submission in mind, and accept that without over-compartmentalisation, the strands identified by Mr Roberts are clear, and, that the deliberate attempt to seek publicity at the time (whether by LGC, or someone else) was inappropriate.
84.
The issue is stark. The question is not whether the publicity over the years was wise or ill-advised, but whether now, or at the date when the new trial, if ordered, would take place, the impact of that publicity would make a fair trial unlikely. Mr Roberts submitted that the effect of the publicity would be to prejudice any future juror, perhaps without the juror in question even appreciating that he or she had unconscious prejudice against any of the original suspects. The effect would be insurmountable. Mr Mark Ellison QC for whose equally careful submissions we are no less indebted, accepted that over the years there had been publicity for the case which was potentially prejudicial to the suspects, but he argued that the difficulties identified by Mr Roberts could and would be dispelled by appropriate judicial direction, in a trial in which the emotional aspects of the case would quickly give way to the practical reality that the jury would have to concentrate on the new scientific findings, the circumstances in which they were made, and the weight to be attached to them in the light of the defence case that post-incident contamination could not be excluded.
85.
If Mr Roberts is right, whatever new evidence may emerge, however powerful it may be, neither of the two original suspects who have not faced trial could ever face trial, nor could any of the three original suspects who have been tried and acquitted, be made the subject of a successful application for the acquittal to be quashed and a new trial ordered. That is because, on Mr Roberts’s contention, any further trial, however carefully managed, regardless of the directions given by the judge, would be unlikely to be fair. In effect therefore, if he is right, the publicity over the years has now created an ineradicable prejudice against them with the result that they have been immunised against the risk of prosecution. That would indeed be a remarkable result.
86.
Our conclusion is a matter of impression based on a careful analysis of the material which contains the potentially prejudicial publicity and ultimately judgment. Among the potential jurors there are bound to be many who will have memories about this case and about the killing of this particular young man in the street, and many of them will be alert to the unrequited anguish of his parents and his family. Some are likely to have an abiding impression that no one has yet been brought to justice, and to that extent, that justice has not been served. A few may remember that some in the media have asserted that the original five suspects were responsible for Stephen Lawrence’s death and therefore guilty of murder. In short, as in
Montgomery v HM Advocate
[2003] 1 AC 641
:
“…the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible.” (per Lord Hope of Craighead)
That however does not decide the question.
87.
In his speech Lord Hope went on to analyse the safeguards which in such cases are provided to ensure the objective impartiality of the trial, the trial process itself and the conduct of the trial by the judge. He described how:
“On the one hand there is the discipline to which the jury was subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollection as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think appropriate to give them as the trial proceeds…the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”
88.
The same approach was adopted by Lord Phillips CJ in
R v Abu Hamza
[2007] 1 Cr App R27 at 371 where he acknowledged:
“Prejudicial publicity renders more difficult the task of the court, that is of the judge and the jury together, in trying the case fairly.”
However he continued:
“The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial.”
89.
The report includes detailed extracts of the approach of the trial judge, Hughes J (as he then was) which may be of assistance to the trial judge in the present case.
90.
The final consideration in our assessment is to repeat the feature of trial by jury identified in
Re B
[2006] EWCA Crim 2692
:
“…which is sometimes overlooked or taken for granted…that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibilities. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court…we cannot too strongly emphasise that the jury will follow (appropriate directions), not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.”
91.
Having reflected carefully on the submission made by Mr Roberts, we have concluded that a fair trial can take place, or putting it another way, that the vast publicity relating to this particular case is unlikely to render the subsequent properly conducted trial unfair.
Delay
92.
We have described the processes undertaken in 1993, and how this new evidence has come to light. The delay is significant, but we can find no real prejudice to the proper preparation and conduct of the defence arising from the delay. As to whether the new evidence could have been adduced in the earlier proceedings, although we accept that there was an absence of diligence or expedition in the earlier part of the investigations, we have explained why and how the new evidence emerged, and are satisfied that even with proper diligence, the evidence which has now become available would not have been appreciated at that time.
Conclusion
93.
The application by the Director of Public Prosecutions for an order to quash the acquittal of Gary Dobson on 25
th
April 1996 will be granted, the acquittal will be quashed and a new trial will be ordered.
94.
We shall hear submissions about the terms of the order, and the way in which this judgment should be published. | [
"MR JUSTICE HOLROYDE"
] | 2011_05_18-2742.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1255/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1255 | 728 |
6df296e88f5268201942bc91358b9ecd9e5628aa6b29829653fed0f630ee4c53 | [2017] EWCA Crim 2065 | EWCA_Crim_2065 | 2017-11-01 | crown_court | No: 201702896/A2 Neutral Citation Number: [2017] EWCA Crim 2065 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 1 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GREEN HIS HONOUR JUDGE AUBREY QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v IAN MATTHEW JAMES HARVEY - - - - - - - - - - - - - - - - - - - - - Mr I Bridge appeared on behalf of the Appellant Ms E Marshall appeared on behalf of | No:
201702896/A2
Neutral Citation Number:
[2017] EWCA Crim 2065
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 1 November 2017
B e f o r e
:
LORD JUSTICE HOLROYDE
MR JUSTICE GREEN
HIS HONOUR JUDGE AUBREY QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
IAN MATTHEW JAMES HARVEY
- - - - - - - - - - - - - - - - - - - - -
Mr I Bridge
appeared on behalf of the
Appellant
Ms E Marshall
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992
), or where an order has been made in relation to a young person.
1.
LORD JUSTICE HOLROYDE: This is an appeal by leave of the single judge against a sentence of 2 years' imprisonment for an offence of causing death by careless driving, contrary to
section 2
B of the
Road Traffic Act 1988
.
2.
The appellant was approaching his 23rd birthday at the time of the offence. He was a craftsman engineer, serving in an Engineers Regiment, well regarded by his officers and with a promising military career ahead of him. He was effectively of previous good character.
3.
On the night of 5th December 2015 the appellant was driving his Ford Fiesta on an unlit country road, near to his home, which he knew well. His girlfriend was with him in the front passenger seat and another friend was seated in the rear of the car.
4.
Leaving a village, and moving from a speed limit of 30 miles per hour to a limit of 50 miles per hour, the appellant overtook a vehicle driven by a witness, Mr Jones. Mr Jones, himself in the course of moving up from the lower to the higher of the two relevant speed limits, estimated the appellant's speed at about 65 miles per hour. About a mile-and-a-half further along the road there was a slight left-hand bend, on an incline leading to a small bridge. The appellant lost control of the Ford Fiesta whilst negotiating that bend. His car moved from left to right, putting him onto the wrong side of the road, and he collided almost head on with an oncoming Ford Focus. The impact caused the Ford Focus to spin through 180 degrees. The Ford Fiesta, driven by the appellant, came to rest along a grass embankment and caught fire. Mr Jones came upon the scene. He heard the appellant saying: "It's all my fault". To his credit, the appellant did what he could to assist those in the Ford Focus.
5.
A police officer who attended the scene was told by the appellant that his steering had gone light on the crest of the hill and that the accident was all his fault. When later formally interviewed he made no comment.
6.
The driver of the Ford Focus was Mr Mark Hayward. His principal physical injuries were two fractured ribs, a fractured vertebra and fractures of two bones in his left foot. His wife, Christine Hayward, was in the front passenger seat. She suffered a sprained left ankle, bruising to her left leg and bruising caused by her seat belt. In the rear passenger seat were Mark's brother, Anthony Hayward, and Anthony's wife, Susan Hayward. Anthony Hayward suffered multiple fractures and dislocation to his right hip. His wife Susan, very sadly, suffered multiple injuries from which she died at the scene.
7.
There were also serious injuries to those in the Ford Fiesta. The appellant's girlfriend suffered a crush fracture of a vertebra. The rear seat passenger suffered a broken collar bone, four cracked ribs and bruising. In terms of physical injuries the appellant himself was the person least seriously hurt. He suffered a cut to his face.
8.
The physical injuries, however, were of course only part of the harm caused by this offence. We have seen victim personal statements, composed some 18 months after the collision, by the three who survived the collision in the Ford Focus. Their statements set out in powerful terms the continuing psychological and emotional consequences which they have suffered. Their continuing grief over the death of Mrs Susan Hayward is starkly apparent. They suffer disturbed sleep. They have frequent distressing flashbacks and memories of the collision. They find that they cannot talk about the incident or about the deceased, even amongst themselves, without breaking down.
9.
Anthony and Susan Hayward had been together for more than 40 years since they were teenagers. He speaks in his statement of his isolation and of his continuing anguish that his own need for medical treatment meant that he could neither be with his wife at the time of her death, nor be near his brother, who was treated at a different hospital. Other evidence before the court makes it clear that Mrs Susan Hayward was a much-loved member of a large extended family and is mourned by many people.
10.
So it is that a fatal collision such as this ends one life but brings injury and harm to many others. It must be remembered that the appellant too has suffered. Although his physical injury was, as we have said, minor, it is apparent from the evidence we have seen that he too has suffered continuing psychological and emotional consequences. It seems that for a time he tried to bottle things up, but was eventually referred to the mental health team because he was showing the signs of post-traumatic stress disorder. We recognise that he must live with the knowledge of the harm that he has caused. We have seen evidence of his genuine remorse, which we accept. We are aware that he has written a letter of apology to the bereaved and expressed his willingness to apologise to them in person if they wished to speak to him.
11.
The appellant was initially charged with causing death by dangerous driving and with two offences of causing serious injury by dangerous driving. There was an unsuccessful application to dismiss the charges, on the basis that the evidence could not show dangerous driving. An alternative charge of causing death by careless driving was added to the indictment and on 6th September 2016 the appellant pleaded guilty to that lesser offence. The trial of the three charges alleging the element of dangerous driving was adjourned to a date in May 2017. At that trial, before Her Honour Judge Williams and a jury in the Crown Court at Maidstone, the jury returned not guilty verdicts. On 26th May 2017 Her Honour Judge Williams sentenced the appellant, for the offence to which he had pleaded guilty, to 2 years' imprisonment. She ordered that he be disqualified from driving for 3 years.
12.
In his evidence at trial the appellant had accepted that he was driving in excess of the 50 miles per hour speed limit, though not by very much. He said that although he did not know his exact speed, it would have been up to perhaps 60 miles per hour. His two passengers, who unsurprisingly did not look specifically at the speedometer, did not express any concern or anxiety either at the time or at trial about the speed or manner of the driving.
13.
Mr Jones had given the evidence to which we have referred about the appellant's speed a mile-and-a-half before the collision. There was in addition expert evidence from a police officer trained in accident reconstruction. His evidence was to the effect that the speed must have been in excess of 70 miles per hour, because the evidence of those who witnessed the collision indicated that the wheels of the Ford Fiesta had left the road surface.
14.
Mr Bridge, on behalf of the appellant, tells us that it was his submission to the jury, which he repeats to us, that if the appellant's speed had really been well in excess of 70 miles per hour, that would have surely been apparent to and commented upon by the passengers in the Ford Fiesta.
15.
The judge in her sentencing remarks rejected the appellant's evidence as to his speed. She said that, in the light of all the evidence given at trial, she was satisfied that his speed had been in excess of 70 miles per hour and that the reason why his steering had, as he said, "gone light", was because the wheels of the Ford Fiesta had left the surface of the road. Mr Bridge, in his written submissions, challenges that finding.
16.
The learned judge made clear, as of course do we, that the sentence of the court in a case such as this cannot, and is not intended to, compensate the bereaved for the loss of their loved one. The judge acknowledged the matters of mitigation which the appellant was able to put forward. In addition to those matters we have already mentioned, there were impressive testimonials from the appellant's officers and from others who spoke very highly of him.
17.
The judge however also noted that the appellant was familiar with the stretch of road where the collision occurred. At page 2G of her sentencing remarks she said that:
"The speed at which you were driving was very irresponsible behaviour. The consequences of your driving have been devastating for a large number of people, including you and your family."
She referred to the Sentencing Guidelines Council's Definitive Guideline on sentencing in offences involving the causing of death by driving. There is a specific guideline for the offence of causing death by careless or inconsiderate driving. That guideline indicates three categories of offence. Mr Bridge submitted to the sentencing judge, and submits to us, that this offence could properly be categorised in the middle category as "other cases of careless or inconsiderate driving". The learned judge however accepted the prosecution's submission that the circumstances of the case came within the most serious category, namely, "careless or inconsiderate driving falling not far short of dangerous driving". For such an offence the guideline indicates a starting point of 15 months' custody, and a sentencing range of between 36 weeks and 3 years' custody.
At page 3B the learned judge said:
"The aggravating factor present is the serious injury that was caused to two other people in the Hayward car and two people in your car. The mitigating factor is your previous good character.
I take into account that this conviction and sentence will almost certainly bring your career in the Army to an end. This, in my judgment, was a very bad case of causing death by dangerous driving."
We observe that there was clearly a slip of the tongue on the learned judge's part in the last words of that passage.
18.
The learned judge concluded that the appropriate sentence, after a trial, would have been one of 3 years' imprisonment. Giving full credit for the early guilty plea she imposed the sentence of 2 years' imprisonment which is the subject of this people. The order for disqualification is only appealed to the extent that it may fall to be reduced if the appeal against the sentence of imprisonment succeeds.
19.
The grounds of appeal are first, that the learned judge was wrong to place the offence at the top end of the guidelines. Mr Bridge, in his written grounds, argues that the jury's verdicts were an indication that they had either rejected the prosecution allegation of greatly excessive speed, or had accepted the defence evidence that the appellant was only exceeding the speed limit by a comparatively narrow margin. He submits that the carelessness was not the worst of its type, and the case should have fallen into the middle bracket of the guidelines.
20.
Secondly, Mr Bridge submits that the learned judge gave insufficient weight to the combined effects of the features of mitigation, namely the appellant's apology and acknowledgement of fault at the scene; his good character; his good previous driving record; the impact on his military career; the delay in the matter coming to trial; his actions at the scene in assisting to rescue those trapped in the Ford Focus; his remorse and shame; and the effect of the incident on his mental health.
21.
In her written submissions on behalf of the prosecution, to which she has added brief oral submissions today, Ms Marshall submits that the jury's verdict indicates no more than that they could not be sure that the appellant's driving fell far below the standard to be expected of a competent and careful driver. It was not possible to treat the jury's verdicts as an acceptance of the defence case that the speed limit was only marginally exceeded. She points out that evidence as to speed was an important part of the prosecution case, but was not the only issue. Overall, she submits that the offence was properly placed within the top category of the guidelines, the judge being entitled to conclude that the driving fell not far short of dangerous driving and to raise the starting point. The judge was entitled to accept the evidence that she did as to speed, and she was entitled to give significant weight to the very serious injuries caused to others in the two vehicles.
22.
Ms Marshall points out that the learned judge specifically acknowledged the features of mitigation, but she had to weigh those against the aggravating feature which has been identified.
23.
No pre-sentence report was before the court but none was necessary either then or at this stage, the court being in a position to know all relevant matters about the appellant.
24.
It is suggested to us today by Mr Bridge that there is at least a possibility that a successful outcome to this appeal might carry with it the prospect of the appellant being able to resume the military career which has come to an end. Mr Bridge did not press this point, frankly acknowledging that there was little further information he could give. We think that we must work on the basis of the written evidence that we have from the appellant's former regiment, which indicates that, in determining whether his military career could continue, no exceptional circumstances had been found to depart from the normal consequence of discharge from the Army upon conviction of a road traffic offence involving death, and that the length of the custodial sentence was not taken into account in making that decision.
25.
We think it right to work on that basis not only because that is the only clear evidence before the court, but also because it does seem to us to be an important aspect of the appellant's mitigation to take into account that by his conduct he has brought upon himself, amongst other consequences, the loss of a promising military career.
26.
We have reflected upon the submissions of counsel. We cannot accept the submission that the jury, because they found the appellant not guilty of dangerous driving, must have accepted the evidence that he was only exceeding the speed limit by a modest margin. By their verdicts the jury indicated that they were not sure that the standard of the appellant's driving fell far below what was expected of a competent and careful driver. But it is not possible to treat that as an indication that they accepted that the manner of his driving fell only a little below that standard.
27.
In any event, the learned judge had heard all the evidence, including of course that of the appellant himself and his passengers, and she carried the responsibility of making her own findings as to the appellant's culpability, provided of course that those findings did not conflict with or go behind the jury's verdicts. We have no doubt that the evidence which she had had heard entitled her to make the findings she did as to speed and as to the irresponsibility of the driving, and those findings were not in any way inconsistent with the verdicts.
28.
As to the appellant's mitigation, we have already indicated that strong points were available to him, including the heavy penalty of the ending of his military career. There is however no reason to doubt that the learned judge took all those factors into account. She had to weigh them against the aggravating factor which is identified in the Sentencing Guidelines of "serious injury to one or more persons in addition to the death".
29.
Here, there were serious injuries to Mark and Anthony Hayward, and when the psychological and emotional consequences are taken into account, we would describe their injuries as "very serious". Three other persons were injured to an extent which, in our view, could either fairly be referred to as "serious injury" or would not fall far short of that description.
30.
The judge had to balance and weigh those aggravating and mitigating features, and in accordance with her duty under
section 125
of the
Coroners and Justice Act 2009
she had to follow the Sentencing Guideline unless satisfied that it would be contrary to the interests of justice to do so. She concluded that after a trial it would not have been necessary, in the interests of justice, to go above the sentencing range but that the appropriate sentence would lie at the top of that range.
31.
Mr Bridge submits that there was really nothing about the case to take it above the guideline starting point. He submits that a fair balancing of the aggravating feature of injury to others and the personal mitigation available to the appellant, should have led the judge to that conclusion, or to a conclusion that the starting point should only be increased by a short period. We are unable to accept that submission. The level and extent of injury caused to others, as well as the death of Mrs Susan Hayward, was a very serious aggravating feature of the offence. The judge, in our view, was entitled to reach the conclusions she did. She adopted a correct approach to the sentencing exercise and, in our judgment, it cannot be said that she failed to give due weight to the mitigating features.
We recognise, of course, that the sentence of 2 years' imprisonment is a difficult one for the appellant and a heavy penalty for this terrible incident of careless driving. In our judgment however, it was not manifestly excessive. This appeal accordingly fails and is dismissed. | [
"LORD JUSTICE HOLROYDE",
"MR JUSTICE GREEN"
] | 2017_11_01-4092.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2065/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2065 | 729 |
21419f279f7a6dd845d15ff904193aa8dc4908768c8ef19dfeaf8cd544d777c9 | [2016] EWCA Crim 2271 | EWCA_Crim_2271 | 2016-12-20 | crown_court | Neutral Citation Number: [2016] EWCA Crim 2271 Case No: 201602009 C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 20 December 2016 B e f o r e : LORD JUSTICE SIMON MR JUSTICE JAY HIS HONOUR JUDGE MOSS QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMES (AKA CHRISTOPHER) ISSAN (AKA ARUNDELL) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the | Neutral Citation Number:
[2016] EWCA Crim 2271
Case No:
201602009 C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 20 December 2016
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE JAY
HIS HONOUR JUDGE MOSS QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
JAMES (AKA CHRISTOPHER) ISSAN (AKA ARUNDELL)
- - - - - - - - - - - - - - - - - - - - -
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 B Shaw
appeared on behalf of the
Appellant
Mr A Pearson
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
LORD JUSTICE SIMON
: On 8 April 2016, following a trial before Mr Recorder Boothby and a jury at Peterborough Crown Court, the appellant was convicted of an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. He had previously pleaded guilty to two charges of possession of Class A drugs with intent to supply and a further charge of handling stolen goods. On 18 May he was sentenced to a term of 4 years' imprisonment on the wounding charge with which this appeal is concerned, and consecutive sentences totalling 2 years for the other offences. He appeals against his conviction with the leave of the single judge.
2.
The appellant was a drug dealer and the complainant, Kathryn Watkins, was a drug user. The appellant provided both Ms Watkins and her partner, a man named David Kinlan, with Class A drugs. The appellant had lived at Ms Watkins' address for six weeks until she had asked him to leave towards the end of June 2015.
3.
At about 8.50 pm on 10 August 2015 she was walking with Mr Kinlan in Peterborough when she noticed a man loitering close by. She ran away and was chased by him. At some point she fell and was stabbed twice. She was taken to hospital and required stitches for a 1-centimetre wound to her lower left back and a 2-centimetre wound to her left buttock. She told the police at the hospital that she did not know who had stabbed her. A few days later, she contacted the police to make an appointment but did not keep it. However, coincidentally, the police went to her home on 16 August looking for the appellant. They showed her a picture of him and she said, "That's the person who stabbed me." This was the first time she had named the appellant as her attacker.
4.
The appellant was arrested and interviewed on 22 October. He accepted that he knew Ms Watkins but did not recollect knowing Mr Kinlan. When asked about the stabbing of Ms Watkins he gave "no comment" answers and refused to participate in an identification procedure, since he said Ms Watkins would pick him out. A VIPER identification procedure was conducted on 4 November and Ms Watkins identified the appellant as the man who had stabbed her on 10 August.
5.
The prosecution case was that the appellant and Ms Watkins had parted on poor terms when he left her home, and that he was the man who had stabbed her. The prosecution relied on the evidence of Ms Watkins and her identification of the appellant as the man who attacked her; the appellant's previous convictions, which were admitted on the basis that he had attacked Ms Watkins' character; his failure to mention facts in interview later relied on; and the evidence of Mr Kinlan, the nature of which was equivocal and the manner of giving it characterised by the recorder in a way which founds one of the grounds of appeal.
6.
It was the defence case that the appellant had not been in Peterborough at the time of the attack and that Ms Watkins had maliciously misidentified him as her attacker. The defence relied on the appellant's evidence to the jury, Ms Watkins' antecedent history associated with her addiction to drugs, and the fact that she failed immediately to name the appellant, a man she was later to say she knew as her attacker. The main issue for the jury was whether they were sure that it was the appellant who had stabbed Ms Watkins thereby wounding her.
7.
Kathryn Watkins gave evidence that about one and a half months before the attack the appellant had lived at her address for about six weeks. He had moved a girl into her home without her permission and had refused to leave when she had asked him to. She had managed to evict him with the help of friends and there had been resulting tension between them. On 10 August 2015 she had been at home with her partner, David Kinlan, with whom she lived. Mr Kinlan, who had himself been to prison, was controlling and threatening and she had had a panic button installed at her address as a consequence. She had left home with Kinlan at about 8.30 pm to visit a friend. It had been starting to get dark but there was still some light.
8.
They had cut across a grassed area behind a Jobcentre when Kinlan had spotted a suspicious-looking man and told her to run. She had seen a person who appeared to be hiding behind a sign. She did not know who it was as he was too far away, but began to run. At some point she had looked back and seen the appellant chasing her. He was no more than 6 or 7 feet away. She had been able to see his face and had instantly recognised him as they had spent a lot of time together. She had looked around again and seen him before she had tripped and fallen on all fours, at which point she had been stabbed twice. When she got up, the appellant had gone past her.
9.
She had also seen a man riding a bicycle about 12 feet away, although he did not ever get any closer. She recognised this man as someone she knew as "Littles", a friend of the appellant's. She had run away as fast as she could and then noticed blood spraying from her left buttock and realised that she had been stabbed. A taxi driver stopped and called an ambulance. At this point Kinlan had joined her. While they waited for the ambulance he had told her not to grass and not to ruin his reputation.
10.
She accepted that she had lied to the police at the hospital when she said that she did not know who had stabbed her. She had lied because Kinlan had told her to and she had been scared of repercussions. After she was discharged from hospital she returned home with him and Kinlan had repeated that she should not grass. A few days later she had spoken to a friend and decided to tell the police who had stabbed her.
11.
She was cross-examined about this account. She accepted that she was a Class A drug user and had been drinking a can of Polish beer just before the incident. This had been her first drink of the day and she had drunk a quarter of a can. It had been starting to get dark. She accepted that she had been frightened and that the incident had been of short duration. She had quickly glanced back several times at the man who was chasing her and had recognised the appellant. She had been facing downwards when she fell and had not seen the actual stabbing and the appellant had run away quickly. She had not seen him from the back.
12.
She had not, she said, been mistaken in her recognition, nor had she deliberately misidentified the appellant as her attacker after being shown his picture by the police. When she had seen the appellant he had been wearing a "covered jacket thing that he always wore". It had a hood but his face had been clear the whole time. This was later referred to as a "hooded puffer jacket". She agreed that she had not told the taxi driver that it was the appellant who had attacked her, and she accepted that, at the time she had spoken to the taxi driver, Kinlan had not yet warned her not to grass.
13.
David Kinlan gave evidence that he had seen Ms Watkins being chased by two people and had seen the attack. He had been about 30 yards away at the time and had not clearly seen what had happened. He had not discussed with her whether she should speak to the police or not. In cross-examination, he accepted that he knew the appellant and would have likely recognised him if he had been the attacker. Towards the end of his evidence, the recorder asked him if he believed that it was wrong to "grass on people". The witness laughed and said, "I can't answer that question," and later, "I don't like to answer that question. No."
14.
The appellant gave evidence in his defence. He told the jury that he knew Ms Watkins well as he had stayed with her. She had given him an hour to leave the address and he may have taken longer to leave than that. This had been the only issue between them. He may have been in Slough on the day of attack, but was certainly not in Peterborough. He had been evasive in interview because he had been taken aback by the allegation.
15.
That, in broad terms, was the evidence before the jury.
16.
The recorder summed up the case, and the first ground of appeal relates to his summing-up of how the jury should approach the evidence of Ms Watkins that she had recognised the appellant as her assailant. We should say at once that, even allowing for this being a short trial, the recorder's summing-up was marked with an informality of manner and a lack of clear structure which would not have helped the jury. This is illustrated by his failure, at least initially, to direct the jury accurately as to the burden of proof. The recorder misspoke in a way he would not if he had written out his directions for the jury. We note, however, that Mr Shaw, who was not trial counsel but who appears on this appeal on behalf of the appellant, does not pursue this complaint. In our view, he was right not to do so, since the recorder corrected himself when he returned to the burden and standard of proof shortly thereafter and gave a proper direction in relation to both.
17.
Mr Shaw is, however, critical of the summing-up in relation to the
Turnbull
direction: see
R v Turnbull
[1977] QB 224
. This is a direction which must be given in a case where the prosecution relies wholly or substantially on evidence of identification or recognition, as this case was. Mr Shaw submitted that the jury needed to be directed on a number of specific matters. First, of the special need for caution before convicting on the basis of the evidence of recognition; secondly, the reason for this, that people have been wrongly convicted in the past on the basis of this type of evidence; thirdly, that a convincing witness can be a mistaken witness; and fourthly, of the circumstances in which the witness purported to recognise her assailant, as matters which went to the reliability of her identifying him as someone she knew.
18.
As to this last point, Mr Shaw pointed out that in the present case it was an unexpected attack. Ms Watkins had not recognised the assailant before she had started to run. She had glanced at her assailant at a time when it was getting dark and had not seen his face as he made off. In any event, her evidence amounted to a few fleeting glances over a relatively short time, in doubtful light, and a recognition of someone whom she had not seen recently and who was wearing a hood when she saw him. Mr Shaw's complaint is that some of these material matters were mentioned but not others, and some of those that were mentioned were given a gloss by the recorder which undermined the full and necessary force of the
Turnbull
direction.
19.
We have looked carefully at this part of the summing-up with these points in mind. The recorder began by introducing the direction as if it were a matter of common sense and repeated the reference to common sense later in the course of this part of the summing-up. However, he also (1) warned the jury twice of the need for caution about Ms Watkins' evidence ("You must be careful about what Ms Watkins is saying" and later "Be careful because mistakes are made"); (2) he directed them that people had made some extraordinary mistakes when it comes to recognising people, including "astonishing mistakes" in relation to people who are well known; (3) he directed them about the care they needed to take about the circumstances in which she came to recognise the appellant as her attacker, the distance he was from her, the lighting at the time, the circumstances (she was running away and was very frightened) and that she had been drinking. He did not specifically direct the jury that a convincing witness can be a mistaken witness.
20.
For the Crown, Mr Pearson submitted that these directions were sufficient. He submitted on the basis of
R v Nash
[2004] EWCA Crim 2696
that the precise form of the
Turnbull
direction is less important as long as the full force of the direction is given, and that the summing-up must be tailored to the facts of the case and be expressed in a way which most assists the jury. He observed that in
R v H (Buick Wildcat)
[2008] EWCA Crim 3321
the judge had omitted giving as the reason for the need for caution in relying on identification evidence that miscarriages of justice had occurred. The court held at paragraph 26 that the direction was sufficient in that case, although it would have been better to state in terms the reasons for special caution.
21.
He also submitted that in the Privy Council case of
France and Vassell v The Queen
[2013] Crim. L.R. 237, the importance of the full sense and spirit of the
Turnbull
direction being given was emphasised. In that case, the judge did not refer to the fact that a mistaken witness might be a convincing witness, and this was not held to amount to an error sufficient to render the conviction unsafe. Mr Pearson pointed out that either of these two omissions, if thought to be material, could and should have been drawn to the recorder's attention at the conclusion of the summing-up so that he could put them right.
22.
We have considered these submissions. The recorder in the present case did not avail himself of the Crown Court Compendium, which gives guidance how to direct a jury in cases where identification or recognition is in issue. If he had done so, and if he had given careful thought about the structure of the
Turnbull
direction, the points relied upon by Mr Shaw would not have arisen, and nothing we say in this judgment should be regarded as anything other than an encouragement to use the published guidance on the
Turnbull
direction adapted to the facts of the particular case. In our view, the summing-up was deficient in failing to point out that even honest witnesses may be mistaken about recognising someone, and in suggesting that the risks of misidentification should be regarded as a matter of common sense. On the other hand, as we have noted, the recorder warned the jury twice to be careful about the recognition evidence, and that "extraordinary mistakes" can be made when it comes to recognising people. He also warned them that they needed carefully to consider the circumstances in which Ms Watkins came to recognise her assailant, and set out those circumstances.
23.
In our view, this part of the summing-up read as a whole exposed the jury to the full force of the dangers which the
Turnbull
direction seeks to address. We should add that Mr Shaw was critical of the recorder referring to the fact that Ms Watkins, according to her, knew the appellant as well as any two people know each other and had no difficulty recognising him. We see no objection to this observation. The appellant had agreed that he knew her well and the recorder was describing her evidence about her knowing him. This took place before the warning that he gave subsequently about recognition evidence.
24.
This was the recognition of someone she saw on more than one occasion at close range. It was someone who was chasing her and it was someone she had cause to know well. For these reasons, we reject the first ground of appeal.
25.
The second ground is founded on the recorder's observation about Kinlan's evidence:
"He seems to be a subscriber to the philosophy of the street, never grass to the police, so he's not really been much help one way or the other. I would just ignore Kinlan, he's no help to us at all".
In our view, this observation should not have been expressed in the emphatic and peremptory manner that it was. Although it may have been justified, it was for the jury to weigh his evidence and not for the recorder to direct them to ignore it. However, he had told the jury that the facts were their province and it was their view about the evidence that was important.
26.
Thirdly, it is argued that the recorder was wrong to tell the jury that Ms Watkins had given "a good reason" for the delay in her identification of the appellant to the police. The complaint here is about the word "good": she had certainly given a reason for the delay and had been challenged about it; whether the reason for the delay was a good one was a matter for the jury. The reason was good if they accepted Ms Watkins' evidence, which they plainly did.
27.
Like the single judge, we are not persuaded that this amounted to a misdirection.
28.
In our view, Mr Shaw has identified errors in the summing-up which should not have occurred and which in the case of the
Turnbull
direction could have been avoided if more care had been taken. We are not, however, persuaded that the errors were such as to render the conviction unsafe, whether taken individually or cumulatively.
29.
Accordingly, the appeal must be dismissed. | [
"LORD JUSTICE SIMON",
"MR JUSTICE JAY",
"HIS HONOUR JUDGE MOSS QC"
] | 2016_12_20-3887.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/2271/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/2271 | 730 |
759396d7c260dc37ade4faa0f2fc74e39d329f1427f406ab2ea4b1a6f5b11371 | [2019] EWCA Crim 1263 | EWCA_Crim_1263 | 2019-07-11 | crown_court | Neutral Citation Number: [2019] EWCA Crim 1263 2019/00488/A3 , 2019/00596/A3 & 2019/00638/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 11 th July 2019 B e f o r e: LORD JUSTICE SINGH MR JUSTICE NICOL and SIR JOHN ROYCE ____________________ R E G I N A - v - MOHAMMED ALI MOHAMMED MASHUK AHMED SYED ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 | Neutral Citation Number:
[2019] EWCA Crim 1263
2019/00488/A3
,
2019/00596/A3
&
2019/00638/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 11
th
July 2019
B e f o r e:
LORD JUSTICE SINGH
MR JUSTICE NICOL
and
SIR JOHN ROYCE
____________________
R E G I N A
- v -
MOHAMMED ALI
MOHAMMED MASHUK
AHMED SYED
____________________
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.
__________________________
Miss L Tsiattalou
appeared on behalf of the Appellant Mohammed Ali
Mr S Reevell
appeared on behalf of the Appellant Mohammed Mashuk
Mr W Martin
appeared on behalf of the Appellant Ahmed Syed
Mr J Talbot
appeared on behalf of the Crown
______________________
J U D G M E N T
(Approved)
______________________
Thursday 11
th
July 2019
LORD JUSTICE SINGH:
1.
These are three appeals against sentence brought with the leave of the single judge.
2.
On 26
th
November 2018, following a trial in the Crown Court at Blackfriars, the appellants were each convicted of one count of fraudulent trading, contrary to
section 993 of the Companies Act 2006
(Ali and Mashuk on count 1 and Syed on count 2). Ali and Mashuk were acquitted on count 2; Syed was acquitted on count 1. Count 3 (also fraudulent trading) was ordered to lie on the file in the usual terms. On 17
th
January 2019, they were each sentenced by Her Honour Judge Sullivan to 28 months' imprisonment.
3.
The background facts can be summarised as follows. The prosecution arose out of a Trading Standards investigation into malpractice at a group of letting agents trading under the name of
Crestons. Sitting behind that trading name were various companies including Sirs London Limited ("SLL") and Sirs Associates Limited ("SAL"). Mashuk and Ali carried on the business of SAL for a fraudulent purpose by failing to protect tenancy deposits, as required by law, by taking rent from tenants and failing to pay it to the landlords, and by failing to refund tenancy deposits to landlords or tenants at the end of the tenancies. They also took holding deposits from prospective tenants which, on at least one occasion, they failed to return.
4.
Syed carried on the business of SLL fraudulently in a similar manner, except that there were no known examples of holding deposits being taken and not returned. There was one instance of a reservation deposit being taken for a property purchase (against the express wishes of the property owner), which was not returned in full to the prospective buyer.
5.
Over the period covered by count 1, which involved Mashuk and Ali, tenants and landlords, from whom statements were taken, were defrauded to a value of £29,500.92. In respect of count 2, which concerned Syed, the value of the fraudulent activity was £71,290.84. The figures represented money owed that was never passed on, but did not include sums of money paid in commission for services that were not supplied or the cost to complainants of engaging lawyers to enforce their rights.
6.
Ali was appointed as the director of SAL from its incorporation on 6
th
March 2012. Mashuk was appointed as company secretary from 28
th
August j2012. A petition to wind up SAL was presented to the High Court on 8
th
May 2015, and the company was placed into liquidation on 3
rd
November 2015. Syed was appointed company secretary of SLL from the point of its incorporation on 7
th
March 2012 and he remained in that position until 9
th
March 2012. A petition to wind up the company was made on 14
th
July 2015, and the company was placed into liquidation on 14
th
September 2015.
7.
Although the companies traded under the banner of "Crestons", the precise identity of the company entering into contractual arrangements with tenants and landlords was unclear. On Crestons' business documents the same three addresses appeared, regardless of the identity of the registered company, so the same addresses appeared on SAL papers as for SLL papers. On occasion, no registered company name would be given, in breach of the
Companies Act 2006
and the
Companies (Trading Disclosures) Regulations 2008
. This appeared to be deliberate and many consumers did not know which company they were dealing with. It was the prosecution case that creating confusion or uncertainty about a trader's identity was a hallmark of a rogue trader, used in an attempt to avoid detection, liability and consumer redress.
8.
Each of the appellants had responsibility for managing the business at one of the three addresses out of which Crestons operated.
9.
On 15
th
April 2015, a Trading Standards Officer, Ms Manning, attended at Crestons office in Islington as part of a wider project to visit all letting agents in that borough to ascertain whether they were compliant with the law. Ms Manning spoke briefly with Syed, but he said that he was too busy to speak and that she would need to make an appointment. Syed was provided with leaflets giving advice about the need for the business to display information about its ownership and fees, guidance on holding deposits, and the requirement to joint a redress scheme.
10.
A visit was eventually arranged for 16
th
June 2015. Syed was asked questions about the ways in which SLL treated holding and tenancy deposits. He claimed that holding deposits were passed to the landlord. This was untrue, as it was later revealed that such deposits were never passed to the landlords by SLL or SAL.
11.
Since 2007 landlords or agents taking a deposit for an Assured Shorthold Tenancy have been required to protect it in one of three schemes and to inform the tenant of the scheme protecting the deposit. Syed said that SLL did not take tenancy deposits and it was the responsibility of the landlord to use a tenancy deposit protection scheme. However, the copy of Crestons' Terms and Conditions supplied to Ms Manning stipulated that Crestons and not the landlord would place the tenancy deposit in a holding scheme which would be protected with the Tenancy Deposit Scheme
("TDS"). In fact, SLL was not a member of any of the three statutory schemes, which were My Deposits, TDS and the Deposit Protection Service. The claim in the Terms and Conditions document was false.
12.
SAL was a member of the My Deposit scheme from 21
st
August 2012 until 3
rd
March 2014 when its membership was terminated because it could not produce a balance on the client account which was equal to or greater than the amount of deposits registered with the scheme.
13.
Although a few deposits were protected by SAL, no tenant was given any information about where the deposit was protected. The protection was only notional, as SAL retained the money. SLL applied to join the My Deposit scheme in 2014, in the wake of SAL's membership being terminated, but the application was declined because of its association with SAL.
14.
After her visit on 16
th
June, Ms Manning reviewed the material supplied by Syed and subsequently provided written advice about the issues uncovered. He did not act on the advice and claims continued to be made about membership of the TDS. At around the same time as Ms Manning's visit to the Islington branch, Trading Standards started to receive complaints about the business practices of Crestons.
15.
At the trial, the court heard evidence about particular tenants and how they had been treated by the appellants. It is unnecessary for present purposes to rehearse in detail the facts of each case. A flavour can be gained from consideration of the example of a tenant called Jonathan Salisbury. An Assured Shorthold Tenancy was entered into with Crestons. The tenants paid a deposit of £3,900, which was registered with Mr Deposit, but not protected from December 2014, following the termination of SAL's membership. When Mr Salisbury sought the return of his deposit from Crestons, he was unsuccessful. In due course, when he sought to complain and his parents sought to raise the matter with Mashuk by ringing him on his mobile number, Mashuk said to Mr Salisbury never to call his "fucking" phone again.
16.
There were further complaints, all of which led to a total estimated loss in respect of dealings with SAL of £29,500.92.
17.
The court at trial also heard evidence about Syed's dealings at SLL. Again, it is unnecessary to rehearse the facts of those individual cases. Suffice to say that the complaints led to a total loss estimated at £71,290.84.
18.
Ali was born on 1
st
July 1981. He had not previously appeared before the court. Mashuk was born on 13
th
September 1980. He had appeared before the courts on earlier occasions, but had no relevant previous convictions. Syed was born on 2
nd
June 1981 and had not previously appeared before the court.
19.
The sentencing judge had before her pre-sentence reports and mitigation bundles in respect of each appellant.
20.
In passing sentence, the judge said that it was apparent from the evidence she had heard at trial that many of those using the appellants' services had no idea of the existence of the limited companies behind the trading name of Crestons. The paperwork supplied to tenants and landlords was inconsistent and obfuscatory, both in its terms and as to the legal entity behind the contract. Mashuk and Ali had failed to protect tenancy deposits in an approved scheme, as required by law, since 2007. They also took rent from tenants, but failed to pass it on to landlords. They failed to refund tenancy deposits and took holding deposits from prospective tenants, which at least on one occasion they failed to return. Syed operated in the same manner, except that there were no known examples of holding deposits being taken and not returned. There was, however, one incident of a reservation deposit being taken for a property purchase against the express wishes of the property owner, which was not returned in full.
21.
The judge said that the appellants would be sentenced only on the basis of the evidence called at trial. Not only did the complainants lose money, rental payments that were made were late, cheques bounced and people were passed from pillar to post when they complained. Mashuk was described as sometimes aggressive when challenged. It was accepted that that description was not applied to Ali or Syed. In one case it transpired that occupiers of a property had been issued with licences to occupy, rather than the Assured Shorthold Tenancy which Crestons had agreed with the landlord. This was not just a case of landlords losing money and needing to take legal action; a number of tenants also either lost their deposits or had to be paid by their landlords out of the landlord's own pocket.
22.
The judge observed that the sentencing guideline in relation to fraud did not specifically apply to offences of fraudulent trading. However, the guideline listed factors relevant to culpability and harm which were broadly similar to the factors said to be relevant to sentence in
R v Mackey
, to which we will return and to which the judge was referred. She said that it was appropriate to pay "more than some regard" to the guideline. The judge accepted that the business of Crestons was not in itself fraudulent, but offences of this nature undermine public confidence in the letting sector. We will return to other aspects of the sentencing remarks in more detail later when we consider some of the criticisms which are made in the grounds of appeal. Suffice to say for present purposes that the judge was well aware of the mitigating circumstances which had been drawn to her attention, including, where relevant, family and caring responsibilities, although she noted that the appellants were not the only people able to care within their families.
23.
We turn to the grounds of appeal in the case of each of the three appellants, which are in substance the same, although there are one or two points made specifically in one case rather than the others.
24.
Ali's grounds of appeal are: first, that the sentence was too high when compared with relevant sentencing principles and the "leading authority" of
Mackey
; and secondly, that there was a disparity with Syed when the financial value of the fraudulent trading attributable to Syed was more than double that attributable for Ali. For that reason, it was submitted in writing that there was an unacceptable disparity of sentence as between those two appellants. This point was not pursued before us, having regard to the observations of the single judge who clearly regarded it as being weak.
25.
In Mashuk's case there are three grounds of appeal. First, it is said that the sentence was manifestly excessive. It is said that undue reliance was placed on the guidelines for fraud. Secondly, and flowing from that submission, it is said that the excessive reliance on the fraud guidelines at the expense of the specific guidance which is said to be contained within
Mackey
led to a manifestly excessive sentence and wrongly precluded consideration of the possibility of a suspended sentence. Finally, it is submitted that there was a disparity with Syed. This point has been maintained before us, although without much force. We shall return to it in due course.
26.
In Syed's case there are also three grounds of appeal. First, it is said that the sentence was manifestly excessive because the judge failed properly to consider the authority of
Mackey
. Secondly, it is said that disproportionate weight was placed on the current sentencing guideline for fraud. Thirdly, criticism is made of the failure to impose a suspended sentence order.
27.
At the hearing before us, the lead was taken on behalf of the appellants by Mr Simon Reevell, whose oral submissions were adopted by Mr Martin and Miss Tsiattalou. On behalf of the prosecution we had the advantage of helpful written by junior counsel who appeared at the trial, Mr Heller. He was unable to appear at this hearing. However, Mr Talbot did appear in order to assist the court. In the event, it was not necessary for the court to call upon him, although the court is grateful to him for his attendance, as it is to all counsel for their submissions.
28.
The maximum sentence for the offence of fraudulent trading is ten years' imprisonment, which is the same as the maximum sentence for the substantive offence of fraud under
section 1 of the Fraud Act 2006
.
29.
In his written submissions, Mr Heller makes the observation that the guidance issued by the Sentencing Council on fraud offences, to which we shall return, is helpful because it gives a structured approach to the assessment of relevant considerations, such as harm and culpability, although he recognises that the offences are not the same.
30.
In granting leave to appeal, one of the reasons which the single judge gave was that until the Sentencing Council issues a guideline on sentencing for fraudulent trading, there is an important question about the extent to which the definitive guideline for sentencing offences of fraud, bribery and money laundering should be taken into account when passing sentence for fraudulent trading.
31.
As we have mentioned, there are no definitive guidelines for the offence of fraudulent trading. In
R v McCrae and Others
[2012] EWCA Crim 976
,
[2013] 1 Cr App R(S) 1
, this court, in a judgment delivered by Haddon-Cave J, said that, nevertheless, the sentencing judge had been entitled to pay "some regard" to the guidelines for confidence fraud, which bore some similarities to the fraud in that case: see [16] of the judgment. In that passage the court made the point that the then guideline did not refer to conspiracy to defraud. The guideline at that time was that issued by the then Sentencing Guidelines Council in 2009 on "Sentencing for Fraud – Statutory Offences". We observe that the Sentencing Guidelines Council was created by the
Criminal Justice Act 2003
and continued to function until 2010, since when it has been replaced by the Sentencing Council. There was a predecessor body, the Sentencing Advisory Panel, which was created by the
Crime and Disorder Act 1998
, but it did not have the functions which either the
Sentencing Guidelines Council or the Sentencing Council now have. Its function was to provide advice which could be taken into account by the Court of Appeal when considering, for example, whether to give a guideline judgment. Before 1998, and where relevant subsequently, there are, of course, cases in which the Court of Appeal has expressly set out guidance in guideline judgments.
32.
Before
the 1998 Act
, there was a decision of this court in
R v Smith and Palk
[1997] 2 Cr App R(S) 167, in which the judgment was delivered by Potter LJ. At page 170 he said:
"There is no doubt that, because of the wide spectrum covered by fraudulent trading offences in relation both to the amount and the level of criminality on the part of the defendant, a wide spectrum of sentences may also be appropriate. At the one extreme there may have been deliberate reckless trading on a large scale aimed at a rapid return, with no genuine intention to discharge the company's debts but simply to milk creditors and line the directors' pockets before the balloon goes up. On the other, there may have been a properly funded business which runs into financial difficulties out of which the directors attempt to trade in order to save their own and their employees' jobs, but reach a point where they have become reckless as to the realities and with the fact that they should up the shutters. In broad terms, also, it is right to say that a charge of fraudulent trading resulting in a substantial total deficiency to creditors is less seriously regarded than a specific charge of theft or fraud to an equivalent amount. …"
Taking those considerations into account, and given the guilty pleas of the appellants, together with the overall circumstances of that case, the court concluded that the sentence of three years' imprisonment was too high. The court was of the view (at page 171) that of the two extremes mentioned, the case was at the lower end of the scale in terms of criminality. The court said:
"Its serious aspect lay in the creation of false invoices so that the company's bank funding would continue, rather than any direct intention to profit the company or the directors at the expense of the creditors. Further, there is no suggestion, as happens in many cases, of directors, aware that the balloon is going up, in effect looting the assets of the company in its last days. Rather, and exceptionally, they did their best to assist the receiver and later the liquidator, to preserve the assets and effect realisations which would minimise the loss. …"
There were also personal mitigating factors. In the circumstances, the court allowed the appeals and reduced the sentences of imprisonment to eighteen months.
33.
We consider that that decision was on its own facts and does not assist in the present appeals.
34.
We turn to the decision of the court in
R v Mackey
[2012] EWCA Crim 2205
,
[2013] 1 Cr App R(S) 100
, which formed the mainstay of the submissions for these appellants, although it was acknowledged that it is not a guideline case in the strict sense. The judgment of the court was given by Sweeney J. He said, at [16] that to the extent to which it is appropriate to pay some regard to the definitive guideline (at that time the 2009 guideline), the appellant's offence involved a total gain or loss of £60,000 and elements of both confidence fraud and banking fraud. The relevant starting points for those offences would be three years' custody and, since the appellant had not traded fraudulently from the outset, 36 weeks' custody respectively. The court repeated what it had said in
Smith and Palk
, that the offences of fraudulent trading cover a wide spectrum. It also said, again, that, in broad terms, it is right to say that a charge of fraudulent trading is less seriously regarded than a specific charge of theft or fraud of an equivalent amount, although this may be truer of offences at the lower end of the spectrum. At [16(5)] the court said:
"The factors that are relevant to sentence include the amount of the fraud; the manner in which it was carried out; the period over which it was carried out; the position of the defendant in the company and his or her measure of control over it; any abuse of trust involved; any effect on public confidence in the integrity of commercial life; any loss to small investors; the personal benefit to the defendant; the plea; and the age and character of the defendant – see
Feld
[1999] 1 Cr App R(S) 1. …"
35.
Although that passage was, and remains, useful, as the sentencing judge said in the present case, the relevant factors mentioned are similar to those set out in the present guideline issued by the Sentencing Council with effect from 1
st
October 2014: "Fraud, Bribery and Money Laundering Offences": see, in particular, the section dealing with the substantive offence of fraud under section 1. If a case of fraud fell into category 3 – that is, covering a range of loss of £20,000 to £100,000, with a starting point based on £50,000 – and if the degree of culpability were of the highest (A), the starting point suggested in the guideline is three years' custody, with a category range of eighteen months to four years.
36.
In our view, the circumstances in
Mackey
were very different from those in the present appeals. It is true that the loss to creditors in
Mackey
was £60,000. However, the fraudulent trading arose because what had started as a genuine business had got into financial trouble and the appellant decided to behave dishonestly in the hope that it would come right in the end. The dishonest means which she used included manipulation of documents, the forgery of signatures and the abuse of trust. The fraudulent trading lasted for at least five months. The appellant was, however, of previous good character. She was a single mother, with a history of significant illhealth and had a 7 year old daughter with learning difficulties. The court had particular regard to the protection of the best interests of children. In all the circumstances, the court considered that a sentence of eighteen months' imprisonment was "within the appropriate range, albeit towards the very top of it": see [18]. The appeal against sentence was, therefore, dismissed. We do not consider that any true analogy can be made with
Mackey
.
37.
In the present case, the judge formed the view that this was a case of deliberate, reckless trading conducted over a sustained period of time by each of the appellants in the knowledge that he could not discharge his liabilities. We would observe that the judge clearly took that language from
Mackey
, which had in turn taken it from
Smith and Palk
. The judge continued that the appellants had been dishonest in their dealings with complainants. She said that their offending was also aggravated by the fact that some of their victims, particularly the tenants and those from outside the United Kingdom, could be described as being vulnerable. She said that the appellants had abused the trust and responsibility placed in them by both landlords and tenants. There was a large number of victims. In her view, this was, therefore, a case of high culpability.
38.
The judge then considered the amount of money at stake. As for the level of loss, she said that it fell within category 3, if this had been a case of fraud as such, covered by the definitive guideline. Furthermore, the judge was of the view that, although the business of Crestons was not in itself fraudulent, offences of this nature undermine public confidence, and, in this case, in the letting sector.
39.
In all the circumstances of these cases, we are unable to accept the submissions which have been made on behalf of the appellants. In our view, sentences of 28 months' imprisonment were neither wrong in principle nor manifestly excessive.
40.
The sentencing judge could not see any reason to distinguish between any of the appellants in terms of their culpability or the harm caused. She said that each had played a leading role in running Crestons. While it is true that the loss in the case of Syed was higher than in the cases of the other two appellants, Ali no longer relies on a ground of appeal based on disparity of sentence. Mashuk does still rely upon that ground of appeal, but only, as we understood Mr Reevell's submissions, faintly. Rather, Mr Reevell submitted that this point helped to illustrate his more fundamental submission that the judge had given excessive weight to the current guideline and insufficient weight to the decision of the court in
Mackey
.
41.
We do not accept these submissions. In the circumstances of these cases, we have concluded that it was open to the judge to pass the same sentences on each of the appellants, even if Syed might be considered by some people to have been fortunate.
42.
For the reasons we have given, these appeals against sentence are dismissed.
_____________________________________
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________________________________ | [
"LORD JUSTICE SINGH",
"MR JUSTICE NICOL"
] | 2019_07_11-4663.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1263/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1263 | 731 |
5441e5ddbf435adca3a11c71fe98132f5c80abaa38c4b59c2039c1e25b319431 | [2021] EWCA Crim 1785 | EWCA_Crim_1785 | 2021-11-26 | crown_court | Neutral Citation Number: [2021] EWCA Crim 1785 Case No: 202000948/B3 & 202000949/B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court at Leeds His Honour Judge Khokhar T20180784 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/11/2021 Before : LADY JUSTICE MACUR LORD JUSTICE GREEN and MRS JUSTICE CHEEMA-GRUBB - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - Peter HUNTER David Thomas SMITH (Transcript of the Handed Down Judgment. Copies of this transcr | Neutral Citation Number:
[2021] EWCA Crim 1785
Case No:
202000948/B3
&
202000949/B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Crown Court at Leeds
His Honour Judge Khokhar
T20180784
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/11/2021
Before :
LADY JUSTICE MACUR
LORD JUSTICE GREEN
and
MRS JUSTICE CHEEMA-GRUBB
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
- v -
Peter HUNTER
David Thomas SMITH
(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)
Ben Douglas-Jones QC & Rhodri James
(instructed by
Tuckers Solicitors
) for the
Appellants
Jonathan Sandiford QC & Danielle Graham
(instructed by
City of York Council Trading Standards
) for the
Respondent
Hearing date: Thursday 7th October 2021
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Green:
A.
Introduction and context
1.
There are before the Court appeals by Peter Hunter and David Smith against their convictions on 13
th
February 2020 at Leeds Crown Court for fraudulent trading contrary to
Section 993(1)
Companies Act 2006
(“
CA 2006
”) and for possession or control of an article for use in fraud contrary to
Section 6(1)
Fraud Act 2006
(“
FA 2006
”).
2.
On 24
th
February 2020 Hunter was sentenced to a term of imprisonment of 4 years. Smith was sentenced to a term of imprisonment of 2 years and 6 months. Both were disqualified under
Section 1
Company Directors Disqualification Act 1986
for 10 years.
3.
The appeals raise novel points concerning the legality of what, in common parlance, is referred to as “
ticket touting
”, namely the practice whereby individuals or companies acquire tickets for popular sporting and cultural events and then seek to resell them, usually at a substantial premium, on secondary ticketing websites.
4.
We understand from the evidence that a substantial number of other businesses operated in a manner very similar to that run and managed by the appellants.
5.
To understand the case, we should set out the acronyms that are routinely used: (ii) primary ticket sellers - “
PTS
”: (ii) primary ticketing websites – “
PTW
”; (iii) secondary ticketing websites – “
STW
”.
6.
The
modus operandi
of such businesses is relatively simple. Organisers of popular sporting and entertainment events (i.e. PTS) routinely impose restrictions on the tickets they sell limiting the number of tickets that any one individual can purchase and prohibiting resale. They often also make plain that if these restrictions are breached, they reserve the right to cancel the ticket and refuse the ticket holder entry to the event. Some event organisers sell the tickets themselves, but it is common for organisers to use agents to sell the tickets for them. In particular they use PTW. As agents the PTW are required to respect the restrictions which their principals (the event organisers) have imposed, and which attach to the tickets sold via their websites.
7.
The object behind the restrictions is to prevent the very activity that the appellants in this case were engaged in, namely the bulk purchase of tickets for an event with a view to resale at a substantial profit, usually amounting to multiples of the ticket face value, on STW to the detriment of consumers both as to price and risk.
8.
Ticket touts circumvent these restrictions by the systematic use of “
bots
” and other software designed to make multiple applications to PTS and PTW when tickets become available. These systems operate to represent falsely to the ticket vendor that these business purchasers are individual consumers who intend to use the tickets for their personal use. The bots perform multiple simultaneous applications using false names and addresses and in so doing dupe the vendor into thinking that the sale is a genuine one by a consumer who will respect the restrictions set out in the terms and conditions of sale. This process is known as “
ticket harvesting
”.
9.
Tickets acquired in this manner are then sold on STW invariably at a substantial mark-up on the ticket face value. STW act only as markets or platforms for ticket touts to sell, as principals, the tickets they have acquired. They do not act as vendors themselves; they are a platform and nothing more. They are rewarded in a variety of ways and normally take their cut out of the amount paid by the consumer for the ticket before remitting the balance to the tout. There is some evidence that the cut might be as much as 25% of the ticket price.
10.
The evidence at trial established that touts using relatively inexpensive bots and software, some obtainable from the dark web, could make huge profits from acquiring and reselling tickets. Evidence the prosecution gleaned from the appellants (based on PayPal sales and bank records) suggested that during the indictment period (of 30 months from June 2015 – December 2017) the appellants made an outlay of about £4m on acquiring tickets and obtained returns exceeding £10.8m. Hunter in his oral evidence during the trial suggested that there were about 120 other businesses such as his.
11.
Evidence before the jury also highlighted the significant practical difficulties confronting event organisers seeking to enforce these contractual resale restrictions. They are concerned that allowing touts to sell tickets at hyper inflated prices causes them reputational harm but also that it is, simply put, deeply unfair on fans. Some organisers go to considerable efforts to enforce the restrictions, and do so successfully. It follows that there is a real risk, albeit not a certainty, that a consumer who acquires a ticket on a STW and who presents it to obtain admission to an event will have the ticket cancelled and entry refused.
12.
One feature of the case is that neither the STW used by the appellants to sell tickets, nor the appellants themselves, ever made clear to consumers the risk attaching to the purchase of a ticket, namely that consumers were acquiring at inflated prices tickets that the event organiser might treat as null and void. Had this been transparent then it can properly be inferred that purchasers might have been reluctant to spend large sums on tickets that might turn out not to permit entry to the event in question. This lack of transparency is unlawful. In this connection, Regulations 5 – 6 of the Consumer Protection from Unfair Trading Regulations 2008 impose a duty on sellers of tickets not to present information about the existence or main characteristics of a ticket in a way that deceives or is likely to deceive a consumer. The Regulations define, in effect, the main characteristics of a ticket as including the benefits and risks attaching to it. Regulation 6 imposes a duty not to omit information as to the main characteristics of the tickets that an average consumer needs in order to take an informed decision whether to buy or not. It is the Prosecution case – which seems to us incontrovertible - that the appellants breached these statutory duties when selling though STW with no warning that the tickets were at risk of cancellation because of the manner in which they had been acquired by the appellants and because of the contractual restrictions attaching to them. Indeed, it was a deliberate part of their business methodology that they kept this information quiet.
13.
Counsel for the appellants in written submissions has described the issues arising on this appeal as “
landmark”
. The appellants are charged with offences under
Section 993(1)
CA 2006
which, in summary, makes it an offence to carry on any business “…
for any fraudulent purpose
”.
14.
The Prosecution alleges that the appellants set up a business system which was designed to deceive tickets vendors into selling them tickets when, had they known the true identity of the purchaser and their intended use of the tickets, they would have refused to make the sale. The Prosecution also alleges that in failing to warn consumers buying tickets on STW of the risk of cancellation, they were deceiving those consumers into believing that they were purchasing valid tickets. It was alleged that the central “
purpose
” behind the way in which the appellants carried on their business was dishonest and fraudulent. The prosecution also charged the appellants with possession or control of articles for use in fraud contrary to
Section 6(1)
FA 2006
, namely the software which was the engine room of the business, and which was central to the appellants ability to “
harvest
” tickets in bulk.
15.
This was the basic system as the Prosecution described it to the jury. During the trial an important part of the defence of Hunter was that at least some PTS/PTW were not only aware that the appellants were purchasing tickets in order to sell them in bulk on STW, but actively encouraged such purchases and resale, for example by providing financial incentives to encourage bulk dealing. The appellants’ skeleton for this appeal put the issue in the following way:
“This case is the landmark case brought by National Trading Standards (NTS) against the directors of BZZ Ltd (formerly Ticket Wiz Ltd) (‘BZZ’) through which it was alleged that the practice of secondary ticket seller (STS) businesses – buying tickets from primary ticket sellers (PTSs) and selling them on secondary ticket websites (STWs) - was fraudulent. The commercial sale of tickets by commercial STSs via the “big four” STWs - Stubhub, Seatwave, GetMeIn! and Viagogo – had been not merely tolerated, but encouraged, for many years, notwithstanding those most PTSs’ tickets were sold with purported restrictions ostensibly limiting the number of tickets that could be bought by one individual or household. Three of the big four were owned by, or operated in partnership with, PTSs. The STWs classified traders like BZZ as “trusted”, and it was acknowledged that they would circumvent the purported restrictions. One STW gave BZZ and other traders a bar code scanner so that they could resell digital tickets with a unique trader-STS-generated barcode. The Prosecution chose to indict “fraudulent purpose” fraudulent trading. It expressly contended that it was not alleging “deception” fraudulent trading and did not need to allege deception. The alleged fraud was predicated on the averment that the Ts and Cs restricting multiple purchases, which purported to govern the sale and use of the tickets, were lawful and effective.”
16.
Before us the appellants identified five grounds of appeal. Some of these contain a significant number of sub-issues. Shortly before the appeal was to be heard the appellants lodged an application to adduce fresh evidence under
Section 23(2)
(c) and (d)
Criminal Appeal Act 1968
(“
CAA 1968
”). This evidence focused upon the corporate relationship between PTW and STW and the extent to which they agreed with touts to acquire tickets in breach of event organisers restrictions and then resell them on STW.
17.
We have taken the five grounds and the application to adduce fresh evidence, and the sub-issues that are raised, and re-ordered them in order to enable us to address them in a sensible manner. Issues 1 – 2 concerns admissibility of evidence. Issues 3 – 4 concern the components of the statutory offence under
section 993
CA 2006
. Issues 5 – 7 concern issues relating to the validity and enforceability of the restrictions attaching to tickets. Issues 8 and 9 concern how a judge should direct juries in a case such as this. The individual issues are as follows:
Issue 1
: The application under
section 23
CAA 1968
to adduce fresh evidence of the arrangements between touts and primary and secondary ticketing sites to encourage and facilitate the purchase and resale of tickets at a premium.
Issue 2
: The application of Section 78 PACE to the admissibility of emotive and prejudicial evidence about the Ed Sheeran charity concert and the Ariana Grande memorial concert.
Issue 3
: The relationship between the statutory offence under
Section 993
CA 2006
and the common law offence of conspiracy to defraud.
Issue 4
: The components of the offence under
Section 993
CA 2006
: (i) whether there has to be deception or an intention to deceive; (ii) whether there has to be a victim who suffers actual or intended harm?
Issue 5
: The “
fairness
” and hence enforceability under the CRA 2015 of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets and the risk of ticket nullity.
Issue 6
: The status in law of a “
ticket
”.
Issue 7
: The scope effect and operation of the doctrine of “e
quities darling”
.
Issue 8
: The duty of the judge to direct the jury in an objective and dispassionate manner.
Issue 9
: The duty on judges to direct juries on complex common and civil law matters such as: (i) the scope and effect of the restrictions contained in vendor’s terms and conditions of sale; (ii) the distinction between void and voidable; (iii) the operation of the fairness test under the CRA 2015; and (iv), the doctrine of “equities darling”.
18.
We should state at the outset that we dismiss the appeals. We also dismiss the application to adduce new evidence. We are clear that the convictions were entirely safe.
19.
We would add this. If the appellants are correct and there are potentially hundreds of other operators all running businesses like theirs; and if they are also correct and there is connivance and collusion between ticket touts and the PTW and STW, then the ticketing market is one which appears to be characterised by a high degree of criminal fraud. The evidence we have seen certainly suggests this possibility. This appeal however focuses more narrowly upon the conduct of the appellants as buyers and resellers of tickets, and not on the possibility that fraud is also being perpetrated by others. It will be for the prosecutorial authorities to consider whether other and broader enforcement action is necessary.
20.
We heard argument on 8
th
October 2021. We received additional written submission following the hearing from both parties on issues which arose during argument. Given the significance and novelty of the issues arising we reserved judgment. We are grateful to all counsel for their helpful written and oral submissions.
B.
The facts
The appellants
21.
The appellants were officers of a company called BZZ limited (“
BZZ
”). The company had initially been incorporated in 2004 under the name Ticket Wiz Limited (“
TW
”) but was renamed in late 2016/early 2017. The business of the company was to acquire and then resell tickets for music and other popular cultural and sporting events. It was alleged that Hunter was the driving force behind the business and ran the company on a day to day basis. Smith, for his part, was a co-director and Company Secretary and was also involved in the running of the company. It was alleged that from time to time he used the multiple identities to purchase tickets and was aware of the use of software and “
bots”
which would enhance the success of their fraudulent activity. There has been no appeal as to these descriptions of the roles of Hunter and Smith.
The prosecution case as to the system used by the appellants: Counts on the indictment
22.
There was a four-count indictment before the jury. Counts 1, 3 and 4 focused upon different aspects of the offence of carrying on a business with a fraudulent purpose under
section 993
CA 2006
. Count 2 focused upon the possession of the equipment needed to carry on such a business, which was a separate offence under
section 6(1)
FA 2006
. We summarise the counts as follows.
23.
Count 1: The Prosecution case was that the appellants set up a system designed to circumvent the restrictions imposed by ticket vendors. By using this system BZZ and TW deliberately deceived ticket vendors (PTS/PTW) into believing that the purchaser was an ordinary consumer, not a ticket tout. They set out, using this system, to breach the terms and conditions of the vendor, such as the prohibition on commercial or non-personal use and the restrictions on quantities of tickers permitted to be purchased. It was the Prosecution case that had the appellants been honest about who they were and what they intended to do with the tickets that the vendors would not have sold to them.
24.
Count 3: The Prosecution also alleged that the appellants were involved in fraud when they sold tickets via STW where they represented falsely to end-consumers that the tickets they acquired (from BZZ or TW) at inflated prices were in every respect valid and would guarantee entry to the event in question. It was said that the appellants knew that by virtue of the initial terms and conditions, tickets they resold were at risk of being cancelled and the ticket holders being refused entry to the event. Although it was difficult for genuine event organisers, promotors and venues to enforce the terms and conditions, consumers were nonetheless exposed to the risk that consumers purchasing from BZZ or TW would have their tickets cancelled or be refused entry to the event. There was evidence before the Court that this was a real and material risk and that some vendors did seek to enforce resale restrictions, successfully.
25.
Count 4: The Crown alleged yet further that the appellants were involved in speculative or “
spec
” selling where they listed tickets for sale on STWs when they had not yet purchased the tickets. That listing for sale was in breach of the published terms and conditions of secondary sites which stated that secondary sellers must guarantee that they owned the tickets for sale. On the facts, the Prosecution alleged that there were proven instances where after securing a sale at an inflated price, the appellants would only then try to source the tickets. There was some, albeit limited, evidence of the appellants selling tickets which they were then unable to source. In such cases the appellants operated upon the assumption that the secondary ticking website had to step in order to supply the purchaser with a ticket or pay compensation.
26.
Count 2: Finally, the prosecution alleged that the possession of relevant software designed and intended to deceive ticket vendors into believing that the appellants were genuine end users was an offence under the
FA 2006
. The indictment gave as examples of this kit: an Insomniac Browser computer programme, copies of computer software referred to as Spinner Bot used in the acquisition of tickets from See Tickets.com, AXS.com, Eventim.com and Royal Albert Hall; and debit and credit payment cards held in the names of persons other than the company.
The Waterson Report 2015
27.
In 2015, the Secretaries of State for Business, Innovation and Skills and for Culture, Media and Sport invited Professor Michael Waterson to lead an independent review into consumer protection relating to secondary ticketing facilities. This led to a reported dated May 2015 entitled “Independent Review of Consumer Protection Measures concerning Online Secondary Ticketing Facilities” (“
The Waterson Report
”). The report was presented to Parliament pursuant to
section 94(3)
of the
Consumer Rights Act 2015
. The Waterson Report was relied upon during the trial by the defence for a variety of reasons. It provides an overview of the ticketing market. It was not said by any party that it was in any relevant way inaccurate as an overview.
Restrictions imposed upon ticket sales to protect consumers
28.
It is routine that significant restrictions are imposed upon the resale or use of tickets which have as their object and intent the protection of consumers from being exposed to secondary ticket sales.
29.
In a careful and detailed ruling of 3
rd
November 2019, addressing various issues of contract law, the judge set out certain conclusions based upon the evidence before the court. The judge had been invited by the parties to express a view upon these issues since they could affect the way in which the respective parties presented their cases at trial. We would summarise the main findings made by the judge as follows. These central facts were not either during the trial or before us materially in dispute.
30.
Event organisers and promotors set the price for the event, organise the venue and are responsible for the enforcement of terms and conditions attaching to the sale of tickets. There were 79 pages of terms and conditions placed before the jury. From these it was possible to identify the central restrictions imposed as standard upon the sale of tickets. First, terms and conditions restricted the use of the vendor’s website to personal and non–commercial users only. Secondly, terms and conditions imposed limits upon the number of tickets permitted to be purchased by any one person. Thirdly, terms and conditions imposed prohibitions upon the resale of tickets for commercial gain or profit. Fourthly, terms and conditions rendered tickets purchased or resold in breach of the vendor’s terms void or liable to be cancelled and to this end many included an express provision permitting cancellation without notice and conferring a right to refuse entry or the right to eject a ticket holder if found to be in breach of the terms and conditions. Some PTS reserved a right of cancellation for breach without a refund.
31.
It is relevant (to Issue 5 – see below) that the judge concluded that from the perspective of a lay person the terms and conditions were sufficiently clear and transparent and were capable of being understood.
32.
The Waterson Report also summarised the sorts of restrictions that were commonly imposed:
“Restrictions on Ticket Resale
9. Event organisers may restrict the resale market for tickets in a number of ways. Firstly, typical terms and conditions on ticket sales will prevent the purchaser reselling the ticket, by stating expressly that a ticket must not be resold. Breaching this term risks the ticket being cancelled if the organiser can identify the vendor or the ticket. How successful this policy is will depend on the effort the organiser is willing to make (including checking identities at the door of the venue). Adele’s management, for example, made a big effort to restrict resales for her recent UK tour by cancelling purchases from duplicate web, IP or postal addresses on tickets they controlled.
10. Secondly, although event organisers may allow for “returns”, offering to resell purchasers’ tickets to other customers, there will be no guarantee of a sale and there may be an administrative charge. There are risks for the organisers that this will undermine total sales, because they may have other tickets unsold that are inferior to those being returned. This is not, therefore, commonly available.
11.Thirdly, organisers can restrict the volume of tickets that can be purchased. This might mean restricting sales to four or fewer tickets. However, it requires significant effort to identify and stop people buying multiple batches of four tickets and it is almost impossible if there is more than one primary agent.
12.The downside for the consumer facing these scenarios is that they may not be refunded by the event organiser in the event of a change of circumstances and may not be able to “transfer” the ticket to another individual, so they will therefore lose their money if the ticket can no longer be used. However, informal resale at ticket face value to an acquaintance may often be overlooked and accepted by event organisers.”
The growth of secondary ticket markets
33.
The growth of secondary tickets websites (STW) has provided a marketplace where buyers can resell tickets to consumers. Such sites can perform a valuable function in allowing genuine consumers who, for instance, are unable to attend a ticketed event an opportunity to resell their tickets.
34.
However, they also provide a platform which enables ticket touts to acquire and then sell large quantities of tickets in breach of the terms and conditions imposed by event organisers. There was evidence before the court that some STW were aware that businesses, such as those operated by the appellants, were buying and selling tickets in large volumes and encouraged such sales.
35.
The Waterson Report, in its description of the different types of participants in the market, described the role played by some STWs in financially incentivising bulk sales by touts:
“Ticket Brokers (“traders”)
5.13 Fifth, there are persons who act as ticket brokers, buying and selling tickets, and utilising the anonymity offered by the internet not to declare themselves as traders. The scale and motive behind their activity is different from individual purchasers selling tickets they can no longer use. They range from so called “bedroom touts” to sophisticated businesses. The secondary ticketing platforms make it easier for brokers to operate and may reward “power sellers” (those who sell tickets in large volumes with better terms, for example, early payment. UK consumer law requires that traders provide consumers with information about their identity, as well as certain other information as discussed in Chapter 2. This is because consumers have rights against traders that extend beyond the secondary ticketing provisions of the CRA e.g. under the CCRs and CPRs). The existence of the platform does not change this, but I found very little evidence of this information being supplied. This is in notable contrast with goods platforms such as Amazon and eBay. This makes it impossible for a consumer to avoid a reseller they have had a bad experience with and who may be offering tickets on a number of different platforms. In my view, the existence of guarantees on the platforms (see below) does not obviate the obligations on “traders” and the platforms should seek to display the details of volume sellers who it is reasonable to presume are acting as “traders” in the consumer law sense.”
36.
Various specimen sets of terms and conditions were in the evidence before the jury which shed further light on the role played by STWs. Such sites generally made clear that they were acting as no more than a marketplace where the vendor of the ticket and the purchaser would be put together. The secondary site did not become the vendor itself. A sale on such a site would therefore be a sale as between the appellants (and their businesses) and the final consumer. This was, as we set out below (see paragraph [57]), also the conclusion of the judge on the evidence before the court.
The use of bots/ticket harvesting
37.
It was the Prosecution case that the appellants and their staff used multiple names and identities of persons other than BZZ and TW to purchase tickets that were offered for sale to consumers via the website of primary ticket sellers such as AXS, Eventim and Ticketmaster. They used “
bots
” and other specialist software to enable them to access the websites of some of the primary ticket sellers and harvest tickets. A single bot could use multiple identities to buy a significant number of tickets. The appellants also used an internet browser called Insomniac which could create multiple tabs and mask the user’s IP address. As a result, one person could use different identities to purchase multiple tickets. Although the browser in itself was not illegal, the Prosecution’s case was that the appellants used it to buy tickets in breach of vendor’s terms to the detriment of consumers. As a result, they could then re-sell the tickets at inflated prices on secondary websites such as Viagogo, Seatwave, Stubhub and GetMeIn.
38.
Once again, the Waterson Report provides a useful explanation as to how bots are used to harvest tickets. And again, there is no dispute as to the basics of the system:
“How do “Bots” and “Botnets” work?
2.17 A “bot” (derived from the word robot) is a computer programme that automates the process that a human would go through when buying a ticket, completing it much more quickly than a human. A bot can search for tickets, fill in identity details and payment information and select “purchase”. Bots are not just confined to ticketing but they are, for instance, used in online gambling to make instantaneous and rational decisions. In stock market trading, automated technology processes transactions in microseconds relying on algorithmic trading programmes. Here I use the term “bot” to encompass electronic means of rapid purchase more generally, except where it is important to be specific.
2.18 Those seeking to buy a high volume of tickets for resale can be assisted by the use of bots or botnets which they use to apply for tickets from primary agents. The use of bots and botnets can (in theory at least) allow individuals to acquire large quantities of tickets in a short timeframe, by conducting multiple simultaneous transactions. The Independent Review of Consumer Protection Measures concerning Online Secondary Ticketing Facilities report from the Office of the New York State Attorney General (NYAG) suggests that to conceal large numbers of concurrent connections to a ticketing site, the perpetrator will purchase hundreds or even thousands of proxy IP addresses, with the “bot” then automatically rotating through their store of proxy IP addresses to bypass detection and blocking. The bot user can also register a high volume of email addresses to conceal the fact that a single purchaser is responsible for many concurrent transactions.
2.19 The report from the NYAG describes bots as having four functions in relation to ticketing:
• to constantly monitor ticketing sites to detect the release, or “drop”, of tickets
• to automate the search for and reservation of tickets
• to automate the process of purchasing tickets
• to defeat any anti-“Bot” security measures that are employed.
2.20 As a bot can accomplish a task far faster than a human and on behalf of multiple identities, they can have the effect of “crowding out” ordinary human purchasers. TicketingBots, tailored to particular ticketing internet sites are available for sale on the internet. For example, a “bot” that claims to access royalalberthall.com is available from TicketBots for around £530. The location in the world of those behind TicketBots is not advertised, but it has been suggested that the IP address is hosted in Panama.
2.21 A “botnet” is a number of connected computers using bots. While there can be justifiable reasons for having a botnet (such as running a computer programme at different sites) and they are not illegal per se, the reality is that the most common uses are perceived as harmful. These include using a “botnet” for a Distributed Denial-of-Service (DDoS) attack on a computer system, causing a loss of service to users and sending massive amounts of bulk email, known as spamming. Computers can be co-opted into a “botnet” and execute malicious software (malware). This malware then installs modules that allow the computer to be commanded and controlled without the owner’s knowledge and become part of a network of infected computers. Hence the compromised machines are referred to as drones or zombies and the malware running on them as bot. A command and control server is then used to connect infected computers together to form a “botnet”.
2.22 I found that 14% of respondents to the Call for Evidence commented on the need for action against ticketing bots and botnets. There was concern that technology was being used to acquire volumes of tickets in seconds for the purpose of resale, thereby depriving individual consumers of the chance to buy tickets from the primary sites. This is frequently described as persons “harvesting tickets.”
The evidence relied upon by the Crown
39.
We turn to summarise the evidence adduced by the Prosecution. It is unnecessary for us to rehearse it in any detail. It suffices to summarise the main types of evidence and to highlight some particular instances of it.
40.
First, there was unchallenged evidence from Adam Webb, a PR company manager and campaign manager for the FanFair Alliance, a body which brings together individuals from the music and creative community to promote consumer protection and which seeks to enable fans to buy and exchange tickets at fair prices. He gave evidence about consumer protection concerns arising from secondary sales and as to the common terms and conditions imposed by ticket vendors designed to deter and prevent the use of bots to circumvent these restrictions. He also gave evidence as to the venues that did take active steps to cancel tickets acquired, invariably at inflated parties, on secondary markets.
41.
Secondly, the Prosecution adduced evidence about the business system used by the appellants and its use of bots. Evidence was also given as to the knowledge of the appellants that their business activities were in breach of the terms and conditions of ticket vendors.
42.
Thirdly, there was evidence arising from the search of the appellants’ business premises on 12th December 2017 during which trading standards officers discovered 112 physical payment cards in various names issued by various card providers such as American Express, Barclaycard and Tesco Bank. The names on the cards included the appellants and 35 other individuals including present and former staff of BZZ and others who had allowed their names and card details to be used by the company. The Crown tendered schedules recording sales and correspondence as between the appellants and ticket sellers.
43.
Fourthly, evidence was tendered concerning telephone calls made by Hunter and other employees to certain PTW to change the dispatch address for tickets that were purchased thus ensuring that the tickets were sent to their business premises, rather than to the false address used for the purpose of obtaining the tickets.
44.
Fifthly, evidence was tendered that consumers who had acquired tickets from the appellants had been refused entry or had their tickets cancelled in relation to events including a Metallica concert, the Harry Potter and the Cursed Child theatre production, the Royal Edinburgh Military Tattoo, and an Ed Sheeran concert. In relation to the Ed Sheeran concert evidence was given by Stuart Galbraith, producer and co-promotor for Ed Sheeran and Chief Executive Officer for Kilimanjaro Live (a company which organised live concerts). He gave evidence in relation to the Ed Sheeran’s 2018 Stadium tour and described the extensive efforts taken to regulate ticket sales which included the decision that tickets would be sold only to consumers with a strict limit of 4 per person, that no resales would be permitted save by consumers at face value plus fees through the Twickets website, and that any tickets otherwise resold would be void and entry would be refused. He also explained the practical steps taken to enforce such restrictions. Evidence was also given by Stuart Camp, Ed Sheeran’s manager, focusing upon the adverse effect upon fans of having to acquire tickets at inflated prices. It was their aim to keep prices down to consumers. Both witnesses expressed their concern at seeing tickets for Ed Sheeran playing at the Teenage Cancer Trust charity event being sold by touts for up to £490 per ticket. They wished to keep the prices as low as possible to ensure that fans could attend the shows. In 2018 Ed Sheeran played at 120 events to 9 million ticket buying fans.
45.
Sixthly, in relation to consumer risk, evidence was adduced that save for Viagogo, none of the STWs offered a refund if a person was refused entry or ejected from a venue. Viagogo limited liability to £200 or the value of the ticket, whichever was the lesser of the two amounts. The Waterson Report (paragraphs 5.2 and 5.3) found that 2% of ticket holders were adversely affected in this manner.
46.
Seventhly, evidence was tendered as to the STWs, their terms and conditions and the sales made by the appellants’ business to such sites.
47.
Eighthly, evidence was given by David Perry, Legal Director of the Competition and Markets Authority (“
CMA
”), in relation to the application of the statutory fairness test under the CRA 2015 and to the fact that it applied only to consumer contracts between traders and consumers. Accordingly, if a business purchased tickets,
the Act
would not apply as this was a trader/trader contract, not a consumer/trader contact. He also gave evidence as to CMA guidance that a prohibition on resale might be unfair to a consumer unless (i) the prohibition was brought to the attention of both the consumers and STW and (ii) assistance was given to consumers who had purchased a ticket from a STW so that they could obtain compensation if they were refused entry to an event. Various documents and letters containing guidance on the application of the legislation to the ticketing market authored by the CMA were also before the court.
48.
Ninthly, evidence was given of Hunter’s failure to mention facts in interview in particular his explanation for the use of multiple identities to acquire tickets, his explanation for the acquisition and sale of tickets in breach of the vendor’s terms and conditions, and the nature of his relationship with those who worked for the PTW and STW.
49.
Finally, evidence was given by a senior digital forensic analyst at North Yorkshire County Council Trading Standards, in relation to the examination of the computers and laptop seized from the appellants’ business address and the fact that an Insomniac browser was installed on the devices which allowed multiple tabs to be used on one computer to simulate multiple distinct sessions thus giving the appearance that each tab was a completely distinct computer. He explained that Roboform Software had been installed on the devices allowing the secure storage of multiple login, identity and credit card details for a variety of websites and which also allowed for multiple login details for installed software applications which enabled a user to fill out website forms in a single click as details were taken from this stored information. The software contained 105 identities including credit card details and physical addresses. He also explained that internet bookmarks to a website called OmniChecker were found on each device. This website could be used to keep track of specific events on ticketing websites in order immediately to alert the user when tickets were on sale. He also explained that they located on the seized software the remnants of software packages relating to spinner bots for Eventim, SeeTickets, and the Royal Albert Hall. The search also discovered a dark web browser i.e., the part of the internet not searchable by a common tool such as Google or Yahoo and was often accessed via the Tor network. This browser was found to be installed on two of the appellants’ computers.
The appellants’ case at trial
50.
Only Hunter gave evidence at trial.
51.
There was no material dispute as to the facts concerning the basic
modus operandi
and the appellant’s method of working. The defence focused upon whether this business system was dishonest and fraudulent and as to this no one was deceived and no one was harmed - there were no victims. Hunter accepted that he had adopted the practice of using different identities to gain more than the permitted number of tickets per individual but stated that this was not fraudulent as the PTS/PTW were aware of the practice and approved of it. The business had used friends and family’s credit card to purchase tickets with their permission. The tickets had been resold in the knowledge that the terms and conditions were never enforced, and he had relied upon guidance from the CMA which stated that the term prohibiting the resale of tickets was unfair. There was no real “risk” attached to sales to consumers over STW. There was no dishonesty in acting in the way that he did. He accepted that speculative selling did on occasion occur, but he always acted in good faith and with the intention that he would be able to fulfil the order. In any event only 1 – 2% of the business operated on this basis. If he failed to acquire tickets to meet the order, then he knew that the secondary ticketing websites would step in to assist and there was no dishonesty involved in this practice.
52.
He had frequent contact with the STW who encouraged him to sell as many tickets through them as possible. They offered incentives and he had a scanner which could be used to generate new barcodes for tickets so that the end consumer received a valid ticket. He used the Insomniac Browser manually to search for tickets and not automatically to purchase tickets. He was listed with Seatwave as a “
white list seller
” which status was afforded to large sellers only who had a good history of fulfilling orders. He had never experienced anyone being refused entry to an event. He was not exposing anyone to a risk of being refused entry. He denied that he was greedy. He had not answered questions in interview on the advice of his solicitor.
53.
In the light of all of this and as a matter of law the Prosecution had to prove fraud and dishonesty which included: (i) that there was an actual intention to deceive;
and
(ii), that there was actual or intended prejudice to the proprietary interest of a victim. On the facts there was no intention to deceive and/or no harm to any proprietary interest of any victim. It was also argued that when the jury considered dishonesty and fraud they would have to take into account that the restrictions sought to be imposed by event organisers and promoters and PTW, and which were at the heart of the Prosecution case, were ineffective either because they were invalid (for instance because of the operation of the fairness test in the CRA 2015) or because under common law and equity the restrictions became ineffective upon transfer of a ticket from the appellants to a consumer.
54.
As for Smith he gave a prepared statement in which he stated that he denied falsely claiming or creating the impression that he was not acting for purposes relating to his business. He did not act dishonestly. He did not give evidence at trial. Hunter said that Smith did not work within the company all of the time. He helped out as when required. He knew how the business operated and played a part in purchasing and listing the tickets.
The judge’s ruling of 3
rd
November 2019 on issues of fact relating to the system used by the appellants.
55.
We have already referred to the judge’s ruling of 3
rd
November 2019 (see paragraph [29] above). Before the Prosecution case was opened the parties sought guidance from the judge on a number of issues of law. Some of the conclusions on law arrived at by the Judge are now subject to criticism. We return to these later. As part of his ruling the Judge set out some conclusions on issues of fact relevant to his rulings on the law.
56.
In relation to restrictions in the terms and conditions attaching to tickets the Judge summarised the key restrictions and then said:
“Before I consider these terms, I like to mention what the Waterson Review had to say at Paragraph 4.11:
“I suspect a personal revocable licence is not the public’s understanding of a ticket and so it is therefore incumbent on those who consider “tickets” to have this status to make this clear when issuing them, including in what circumstances the licence is revocable. Fairness to the consumer is important here, as I suspect that the public’s understanding is that ticket, whether paper or electronic, is something that guarantees the holder (not necessarily the original purchaser) of the ticket entrance to the event in question”
Having gone through those terms, they appear to be clear and to the point, and any reader in my judgment would, subject to a few terms, be capable of understanding them on the basis that if he is capable of finding the website to see the terms and to buy a ticket online, he would be literate enough. He would certainly get the loud and clear message which they send out. Of course, he may not be able to understand the legal position but what is there, is easy enough to understand.
57.
In relation to the contracts which underpinned the sales of tickets the defence had submitted that there were three contracts: (i) between the primary ticket sellers and the appellants; (ii) between the secondary ticketing websites and the appellants; and (iii) between the secondary ticketing websites and the ultimate purchasers. The defence did not accept that there was any contract between the appellants’ company and the ultimate purchaser of a ticket through a STW. The judge disagreed:
“What is the contractual position between a seller and a STW and between a buyer and the STW through whom a ticket is purchased? Having regard to the terms and conditions of the STWs, other than the “User Agreement” referred to above, there is no contract between a seller and a STW under which the title to the goods passes from D company to a STW. Similarly, in so far as a buyer is concerned, there is no such contract for the purchase of a ticket between him and a STW. STWs are marketplaces or platforms facilitating sales and purchases between the users of the websites. STWs never own the property that is being sold through them—that much is explicit in their terms and conditions, and also the RFU case (see below)”
58.
The judge also made findings about (i) the falsity of the representations made by the appellants to STW; (ii) the gain made by the appellants; and (iii), the absence of a requirement in law for there to be a victim:
“…I shall now consider whether or not there were any breaches of the Ts &Cs which affects the contract to purchase tickets.
It is accepted that the Ds and the employees of the D company were using credit / debit cards in their possession, in the names of family and friends and their own, to purchase event tickets. They also used spider bots and Insomniac Browser for the purposes of acquiring tickets. The D company deliberately used these cards and names to acquire these tickets to overcome the difficulty of not being able to buy more than the maximum number permitted per credit card, per individual or per household. It is also the case that at no time, it was indicated to any of the PTSs that these tickets were being purchased on behalf of the D company, nor that the intention was to re-sell these tickets immediately for profit. Clear it is, had that been the case, some if not all the promoters / PTSs would have refused to sell these tickets to the D company. Common sense dictates that they would have not permitted it because promoters could, had that been their intention, have sold those tickets themselves at the higher price rather than setting a lower face value, and make a profit for themselves. We know in the case of Ed Sheeran tickets, that the same were being resold by the Ds within hours of the same coming into the market.
The prosecution case is that these tickets were fraudulently obtained by the D company. The question arises was there a fraud, or fraudulent representation made in the acquisition of the tickets. The requirements of the offence of fraud pursuant to
section 2
of the
Fraud Act 2006
are: i) Dishonestly, making a false representation, ii) Intending, by making the representation to make gain for himself or another iii) And representation is false if it is untrue or misleading and the person making it knows it is or might be untrue or misleading iv) Representation may be express or implied.
In this case the prosecution rely upon the following false representation made on behalf the D company, having regard to the Ts &Cs: a) Purchasing tickets with the intention to resell b) Purchasing tickets in excess of the maximum permitted per individual per event by use of multiple credit cards in different names and thereby concealing the identity of the D company as the purchaser c) Making use of the bots and other automatic devices to process the tickets acquisition.
It is clear that, that these representations arise from the acceptance of the Ts &Cs of the PTSs upon the purchase of the tickets. It is also clear that these implied representations were plainly false.
The “gain”, prosecution say is the obtaining of the tickets which were going to be sold at a price far above the face value of the tickets at which they were bought.
This was clearly a systematic and well thought out plan pursuant to which tickets were purchased and re-sold on an industrial scale to make large profits. This, as mentioned at the outset, was the only business the D company conducted through the other two Ds and its employees. Subject to proof of dishonesty, which is a matter for the jury, it fulfils the requirement of the offence of fraud. It may be said, that thus far in this narrative, no one is actually losing out or that there is no victim. However, there are many frauds where there may be no obvious victims; the best example I can think of is the “mortgage fraud”. In most of the cases, the false representation relates to mortgagee’s ability to discharge the mortgage— where he exaggerates his income. He pays the mortgage as and when the instalments fall due and he might have even discharged the mortgage, with the financial institution suffering no loss, and yet, in law, he has committed a fraud.”
59.
Later in the judgment, in a passage addressing the distinction between void and voidable contracts under the CRA 2015, the judge encapsulated the gravamen of the Prosecution case which distinguished as between the falsity of the representations that were made, on the one hand, and dishonesty: “
It may well be the case that the jury decides that there was no dishonesty, in which case notwithstanding the false representations, there will not be a finding of fraudulent representations having been made
”.
C.
Issue 1: The application to adduce fresh evidence of the arrangements between touts and primary and secondary ticketing sites to encourage and facilitate the purchase and resale of tickets at a premium.
60.
The appellants argue that fresh evidence has come to light which shows that there were corporate links as between PTW’s and STW. It is said that this has emerged from a statement given by Mr Adam Webb in the context of a statement he has provided as part of evidence prepared for a trial which has yet to be heard. It is argued that this evidence paints a very different picture to that which he presented in his evidence at trial and, assuming his latest evidence to be true, it creates a new factual matrix in which the appellants’ conduct was consented to by PTW and STW. If, as this new evidence shows, the PTW and STW were supportive of the appellants’ business activity then their conduct cannot be dishonest because the PTW were not deceived, which is the Prosecution’s primary case. In these circumstances it is proper to admit this new evidence under
section 23
CAA 1968
and, upon it being admitted, either to allow the appeal or to adjourn to allow further cross examination of Mr Webb upon the issue.
61.
We disagree. The evidence said to be “
fresh
” is not new; it is, at its highest, a gloss or embellishment upon evidence that was known about and available at trial. This is shown by a variety of pieces of evidence including an article in the Guardian dated 17
th
July 2017 in which the journalist raises queries about corporate links between Ticketmaster and STW it owns, and which casts doubt upon Ticketmaster’s claims that they faithfully set out to enforce restrictions imposed by event organisers. The article states that the owners of Ticketmaster own several STW which took about 25% of the value of the ticket sold on their platform as commission. Hunter knew about this article because he engaged in a colourful WhatsApp exchange with the operator of a STW (who we refer to as “
MM
”), about the article during which they agreed that their business system enabled them to earn “
fucking loads
.”
62.
The article also refers to the FanFair Alliance Group, organised by Mr Adam Webb, which had published a guide called “
Help to beat touts”.
MM said “
Nice!! Another boring article
” to which Hunter replied “
Yes”
.
63.
The article also refers to the fact that one “Elsie Marshall” seemed to be applying for a substantial number of tickets but enquiries that had been made suggested that Ms Marshall did not exist. “Elsie Marshall” is in fact a pseudonym for MM. The WhatsApp exchange discusses the article and, in the light of the revelations made in the article, the desirability of MM using new fictitious names by which to apply for tickets. MM says, “
May change my name again then”
to which
Hunter responds, “
good idea
”.
64.
The fact that some PTW/STW assist touts is also referred to in the Waterson Report at paragraph [5.13] set out at paragraphs [35] above. And, of course, it was central to Hunter’s case at trial (see paragraph [52] above) that PTW/STW were aware of the bulk sale from and through them and facilitated and encouraged such practices, for instance by offering financial incentives, such that in the circumstances, it could not be said that they were deceived, suffered harm of any type or therefore that there was dishonesty and fraud.
65.
It is, in addition, evident from the written legal directions and from the summing up on the evidence that the judge brought Hunter’s defence squarely to the attention of the jury. When the jury convicted, they did so in the knowledge of the evidence that PTW and STW had corporate links between them, and that Hunter had given evidence that he was financially incentivised to buy and sell tickets in bulk. Even had they accepted this evidence they could in our view still quite properly have come to the conclusion that the offences were committed. There was no evidence that
all
PTS and PTW were conniving with touts and to the contrary there was evidence that some took significant steps to preclude touts and enforce the contractual restrictions. The jury might in any event have simply concluded that even if Hunter's evidence was true it served only to deepen the dishonesty, not expunge it.
66.
Mr Douglas-Jones QC, for the appellants, was asked by the court why he had chosen not to examine Adam Webb at trial and had allowed his evidence to be read or indeed why he had not cross-examined anyone else with potentially relevant knowledge on links between the PTW and the STS. He told us that, upon the basis of the evidence that there was before the court, he would have been negligent to do so. We have some difficulty in understanding this but at the least it indicates that the decision not to seek to expand this evidence at trial was a deliberate judgment call made by counsel, no doubt for a good forensic reason. Nonetheless, the evidence now sought to be adduced cannot be said to be fresh. For these reasons it does not meet the elementary threshold of admissibility under
section 23
CAA 1968
.
67.
The Prosecution has argued that there are other reasons, relating to the intrinsic lack of quality of the evidence, that also means that it fails the test for admission upon the appeal. Given our clear view that this is not fresh evidence we do not need to address these other arguments.
68.
We dismiss the application to adduce fresh evidence.
D.
Issue 2: The application of section 78 PACE to emotive evidence/admissibility of evidence about the Ed Sheeran charity concert and the Ariana Grande memorial concert.
69.
It is next argued that the Judge erred in refusing to exclude under section 78 PACE, evidence of the purchase and resale of tickets for certain highly emotive events. The evidence in question concerned tickets for (1) the Ariana Grande One Love concert in memoriam of those who had been killed in the Manchester Arena terror bombing and (2) the 2017 Ed Sheeran Teenage Cancer Trust concert. The evidence was given by Messrs Camp and Galbraith (see paragraph [44] above) who described these events and the efforts made by the organisers to curb secondary ticket sales by touts.
70.
The appellants describe this evidence variously as “
contentious
”, “
fervently anti-broker
”, and, “
unusually partisan
” and its probative value as “
nil
”. It was adduced specifically to evoke a negative reaction, including disgust, in the minds of the jury making it very difficult for them to consider the evidence dispassionately. The appellants did not therefore have a fair trial. The unfairness arising through admitting the evidence was compounded by the giving of unfair directions to the jury by the Judge (which is the basis of the challenge under Issue 3).
71.
We do not accept these criticisms.
72.
We start by putting this ground into context. There is no challenge to the essential accuracy of this evidence. It is
prima facie
relevant as indicating the manner in which the appellants carried on their business. This therefore amounts to a challenge to the exercise of judgment by a judge with conduct of a trial spanning about three months and involving a great deal of complex evidence, including about the impact of the appellants’ business activities upon consumers and whether this was dishonest.
73.
On a fair reading of the transcript of the judge’s admissibility ruling he did not overlook any relevant factor. He acknowledged that the disputed material could have a prejudicial effect upon the appellant’s case, but he balanced this against the probative value of the evidence. He observed that other touts and PTW had not exploited these particular events, and that the conduct of the appellants had to be seen in that
relative
light. The judge adopted a rounded and balanced approach weighing pros and cons. This is not a ruling we should interfere with, absent compelling reason. In our judgment there are no such reasons here.
74.
First, the mere fact that evidence might exert a significant adverse impact upon a jury is not a reason to exclude it under section 78 PACE. Were it otherwise a great deal of inculpatory evidence would never be admitted. It is hence no answer to say that it is prejudicial simpliciter. It is quite possible that the purchase and resale by the appellants of these tickets at inflated prices would be viewed with disquiet by many people, including the jurors; nonetheless, these were the hard facts of the case and attempts to acquire and resell such tickets were part of the appellant’s business system. It is hard to see why a judge should exclude this evidence simply because jurors might find it distasteful.
75.
Secondly, the evidence was relied upon by the Prosecution in relation to whether Hunter placed personal greed over and above the welfare of his customers and was prepared to behave in an unscrupulous fashion in relation to events such as these in order to make a profit. It went to rebut Hunter’s case that he was an honest businessman running a legitimate business conducted within the accepted bounds of the market in which he operated. The evidence was therefore germane to the application of the legal test of dishonesty.
76.
Thirdly, an attack upon the characters of Camp and Galbraith arose for the first time during the closing speech of Counsel for Hunter when it was suggested that the evidence of both was improperly motivated by a desire to make more money and/or by a vendetta against Viagogo. By necessary implication the jury was invited to conclude that both witnesses had been untruthful and/or biased in their evidence when they explained their reasons for taking action against ticket touts. The evidence was therefore also relevant to addressing this attack.
77.
In these circumstances we reject this ground of appeal.
E.
Issue 3: The relationship between the statutory offence under
section 993
Companies Act 2006
and the common law offence of conspiracy to defraud
The appellants’ submissions
78.
The appellants next argue that the statutory offence must be read subject to the limitations in the common law offence of conspiracy to defraud which has been expressly preserved by Parliament in
section 5(2)
of the
Criminal Law Act 1977
. Under the common law offence an “
essential
” component was proof of an intent to defraud and as to this there were only three possibilities: (i) an intent to defraud a non-creditor by deception; or (ii), an intent to defraud another by deceiving him/her into acting contrary to public duty; or (iii), the deliberate putting of another person’s property interests in jeopardy.
79.
The Judge erred in leaving a generalised definition of dishonesty to the jury. In the legal directions the Judge explained that “… “
fraudulent purpose’ in this context connotes an intention to go beyond the bounds of what ordinary decent people engaged in business would regard as honest, or involving, according to the current notions of fair trading among commercial men/women, real moral blame
…”. As we explain below (see paragraph [119]) the judge’s formulation was taken directly from classic case law. The appellants however argue that leaving a general dishonesty case to the jury in such terms was insufficient. Because of facts now known to be true (namely that PTS/PTW were not deceived) the only way in which the
Section 933
CA 2006
offence could be established was by the Prosecution proving that the appellants deliberately put another person’s proprietary right in jeopardy. A “
proprietary right
” in this context meant a right over or in respect of property that could be asserted against others, that was not personal to a given individual and which existed by reason of and as an incident to ownership of other property.
80.
The appellants contend in relation to Count 1 that possibility (i) above (intent to defraud a non-creditor by deception) did not apply because the PTS were not deceived since they were fully aware of and supported the appellants’ business operations and objectives. This being so the Prosecution had to prove one of the other heads of intent and as to these only possibility (iii) (harm to a proprietary interest) was even potentially relevant. The appellant’s case on this was that the PTS/PTW were not harmed since they sold all the tickets they owned; and, consumers were not harmed because no proprietary interest of theirs was harmed and in practical terms there was no sensible risk of ticket holders being denied entry to events.
81.
The requirement to prove a risk to a proprietary interest in a non-deception case is said to flow from the judgment in
R v Evans
[2014] 1 WLR 2817
(Crown Court Cardiff) at paragraph [40] and
R v Evans
[2014] EWHC 3803 (QB)
at paragraphs [49] and [60] et seq. In
R v
Evans
(Crown Court)
Hickinbottom J suggested (paragraph [40]) that upon the basis of decided case law there was
“… a possible limit, namely a requirement for some proprietary right of the victim to be … injured
”. Later (paragraph [173]) the judge rejected a suggestion that all that had to be established was “
economic prejudice
” which included an interest less than proprietorial. He concluded that authority
“… points, with some firmness and clarity, in favour of the proposition that, for a conspiracy to defraud based on economic injury to the object victim, the right or interest of the victim that is compromised must be proprietary
.” He considered (paragraph [174]) that there were good reasons of principle and policy why that should be so; the law had to set boundaries of behaviour in commerce, and in the management of everyday life. The upshot was that the judge dismissed a single charge upon which the Serious Fraud Office (“
SFO
”) had sought the trial of the six defendants. In the light of this ruling, there followed an application to the High Court by the SFO for a voluntary bill of indictment (
R v Evans
(QB)). There the principal criticism of Hickinbottom J was that he erred in law by adopting an overly narrow test when he ruled that agreement in the case could only amount to a conspiracy to defraud if it was proven that the defendants agreed dishonestly to prejudice another’s proprietary right or interests. The judge dismissed the SFO’s application, but he did not deal at any length with the issue.
82.
The appellants also rely upon an observation set out in paragraph [10.17] of a Law Commission Working Paper (1987) entitled “
Conspiracy to Defraud
”. It is helpful to set out the entirety of the relevant paragraphs:
“(b)
Fraudulent trading "for any fraudulent purpose"
10.17 There are no reported cases on the meaning of the phrase "or for any fraudulent purpose". It seems likely that the courts would interpret this phrase as requiring dishonesty, but again unlikely that the presence or otherwise of a deception would be relevant except in so far as it may be evidence of dishonesty.
It may be that, by analogy with cases of conspiracy to defraud, fraudulent trading under this limb is trading with intent to injure, by dishonesty, some proprietary right of another.
Further, it is arguable that, despite the obvious concern in section 458 with financial loss, fraudulent trading "for any fraudulent purpose" need not necessarily involve financial loss, and thus may cover the type of case at present caught by conspiracy to defraud a person performing public duties, for example, where the fraudulent purpose is to deceive a public official to grant an export licence to a company when it is not entitled to one.
10.18 There are dicta which suggest that a director of a company dealing in second-hand motor-cars who wilfully misrepresents the age and capabilities of a vehicle to a customer is not carrying on the business for a fraudulent purpose. However, where such a director tells lies every time he sells motor-cars, it must be doubtful whether these dicta would be followed. It has been suggested that an intent to avoid satisfying a person with a claim for an unliquidated sum (who is not strictly speaking a creditor) could constitute a "fraudulent purpose".
(Italicisation of text added)
The three issues arising
83.
Three issues now arise: (i) whether
section 993
CA 2006
is to be construed as subject to the common law limitations on the offence of conspiracy to defraud; (ii) whether the appellants are correct and that
even if
the common law limitations apply the facts of the case do not fall within the category of an “
intent to defraud a non-creditor by deception
”; and (iii), again assuming the common law limitations apply, whether
section 933
requires that the appellants deliberately put
“another person’s propriety interests in jeopardy
” or whether that formulation is too narrow and strict.
Do the common law limitations apply?
84.
In our judgment such limitations as exist under the common law do not apply to the statutory offence under
section 993
CA 2006
.
85.
First, the submission proceeds upon the false premise that the limitations imposed by the courts on the common law offence have been incorporated into
section 933
, even though nothing in the language that Parliament used in that section refers to the three limitations or indeed to any limitations, but qualifies “
purpose
” only with the condition that it must be “
fraudulent
”.
86.
To succeed the appellants must therefore argue that Parliament
implicitly
intended to incorporate the common law limitations in order to govern the true construction of the statutory offence. This approach to statutory construction is however inconsistent with settled law. In
R v Rimmington
[2005] UKHL 63
the House of Lords addressed the policy that should be applied to the charging of offences where the choice was as between a common law offence and a later statutory offence. There the common law offence was the causing of a public nuisance, and the later statutory offences took a variety of different guises. Lord Bingham, under the heading “
The current standing of public nuisance”,
identified three governing contentions that had been advanced by the appellants:
“28. The appellants contended (1) that conduct formerly chargeable as the crime of public nuisance had now become the subject of express statutory provision, (2) that where conduct was the subject of express statutory provision it should be charged under the appropriate statutory provision and not as public nuisance, and (3) that accordingly the crime of public nuisance had ceased to have any practical application or legal existence.”
87.
He expressed substantial approval of the first two propositions. In relation to the first (at paragraphs [29]) he listed a series of specific statutory interventions in the field of the environment which created specific offences of nuisance. He referred, for instance, to
Section 79(1)
of the
Environmental Protection Act 1990
,
Section 85
of the
Water Resources Act 1991
,
Section 137
of the
Highways Act 1980
,
Section 1
of the
Protection from Harassment Act 1997
,
Section 32
of the
Crime and Disorder Act 1998
, and
Section 63
of the
Criminal Justice and Public Order Act 1994
. He then observed that whilst there was not a complete overlap between the common law and the statutory offence nonetheless most of the conduct which could be objected to was covered by statute: “
While it cannot be confidently asserted that there is no conduct which might formerly have been properly prosecuted as public nuisance which is not now the subject of express statutory provision, the appellants are in my opinion correct that the most typical and obvious causes of public nuisance are now the subject of express statutory prohibition
.”
88.
In relation to the second proposition, he said:
“30. There is in my opinion considerable force in the appellants' second contention under this head. Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited. … It cannot in the ordinary way be a reason for resorting to the common law offence that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.”
89.
In relation to the third proposition his approval was more qualified:
“31 It follows from the conclusions already expressed in paras 29 to 30 above that the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare. It may very well be, as suggested by JR Spencer in his article cited in para 6 above, at p 83, that "There is surely a strong case for abolishing the crime of public nuisance". But as the courts have no power to create new offences (see para 33 below), so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration (perhaps undertaken, in the first instance, by the Law Commission) whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists.”
90.
Lord Bingham also cited
(paragraph [33]) the “
famous polemic
” of the legal philosopher Jeremy Bentham in “
Truth versus Ashurst”,
written in 1792 and published in 1823, where Bentham made a “
searing criticism of judge-made criminal law
” which he denigrated as "
dog-law
":
"It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won't tell a man beforehand what it is he
should not do
- they won't so much as allow of his being told: they lie by till he has done something which they say he should not
have done
, and then they hang him for it."
Lord Bingham then added that the domestic law of England and Wales had set its face firmly against "
dog-law
".
91.
How does this apply to the present appeal? Here the appellants use the common law tail to wag the Parliamentary dog in a way that is inconsistent with the reasoning underlying
Rimmington
. The reasoning of Lord Bingham when considering the relationship between common law and Parliament was focused upon two policy considerations. First, the considerable caution and reticence that the courts applied to the incremental development of the common law; and secondly (and related), the primacy of Parliament when enacting and defining statutory offences. It was for these reasons that ordinarily the courts should, in cases of overlap, charge the statutory offence rather than its common law counterpart. It is for the same reasons that in any clash as between the common law and Parliament it is the latter that takes precedence. It accordingly runs counter to judicial policy for, as the appellants would have it here, the common law to drive and limit otherwise broad statutory language. That is the wrong way around.
92.
Moreover, the offence under
section 993
and the common law offence are not identical which also militates against one being used rigidly to define the other. Notably,
section 993
focuses upon the conduct of the individuals in their business dealings and is an offence focused upon a fraudulent carrying on of a business purpose. It is different in nature to the common law which concerns conspiracies and is not an offence which statutorily lifts the corporate veil to focus upon the carrying on of a business by those who manage and run it.
93.
In relation to the Law Commission Working Paper this was only a call for evidence, not a final report and, as such, it did not reflect the final views of the Commissioners which are only expressed when, collectively, they approve a final report. It is routine in calls for evidence for the Commission to posit ideas and suggestions with a view to stimulating debate amongst consultees so that the Commissioners are better informed when they come to agree a final report. The Working Paper does not therefore have the same persuasive value as a final Law Commission report. Nonetheless, even as it stands the Working Paper is expressed with considerable circumspection. It starts with the tentative position that it seemed “...
likely that the courts would interpret this phrase as requiring dishonesty, but again unlikely that the presence or otherwise of a deception would be relevant except in so far as it may be evidence of dishonesty
”. In relation to the possibility that the common law requirement for proof of harm to a proprietary interest be read across it is equally diffident and postulates this only as a possibility: “
It may be that, by analogy with cases of conspiracy to defraud, fraudulent trading under this limb is trading with intent to injure, by dishonesty, some proprietary right of another
.” It then says that it was “
arguable
” that fraudulent trading "f
or any fraudulent purpose
" “need not “
necessarily involve financial loss
”. There is in our view little which supports the appellants arguments to be derived from this Working Paper. We take the same view of the literature cited to us by the appellants.
94.
In our judgment the words in
section 993
must be given their ordinary and natural meaning - “
a fraudulent purpose
” does not mean
only
those limited purposes enumerated under the common law.
Is this a case of “intent to defraud a non-creditor by deception”?
95.
Furthermore, the appellant’s arguments assume that
even if
the common law limitations apply, the facts of their case did not fall within the category of an “
intent to defraud a non-creditor by deception
”. As to this we have explained elsewhere (paragraphs [65], [132]-[135]) that on the facts the jury was left by the judge to determine whether the PTS/PTW were deceived by dishonest means and they found that they were. The jury therefore rejected Hunter’s defence that there was no deception which is the premise behind the present argument. Even on the appellant’s (incorrect) analysis, the first of the
Evans
categories of intent was therefore met.
Does
section 933
require that the appellants deliberately put “another person’s property or financial interests in jeopardy”, and what this actually means?
96.
Finally, the appellants case also assumes that, all other matters having been decided in their favour,
section 933
requires that their conduct involve “
deliberately putting another person’s property in jeopardy
” and that this cannot be proven in this case (see paragraphs [51]-[53] above). The appellants place great store on the judgments in
Evans
and what they say is the narrow definition of property or propriety interests referred to therein and the concomitant exclusion of harm to a purely financial interest.
97.
However, insofar as this judgment is said to imply a narrow formulation of a proprietary interest its correctness has been doubted subsequently by the Court of Appeal in
R v Hayes
[2015] EWCA Crim 46
. There the proceedings related to “LIBOR fixing”. What was alleged was that the applicant, along with others, conspired dishonestly at common law to manipulate and abuse the Japanese yen LIBOR rate between January 2006 and December 2010 when employed first at UBS and then at Citigroup. The motivation asserted was enhanced profits for his respective employing banks from such activities and thereby increased bonuses for himself. One of the arguments advanced to the trial judge and raised on appeal was that in a case of common law conspiracy to defraud of the particular kind alleged, the prosecution had to show actual prejudice, or a risk of actual prejudice, to a proprietary right or interest of another and that the prosecution could not do so on the agreed evidence. There was no evidence that any counterparty had been deceived or acted to its detriment in reliance on what was allegedly going on. The counterparties interest in their own funds was not put at risk and such contractual rights as the counterparties possessed were not proprietary rights, properly defined, that stood to be injured by the alleged combinations asserted by the Crown. Finally, such contractual rights as counterparties did have were also not put at risk. Instead, it was the performance of such contracts that gave rise to any risk arising to the counterparties. The Court of Appeal rejected these arguments giving them short shrift. They approved of the trial judge’s robust rejection of the defence proposition that there was no financial risk to counterparties. They then turned to the necessity of establishing injury to a proprietary interest and expressed considerable doubt that the narrow formulation in
R v Evans
was correct (see paragraph [39] below). The Court concluded that causing a third party to sustain a financial loss was sufficient and that including causing injury to the “
value of contractual rights
” (see paragraph [35] below):
“30. The asserted need for there to be a proprietary right in this particular context seems to found itself on the propositions of Viscount Dilhorne in R v Scott
[1975] AC 819
at 840, a case in which, so it would appear, no one was in fact actually deceived. What Viscount Dilhorne said in the relevant passage was this:
“… it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.”
31. It may be noted, however, that matters were put on an altogether wider basis in cases such as Welham v DPP
[1961] AC 103
, and in particular in the speech Lord Denning; and in Wai Yu-Tsang v The Queen
[1992] 1 AC 269
. In the latter case, reference is made by Lord Goff at page 276 to “an intention to act to the prejudice of another man's rights”. At page 277 he went on to refer to “the general principle that conspiracies to defraud are not restricted to cases of intention to cause the victim economic loss”. Those broad comments were, it seems to be the case, said in the context of cases where there was intention to deceive an individual into acting differently from how otherwise he would have done.
32. Mr Convey, who argued this part of the case on behalf of the applicant, submits that that is not so in the present proceedings: because no deceit was alleged to be practised on the counter-parties as such to which they acted to their detriment. That is perhaps true in one sense. But we are not at all sure that, looking at matters more broadly, that accurately reflects the whole picture. Maybe no deceit practised on the actual counter-parties is alleged: but what is clearly alleged is that the submissions made via Thomson Reuters to the BBA for the purposes of the setting of the rate were false and misleading. That connotes that those ultimately setting the rate were being deceived, and that in turn would have an impact on those conducting their transactions by reference to the rate as set.
33. But be that as it may, and assuming that a proprietary right or proprietary interest of the kind connoted by Viscount Dilhorne is required, one still has to consider what that phrase was intended to mean. It is a phrase constructed by judges for the purposes of setting the common law. There is no applicable statutory definition. If, at all events, one were to refer by analogy to
section 4
of the
Theft Act 1968
or
section 5
of the
Fraud Act 2006
, the notion of “property” for those statutory purposes can be very broad indeed. As we see it, there at all events can be no reason whatsoever to confine Viscount Dilhorne's reference to “proprietary right” to the notion of beneficial or equitable interests or, for example, the kinds of interests needed to be shown to be able to launch a claim for an equitable tracing remedy. No right in rem as such needs to be shown for these purposes. There is no principled reason why it should be.
34. As Cooke J pointed out, the property losses (potential, if not actual) to the counter-parties were obvious: they, whether or not they themselves had been directly deceived, stood to lose money, their money. It is said, indeed, by reference to the evidence that these ultimately were “zero-sum” transactions: the counter-parties' potential loss in essence would be the bank's potential gain. That, indeed, on the Crown's case was the whole intention behind the asserted conspiracy.
35. Self-evidently, the rights and interests of the counter-parties — potential losers — were “proprietary” in nature for the purposes of what Viscount Dilhorne had in mind. That suffices. But in any event, the counter-parties' rights under the relevant trading contracts constituted a chose in action: a form of property. Those rights again self-evidently stood to be injured: in that the value of the contractual rights during the period of the contract, and therefore the value of the chose in action which they represented, stood to be diminished to the counter-party by reason of the consequences of the alleged dishonest conspiracy. It seems to us, therefore, that the judge was right to rule as he did.
36. We only add on this aspect of the case that, as we see it, the applicant can obtain no support from the decision of Hickinbottom J, or the subsequent ruling of Fulford LJ, sitting as a High Court judge, in Evans. That case was decided on its own, and very unusual, facts. Moreover, it was decided by reference to the very particular way in which the Crown had chosen to frame the indictment, as Fulford LJ emphasised in his ruling. We should add, however, that our own view is that it is by no means to be assumed that, properly framed, the factual scenario arising in Evans was not capable of constituting a common law conspiracy to defraud. Indeed, we were rather surprised to note that it was apparently accepted before Hickinbottom J that no unlawful object arose in that case and that no unlawful means could be identified. One only has to consider the facts of that case, as alleged, in some detail to see how debatable those apparent concessions were. But as we say, the point ultimately was decided by reference to the particular way in which the indictment had been framed.
37. Moreover, it may be noted that in paragraph 169 of his judgment, Hickinbottom J, amongst other things, said this, dealing with the question of proprietary rights and economic prejudice: “The term appears to have survived as a result of two things: legal habit, and the fact that in most cases it is not in issue that the targeted right or interest is proprietary – the conspirators intend to relieve the victim of his money or such other property that he owns – and the only issue is dishonesty.”
38. So relieving a victim of money is plainly accepted by Hickinbottom J as falling within the ambit of a “proprietary right”.
39. We should add, however, that in so far as Hickinbottom J went on to make some further observations with regard to what was connoted by the phrase “proprietary right”, we think that may require further analysis; and we should not be taken as necessarily agreeing with the relatively narrow view of the meaning of that phrase as (perhaps) indicated by Hickinbottom J. But for the purposes of this case, we need not say more. We add also that a further clear distinguishing factor from the Evans case is that in that case the rights of the relevant public bodies were to a very pronounced degree more contingent than was the case here.”
98.
We also share the doubts expressed by the Court of Appeal in
Hayes
as to the correctness of the analysis in
R v Evans
. We do not however need to express a definitive view on this because the present case has not been charged as a common law offence involving harm to a proprietary interest. We would add only that
if
the common law were as narrow as is submitted, and as is set out in
R v Evans,
then we would consider this to be a yet further reason why it should not be capable of influencing the scope of
section 993
which on its terms is not so limited. In our view the present case is a good illustration of just the sort of dishonestly fraudulent conduct that
section 993
should apply to. The ingenuity of business fraudsters knows few bound. As business is increasingly conducted using digital assets (e.g. cryptocurrencies), which may or may not in law be classified as “
property
”
On 30
th
April 2021 the Law Commision issued a call for evidence on the ways that digital assets were used, treated and dealt with in markets and as to the potential consequences of classifying such digital assets as “
possessable
” in law.
, if
section 933
was hidebound by an outdated requirement to show harm to harm to an identified “
proprietary
” interest it would risk become rapidly outdated.
99.
For all the above reasons, we reject the submissions that the statutory offence is to be curtailed by limitations in the common law offence.
F.
Issue 4: The components of the offence under
Section 993
CA 2006
: (i) whether there has to be deception or an intention to deceive; (ii) whether there has to be a victim who suffers actual or intended harm?
The appellant’s arguments
100.
The Judge ruled that there was no requirement for the jury to be directed that: (i) there had to be deception or an intention to deceive either the ticket vendor (PTS/PTW) or consumers; or (ii), there had to be a victim who suffered actual or intended harm.
101.
He rejected the suggestion that harm to an identified proprietary interest had to be proven and directed the jury that fraud was acting to the prejudice of the rights of another person or exposing that person to the
risk
of their economic interests being prejudiced.
102.
The appellants submit that the judge erred: (i) in finding that an intention to deceive was not a condition of the offence; (ii) in concluding that there did not have to be victim or intended victim: and (iii), in his direction that all that had to be proven was actual or intended harm to a third person’s economic interests.
103.
In his ruling of 22
nd
January 2020, the Judge set out his reasoning as follows.
104.
First, the language of the two limbs of
section 933
were different. Whilst there was an express requirement in relation to the first limb (focusing upon creditors) that there had to be an intent to defraud a creditor, there was no equivalent language in relation to the second limb. The judge inferred from this that Parliament was using the second and broader limb as a device to criminalise fraudulent conduct which was not limited to an intent to defraud a victim.
105.
Secondly, the judge referred to
R v Kemp
[1988] Q.B. 645
where the Court held that the mischief the legislation (in its earlier incarnation) was aimed at was fraudulent trading generally and not only fraudulent trading vis-à-vis creditors. It would suffice if the person defrauded was a potential creditor of the company which included the company’s customers. The judge construed this as indicating that there was no requirement for proof of an intent to defraud actual persons.
106.
Thirdly, the judge also cited
R v Philippou
[1989] 89 Cr App R 290
concerning the fraudulent purpose of a travel company which lay in (i) concealing from the Civil Aviation Authority the true financial position of the company for which an ATOL licence was sought; and (ii) the transfer of funds beyond the reach of the company’s creditors and/or liquidators. The Court of Appeal held that being in possession of a licence was a prerequisite to the ability of the company to trade so that the process of applying for such a licence amounted to carrying on business and concealing relevant information from the regulator was fraudulently dishonest. In relation to the transfer of funds out of the jurisdiction, just two months prior to the liquidation, the Court held that it was a proper inference to draw that this was a transaction with a fraudulent purpose. The Judge in the present case concluded that in
Philippou
at the time the transfer of funds occurred there was no deception on, or of, any actual person; it was simply a removal of funds from one account to another, but it nonetheless still had a “
purpose
” that was fraudulent.
107.
The appellants nonetheless argue that an intention to deceive must at the least be proven. The scope of the allegation of fraudulent trading in Count 1 was too broad and nebulous for the conviction to be safe. The conviction on Count 2 was unsafe in that the articles for use in fraud only acquired that status if the jury convicted on Count 1 and/or 3 The conviction on Counts 3 and 4 were unsafe because the jury’s findings on Counts 1 and 2 would have tainted their approach to Counts 3 and 4. The judge should have directed the jury that they had to be sure that the defendants caried on the business dishonestly and with intent to defraud a non-creditor by deception.
108.
The Judge produced for the jury a detailed document entitled “
Directions of Law and Route to Verdict”
which set out the law with a higher degree of specificity than is contained in his earlier rulings. We concentrate upon this document. In our judgment the Judge’s analysis of the law was essentially correct. But more to the point in the event his legal directions were closely tailored to the facts and were favourable to the appellants. They did not frame the offence at its lowest possible legal threshold but set out extensively the evidential issues that the jury needed to address, and these included a detailed exposition of the different ways in which it was said that there had been
actual
deception. In our view the appellants are wrong both as to the law but also in their criticisms of the directions that the judge gave to the jury.
Section 993
CA 2006
: The three components
109.
We start with the law. To decide this ground of appeal it is necessary to set out the relevant statutory offence and to summarise the law that relates to it. The offence of fraudulent trading has been long established in legislative form. The present incarnation is set out in
section 993(1)
CA 2006
, which is in the following terms:
“(1) If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, every person who is knowingly a party to the carrying on of the business in that manner commits an offence.”
110.
The section applies whether or not the company has been, or is in the course of being, wound up (sub
section 2
). A person guilty of an offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding ten years or a fine (or both) (subsection 3).
111.
Section 993
, by its terms, creates two offences:
Inman
[1967] 1 QB 140
at page [148]. The first limb relates to businesses carried on with an intention to defraud creditors. The second limb, which is the relevant offence in this appeal, arises from the following statutory language:
“If any business of a company is carried on … for any fraudulent purpose, every person who is knowingly a party to the carrying on of the business in that manner commits an offence.”
112.
The cumulative ingredients of the offence are threefold: (i) That any business is being carried on; (ii) for a fraudulent purpose; and (iii), the defendant is knowingly party to that carrying on for a fraudulent purpose. Unlike in respect of the first limb offence there is no reference to an intention to deceive in the second limb offence.
113.
We turn now to each of the three components of the offence and the appellant’s arguments. Given the overlap between the two limbs of
section 993
case law on the first limb can cast light on the scope and effect of the second limb offence.
First component: “… any business of a company is carried on”.
114.
In practice it will be unlikely that there will be any significant dispute about the expression “
any business
”. This will always be fact sensitive. In this case it could be articulated in a variety of ways such as: the use of a business system designed to make a profit by the purchasing and reselling of tickets; or the use of a business system designed to mislead ticket vendors into believing that the purchasers are genuine consumers; or the use of a business system designed to mislead ticket vendors into believing that the purchasers are genuine consumers in order to enable those purchasers to then make a profit by reselling the tickets to end consumers, etc. The real issue is not how “
the business
” is described or articulated but whether the defendants in question were
“carrying on”
that business. Some degree of attribution is needed. A receptionist of a business that is being carried on for a fraudulent purpose will not, by the simple fact of sitting at reception, be carrying on the business. There has to be a consideration of the acts of the defendants said to amount to “
carrying on”
and whether they were in connection with the business.
115.
In relation to Count 1 the Judge identified the acts of attribution as controlling, managing, or running the business of purchasing and selling tickets and conducting ancillary acts associated with running the business. In this case Hunter was a Director and Smith was the Company Secretary. The Judge made clear that “
it matters not if one Director played a lesser role than the other”
. We agree with this analysis. In relation to Counts 3 and 4 the Judge applied this same analysis of Count 1 save for the difference that the carrying on of the business involved selling tickets. Again, we agree.
Second component: “... for any fraudulent purpose”
116.
There will rarely be a dispute about “
purpose
”. In this case, for instance in relation to Count 1, the Judge told the jury that the “
object of this enterprise …. was to purchase event tickets for resale and because of the terms and conditions … of the PTSs / promoters which restricted any cardholder, individual or entity to a maximum number of tickets (varying 2 to 6) the company adopted methods to overcome these restrictions”.
Again, there are numerous ways in which the object or purpose could have been articulated. In our judgment the language chosen by the Judge was perfectly fair and accurate.
117.
The real issue was whether the acts taken by the appellants with this purpose in mind were
fraudulent
. We start with the law on this concept.
118.
The concept of “
fraud
” is well established. Dishonesty is an essential ingredient. One classic formulation of dishonesty is found in
Re Patrick & Lyon
[1933] 786 Ch per Maughan J at page [790]: as “…
involving, according to the current notions of fair trading amongst commercial men, real moral blame
”. This was the formulation used by the Judge in his directions on law to the jury. Later, in
Grantham
[1984] 1 QB 675
, the Court of Appeal, in a case concerning an intent to defraud creditors, approved of a passage from the summing up in the earlier case of
Welham v DPP
[1961] AC 103
where the House of Lords had approved of a description of dishonest fraud as “…
stepping beyond the bounds of what ordinary decent people engaged in business would regard as honest
.” Many judges have, whilst seeking to encapsulate the test in understandable language, cautioned against any judicial attempt to set out a definitive, all encompassing, legal definition. There is nothing in the Judge’s formulation of the test that can in our judgment be objected to.
119.
The running of a business in a fraudulent manner will commonly involve acts of commission and omission. The deliberate concealment or suppression of true facts or information might be compelling evidence of fraud. Commissions and omissions can be two sides of the same dishonest coin. In
R v Philippou
(ibid) the Court of Appeal held that the concealment of transactions in order to maintain or renew licences issued by the Civil Aviation Authority was capable of amounting to fraud. However, whilst deception might be a prime example of fraudulent behaviour, conduct that is fraudulent might go beyond the perpetrating of deception. Deception and fraud are not synonymous.
120.
The focus upon purpose means that the law is prophylactic. A fraudulent purpose might be proven before anyone is
actually
defrauded or becomes an
actual
victim of the fraud. In the present case if the Prosecution had charged the defendants after they had acquired the relevant bots and other software and the multiple credit cards and had set up a system for using an array of false identifies, but
before
the defendants had put that system into operation and used it to trick ticket vendors into selling them tickets and/or to place end consumers at risk, then the offence would
still
have been committed even though there was no actual fraud and no actual harm to end consumers and therefore no victims. A fraudulent purpose would still be in existence and business acts to achieve that purpose would have been carried out. Of course, evidence of implementation might afford powerful additional evidence of the fraudulent purpose, but implementation of a fraudulent purpose is not an essential ingredient of the offence.
121.
The absence of any requirement to prove the existence of an actual victim was made clear by
Anthony Elleray QC, sitting as a Deputy Judge of the High Court in
In The Matter of TMC Transport (UK) Ltd and
others
(
judgment 2 March 2001)
[2001] 2 B.C.L.C. 1, a case on
the defrauding of creditors (under
s.213
of the
Insolvency Act 1986
). He observed
:
"94. It is not, in my judgment, a pre-condition of finding the relevant intent to defraud creditors or other fraudulent purpose, that there has been an incurring of credit. The relevant detriment, as in
Kemp
, may not involve the incurring of credit and indeed the relevant intent may not, in a given case, succeed. The obtaining of credit can be relevant intent to defraud or relevant fraudulent purpose but it would be wrong to elevate the obtaining of credit to a requirement of liability under
s 213
[of the
Insolvency Act 1986
]."
122.
It might be stating the obvious but where the offence of carrying on a business for any fraudulent purpose is charged (the second limb offence) it is unnecessary to establish the existence of creditors. In
R v Kemp
[1988] 1 QB 645
the Court of Appeal was concerned with
section 332
Companies Act 1948
(a predecessor to
section 933
) the relevant part of which was in the following terms: "
If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose
…”. The Court made clear that fraud on a customer fell within the purview of the offence and more broadly stated, having reviewed in detail the legislative history of the provision, “…
the mischief aimed at is fraudulent trading and not fraudulent trading just in so far as it affects creditors
” (ibid page [654E/F]).
123.
In
R v Hollier and Booth
[2013] EWCA Crim 2041
the Court was concerned with fraudulent trading under 458
Companies Act 1985
(a predecessor to
section 933
). Count 3 was particularised to allege that the defendants "…
were knowingly a party to the carrying on of the business of [BGL] for a fraudulent purpose, namely to disguise [the Defendants'] role in the ownership and control of [the companies]
”. It was argued that an actual intention to deceive was needed. Lady Justice Macur disagreed. She observed:
"23. Second limb fraudulent trading does not necessarily incorporate intent to deceive or actual deception of creditors. Concealment of ownership to obtain business advantage that would otherwise be denied is sufficient if the jury were sure of dishonest intent. There is no obligation upon the Prosecution to identify those who were or may have been subject of the fraudulent purpose if it is inevitably to be inferred, as here, from the circumstances and evidenced by Hollier's own evidence, that the companies had already suffered in Guernsey trading by virtue of their association with him.
24. No doubt, if called upon to do so the Prosecution would now submit to the call for further particulars by adding the words "and so gain commercial advantage from individuals, bodies or corporations that would otherwise decline to do business with companies under the control of Hollier".
124.
We therefore conclude that the judge was right to conclude that there was no requirement for the Prosecution to prove an intention to deceive third parties in order to prove a fraudulent purpose.
Third component: “... the defendant is knowingly party to that carrying on for a fraudulent purpose”
125.
The third component of the offence concerns knowledge which on the wording of
section 933
must relate to both the carrying on and the fraudulent purpose. In this case the basic facts, and the appellant’s knowledge of them, are not materially in dispute. What was disputed was the appellant’s knowledge that what they were doing was dishonest and hence fraudulent.
126.
The Judge directed the jury only in terms of actual knowledge. Did the appellants know that what they were doing was dishonest? There can be no criticism of this formulation.
127.
The Judge did not direct the jury in terms of blind eye knowledge. This was to the advantage of the appellants since it is a lower threshold. In the context of intention to defraud creditors knowledge is a relevant consideration and includes “
blind eye
” knowledge (sometime colloquially called “
Nelsonian knowledge
”). In
Re Bank of India Credit and Commerce Internationale SA v State of Bank of India
[2003] EWHC 1868 (Ch)
) Patten J stated:
“
Knowledge includes deliberately shutting one's eyes to the obvious, provided that the fraudulent nature of the transactions did in fact appear obvious ... It is well established that it is no defence to say that one declined to ask questions, when the only reason for not doing so was an actual appreciation that the answers to those questions would be likely to disclose the existence of a fraud."
In
Manifest Shipping Company Limited v Uni-Polaris Company Limited
[2003] 1 AC 469
, Lord Scott of Foscote said:
"In summary, blind-eye knowledge requires, in my opinion, a suspicion that the relevant facts do exist and a deliberate decision to avoid confirming that they exist. ... the suspicion must be firmly grounded and targeted on specific facts. The deliberate decision must be a decision to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe."
128.
In
Morris & Ors v State Bank of India
(ibid) Patten J addressed the position of a secondary party and said that the words:
"'intent to defraud' … obviously do connote actual dishonesty ... But in the case of a secondary party, sought to be made liable … all that is in terms required is that that party should have knowingly participated in the carrying on of the business with intent to defraud. It is difficult to see how, in practice, a conscious decision to participate in transactions which are known to be fraudulent does not constitute dishonesty …”
129.
The notion of “
blind eye”
knowledge is not particular to an intention to defraud creditors and, on the language of
section 993
, applies equally to the alternate and broader second limb. A defendant that manages or controls or runs a business who turns a blind eye to the truth can be found by a jury to have the requisite knowledge.
130.
We would add for the sake of completeness that when dishonesty is charged an “
Ivey
” direction must be given to the jury:
Ivey v Genting Casinos (UK) Ltd
[2017] UKSC 67
; and
DPP v Patterson
[2017] EWHC 2820 (Admin)
. This was set out in the judge's directions and there is no issue arising on this appeal about it.
Conclusion: An intention to deceive?
131.
It follows from the case law set out above that there is no requirement for the Prosecution to prove an intention to deceive. In (very) many cases that is likely to be a key ingredient of the evidence which goes to prove a fraudulent purpose; but it is not strictly necessary.
132.
This brings us to the way in which the judge directed the jury. As to this the Judge did direct the jury to consider acts of deception and determine whether they were dishonest and fraudulent.
133.
In relation to Count 1 (acquisition of tickets from PTS/PTW) the acts and omissions relied upon by the Prosecution involved classic acts of deception and in particular the adopting of a method of business designed to overcome the restrictive terms and conditions imposed by ticket vendors which entailed failing to disclose to vendors the true identity of the purchaser and, in so doing, making false representations to ticket vendors as to the identity of the purchaser and as to the purpose behind the purchase (i.e. resale). The Judge explained that whether the false representations were express (an active lie) or implicit (a passive lack of candour) was irrelevant. In relation to Count 3 (sales via STW to consumers) the jury was focused upon the listing of tickets for sale on STW which as a matter of law were or might be at risk of being cancelled or refused, and the failure to warn the purchaser of this risk of invalidity. In relation to Count 4 (the spec sales) the deception lay in the appellants failing to inform consumers that in actual fact they did not own or possess the tickets they were purporting to sell.
134.
The jury was therefore expressly directed as to acts of deception which were at the heart of the appellants’ business model, and they were asked whether these were dishonest. The Judge adapted his directions to meet the facts of the case. He did not take the more pared back approach that once a business system had been set up which was then carried on by the defendants and which had a fraudulent purpose that the defendants were guilty even if the system had not been implemented in a way which led to actual deception or actual prejudice to consumers. On the contrary the Judge adopted a more cautious approach where he invited the jury to focus upon the facts and whether there was actual deception.
135.
It follows from the above that: (i) we reject the argument that an intention to deceive is a necessary component of
section 933
; and (ii) we reject in any event the submission that there was any unfairness to the appellants in the manner in which the jury was directed.
Conclusion: Harm / prejudice
136.
We turn next to harm and prejudice. We have already rejected the argument that the Prosecution had to prove injury to a narrow proprietary interest (see paragraphs [96] – [98] above) and we have also made clear that it is the “purpose” that matters not the actuality. On the facts of the present case the Judge (and the jury) clearly concluded that there was real prejudice to the rights and interests of third parties. The Judge explained to the jury that fraud meant having as a purpose acting to the prejudice of the rights of another person or exposing that person to the risk of their economic interests being prejudiced. He also explained that whether an end consumer had in real life been the subject of refusal of access to an event or cancellation did not make a difference because the prejudice lay in the
risk
not the actuality. He also pointed out that fact that some STW provided cover to consumers in the event that tickets were invalidated did not matter since not all STW offered full compensation (see e.g. paragraph [45] above) but whatever compensation was paid it still did not cover disappointment, inconvenience and associated and ancillary costs and expenses. We agree with this analysis.
137.
In our view on the facts of this case there were a variety of ways in which the purpose of the business prejudiced legitimate interests or rights. The most obvious was the placing of consumers at risk that the tickets they had paid for, at inflated prices, were cancelled. The interests of ticket vendors also cannot be ignored. The evidence demonstrated that some went to considerable effort and cost to curb tickets touts and to avoid the reputational and consumer damage that might flow from fans being overcharged or refused entry. The appellants set out to undermine the business models of the vendors an important part of which were the rights they possessed to enforce contractual restrictions on sale. This was an attack upon a key component of the business model of genuine ticket vendors. The vendors were systematically deceived in circumstances where, had they known the truth, they would not have made the sales.
138.
There is also the conduct of the appellants themselves to bear in mind. The appellants individually (but also in the context of the many other touts operating in the same way) sought to prevent consumers being able to use honest ticket sites to acquire tickets at face value by the process of harvesting tickets which sucked large numbers of otherwise available tickets out of the system. Their conduct deliberately distorted and imbalanced supply and demand and created an artificially inflated demand which could be satisfied only by sales on STW at hyper inflated prices. The greed of the touts who forced consumers to pay for intrinsically risk laden tickets at high prices is, in our judgment, an important matter which also informs any decision about the nature of the prejudice arising out of the appellant’s conduct.
139.
We add one final caveat. The acid test for fraud is dishonesty. It is not evident to us that there is any requirement for the Prosecution to prove that, over and above sufficient evidence of dishonesty, there is an additional, incremental, requirement to prove that the rights or interests of a third party are harmed in a relevant manner.
If
the appellants had been correct and on the facts it had not been possible to demonstrate, as part of a relevant purpose, that there were any victims who might suffer prejudice of any sort, then that would not necessarily have been the end of the matter. We have not in this case had to address the situation of the so-called “victimless” fraud. It is possible to identify a variant of the facts of this case where defendants: (i) use duplicitous/deceptive conduct (which might amount to a breach of contract and/or breach of statutory duty); (ii) persuade counterparties to act in ways that they would not if they were informed of the truth; and (iii), thereby make significant profits that they would not otherwise have made had they acted in a candid, frank and lawful manner. We do not rule out the possibility that a jury so directed could find that such conduct was dishonest and hence fraudulent under
section 933
, even if there was no tangible prejudice to a third parties’ interests behind the “purpose”. Some support for this analysis is found in the judgment in
Hollier v Booth
(ibid) – see paragraph [123] above. At all events since the present case is one where, on the evidence, there was real and proven harm to the rights and interests of others, and this was inherent in the relevant purpose, we do not have to express a concluded view on the point.
Conclusion
140.
In our judgment the Judge directed the judge correctly on the law. We dismiss this ground of appeal.
G.
Issue 5: The “fairness” under the
Consumer Rights Act 2015
(“CRA 2015”) of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets, and which create a risk of ticket nullity.
Appellant's submissions
141.
The appellant’s case on fairness and the CRA 2015 can be summarised as follows
i)
Various sets of terms and conditions were placed before the jury and the Judge ruled that they were not unfair. In his view they were clear, lawful and effective. In this he erred. The defence was thereby deprived of the ability to assess the alleged fraudulent purpose of the allegations in the context of the correct status of the restrictions including the possibility that they were in law unfair and void or voidable.
ii)
Notwithstanding that the appellants operated as traders, the Court should still have had careful regard to whether terms curtailing or prohibiting resale were unfair.
iii)
The unfairness test under Part 2 CRA 2015 has two key elements. Section 62(4) provides that a term is unfair if: (1) it is contrary to the requirement of good faith; (2) it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer. The overall requirement is a unitary one; the single question is whether a term is “
unfair
”. The CJEU has commented that these criteria merely define in a general way the factors that render a contractual term unfair: see eg
Case C-415/11
Aziz v Caixa d'Estalvis de Catalunya, Tarragona i Manresa
EU:C:2013:164.
iv)
Schedule 2 CRA 2015, sets out an indicative, non-exhaustive, list of terms in consumer contracts that may be regarded as unfair, including: (a) a term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract; and (b), a term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.
v)
Appropriate prominence must be given to terms which might operate disadvantageously to the consumer. Terms should not, whether deliberately or unconsciously, take advantage of the consumer's circumstances to their detriment: see the CMA Unfair Contract Terms Guidance.
vi)
Both the CMA and the Waterson report considered resale restrictions of the type in issue to be problematic in terms of lack of transparency and their inaccessibility to consumers. Evidence given by Mr David Perry from the CMA to the Court was to the effect that courts would need to examine transparency when they came to determine fairness under the CRA 2015.
vii)
Restrictions such as those imposed by ticket vendors were unlawful in the light of this material and this was highly relevant to whether the defendants conduct caused prejudice to any third person’s interests and/or was dishonest.
The legal structure:
Consumer Rights Act 2015
142.
These grounds of appeal must be seen in the light of the legal structure of the CRA 2015. There are three questions to answer. First, when is a term unfair? Secondly, what are the consequences in law of a term being held to be unfair. Thirdly, who decides whether a term is unfair?
143.
First, when is a term unfair? A term is unfair, under section 62 CRA 2015, if “
… contrary
to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer
”. Various indicia are then set out in
the Act
, one of which is the requirement that consumers be aware of the terms in issue; transparency is important. The test however only applies to a “
consumer contract
”. This is defined in section 61 as “
a contract between a trader and a consumer
”. A “
trader
” is defined in
section 2
as “
… a person acting for a purpose relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf
”. A “
consumer
” is defined as “
…
an individual acting for purposes that are wholly or mainly outside that individuals trade, business, craft or profession
”. Various exclusions are provided for. For example, section 66(1)(b) excludes “…
any contract so far as it relates to the creation of transfer of an interest in land
”.
144.
Secondly, what are the consequences of a term being held to be unfair? If a term is unfair, in the statutory sense, it has the legal consequence of rendering the term voidable in civil law in the hands of the consumer under section 62 which confers upon the consumer the right not to be bound by the terms. Though, under section 62(3), a consumer has a choice whether or not to rely upon the terms in issue.
145.
Thirdly, who decides that a term is unfair? Under
section 71
CRA 2015 a free-standing duty is imposed upon “
courts
” to consider the fairness of contract terms in any proceedings which “
relate
” to the terms of a “
consumer contract
”. This is a most unusual duty that arises irrespective of whether the parties raise the issue or indicate that they intend to raise it (see
section 71(2)
).
The Act
does not define “
court
” or say how this works in a criminal case. It seems to us that in a criminal case, the determination is one for the judge, not a jury. There are two main reasons for this.
146.
The first is that
the Act
is concerned with consumer protection. The responsibility for enforcing the law lies with a range of specialist regulatory authorities (such as the CMA) and the courts. The object behind Parliament imposing a free-standing duty upon courts to rule on fairness is that a ruling and declaration of unfairness then triggers the civil law consequence of voidness. The courts, like the regulators, are hence given a civil law role in consumer protection. The task of the court might be quite complex and nuanced. The nature and scope of resultant voidness might, in theory at least, be limited to some but not all circumstances, but legal certainty is provided for because these limits will be set out in a judgment. That ruling will then guide the approach others (regulators and courts) take to enforcement of like terms. A jury for its part could never give a ruling on fairness. It is not a task that Parliament would have contemplated a jury would or could assume. All a jury can do is to arrive at a verdict of “guilty” or “not guilty” on the matters indicted which will never include an issue of fairness under the CRA 2015. Even if (to test the proposition) a jury were to take fairness into account as a matter collateral to a criminal charge the jury's function would still not be to rule upon the issue as opposed to rendering a verdict on the charge. In short, the task imposed under the CRA is a civil law one designed to regulate the past but also the future contractual rights of consumers. Parliament intended this task to be carried out by a judge.
147.
The second reason is that whether a term is unfair under
the Act
is an intertwined question of mixed fact and law. It might for instance turn upon the proper interpretation of the clause in dispute and as to the circumstances in which it applies or as to the adequacy of its accessibility in terms of transparency to consumers. The test laid down in
the Act
of fairness involves the balancing of a potentially wide range of legal and evidential considerations. This is reflected in
section 71(3)
which curtails the duty on a court to rule on fairness where “…
the court considers that it has before it insufficient legal and factual material to enable it to consider the fairness of the term
”. It would be artificial and counterproductive to the purpose of consumer protection to have to split up the legal and evidential parts of the test with one part being decided by the judge and the other by the jury. And it is wholly unclear how a jury could ever form a view as to the adequacy of the legal and factual material that it needed to form a conclusion on fairness. This is a yet further reason why the task in its entirety is one for the judge and not the jury.
148.
It follows that if and insofar as an issue arises of fairness under the CRA 2015 in criminal proceedings it is for the judge to determine the issue, and not an issue to be left to the jury. Any determination that the judge makes can then be placed before the jury as part of the directions of law if and in so far as it is germane to a jury issue. It necessarily follows that it was wrong of the judge to leave the question of fairness to the jury. Nonetheless, for reasons we explain below, this error worked to the appellant’s favour, not to their disadvantage.
Application of principles to the facts of the case: the three possible scenarios
149.
There was a considerable body of evidence before the court on fairness. First there were 79 pages of terms and conditions emanating from a variety of different ticket vendors. Secondly, the Waterson Report set out a detailed review of the issue of consumer protection including fairness. Thirdly, Mr David Perry a director from the CMA, gave evidence as to the approach that the CMA took towards the evaluation of terms and conditions of contract and as to the application of the law to the ticketing market. Various documents emanating from the CMA were also before the Court and included the CMA Guide to the application of the CRA 2015 and correspondence passing between the CMA and sellers of tickets about the application of the legislation to the sorts of terms in issue. The position of the CMA was summarised in a letter it sent on 17
th
January 2019 to event organisers seeking to provide guidance as to the circumstances in which restrictive terms and conditions might be unfair and as to the steps to be taken to obviate that risk. The CMA had already, at this time, written an open letter to secondary ticket website operators reminding them of their obligations under consumer protection law. In an annex to the letter, the CMA set out what it described as a “
prioritisation statement on terms and conditions that restrict event ticket resale
”. The CMA observed that it was ultimately for the courts, not the CMA, to decide whether a term was fair or unfair. However, the CMA observed that terms and conditions that restricted a resale by event organisers had the potential to cause consumer harm by preventing consumers from recouping the money “…
that they spent on tickets if they are no longer able to attend an event, or no longer wish to go”
. The CMA also identified as a potential problem “…
where end user consumers are prevented from entering an event for which they hold a resold ticket
”. Nonetheless, the CMA acknowledged that the terms and conditions that restricted resale were not automatically unfair. In broad terms, in reviewing the fairness of a restriction, the CMA would consider whether there was a legitimate reason for the imposition of a term, whether its use was necessary and proportionate to achieve the legitimate reason, and whether the restriction had been communicated with sufficient transparency.
150.
With regard to possible legitimate reasons for the use of restrictions, the CMA accepted that ensuring as many tickets as possible for an event were sold at a price affordable to the greatest number of consumers, was a legitimate objective where the alternative was: “
… being bought up by businesses to be resold at higher prices
”.
151.
In relation to both proportionality and transparency, the CMA emphasised that event organisers should provide a clear, upfront and consistent disclosure of the relevant restrictions to original ticket purchasers on all sale channels. They also considered that event organisers should either provide a full refund to original ticket buyers who were no longer able to attend the event or, alternatively, make arrangements which effectively permitted such purchasers to recoup or substantially reduce any direct financial loss.
152.
It thus follows that whilst it is true that the CMA considered that, in theory, restrictive terms and conditions imposed by ticket vendors could fail the test of fairness, nonetheless they also recognised that restrictions designed to prevent secondary markets emerging could serve a legitimate and proportionate purpose.
153.
There are three ways in which the CRA 2015 could/might be relevant to the issues at trial. First, in relation to the arrangements applying as between the appellants and ticket vendors (PTS/ PTW). Secondly, in relation to contracts as between the appellants and end-consumers occurring over STW. Thirdly, in a general sense if and in so far as the appellants advanced a systemic attack upon the fairness of
all
restrictions imposed by
all
ticket vendors and which therefore extended beyond the tickets that the appellants themselves acquired through their companies. In such a case
if
terms and conditions imposed by tickets vendors were systemically found to be unfair then the appellants might become collateral beneficiaries of such a finding.
154.
We address each of these scenarios in turn.
Scenario one: purchases of tickets by the appellants and their businesses from ticket vendors (PTS/PTW)
155.
As between ticket vendors and the appellants, the CRA 2015 has no application. This is because the contract is not a “
consumer contract
” as defined (see paragraph [143] above). The judge was therefore correct to so find in his ruling of 3
rd
November 2019.
156.
The essential purpose of the appellant’s business model was to deceive ticket sellers into believing that when they sold to the appellants’ companies, they were in fact selling to consumers. Had this been true then a “
consumer contract
” would have come into being and the CRA could, in principle, have applied. However, this is not what occurred. In his legal directions to the jury the judge expressed the conclusion that as between the defendants as traders and the vendors of tickets the contract was a business to business contract and not a business to consumer contract. The judge was correct. Before us counsel for the appellants did not dispute this conclusion. It follows that when the appellants purchased tickets from ticket vendors the CRA 2015 did not apply to the restrictions and it was incapable of liberating the appellants from the restrictions.
Scenario two: sales by the appellants to end consumers via STWs
157.
Sales by the appellants to consumers via STW were consumer contracts within the meaning the CRA 2015. This was because the appellants were “
traders
” and purchasers were “
consumers
”. Ironically, it was
not
the appellants’ case at trial that sales by them, via STW, to consumers
were
“
consumer
contracts
” and that any restrictions which applied were therefore unfair and voidable as between the appellants and the ultimate consumers. It was the appellants case that the sales were made by the STW as principals to consumers and were not direct sales by the appellants to consumers. The judge rejected this analysis holding that the STW’s acted merely as selling platforms but not as principals: see the citation at paragraph [57] above. This was correct. The judge did however in his ruling make the following somewhat puzzling statement: “
I hope it is clear from what has been said already that the contract between the Ds and the end user was not subject to the consumer protection legislation”.
This suggests that a contract between the appellant’s business and an end user was not a consumer contract even though the selling company (e.g. BZZ) was acting as trader and the purchaser was a consumer. The interjection of the STW as the selling platform does not alter this analysis. Insofar as the CRA does apply we set out our conclusions below.
Scenario three: a systemic attack upon
all
restrictions imposed by
all
ticket vendors
158.
If it were possible to prove, systemically, that all restrictions imposed across the board were unfair and void, then the appellants could say that when they acquired the tickets they were unencumbered by such restrictions and that
any
subsequent consumer bearing such a ticket would therefore not be at risk of refusal of entry to the event. This might then influence the conclusion a jury might reach as to dishonesty because the risk of cancellation was reduced or even eliminated.
159.
In the event the Judge did leave an issue of fairness to the jury. Moreover, he put the issue to the jury in broad and generic terms. He did not take the specific terms and conditions of a particular ticket vendor and test the legality of those terms only. In his summing up he summarised evidence that had been given at trial by Mr David Perry, of the CMA, both in chief and in cross examination and when recalled. He had explained about the need for transparency. The Judge also set out Hunter’s evidence and argument on fairness. Towards the end of his summing up he said:
“Providing those steps are taken, then the term may not be unfair. Generally speaking, even when one looks at the literature and the guidance from the CMA, it emphasises the point that it is a matter for courts, rather than for them to say whether it is unfair outright, or not.
It all depends on the circumstances what the aim of the term is. In this context what you will need to consider, if you need to, is was it a legitimate term to impose when they are trying not to sell these tickets to secondary ticket sellers, but to consumers, and in order to ensure that consumers get the tickets at the face value they have imposed that term.
Was that a legitimate aim in order to achieve the objective; in other words, keeping the price down for the ordinary consumer to use the ticket? That's what it depends on at the end of the day, whether the term is fair or unfair. The ultimate aim, what is the aim and what steps have been taken, and if it is right then it's fair, if it's not then it's unfair. It's as simple as that, all right. That is what he really confirmed in the course of his evidence, that it has to be fair to the consumer; they are only concerned about the consumer. They don't care how the consumer gets the ticket, if he has paid then he should get what he has paid for, that’s what they are concerned about, the CMA.”
160.
The jury found the appellants guilty so that insofar as is it possible to infer anything from their verdicts, they did not consider that, even if the CRA 2015 applied, it served to alter any conclusion as to dishonesty.
161.
Under the CRA the issue of fairness has been raised and we are required to address it (see paragraph [145] above). For our part we cannot see any argument for suggesting that there was any systemic unfairness in the restrictive terms imposed.
162.
The judge (see paragraph [31] above) concluded that the terms were intelligible to the lay person. We have had before us the relevant terms and conditions and equally we accept that they are generally in language that a lay person would or should understand.
163.
Next, the CMA has itself pointed out that restrictive terms designed to curb touting may serve a legitimate objective. In our judgment, the guidance given by the CMA is sensible and pragmatic. It recognises that the fairness of a particular term or terms will be context and fact sensitive. Nonetheless, and importantly, it adopts the
prima facie
position that restrictions designed to curb the emergence of secondary markets are legitimate. We agree. There are in this regard some important points to make.
164.
First, the object behind the restrictions is consumer protection, namely, to prevent the very touting activity that the appellants were engaged in. Evidence at trial indicated touting and harvesting of tickets was widespread. Hunter said in evidence that at least 120 other companies did what his company did. The collective effect of this upon the availability to end consumers of tickets could be very substantial. Mass harvesting by touts using bots is capable of extracting from a vendor’s system a very large number of tickets otherwise available to genuine consumers. These harvested tickets are then, in rapid succession, placed for sale on STW at inflated prices. The tout adds nothing whatsoever of value to the service. All that is achieved, to use the vernacular of Hunter and MM, was to make “
fucking loads
” for the touts (see paragraph [61] above).
165.
The terms seek to address a reprehensible and widespread, and otherwise criminal, practice which operates significantly to the detriment of consumers. This is in our view a compelling starting point. By the same token if the terms were unfair and unenforceable then it would create an environment whereby ticket touts could operate almost with impunity and ticket vendors could do nothing to prevent the practice.
166.
Secondly, the most important restrictions (ban on resale save in limited personal circumstances, prohibition on purchase by traders, right of event organiser to cancel tickets, etc) are all terms which are directly related to the vice sought to be prevented, namely ticket harvesting and touting. Such terms are in our judgment intrinsically reasonable and proportionate.
167.
Thirdly, the Judge found as a fact that the terms were intelligible and accessible to the lay person. There is no evidence to indicate that there is any widespread lack of transparency and in any event the transparency of any individual sets of terms and conditions is fact and context specific. It is not possible to generalise. The judge, as a question of fact, and knowing that transparency was an issue, saw nothing in the evidence which indicated to him any general lack of accessibility of the terms to the ordinary consumer.
168.
Our judgment therefore is that the Judge was entitled to conclude on the evidence before the court that the terms were fair and valid. We would add that our conclusion does not preclude the courts or regulators in individual cases taking a different view. Our conclusion is one based upon the analysis of the evidence before the judge and his conclusion upon it.
169.
We reject the ground of appeal relating to fairness under the CRA 2015.
H.
Issue 6: The status in law of a ticket.
170.
Issue 6 concerns the status of a ticket. There is a lack of clarity about the nature and effect of this argument. It seems that it amounted to a submission that if a ticket was “
property
” or a “
good
” then when it passed hands away from the appellants and into the possession of the consumer it contained imbedded within it in the full bundle of rights but not, seemingly, the burdens, that otherwise attached to entry to the venue. The Judge in his ruling of 3
rd
November 2019 described the appellants argument as follows:
“ … b) that the ticket is a “good” which converts into a licence upon entry when presented at the gate of a venue for admittance—so that the licence could not be revoked by the organisers / venue for breaches of the Ts & Cs by the Ds in the initial purchase…”.
171.
The Judge disagreed with this analysis. In paragraph [7.7] of his ruling of 3
rd
November 2019 the judge explained that a “
ticket
” was distinct from the licence and the terms of it. It followed that: “…
when a bona fide purchaser for value obtains the ticket through a STW, he obtains it with all the benefits and the burdens of the licence… Ts & Cs continue to apply
.”
172.
We agree with the judge. There are fundamental problems with the appellants’ analysis. Even if a ticket was in some relevant way a “
property
” right or a “
good
” that fact alone does not sever it from the burdens attaching to the benefits. The fact that it is “
property
” or a “
good
” tells one nothing about the attributes of the attached rights and obligations. In any event it is not correct to describe a ticket as “
property
” or a “
good
” save in the most limited sense that a slip of paper can belong to someone as their “
property
” and be a “
good
”.
173.
In law a ticket is evidence or proof of two things. First, a right to enter land as a licensee and not as a trespasser. Secondly, as proof of a right to receive a service, namely that to be performed or provided on the land. The Judge was correct to conclude that a ticket was a contractual licence issued on terms and therefore a chose in action rather than merely a good. Authority for these propositions is found in
RFU v Viagogo Limited
[2011] EWHC 764 QB at paragraphs [37] [43] as approved by the Court of Appeal
[2011] EWCA Civ 1585
at paragraphs [18] and [19] which addressed the arguments upon the basis of an arguability threshold (to obtain injunctive relief) test but, as articulated in the judgments, were propositions expressed with considerable confidence. That conclusion is consistent with the judgment of the Court of Appeal in
R v Coombes, Eren and Marshall
[1998] 2 Cr App R 282
where, in the days before the digital verification of tickets and cards, the defendants were recorded on video obtaining tickets or travel cards for use on the London Underground and then, when the holder had passed through the ticket barrier, handing the ticket to a third party to be used again. They were charged under the Theft Act. The Court of Appeal started its judgment with the observation that the case had ramifications for all sorts of ticket touts. One argument advanced by the appellant was that the issuing of the ticket was analogous to the drawing of a cheque. In both cases a chose in action was created which in the first case belonged to the customer and in the second to the payee. By parity of reasoning with the analysis of Lord Goff in
R v Preddy & Others
(1996) 2 CLR 524 it was argued that the “
property
” acquired belonged to the customer and not London Underground and there can have been no intention on the part of the appellants to deprive London Underground of the ticket which would in due course (when surrendered at a ticket barrier) be returned into the possession of London Underground. The Court rejected the submission reinforcing the conclusion that when a ticket was transferred it did so retaining both contractual rights
and
restrictions:
“A 'chose in action' is a known legal expression used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession." (See
Talkington -v- Magee
(1902) 2KB 427 per Channell at 230). On the issuing of an underground ticket a contract is created between London Underground and the purchaser. Under that contract each party has rights and obligations. Theoretically those rights are enforceable by action. Therefore it is arguable, we suppose, that by the transaction each party has acquired a chose in action. On the side of the purchaser it is represented by a right to use the ticket to the extent which it allows travel on the underground system. On the side of London Underground it encompasses the right to insist that the ticket is used by no one other than the purchaser. It is that right which is disregarded when the ticket is acquired by the appellant and sold on. But here the charges were in relation to the tickets and travel cards themselves and a ticket form or travel card and, dare we say, a cheque form is not a chose in action. The fact that the ticket form or travel card may find its way back into the possession of London Underground, albeit with its usefulness or 'virtue' exhausted, is nothing to the point.”
174.
In our judgment the Judge correctly analysed the legal status of tickets. When a ticket is handed from person to person it transfers any restrictions upon use. The Judge’s analysis accords with the law but also with elementary common sense. We reject this ground of appeal.
I.
Issue 7: The scope effect and operation of the doctrine of “equities darling”
175.
It is next argued that the doctrine of “
equities darling
” also operated as a device to free the appellants from the shackles of the restrictions ostensibly imposed by event organisers and to ensure that when they sold tickets, via STW, to end concerns those consumers acquired the tickets free of restraints since they were
bona fide
purchasers for value acting in good faith. The judge erred in rejecting this argument. It was an argument which was material both to whether consumers suffered any economic prejudice when they purchased tickets from the appellants, and, whether there was dishonesty since if equity did intervene as described then this went directly to whether consumers were unwittingly deceived into buying tickets that placed their ability to attend the event at risk.
176.
We disagree. Equity rarely deigns to grace the earthy confines of the criminal courts and it does not do so here to cleanse the hands of the appellants. There are numerous reasons why this doctrine cannot be relied upon.
177.
First, the doctrine of equities darling is an explanation for the rationale behind the principle that a
bona fide
purchaser of real property for value can acquire good title to the property despite a prior fraudulent transaction in the conveyancing chain. The classic case where the doctrine applies is where a fraudster sells a property to a
bona fide
purchaser (B) for value where the property has
already
been sold to a third party (A). The law focuses on how to allocate rights as between A and B, the two innocent parties. To be such a
bona fide
purchaser the purchaser must have made “
such inspections as ought reasonably to have been made
”:
Kingsworth Finance Trust v Tizad
[1986] 1 WLR 783
. Where this doctrine applies it attaches to real property transactions. There is nothing in case law to suggest that it applies to a licence such as that reflected in a ticket to attend an event.
178.
Secondly, the doctrine seeks to allocate risk as between the two innocent parties and is not a device to scrub out the reprehensible and dishonest intermediate conduct of the fraudster. That person’s conduct remains dishonest – and criminal - even though equity has to resolve the allocation of property ownership rights as between the fraudster's innocent victims. By its nature it is not a doctrine that can avail the appellants.
179.
Thirdly, insofar as the non-criminal law intervenes at all this is through Parliament in the form of the CRA 2015 and related consumer protection legislation. We would strongly resist any attempt to extend the equitable doctrine to the present case. There is of course a considerable irony in the defendants seeking to invoke equity as a charter to enable them to perpetuate what is otherwise a fraud.
180.
There is one final observation we would make. This is an argument dreamt up after the event to justify the unjustifiable. It is inconceivable that when the alleged frauds were being committed that the appellants thought that equities darling would come to the rescue of duped consumers or that any steward in attendance at an event or in a box office who was querying the validity of the tickets presented by a consumer had notions of equity at the forefront off their minds. The truth of the matter was that the defendants knew full well that there was a “
risk
” which attended the purchase of tickets from them. But they cared not and indeed their business model rested upon not highlighting that legal risk.
181.
We dismiss this ground of appeal.
J.
Issue 8: The duty of the judge to direct the jury in an objective and dispassionate manner.
182.
It is said that the judge used unacceptably emotive and provocative language when describing the basic business model used by the appellants and its impact upon end consumers. The passage in the summing up objected to was as follows:
“… if there are a multiple number of sellers doing the same thing, just imagine how many tickets are removed from circulation insofar as the consumer is concerned. This case is not simply about making money on tickets purchased from primary ticket sellers. Just imagine you want to celebrate an event with your family, perhaps your grandmother's birthday or a parent's birthday and you want to take her out to a concert or theatre, something like that, but you want to go there as a family, combine a meal with it. And you look forward to it, you choose an event which she would enjoy, or your parents would enjoy. You prepare yourself to get up in the morning when the tickets are going to go on sale; you are going to buy them. And you do, you sit at your desk, open your computer, log into the website at the right time. And then, whilst you are looking at which seats to buy and looking at prices, and by the time you get around, within say 20 minutes, to actually selecting the right sort of seats which are within your price range, as well as give a decent view of the performance, you realise that the tickets have gone, they are no longer there, you can't buy them. Then you say to yourself, being enterprising, I know what, I haven't got them here, but I'll pay slightly more, I'll go to the secondary website and buy them from there.
And you do go to the secondary ticketing website and what do you find? The same tickets that you were trying to buy from the primary ticket website are now on sale on the secondary ticketing website, but out of your range. For four you could pay £80 times four, plus the administration fee, but if it's doubled in price, it's £160 times four plus the administration price, which you can't afford. And then you say, right, hard luck. But, then you read in the paper, or you hear from someone, that actually you know when you were on the website trying 3 to buy from the primary ticket seller, there were others whose business it is to buy these tickets in bulk and then sell them at profit. And, what's more, they might have used bots and other things to buy 10 tickets in one go in order to save time, so they can buy as much as they possibly can.
So, just imagine. So, we are not simply concerned with a purchaser buying from a secondary ticketing website -- and the defence are absolutely right, a purchaser who buys from the secondary ticketing website, paying whatever price the ticket is listed for, to him that ticket is worth that price and he's prepared to pay for it. But, to someone, the example I have mentioned, it's not; they can't afford it, it has been taken away, that person can't buy it at face value. So, please bear that in mind when you are considering the respective arguments in this case.”
183.
It is argued that this this being an emotive case the jury was entitled to real assistance as to the relevance of the unusually partisan evidence it had heard. No members of the ticket industry were called by the Prosecution to give evidence to introduce evidential balance to the case. It was incumbent upon the Judge to direct the jury not to be influenced by emotion. Instead, the jury was told to work from a standpoint of emotional reaction and bias against the appellants. They did not have a fair trial and the convictions are unsafe by virtue of the direction.
184.
We do not accept the criticisms of this direction.
185.
First, the passage in question must be seen in context and as to this there are two sections of the summing up which preceded this passage which are relevant. At the outset of the summing up, in the normal way, the judge directed the jury both orally and in written form to approach the evidence dispassionately, to not allow any views they may have of ticket touts to cloud their judgment, and to focus upon the evidence. The judge’s comments which have been singled out for criticism must be seen in this contextual starting point. Further, the passage must also be understood in light of the immediately preceding passage where the judge summarised the contents of Skype Chats where Hunter had referred to there being about 120 ticket sellers like him. The passage objected to concerns the judge’s exposition to the jury of the cumulative effect of multiple touts harvesting and then reselling tickets. The passage is not specifically targeted at the appellants only. When asked, Counsel could not identify anything in the passage what was said to be inaccurate. The criticism was at base one of style and linguistic tone. In our judgment this was an entirely proper manner in which to direct the jury. Whether the conduct indicted is dishonest is determined by the jury collectively using their own experience of what is normal, moral and acceptable. To this extent the legal test requires the jury to stand in the shoes of ordinary people. It is true that the passage is crafted in somewhat rhetorical terms, but this is consistent with the test to be applied.
186.
Secondly, we reject this argument because this is also an area where the discretion of the judge is called into question. It is the task of a judge addressing a jury, especially in relation to maters of some complexity, to endeavour to make the issues accessible whilst, simultaneously, ensuring that the directions are accurate in law. This can be a difficult task and, provided that no error of law is made, the appeal court will be slow to interfere. If the overall tenor of the passage complained of can be viewed as critical then this is in the nature of the facts of the case and not something which flows from any attempt by the judge unduly to sway the jury. The essence of the Prosecution case, and that placed before the jury for their consideration, was of a fraud directed towards the making of substantial gain from event goers by charging them inflated prices for tickets that had been improperly obtained from consumer facing websites. There was no material dispute about any of the core facts. Jurors might well have formed an adverse view of such conduct just as they do in relation to other criminal cases which have far more unpleasant facts. But that is nothing to the point. We reject this ground of appeal.
K.
Issue 9: The duty on judges to direct juries on complex common and civil law matters such as: (i) the network of relevant contracts and the scope and effect of the restrictions contained in vendor’s terms and conditions of sale; (ii) the distinction between void and voidable; (iii) the operation of the fairness test under the CRA 2015; and (iv) the doctrine of “equities darling”.
187.
Finally, the Judge is criticised for adopting an overly simplistic approach to legal concepts which, it is said, the jury needed to understand fully if they were to comprehend and then apply the test of dishonesty. This duty was heightened because the defence rested upon certain key concepts of civil law which no jury could be expected to understand without being adequately directed by the judge. These civil law issues included: the scope and effect of the network of contracts which were in issue; the distinction between void and voidable; the operation of the unfairness test under the CRA 205, and the concept of equities darling.
188.
We do not accept this submission. The starting point must be that it is the duty of a judge to direct a jury on matters of law correctly. But this does not imply that the judge must always provide a detailed elaboration of complex legal concepts to a jury. As with all other issues the judge should ensure that the jury focuses upon the
real
issues in the case. Here, on the facts, the real issues at the heart of dishonesty were whether tickets vendors were deceived into thinking that they were selling tickets to consumers and the risk that consumers who purchased from STWs would have their tickets cancelled. To make these matters plain to the jury did not require a detailed exposition of complex issues of civil law or equity. We give two examples.
189.
First, (even assuming that fairness under the CRA 2015 was a jury issue) there was no need for the jury to grapple with the distinction between void and voidable when all that that issue went to was the
risk
that their tickets would be cancelled, and this risk was fully and adequately explained to the jury.
190.
Secondly, there was no need for the judge to go through the substantial number of sets of terms and conditions and provide a commentary to the jury as to their substance and effect or to provide to the jury a detailed analysis of how they all fitted together. The relevance of these multifarious terms and conditions was to show that it was routine for tickets vendors to impose restriction which prevented sales to traders for resale, which limited the numbers of tickets that could be sold to one person, and which reserved the right to the event organiser to refuse entry to consumers having tickets purchased from touts. On our reading of the summing up the jury can have been in no doubt about these central matters. It would have been otiose for the judge to have gone into much greater detail.
191.
We return to a point that we have already made which is that, at base, the Prosecution case is relatively simple. It involves defendants who institute systems of business the purpose of which is dishonest. On the facts the dishonesty lay in a system designed to deploy a deliberate and systemic lack of candour in dealings with sellers of tickets and buyers of tickets, all of which was intended to enable the appellants to charge grossly inflated prices to consumers for risk laden tickets and earn substantial profits thereby.
192.
We have reviewed the judge's directions on law and his summing up on the evidence very carefully. We cannot identify any areas where the jury would have been confused or where a more detailed exposition of the law would have provided any greater clarity as to the “
real
” issues in the case. The judge in our view acted sensibly in boiling down the legal issues for the jury and in so doing he made no errors. We reject this ground of appeal.
L.
Conclusion
193.
We commend the judge for his careful handling of this novel and complex trial. In our judgment he did not err. We dismiss the appeals. | [
"LADY JUSTICE MACUR",
"LORD JUSTICE GREEN"
] | 2021_11_26-5240.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/1785/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/1785 | 732 |
d9e648d45d3f6ff3c659f8504a68940898fe440e8ac65854a1a0014be36c0e2d | [2019] EWCA Crim 984 | EWCA_Crim_984 | 2019-06-07 | crown_court | [2019] EWCA Crim 984 2018/01831/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 7 June 2019 B e f o r e: LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE MARTIN SPENCER and MR JUSTICE SWIFT _________________ R E G I N A - v - N ____________________ 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) Thi | [2019] EWCA Crim 984
2018/01831/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 7 June 2019
B e f o r e:
LADY JUSTICE NICOLA DAVIES DBE
MR JUSTICE MARTIN SPENCER
and
MR JUSTICE SWIFT
_________________
R E G I N A
- v -
N
____________________
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 B Newton
appeared on behalf of the Applicant
Mr J Marsland
appeared on behalf of the Crown
______________________
J U D G M E N T
(
Approved
)
______________________
Friday 7
th
June 2019
LADY JUSTICE NICOLA DAVIES:
Introduction
1.
On 7 July 2016, in the Crown Court at Birmingham, the applicant pleaded guilty to one count of production of a Class B drug (cannabis). On the same day he was sentenced to four months' imprisonment.
2.
The applicant's applications for an extension of time (635 days) in which to apply for leave to appeal against conviction and to rely on fresh evidence, pursuant to
section 23
of the
Criminal Appeal Act 1968
, have been referred by the single judge to the full court.
3.
Having read the statement of the applicant's solicitor, the extension of time sought is granted.
4.
On 13 March 2019 an order, pursuant to section 11 of the
Contempt of Court Act 1981
, was made by the court directing that the identity of the applicant not be reported. In the proceedings before the First Tier Tribunal ("FTT") anonymity was also granted to the applicant. We continue the anonymity order granted by this court.
Grounds of appeal
5.
It is submitted that the conviction is unsafe because, as a victim of trafficking, the applicant ought not to have been prosecuted for the offence and, had the issue been raised, it would have been appropriate for the trial judge to stay the proceedings as an abuse of process.
Fresh evidence
6.
An application pursuant to
section 23
of the
Criminal Appeal Act 1968
is made to adduce fresh evidence, namely:
(a)
The statement of the applicant for the appeal, dated 20 April 2018;
(b)
The attendance note of the solicitor advocate, dated 7 July 2016;
(c)
The Notice of Deportation Order, dated 18 July 2016;
(d)
A letter from Turpin & Miller LLP, dated 12 October 2016, enclosing a statement of the applicant, dated 6 October 2016 in respect of the asylum claim;
(e)
The Asylum Screening Interview of 20 October 2016;
(f)
The Statement of Evidence Form, dated 4 November 2016;
(g)
The Conclusive Grounds Decision and Minute, dated 23 January 2017;
(h)
The Rule 35 Report of 14 March 2017;
(i)
The FTT Report and Decision, dated 11 July 2017.
7.
We accept that this fresh evidence relates to the broader factual evidence in the case which is relevant to the substantive issue, namely, whether the applicant is a victim of trafficking and whether this undermines the safety of his conviction. The documents emanating from
the attendance at the Crown Court have become relevant subsequent to the proceedings. The immigration and asylum documents, including the medical report, were the result of the immigration proceedings and the applicant’s asylum application which led to the Conclusive Decision that he is a victim of trafficking and the FTT decision to the same effect.
8.
None of the documents were available at the time of the original hearing. There is nothing to suggest that they are not capable of belief. There is a reasonable explanation for their production for the purpose of this hearing. The documents are relevant and admissible. Accordingly, the documents will be received by the court.
Background facts
9.
On 6 June 2016, the police executed a search warrant at 72 Brook Meadow Road, Shard End, Birmingham. They discovered 411 cannabis plants being cultivated with the use of equipment in the bedrooms and loft area of the property. The applicant was alone in the house and was found in the loft area. He was arrested and taken to a police station. He declined to comment when interviewed.
10.
On 7 July 2016, the applicant was represented by a solicitor advocate who made an attendance note of the pre-court conference which took place with the use of an interpreter and by video-link. The note contains the following:
"Client is anxious to know what sort of sentence he will receive if he pleaded guilty to the charge. He confirmed that until he arrived in the UK he had never seen Cannabis before in Vietnam.
On the basis of the strong evidence he was advised to plead guilty and obtain credit resulting in a discount in sentence. He was brought into this Country via an agent who upon arrival told him in strong terms [that there] was a cost attributable to his passage here.
He was taken to the location where the set up was already in situ and simply told what to do. The men exploited him and then subjected him to coercion telling him that all sorts of terrible outcome would befall him if the police found out about his immigration status.
In order to survive he complied and feed (
sic
) the plants with the men visiting only at night 2/3 times each week to feed him and provide makeshift bedding. In legal terms he was not subject to extreme duress so as to totally negate his will but would have been very fearful.
He was told to remain indoors and to ensure he was always locked inside. If anyone came to the address he was to hide out of the way and warned not to speak about those who organised the Cannabis factory."
11.
The mitigation presented to the court by the applicant's advocate is recorded as follows:
"You have his timely guilty plea your Honour and also a 24-yearold man of previous good character and before I move on to the guideline, on behalf of Mr [N] may I deal with matters more generally. He was brought into this country by an agent fairly recently. He was taken to the accommodation, told what to do. The cannabis was already in situ. He was told that for his passage to the United Kingdom was cost incurred and he will have to pay that off by feeding the plants. He wasn't allowed to leave the property. The others that he refers to visited the property every two to three days approximately to bring him food and provide him with a make-shit (
sic
) mattress to sleep upon.
Mr [N] tells me that prior to coming to the UK [he] had not seen cannabis beforehand but of course once here, the situation was explained to him in strong terms. So you have a relatively naïve 24-year-old who although not subject to duress was certainly exploited and coerced by telling horrendous stories of what the police might do if they find out about his status. So while it is accepted that there were a high number of plants, that in respect of the guidelines I would submit that his role was a lesser role given the factors I have referred to which, of course, brings the sentencing range down considerably and those are my submissions."
12.
In sentencing the applicant, the judge stated:
"[N], you are 24 years old and, as far as I know, you have never been in trouble with the police anywhere before, and you were taken advantage of by the people who brought you here, who promised you a better life. They used you by using you as a gardener for their cannabis factory. …"
The remaining sentencing remarks dealt with the categorisation of the offending, forfeiture and destruction of the drugs, and the term to be served.
13.
On 18 July 2016, the Home Office served on the applicant a decision to deport, which had been made pursuant to
section 5(1)
of the
Immigration Act 1971
. The deportation order was signed on 14 September 2016.
Asylum proceedings history
14.
The history of the asylum proceedings is as follows:
•
26 August 2016 – application for asylum made to the Home Office;
•
12 October 2016 – asylum claim recorded by the Home Office;
•
20 October 2016 – the Home Office conducted an Asylum Screening Interview with the applicant. The applicant was interviewed substantively about his claim on 4 November 2016. A summary of what was said by him at interview regarding his history of trafficking and slavery was summarised in the applicant's skeleton argument as follows:
"i. The Applicant is a national of Vietnam and was first trafficked in 2005 at the age of thirteen years. He had been anxious to leave Vietnam having suffered police harassment after he joined a demonstration. His grandmother passed away leaving no one to care for him. Arrangements were made with a trafficker for the Applicant to leave the country, the Applicant signing over his grandmother's property on the understanding that this would be returned to him after working for a period of time.
ii.
The Applicant was trafficked initially to Hanoi and from there by other traffickers to Russia. In Russia, he was locked inside a garment factory where he worked and slept for seven years without being able to leave. He was forced to work in the factory for sixteen or seventeen hours per day without pay.
iii.
The Applicant was subsequently trafficked from Russia to Germany in July 2012. He was taken by traffickers to a holding place, where he stayed for one or two weeks before being able to escape. He claimed asylum in Germany and remained there for two years, but became homeless and destitute. He met some people who offered him food and a place to live if he went with them to France. In France, he discovered that these individuals were connected to the same trafficking network when he was punished for having escaped in Germany by being beaten and kicked by four or five people.
iv.
He was held in France for two years, working as a porter in storage, before being trafficked to the UK on 15 March 2016. He was taken to a cannabis factory in Birmingham where he was forced to work until discovered by the police on 6
th
June 2016 during their search of the premises, which led to his arrest.
•
7 December 2016 – the Competent Authority (Home Office) made a positive Reasonable Grounds Decision identifying the applicant as a potential victim of trafficking;
•
23 January 2017 – the Competent Authority made a positive Conclusive Grounds Decision accepting that the applicant was a victim of trafficking;
•
14 March 2017 – the applicant was examined by a medical practitioner at the Harmondsworth Immigration Removal Centre. The medical practitioner recorded incision scars on the applicant's left index finger and left ankle, as well as blunt-trauma scars on his right shin and back and confirmed that these may be attributed to being cut with knives, punched and kicked during the trafficking situation, as described by the applicant.
•
25 February 2017 – refusal of the applicant's asylum claim, which was subsequently withdrawn due to inadequate consideration of the history of trafficking.
•
12 April 2017 – the Home Office made a further decision to refuse asylum. This was appealed and listed before the First Tier Tribunal (Immigration and Asylum Chamber) on 18 May 2017.
•
On 11 July 2017, the FTT promulgated its decision and reasons. It included the following:
"111. I find to be extremely significant in this case, is that not only is the appellant a victim of traffickers from Vietnam to Russia, but he has also been further trafficked from Russia to Germany, and then it appears from Germany to France and then again from France to the United Kingdom. He clearly has a genuine fear that the traffickers could find him. It is not disputed that he has had repeated experiences of being trafficked into different exploitative situations, during some of which he feared for his life.
…
118. Accordingly, given that the respondent had already accepted the core of his claim that he was a victim of human trafficking, and I have since found that there is not sufficiency of protection for the appellant in Vietnam and there is no internal relocation alternative, I therefore find that it would be unreasonable to expect the appellant to return to Vietnam and that he does qualify for international protection. Accordingly, I find the appellant can qualify as a refugee under the 1951 Convention Relating to the Status of Refugees.
…
128. As explained in detail above, I have explained why there would be very significant obstacles to the appellant's integration back into Vietnam. As stated above, the appellant is at genuine risk of further trafficking and there is not sufficiency of protection for the appellant back in Vietnam. …"
The Notice of Decision records that the Tribunal allowed the applicant's application for asylum and the application for revocation of the deportation order.
•
The applicant has now been granted limited leave to remain in the United Kingdom.
Consideration which led to the Conclusive Grounds Decision
15.
The consideration concluded that each of the component parts of the definition of modern slavery: recruitment, harbouring and transportation was met. It is recorded that the applicant was
"…recruited by the traffickers in order that you could escape from Vietnam and you could be provided with work. You were transported to various counties (
sic
) around Europe specifically to work for those who had trafficked you. Your travel documents were provided by the traffickers and were taken from you on arrival."
16.
As to the means of human trafficking, it is stated that:
"It is considered that your case meets part 'b' of the definition of Human Trafficking because you were threatened and told that if you ever escaped, the traffickers would find you. You escaped when in Germany and they beat you. You were told that they would return your property documents to you when you had been working for them for a while but this didn’t happen. You worked for them for 7 years in Russia and for 2 years in France. Although they fed and sheltered you, you were never paid. Your moments were monitored and you were locked into your places of work which was also where you lived."
As to the purpose of human trafficking, forced labour was identified. It was stated that:
"… as you were locked into the places where you lived and worked you had no freedom of movement nor income over which you control. In Russia you were working 16 or 17 hours in a garment factory where you also lived. When you were brought to the UK you were forced to work in a cannabis factory from where you were arrested and convicted of production of class B controlled drug – cannabis – for which you were sentenced to 4 months' imprisonment."
Victim of trafficking
17.
A person is a victim of trafficking ("VOT") if he or she falls within the definition of Article 2 of the EU Directive 2011/36/EU as follows:
"Offences concerning trafficking in human beings
1.
Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
2.
A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
3.
Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
4.
The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used."
18.
This reflects the definition of a victim of trafficking in the Council of Europe Convention on Action against Trafficking in Human Beings (article 4). A victim of trafficking, for the purposes of the Convention against Trafficking, is anyone who was presently or who had been the victim of trafficking:
R (Atamewan) v Secretary of State for the Home Department
[2014] 1 WLR 1959
(Aitken LJ at [69] to [80]).
19.
The case law has developed in relation to appeals against conviction in respect of victims of trafficking. It was addressed in
R v GS
[2018] EWCA Crim 1824
,
[2018] 4 WLR 167
by Gross LJ as follows:
"1. Huge strides have been made, domestically and internationally, in recognising the evil of human trafficking, in protecting victims of trafficking ('VOTs') and, where appropriate, shielding VOTs from prosecution or penalties. However, as repeatedly made clear, where crimes have been committed by VOTs, even arising from their own trafficking, there is no blanket immunity. Decisions are necessarily fact sensitive, taking into account the public interest both in prosecuting alleged offenders and in protecting VOTs. …"
20.
We accept the applicant's summary of the principles to be derived from previous decisions of this court, namely:
“(i) Neither article 26 of the ECAT, nor article 8 of the Directive confers a blanket immunity from prosecution on VOTs.
(ii)
Instead, the UK's international obligations require the careful and fact sensitive exercise by prosecutors of their discretion as to whether it is in the public interest to prosecute a VOT. That discretion is vested in the prosecutor, not the court.
(iii)
The decisions of the FTT and the Competent Authority as to whether an individual is a VOT do not bind prosecutors or the court but will be respected (subject to submissions as to their basis or limitations) unless there is a good reason not to follow them.
(iv)
There is no closed list of factors bearing on the prosecutor's discretion to proceed against a VOT. Generalisation is best avoided. That said, factors obviously impacting on the discretion to prosecute go to the nexus between the crime committed by the defendant and the trafficking. If there is no reasonable nexus between the offence and the trafficking then, generally, there is no reason why (on trafficking grounds) the prosecution should not proceed. If there is a nexus, in some cases the levels of compulsion will be such that it will not be in the public interest for the prosecution to proceed. In other cases, it will be necessary to consider whether the compulsion was continuing and what, if any, reasonable alternatives were available to the VOT. There will be cases where a decision to prosecute will be justified but due allowance can be made for mitigating factors at the sentencing stage. …”
Section 45
of the
Modern Slavery Act 2015
(“
section 45
”)
21.
This provision, effective from 31 July 2015, provides a defence for victims of slavery or trafficking who commit an offence. The relevant subsections state:
"
45.
Defence for slavery or trafficking victims who commit an offence
(1)
A person is not guilty of an offence if –
(a)
the person is aged 18 or over when the person does the act which constitutes the offence,
(b)
the person does that act because the person is compelled to do it,
(c)
the compulsion is attributable to slavery or to relevant exploitation, and
(d)
a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act.
(2)
A person may be compelled to do something by another person or by the person's circumstances.
(3)
Compulsion is attributable to slavery or to relevant
exploitation if –
(a)
it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or
(b)
it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
(4)
A person is not guilty of an offence if –
(a)
the person is under the age of 18 when the person does the act which constitutes the offence,
(b)
the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
(c)
a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act.
(5)
For the purposes of this section –
'relevant characteristics' means age, sex and any physical or mental illness or disability;
'relevant exploitation' is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.
(6)
In this section references to an act include an omission."
CPS Guidance
22.
The relevant parts of the CPS Legal Guidance on Human Trafficking, Smuggling and Slavery, as at 7 July 2016 were as follows:
"
Suspects in a criminal case who might be victims of trafficking or slavery
This part of the guidance applies to victims of trafficking who are
also suspects in a criminal offence …
Indicators of trafficking
Prosecutors should be alert to the particular circumstances or situations where someone suspected of committing a criminal
offence might also be a trafficked victim …
Awareness of the prosecutor's obligations
When considering whether to proceed with prosecuting a suspect who might be a victim of trafficking, prosecutors should be aware of the clear obligation imposed to consider
whether to not to
prosecute
where the suspect has been compelled to commit a criminal offence as a direct consequence of being trafficked.
…
A three-stage approach to the prosecution decision
In addition to applying the Full Code Test in the Code for Crown Prosecutors, prosecutors should adopt the following three stage assessment:
1.
is there a reason to believe that the person has been trafficked? if so,
2.
if there is clear evidence of a credible common law defence of duress, the case should be discontinued on evidential grounds; but
3.
even where there is no clear evidence of duress, but the offence may have been committed as a result of compulsion arising from trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not …
The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM)
In considering whether a suspect might be a victim of trafficking, as required in the first stage of the assessment, prosecutors should have regard to the following:
1.
the duty of the prosecutor to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking.
2.
The enquires should be made by:
advising the law enforcement agency which investigated the original offence that it must investigate the suspect's trafficking situation; and
advising that the suspect is referred through the NRM for victim identification. All law enforcement officers are able to refer potential victims of trafficking through the
NRM. …
If an adult suspect does not consent to their referral, the charging decision should be made on whatever other information might be available, without the benefit of the Competent Authority's (CA) decision on their victim status …
These steps
must be done
regardless of what has been advised by the investigator or whether there is an indication of a guilty plea by the suspect's legal representative …
Referral through the NRM and the Competent Authority decision
…
A conclusive decision is whether on the balance of probability it is more likely than not that the individual is a victim of human trafficking.
Prosecutors should take account of the CA decision (reasonable grounds or conclusive grounds) of the identification and status of the suspect as a victim of trafficking when considering the decision to prosecute.
Where there is credible evidence of trafficking (a positive CA decision)
Prosecutors should consider whether or not there is clear evidence of a credible common law defence of duress, as required in the second stage of the assessment.
If so, the case should be discontinued on evidential grounds
.
[Emphasis in the guidance]
If not, consider whether or not the trafficking victim was compelled to commit the offence."
23.
The Guidance addresses the approach to be taken by prosecutors where information or evidence comes to light in relation to the victims of trafficking following the charging of a suspect, including where this arises in mitigation, as follows:
"
Credible evidence of trafficking post-charge
In cases where a decision has already been taken to charge and prosecute a suspect, but further information or evidence comes to light, or the status of a suspect as a possible credible victim of trafficking is raised post-conviction, for example in mitigation or through a pre-sentence report, then prosecutors should seek relevant adjournments and ensure that the steps outlined in the section 'The duty to make proper enquiries and to refer through the NRM' above are carried out."
24.
The CPS Guidance, updated to encompass
section 45
, was published after the applicant's conviction. It is the respondent's contention that, in determining the safety of the applicant's conviction, it should take account of the updated Guidance.
The applicant's case
25.
The referral of the applicant to the NRM has resulted in the Competent Authority determining conclusively that he was a genuine victim of trafficking at the time of his arrest in June 2016. The facts of the criminal case were such that his victimhood was integral to his involvement in the production of cannabis. The information provided in the applicant's plea of mitigation is consistent with his trafficked status and should have raised concerns at the time. In accordance with the CPS Guidance, the applicant's plea of mitigation should have triggered an application by the prosecution for an adjournment to enable further enquiries and referral to the NRM to be made.
26.
It is the applicant's case that had the clear signs of his being a victim of trafficking been noted and raised, the statutory defence under
section 45
would have applied. The facts presented by the applicant provide a clear evidential basis for the offence having been committed as a direct consequence of his situation of trafficking and exploitation, and that he was compelled to commit it. It was also reasonable in all the circumstances, taking into account the applicant's characteristics.
27.
It is acknowledged that the CPS Guidance in force at the time did not address the statutory defence. However, the defence applied and the correct approach would have been for the CPS to reconsider its charging decision based on an assessment of the applicant's status as a victim of trafficking. Further, in accordance with that Guidance, the applicant's case was such that it was not in the public interest to prosecute, as his offence was a direct consequence of, or in the course of, trafficking and he was compelled to commit the offence.
28.
In summary, it is the applicant's case that he would not have been prosecuted for the offence or, alternatively, that he had a viable defence in law that rendered his guilty plea equivocal on the mitigation advanced and that his conviction is consequently unsafe.
29.
Today, Mr Newton, on behalf of the applicant, has realistically accepted that the original charge was appropriately made on the evidence as it presented at the time of the charging.
The respondent's case
30.
There being acceptance by the applicant that the original charging was properly made on the evidence then available to the CPS, the focus of this hearing has been directed to this issue: had the original proceedings been adjourned following the mitigation advanced on behalf of the applicant, whether the view would have been taken by the Crown, on receipt of all subsequent information, that the
section 45
defence would probably succeed? It is now accepted by Mr Marsland that, on the information before the court, as provided in the applicant's mitigation, there was sufficient information to raise an issue as to the possibility of trafficking and thus proceedings should have been adjourned. This would have been consistent with the Guidance provided by the CPS, current at that time.
31.
The respondent has addressed the issue of whether there is clear evidence of a
section 45
defence as follows: the respondent does not concede that there was. The respondent accepts that the applicant was over 18 at the time of the offence. There is evidence that the applicant was compelled to commit the offence and that the compulsion is attributable to relevant exploitation. However, the respondent relies upon
section 45(1)
(d), namely,
that a person is not guilty of an offence if “a reasonable person in the same situation as the person, and having the person’s relevant characteristics, would have no realistic alternative to committing the offence”.
32.
The respondent submits that a reasonable person in the same situation as the applicant, and having the applicant's relevant characteristics, would have had a realistic alternative to committing the offence by engaging with the UK authorities, not least the police. In support of that submission, the respondent relies upon the following:
(i)
The applicant was left apparently unsupervised for days at a time by his traffickers in the property.
(ii)
The applicant was aware of the possibility of engaging with government authorities in Europe, as he had done in claiming asylum in Germany and having been in receipt of benefits there.
(iii)
Not only was the applicant aware of such a possibility, he had, for a time, successfully done so in Germany.
(iv)
Given his experience of the German authorities, the applicant was unlikely to believe "horrendous stories of what the police might do if they [found] out about his status".
(v)
The applicant had the necessary characteristics to take opportunities to escape his traffickers, as demonstrated by his previous attempts, including his successful attempt in Germany.
33.
The further and separate issue addressed by the respondent is: Is it in the public interest to prosecute? The respondent contends that it would have been for the following reasons:
(i)
Assisting in the production of cannabis as part of a sophisticated set up concerning 411 plants – a quantity capable of producing quantities for commercial use – was an offence of some seriousness (even if not of the most serious).
(ii)
In the context of the seriousness of the offence, the level of compulsion and its effect on the applicant was not such that his culpability was extinguished. There were realistic alternatives available to the applicant.
(iii)
The applicant's culpability may have been diminished but remained significant and so prosecution was appropriate, with due allowance to be made in the sentencing decision for diminished culpability.
Discussion
34.
We begin with a fundamental point, namely that this is a fact-sensitive decision. It is one which has focussed evidentially upon the available defence provided by
section 45
. In making this determination, we do not seek to broaden the scope of this judgment beyond the factual issue which is the defence provided by
section 45
on the facts of this applicant’s case.
35.
We commend Mr Newton, on behalf of the applicant, and Mr Marsland, upon behalf of the respondent, upon the quality of their detailed written submissions and their succinct oral submissions.
36.
As the appeal has developed, two grounds of appeal are identified. The first is that the CPS should not have made the original decision to charge or prosecute the applicant. At the time of the police search and his arrest, the applicant was the only person in the property where over 400 cannabis plants were being grown. He was found in the loft.
When interviewed by the police, the applicant declined to comment. Given his presence in a house containing so many cannabis plants, for which he provided no explanation when interviewed, there was a proper evidential basis to warrant charging the applicant. Prior to his appearance in the Crown Court, there was no information available to the CPS which could or should have raised a concern that the applicant could be a victim of trafficking. There were no grounds which would have warranted referral to an appropriate agency because those who arrested the applicant – and thereafter, the CPS – were given no information to alert them to such an issue. In the circumstances there are no grounds to challenge the original decision of the CPS to prosecute.
Ground 2: At the Crown Court, when the possible trafficking issue was raised, should the proceedings have been adjourned or stayed?
37.
It is clear that the applicant was not advised by his then advocate as to any possible defence pursuant to
section 45
. The pre-court conference, conducted via video-link and an interpreter, between the advocate and the applicant occurred immediately before the court hearing, time was limited. There had been no prior consultation between the instructed advocate and the applicant. Had circumstances permitted, more detailed instructions should have been sought and could have been given. This should have led to advice being tendered that the applicant had a
section 45
defence available to him. That said, we are not unmindful of the constraints within which the pre-court conference took place.
38.
In the mitigation advanced on behalf of the applicant before the court, the following points were identified: the applicant was brought into the country by an agent; he was taken to the accommodation; the cannabis was already in situ and he was told what to do; the applicant was told that he would have to pay off the cost incurred for his passage to the United Kingdom by feeding the plants; he was not allowed to leave the property; other people visited the property every two or three days to bring him food and to provide him with a mattress upon which to sleep. The applicant was described by his advocate as being exploited and coerced by the telling of stories of what the police might do if they found out about his status.
39.
In sentencing the applicant, the judge stated that he was taken advantage of by the people who brought him to the UK. They used him as a gardener for their cannabis factory.
40.
In our judgment, the information placed before the court was sufficient to raise an issue that the applicant was a possible credible victim of trafficking. This should have been apparent to the applicant's advocate, the representative of the prosecution, and the judge. It would have been open to the judge to raise this issue. He did not do so. However, the Guidance provided by the CPS expressly provides for this situation. Had the Guidance been followed, as we believe it should have been, the prosecutor should have sought an adjournment to ensure that the steps set out in the relevant section of the Guidance, namely, the duty to make proper enquiries and to refer through the NRM, should have taken place. Had this been done, we believe it reasonable to conclude that the referral would have resulted in the Conclusive Grounds Decision (made in January 2017), namely, that the applicant is a victim of human slavery. Our view as to the Conclusive Decision is reinforced by the findings of the FTT which were made available to the court.
41.
It being accepted by the respondent that subsections (1)(a) to (c) of
section 45
are met, the court has focussed its attention upon subsection (1)(d). The applicant arrived in the United Kingdom on 15 March 2016. He was captured in Dover by immigration authorities and returned to France. Traffickers returned him to the UK in a lorry. Those facts are set out in the Conclusive Decision. The police raid on the property was on 6 June
2016. It is unclear on what date the applicant was returned to the UK by the traffickers,
but it must have been a relatively short time before the police raid.
42.
There is nothing to dispute the applicant's account that he was locked in the property in Birmingham and was visited every two or three days by his captors. In the same Conclusive Decision, it is noted that the applicant escaped in Germany. However, he was subsequently beaten by the traffickers in France because of the escape from the traffickers. It is noted that his movements were monitored and he was locked into his places of work, where he also lived. We accept that those observations relate to his experience in Russia and Europe, but it is not unreasonable to conclude that, because it was the traffickers who brought the applicant to the UK, his fear of being similarly treated would have been in the applicant's mind when in the property in Birmingham. We note that there was reference to this in the asylum interview contained in the Statement of Evidence Form. All these documents would have been available when the Conclusive Decision was made and could have been available to the CPS in reconsidering this matter.
43.
In applying the
section 45(1)
(d) test, account has to be taken of the reasonable person in the same situation as the applicant and having the applicant's relevant characteristics, as a result of which he had no realistic alternative but to do the act. The factual position, as found by the Conclusive Decision, was that for the short time that he was in Birmingham, the applicant had no travel documents; he had a history of being beaten by traffickers following his earlier escape in another country; he was in a new country; and he had no contact with any persons other than those involved with the traffickers. We regard the respondent's submission that in those circumstances
section 45(1)
(d) is not met as failing to appreciate the reality of the applicant's situation, and his circumstances, which include his history at the hands of the traffickers in other countries and resultant fears.
44.
Were appropriate weight to be given to these facts, as contained in the Conclusive Decision, we believe that a decision would or should have been made that the defence pursuant to
section 45
would probably succeed. In our judgment, no public interest consideration would outweigh such a determination.
45.
In summary, we conclude that, following the appropriate CPS Guidance at the time, the applicant's case should have been adjourned for referral to the NRM. Following the Conclusive Decision, a fair decision based on the facts of that decision and the evidence upon which it was based would be that a defence pursuant to
section 45
would probably succeed. In the circumstances the conviction cannot be regarded as safe.
46.
Accordingly, we grant leave and allow the appeal. For the reasons identified we find that the appellant's conviction is unsafe. It is quashed.
MR NEWTON:
My Lady, I am very grateful. My position is covered by the referral of this case by the single judge. But may I make an application for an extension of the representation order for my instructing solicitor? I apologise that it is not in writing. It is something which she raised with me last night. It is for a very modest amount of work which, basically, involved her continued involvement in this case after the grounds of appeal were submitted, an example of which is that the original Respondent's Notice raised a number of points that required additional information and the court directed her specifically to deal with that. There has been some other correspondence. I anticipate it is probably something in the region of ten hours. If the court is not minded to grant it, she will understand entirely. But it just seems to me, in the circumstances of a case like this, where the solicitor has had continued involvement in the case and has received directions from the court during the life of the case, if the court were minded to grant it, it would be appreciated.
LADY JUSTICE NICOLA DAVIES:
Well, we bear in mind two things. First, there has been ongoing communication between the applicant and the respondent, which is always of assistance to the court, and it is very clear from the quality of your written submissions that that was going on, and the court can only be assisted by that. We also bear in mind the vulnerability of the appellant in such circumstances. Will you allow me a moment?
(
The court conferred
)
LADY JUSTICE NICOLA DAVIES:
Yes, we will grant it.
MR NEWTON:
I am very grateful. Thank you, my Lady.
______________________________________
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hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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________________________________ | [
"LADY JUSTICE NICOLA DAVIES DBE",
"MR JUSTICE MARTIN SPENCER"
] | 2019_06_07-4618.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/984/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/984 | 733 |
729918e4f15f2e33af17a214b66dfbacfdc349b9ae9f9dfde7c754c5def602c4 | [2015] EWCA Crim 209 | EWCA_Crim_209 | 2015-02-03 | crown_court | Neutral Citation Number: [2015] EWCA Crim 209 No: 201300382 C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 3 February 2015 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE NICOL MRS JUSTICE MCGOWAN DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v FA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London | Neutral Citation Number:
[2015] EWCA Crim 209
No:
201300382 C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 3 February 2015
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE NICOL
MRS JUSTICE MCGOWAN DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
FA
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Ms J Smart
appeared on behalf of the
Applicant
Ms S Lindop
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE RAFFERTY
: FA, 55, on 26 March 2010 in the Crown Court sitting at Croydon was convicted of a number of offences. On 24 May 2011 upon rearraignment he pleaded guilty to causing a person to engage in sexual activity without consent contrary to section 4(1) of the Sexual Offences Act 2003. On 30 September 2011 he was sentenced where relevant thus: on counts 9 to 12 and 17, sexual assault contrary to section 3 of the Sexual Offences Act, 3 1/2 years' imprisonment, the terms concurrent inter se; on counts 13 and 14, causing a person to engage in sexual activity without consent, on count 13 to 3 years' imprisonment, the term concurrent, and on count 14 to 5 years' imprisonment, the term consecutive; on the count to which he had pleaded guilty upon rearraignment 4 years' imprisonment, the term consecutive. The total was 9 years. He had been discharged on an allegation of rape following a successful submission of no case to answer. A number of other offences was left to lie on the file.
2.
Those listening or reading should remind themselves of the statutory reporting restrictions and the case should be anonymised appropriately.
3.
His application for an extension of 2 years 9 months in which to seek leave to challenge his conviction has been referred to the full court by the single judge. The applicant seeks to rely upon fresh evidence which came to light after his conviction.
4.
Between 12 and 20 February 2009 (half term), KK, then 17, 18 at trial, went to stay with the applicant and his wife H (her uncle and aunt) whilst their son J, 15, stayed with her parents. KK had already exhibited sexually precocious behaviour as her social services file recorded. On 4 March 2009, back at home, KK told her old brother G that the applicant and his wife had forced her to have sex and had abused her. After their arrest on 10 March 2009, their home revealed electronic equipment, CDs and DVDs. Encrypted DWYCO video clips were found with photographs of H in obscene poses, including her tied up and suspended from the ceiling and being urinated upon by the applicant. The Crown's case was that KK, naked, was tied up with a dressing gown cord and suspended from a hook in the ceiling for long periods, forced to have vaginal and oral intercourse with, and sexually touched by, the applicant and made to walk about the house naked for most of the time. KK described the applicant urinating in her mouth whilst she was in the bath, and said she was used like an item of furniture.
5.
Her IQ is between 55 to 69.
6.
The applicant and his wife had an interest in BDSM (bondage, domination, submission and sadomasochism). The Crown alleged that he acted out his fantasies of domination upon KK. Material seized from his house included an image of a semi-naked female in his sitting room. He denied knowing her identity. G identified KK by her wristwatch and physique. Her clothing appeared identical to that worn by the woman on the video clip.
7.
Due to the lapse of time until KK made her complaints no science was available to help the jury.
8.
In interview the applicant gave an account which foreshadowed his evidence, a comprehensive denial. He told the jury that whilst he and his wife enjoyed a particular form of sex life it had stopped years before the allegations. Nothing happened to KK at his house. She only came to stay because of her inappropriate sexual advances to his brother, her stepfather, JA. She had been pestering JA who was finding it difficult.
9.
The applicant said that during KK's week with them she asked about sex and they secured her mother’s permission to show KK a sex DVD as education. She saw a DVD of couples having sex and various websites of gay sex, bondage and other material. They gave her one of H's vibrators, also permitted by her mother. He speculated that KK had used images from the videos and websites to concoct a fantasy. She might also have stumbled upon legal images of him and his wife in sexual acts of an extreme nature.
10.
The issue for the jury was whether KK were truthful and accurate.
11.
Grounds of appeal against conviction complain that it is unsafe as a consequence of fresh evidence which suggests KK has retracted her allegation, and that post conviction she telephoned her mother, FA. On speakerphone she is said to have been was heard by her mother, her stepfather JA and her grandmother SA to say she had not been assaulted but had been obliged by her brother G to lie to the police so that he, G, and she, KK, could get a better council house. A note of the conversation was it is claimed made by FA, signed by those present and later by KK. JA and FA supplied an explanation of why at the lower court they did not give evidence.
12.
The stark point is that the fresh evidence generates sufficient anxiety about the safety of the conviction for this application to succeed.
13.
KK was interviewed post-conviction by the police and her ABE interview stood as her evidence-in-chief for these purposes. Ms Kate Man, registered intermediary, Ms Smart for the applicant and Ms Lindop for the respondent Crown have worked as a team, the better to promote the interests of justice in the conduct of this case. It is clear they have had in mind not only the course of the hearing and the welfare of KK, but also the interests of the applicant himself. Questions to be put by Ms Smart to KK in cross-examination were reviewed by the registered intermediary, whose sensible expert suggestions were unhesitatingly adopted.
The fresh evidence upon which the applicant relied
14.
In an undated witness statement SK, KK's brother, claimed that KK once told him she wanted the applicant out of prison. SK could say no more than that this was ages ago and that, although he and KK spoke often, KK had not mentioned it again.
15.
FA in a witness statement of 19 December 2012 foreshadowed a later affidavit. The same form of recording was adopted by JA and SA and they corroborate each other. FA gave evidence and was cross-examined today. She claimed that in December 2012 during a Wednesday telephone call from KK to her, and in the home of her mother-in-law SA, and with her husband JA present, she, FA, switched her mobile telephone on to its speakerphone facility. She told us KK said, "I don't know why [H] was in prison. She never touched me." FA, who claimed to be in shock, asked "Really?" In a second witness statement, also incorporated into her affidavit, she explained that KK was adamant in the broadcast telephone call that the applicant and H should not be in prison as neither had touched her. FA's evidence was that she wrote down what KK had said and that at some point (an issue to which we shall return) the piece of paper upon which she wrote was signed by herself JA and SA.
16.
FA recorded as follows:
"My name [KK] I dont know why [the applicant] and [H] are in prison because they never tuch me because S saw a picture of [H] on laptop [G] and [P] made me say it and I want to tell the truth and dont want to lie no more [G] put me were I am now after taking me in for 3 months." [Sic]
Below we read "[KK]"; below that "FA", below that "[JA]"; and below that "[SA]".
17.
FA adopted the contents of her affidavit as the truth of her evidence as did JA. In cross-examination by Ms Lindop for the Crown and invited to explain what triggered her decision to switch her mobile telephone onto speakerphone all she could say was that she had switched it onto speakerphone so that those present could hear. This did not answer Ms Lindop's question, which was: "Why did you want those people to hear it?" and its subtext: "What was it that alerted you that something important might be coming?" Pressed, she said:
"Well, so it was not my word against hers. She said she didn't know why they were in prison as they didn't touch her. She said this loads of times. I asked her to say it again. You have to put the name down so people know who she is."
18.
Asked to explain why the note, as recorded, began "my name [KK]," she conceded that "my name [KK]" was not something that her daughter said. FA elected to write that down. Taken to her affidavit, she acknowledged that by contrast she there said those
were
words that KK had said, but she told us that the account in her affidavit was not true.
19.
She claimed she had no difficulty recording what KK was saying; she got it all down. Once written it the three adults signed it. Later, at McDonald's, KK signed it. FA could not remember the date of the telephone call and did not think to add the date to her otherwise carefully recorded account. Neither could she remember whether, as her affidavit suggested, the McDonald's visit were on a different day from the day of the recorded conversation or the same.
20.
She was asked whether when she saw KK her daughter was always supervised by social workers, carers or key workers. It is difficult precisely to distil her evidence. The emerging message was that she was, but FA said (dealing with McDonald's) that "the lady" (we infer the care worker) "might have gone to the loo" and KK might have signed the document at that stage.
21.
This evidence arose because she had been taken to her affidavit where she claimed that whilst the carer used the lavatory she, FA, produced the note and KK signed it. Invited to explain why, if it were legitimate, she elected to use the opportunity of the carer's absence before taking it up with KK she said, "I knew the supervisor wouldn't allow it."
22.
Finally of relevance on the topic of the note, she was invited to look at the top and the bottom. At the top "my name [KK]" is recorded the name by which her daughter is known, with an "i". At the bottom, where the reader would infer are signatures, the "i" is omitted. FA's evidence was that she missed out the "i" at the bottom; then she changed her account to the fact that KK when she signed it herself missed out the "i". FA was adamant that it was KK's signature.
23.
She was invited to comment on the suggestion that KK had not said what was recorded, rather that FA made it up and then signed it, pretending that KK had signed it. She said, "No. Why does everyone believe what she says and not what I say?"
24.
The Crown's position has always been and remains that the motive behind what it suggests is lying, contrived evidence from FA supported by JA and SA was FA's desire to get back the three children who were in care. She refuted that.
25.
JA purported to confirm what he had heard over his wife's phone on speaker. He could not assist with when he signed the note nor with whether when he did KK's signature were on the piece of paper. He refuted the suggestion that he, his wife and his mother had conspired to put together the note as a false document and that it contained not a shred of truth.
26.
SA was not called and this case stands or falls without her.
27.
KK in her evidence-in-chief said she had told the truth at the court below, was not minded to change her account and any suggestion that she should do so had come from her mother. Her mother over the telephone told her to lie to the police, and to claim that she had not been truthful about what the applicant had done to her.
28.
She was cross-examined with the assistance of the registered intermediary. She told us she did not talk to her mother about the applicant's conviction and time in prison, but her mother talked to her and said she should lie to the police about it. When KK told her mother that she was telling the truth, her mother said she should lie to the police. When she met her mother she always had a carer with her. She thought she did meet her mother in McDonald's and thought she had a carer with her on that occasion.
29.
The note was then read out to her slowly and carefully. KK told us she did not know whether her mum showed her that note in McDonald's. She thought she remembered her mum reading it to her. She was not sure whether she had a carer with her. She was, however, sure about this: the words read out she did not say. She said, "I wrote my name thing in McDonald's because she told me to, my mum….I did not say the words on the paper. She's making it up. I didn't…..I'm telling the truth today and I know I must."
30.
The test for admission of fresh evidence needs no recitation here.
31.
Even without the evidence of KK we should have had profound unease about the credibility of the evidence upon which the applicant relies. KK is a young woman with profound difficulties, but it is plain that she has not resiled from her account to the jury and is unshaken in her evidence that she did not say the words recorded in her name on the note. She was stalwart in her rejection of any withdrawal of her evidence and decisive in her account that, when she declined to lie, her mother urged her again so to do.
32.
The hurdle presented to the applicant by the combination of the evidence of KK and by the evidence holed beneath the waterline of FA and of JA is one that cannot be cleared.
33.
We have no hesitation in concluding that this referred application must be rejected. | [
"LADY JUSTICE RAFFERTY DBE",
"MR JUSTICE NICOL",
"MRS JUSTICE MCGOWAN DBE"
] | 2015_02_03-3535.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/209/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/209 | 734 |
b31e8f972af4efa5fc0174affe3bc6baef5759594afe23301c97e9416366daae | [2011] EWHC 3567 (Admin) | EWHC_3567_(Admin) | 2011-11-23 | high_court_administrative_court | Case No. CO/7596/2011 Neutral Citation Number: [2011] EWHC 3567 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Cardiff Civil Justice Centre 2 Park Street Cardiff Wales CF10 1ET Date: Wednesday, 23rd November 2011 B e f o r e: HIS HONOUR JUDGE MILWYN JARMAN QC (Sitting as a Judge of the High Court) - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF GAME Claimant v AVON & SOMERSET POLICE Defendant - - - - - - - - - - - - - - - - | Case No.
CO/7596/2011
Neutral Citation Number:
[2011] EWHC 3567 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street
Cardiff Wales CF10 1ET
Date:
Wednesday, 23rd November 2011
B e f o r e:
HIS HONOUR JUDGE MILWYN JARMAN QC
(Sitting as a Judge of the High Court)
- - - - - - - - - - - - - - - - - - - - -
Between:
THE QUEEN ON THE APPLICATION OF GAME
Claimant
v
AVON & SOMERSET POLICE
Defendant
- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript 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)
- - - - - - - - - - - - - - - - - - - - -
The Claimant appeared in Person
Miss Venthan
(instructed by Treasury Solicitor) appeared on behalf of the
Defendant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
THE DEPUTY JUDGE: This is the oral hearing of a claim for judicial review dated 9th August 2011bought by George Game against the Chief Constable of the Avon and Somerset Constabulary,.
2.
The decision which he seeks to have reviewed relates to a request by him for the removal of a caution administered by Avon and Somerset Constabulary in 2004. The date of the decision which is challenged is 25th May 2011. The detailed statement of grounds upon which he relies are set out as follows:
a.
"It has become clear that upon 30th October 2004 I was induced into making a confession with intention to be offered a caution, even before I reached the police station. Evidence of this is contained in a write letter written June 2009 on a different topic to the defendant's organisation and which gained additional support from the IPCC."
3.
Then there is a reference to former case law and to a decision of His Honour Judge Seys Llewellyn QC on 12th April 2011, when the judge refused Mr Game's application for permission to bring judicial review proceedings against the IPCC, arising out of the same offence. The detailed statement of grounds go on:
a.
"Evidence of any offence is ever committed is purely circumstantial and in truth there was never any intent. It was easier to confess and go home under the conditions explained in the police van. The defendant has deleted the custody data, contrary to statutory and MOPI guidelines. The chief officer accepts the risk of deleting it. There was a witness identified ... who could confirm key points of my defence who may or may not be traceable."
4.
Permission in the present claim for judicial review was given by His Honour Judge Seys Llewellyn QC by a written decision, following consideration of the papers, dated 11th October 2011. Granting permission the learned judge said as follows:
a.
"1. In April 2001 I refused permission in his application against the IPCC on the basis that he could not arguably succeed against the decision of the IPCC."
b.
Pausing there, the claim does have a somewhat complex history. It is now not in dispute that reference by the judge to the IPCC in that case was a typographical error on which nothing turns in the case before me.
5.
Mr Game, who has represented himself in these proceedings, accepts that by a claim form, dated 22nd September 2010, he did make a claim against the IPCC for judicial review, arising out of the same facts. The background to that, he says, was that he had written to the Chief Constable in 2009, requesting that the caution in question should be removed. That was refused. He made a complaint about the police officers involved in administration of the caution. That complaint went to the Independent Police Complaints Commission who did not uphold his complaint. Mr Game says to me that he accepted that decision at the time and probably still accepts it. He nevertheless admits that he brought the claim for judicial review and wrote to the IPCC subsequently when he realised that that was the wrong body against which to complain in the light of this acceptance.
6.
It is not in dispute before me that such a letter was written. However, the matter was allowed to proceed to a consideration of whether permission should be given on the papers. Such consideration was given by His Honour Judge Bidder QC and refused on 20th August 2010. There was no application to renew that request for permission.
7.
Instead, by a claim form dated 2nd February 2011, Mr Game then sought permission to bring proceedings against the Chief Constable of the Avon Somerset Constabulary. It was that claim, having been refused permission on paper by the His Honour Judge Cook QC, which came on for an oral hearing before His Honour Judge Seys Llewellyn QC in April 2011. That oral permission was refused.
8.
1.
It is against that background that the question of whether permission should be given in the present claim should be considered. The observations made by the latter judge on that occasion continue as follows:
a.
"2. I did recommend to the claimant that he make formal application to the Chief Constable of Avon and Somerset Police. I did not advise that it would be successful. I confess to some sympathy with him that this application had been refused. That sympathy is immaterial to whether there is an arguable prospect of success on application for judicial review.
9.
The nub of the present application is that there are grounds to accept that he was induced to accept caution by reason of a representation to him that the caution would be deleted after a few years.
10.
The court will proceed with care not to allow an adult claimant of full understanding at the time for caution to pursue deletion of it based on simple change or heart or later regret. However the IPCC had found the claimant’s point was not without merit and that “the manner in which he has raised these concerns does add to the veracity of the allegation."
This material was available to the defendant at the time of his application.
11.
Then there was reference to the authority of
R v Metropolitan Police Commissioner ex parte Thompson
[1996] EWHC 379 and an observation that there may be merit in Mr Game's complaint of failure to keep records for the period of 6 years. There was then reference to the delay but the observation continued that as Mr Game is a litigant in person and had been pursuing the matter for some considerable time, it was not considered that the delay is such as to preclude the grant of permission, if otherwise merited."
12.
The substantive hearing came on before me. It transpired that some documents had been sent to Mr Game by or on behalf of the Chief Constable just days before the hearing. Moreover, although Judge Seys Llewellyn had ordered that skeleton arguments should be exchanged and the
defendant should be sent to Mr Game not later than 14 days before the
hearing, that was not done until 17th November. I gave Mr Game an opportunity for considering whether he was fully prepared in the light of those circumstances to argue his case and he assured me that he was.
13.
The documents in question relate to the circumstances in which Mr Game came to be arrested and cautioned. First of all, there is the notebook entry of the arresting officer, PC Norton. The transcript of that notebook entry is now available. These documents were note available to Mr Game at the time of his original claims. They would have been available to the Chief Constable when he considered his decision.
14.
I attempted to emphasise to the parties that in my judgment it is not for me to decide on the factual issues which now appear between the parties as to what happened on 31st October 2004. What I was must determine is whether the decision of the Chief Constable not to set aside the caution in question is a lawful one or not.
15.
The decision in the first instance was made on 25th February 2010 and then communicated to Mr Game by the department head of Professional Standards Department of the Police Headquarters at Fortis Head. Reference was made to correspondence in 2009 and the letter continues:
a.
"Without rehearsing the details of the incident, I can confirm that the arresting officer has been spoken with and has, despite the incident being over 5 years old, provided a comprehensive report and a copy of his pocket notebook.
16.
On review of the above documents there is no evidence to support the allegation that 'you were advised by the arresting officer that the caution would be deleted after a few years'. On being booked in the custody officer would have advised you of your rights and the cautioning officer makes the decision whether to caution or not once the interview had taken place, at which time the repercussions of the ... the caution would have been explained. The arresting officer has confirmed that normal procedures took place at the time of the arrest and owing to some personal experiences did not feel he would have advised that the caution would be deleted after a few years. In view of the above [it is highlighted within Mrs Ford's letter] I therefore confirm that your caution will not be 'stepped down' but will remain on the PNC and available for disclosure to the CRB in relation to employment vetting."
17.
The letter which is now challenged is dated 25th May 2011 and says this. It comes from the Legal Services Directorate at the Police Headquarter's in Fortis Head. It says:
a.
"We must stress that whilst we appreciate your frustration and disappointment with the legal process the Constabulary is only permitted to make decisions within the constraints of the law. As previously stated in a Court of Appeal case, Chief Constable of Humberside Police & Ors v Information Commissioner and Secretary of State for the Home Department
[2009] EWCA Civ 1079
, the police must maintain records of all cautions and convictions. We are no longer permitted to remove them or step them down from the PNC. In very rare exceptional cases the Chief Constables do have the discretion to authorise the deletion of data from the PNC…….. Unfortunately on the basis of the individual circumstances of this case, we do not deem this to be an appropriate case for the Chief Constable to exercise his discretion as we have not seen any evidence to suggest that the caution you received was unlawful."
18.
The circumstances from Mr Game's point of view of the incident in question had been set out in two letters, one dated 2009 to the Avon and Somerset Constabulary and the other dated 2nd September 2010 to the IPCC. The version set out in those letters and in particular the first letter was in substance repeated by Mr Game to me, as part of his submissions in this case. He accepts that on the afternoon in question, a Saturday afternoon, at about 3.00 pm, whilst out shopping, he allowed a woman to get into his car and he then realised that she was a prostitute. Accordingly he intended to follow the one-way system of traffic to let the person concerned get out of his vehicle at the point where she got into it.
19.
As he followed that course of action he drove past a police patrol vehicle. He realised, he said, that he was in a difficult position. He was stopped by the police. He was cautioned and he made no reply. On the way to the police station he asked what would happen. He cannot remember precisely which of the two or three officers who were present with him in the police vehicle; it may have been the arresting officer, or it may have been another officer or both. But what he was told was that as the offence was likely to be seen as a trivial one, that if he admitted it he would be able to go home in 1 hour. He was then interviewed, which lasted a few minutes. A transcript of that interview or a record of it has not been retained.
20.
Then he underwent the sample process for fingerprints and DNA. He had a further discussion with PC Norton lasting some 5 to 10 minutes. Then he underwent the caution and procedure. He was told, he says, it was not a criminal offence. He was asked to sign on a dotted line. What he signed was a screen. He said to me that he did not see the documents on the screen, although they may have been somewhere. He could not recall. He says he was not told what he was being cautioned for but he was told would surmount to the effect that the caution would remain a record for 3 years; that he would walk out of the police station without a criminal record.
21.
So, he submits, in all these circumstances, it is irrational for the Chief Constable to exercise a discretion in any other way than to set aside the caution. He points to a number of consistencies between his version and the notebook of PC Norton which is now available, the relevant extracts of which say as follows:
a.
"15.05 Portland Square with K [then there is a reference to a black female loitering on the corner] wearing a mini skirt, a T-shirt and an open coat." (quote
22.
The notebook entry continues:
a.
"On seeing us she immediately walked away into Wilson Street."
23.
Then, there are references to two police officers, one of which was a PC Brown, getting out on foot and calling up for observations on her. But the entry continues:
a.
"We drove past Wilson Street. She looked at us intently observing to see if we were going to approach her. We went past, parked up by Bristol Batteries awaiting observation from PC Brown. L431 FGS Astra grey came past with the vehicle followed stopped by Cumberland Road, spoke to [the claimant] ... said he had picked female for lift, did not know her, never met her before.
b.
15.25. You're under arrest on suspicion of kerb crawling and soliciting a female for sex. Caution no reply."
24.
Only a front sheet of the custody record has been retained. The remainder has not. The officer who opened the custody record was a PS Rose and it was opened at 15.37. It is recorded that Mr Game had arrived at the police station at 15.35. The arresting officer is recorded as PC Norton and the time of the arrest was said to be 15.20, at Cumberland Road. The circumstances are recorded as follows:
a.
"Uniformed police on patrol in Portland Square, when they observed a female prostitute at location. A few minutes later this female was seen to be picked by the DP, who was driving a Vauxhall Astra index L431FGS both stopped and DP arrested."
25.
Detention was authorised.
26.
Then the record of caution which is dated the same date sets out the offence as follows:
a.
"Solicited woman from vehicle, kerb crawling. On 30th October 2004 in the city of Bristol being a man solicited a woman for the purpose of prostitution from a motor vehicle while it was in a street or public place, namely Wilson Street, St Pauls, persistently owing to circumstances as to be likely to cause annoyance to ... to other persons in the neighbourhood contrary to
section 1(1)(2)
of the
Sexual Offences Act 1985
."
27.
The record says it is to be read and signed by the person being cautioned. The person cautioned then made a declarations as follows:
a.
"I acknowledge I admit the offence and agree to the caution. I understand that if in the future I should appear before a court and found guilty of another offence then details of this caution may be given to the court."
28.
Then there appears the signature of Mr Game.
29.
There were two reports by PC Norton in the course of Mr Game's complaints to the IPCC. The first was dated 6th January 2010 in which PC Norton said that at 15.05 hours he was on duty in the Portland Square and that officers saw a person who appeared to be soliciting at the junction of Portland Square with Carey Street. He said that PC Brown and PC Kayford left the vehicle to keep observations on her and he stayed in the vehicle and went to Bristol Batteries and was parked there. The report continued that he had received observations from "PC Brown, ref a grey Astra L431FGS, this vehicle came past us and we followed it into Cumberland Road, where we stopped the vehicle." He said that there was a female in the vehicle as Mr Game was driving and he arrested Mr Game for kerb crawling. He said:
a.
"At 15.59 hours ... in company with PC Brown. He admitted the offence and was cautioned and released."
30.
A few days later a further report, dated 23rd January came from PC Norton. He gave some further details. He said that one of the offences that was being dealt with at that time was soliciting by sex workers. The method employed was to identify possible offenders operating on the street. Two officers in uniform would be dropped off from a van and then keep an observation on the suspect. The mobile unit would stay mobile. If sufficient evidence was gathered, then the suspect would be arrested and taken to a station and processed. He said that he had read his pocket notebook and the log for the day. The report then continued:
a.
"I don't remember the arrest of Mr Game, the processing of him... I've spoken to PC Brown but still cannot recall the detail of the incident, I've tried to get a copy of the tape to assist but it has been destroyed. Due to the fact I can only make the following points from written material, at my disposal including Mr Game's correspondence."
31.
Then a number of other points are set out. the last of which realtes to the suggestion that
he told Mr Game this caution would disappear after a few years. As follows
32.
“ I am one of the few people who joined the force with a criminal conviction. Mine is for damage when I was 16. My experience has been that in certain matters this record is never spent. I still have to disclose it for insurance purposes today, and have to disclose it at the age of 30 to join the Force. I usually give this advice ... when cautioning as well."
33.
Mr Game, before me, has placed a particular emphasis on the difference between the notebook entry which says that he, PC Norton was awaiting observations from PC Brown and the report dated 6th January 2010, when he said that he had received observations from PC Brown. This was despite the fact that in his later report, on 23rd January, PC Norton said he had no recollection of the details.
34.
Further, says Mr Game, the last point in the later report is inaccurate. The
Rehabilitation of Offenders Act 1974
applies to criminal convictions on the one hand, as mentioned by PC Norton and to cautions on the other, as applies in this case.
35.
Due to the passage of time, I am told by Miss Ventham, who appears for the Chief Constable in this case, that it is not possible to say with any certainty what the words of the caution which would have been given at that time were.
36.
I was referred to the case of the
Regina v Commissioner of Metropolitan Police ex parte Thompson
[1996] EWHC (Admin) 379. In that case reference was made to the Home Office guidelines as to the circumstances in which cautions should be administered. Those were set out in Home Office Circular 18/1994 on the Caution of Offenders. So far as relevant the document reads as follows:
a.
"1. The purposes of a formal caution are -
-
to deal quickly and simply with less serious offenders;
-
to divert them from unnecessary appearance in the criminal courts; and
-
to reduce the chances of their re-offending.
37.
A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings. In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered -
-
there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction;
-
the offender must admit the offence;
-
the offender ... must understand the significance of a caution and give informed consent to being cautioned."
38.
The latter point is emphasised by Mr Game. The guidance goes on:
a.
"In practice consent to the caution should not be sought until it has been decided that cautioning is the correct course. The significance of the caution must be explained: that is, that a record will be kept of the caution, that the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again, and that it may be cited if the person should subsequently be found guilty of an offence by a court."
39.
In the
Thompson
case, there was also reference made to the Metropolitan Police Case Disposal Manual which described the decision making process which lead to the prosecution of offenders. In that manual, there was a proforma record of a formal caution which was used in that case, which contained the following:
a.
"Information re cautioning process.
40.
After consideration of all the circumstances it has been decided that on this occasion it will not be necessary to proceed with the matter by way of court action.
41.
The matter will be dealt with by way of a formal caution. It should be clearly understood that Police have been able to adopt this alternative method of dealing with this matter because you have admitted the offence(s) and have agreed to this course of action knowing that a record of this caution will be kept for three years and taken into consideration when deciding whether to prosecute should you re-offend in the future. This is not a criminal record, but may be cited in court if you are convicted of a future offence."
42.
Then there is an acknowledgement of caution as follows:
a.
"I admit the offence(s) detailed above and agree to be cautioned. I understand that I have received an official caution which may be cited or taken into consideration as outlined above."
43.
I pause to observe that that acknowledgement is similar to the acknowledgement contained in the caution record in this case.
44.
Miss Ventham acknowledged that whilst it has not been possible to obtain any such manual which was used by the Avon and Somerset Constabulary at the time of this caution was administered that it was at least possible that similar guidance was applicable to the officers of that constabulary at the time.
45.
In all those circumstances, Mr Game submits that the decision of the Chief Constable of 25th May 2011 cannot stand and it should be quashed. What he seeks is that an order that the caution should be set aside. It seems to me even if he succeeds in persuading them that the decision must be quashed, it is not for me to decide whether or not the caution should be set aside. That is a matter for the Chief Constable.
46.
The discretion which the Chief Constable has to exercise is referred to in guidance called "Retention of Nominal Records on the Police National Computer". Paragraph 4.32 of that guidance says:
a.
"Chief officers are the data controllers of all PNC records referred to above, created by their Force. They have the discretion in exceptional circumstances, to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories, 'owned' by them."
47.
Appendix 2 sets out exceptional case procedures for removal of DNA fingerprints and PNC records and contains the following:
a.
"Chief Officers have the discretion to authorise the deletion of any specific data entry on a PNC 'owned' by them. They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases ...
48.
Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance."
49.
Miss Ventham submits that, even taking Mr Game's account into consideration, as of course it must, that does not amount to an exceptional circumstance. The case of
Thompson
, she says, was different, in that the inducement there given was given before the interview and before the admission of guilt.
50.
The fact remains, in this case, that Mr Game accepts that he was driving a motor vehicle in which there was a prostitute. His case is that he had no intent to do that. He did not realise she was a prostitute. But the physical elements of the offence are not in dispute. In those circumstances, submits Miss Ventham, the inconsistencies relied upon by Mr Game in had regard to the police entry and PC Norton's in substance report are nothing to the point. Furthermore, even on his own account, although he says there was talk about the caution on the way from the point of arrest to the police station, the time he was told that the caution would last only a few years was after the interview. That, it seems to me, is a distinction between this case and the facts set out in
Thompson
.
51.
Mr Game refers to another authority,
Chief Constable of Humberside Police & Ors v The Information Commissioner
[2009] EWCA Civ 1079
, in which Hughes LJ said this:
a.
"It would be different if the Tribunal had found that SP had been induced to admit the offence by a promise that the record would be expunged if she reached 18 without further offence..."
52.
In my judgment, taking into account all the matters that were before the Chief Constable in making the decision on 25th May 2011, I am not persuaded that a case has been made out that his decision making process was flawed or that he should have concluded that the case put forward was an exceptional one, so as to dictate that he exercised his discretion in favour of setting aside the caution.
53.
I was troubled during the hearing of this case, that some of the points raised by Mr Game, before me, were not raised in as focussed a way in the letters which he wrote to the defendant. He is not to be blamed for that because some of the documentary evidence, in particular the notebook entry, was not made available to him until recently. I gave Miss Ventham an opportunity to consider that matter and to take instructions. Her submission was that these matters would not have made any difference to the decision and for the reasons I have already given, I accept that submission. In relation to the question of retention of, or non retention of the remainder of the custody record and the interview transcript, I was referred to Guidance on the Management of Police Information second edition; chapter 7. That says this:
a.
"Chief officers are required to balance resources against local policing needs. In this context chief officers should develop risk-based review, retention and disposal policies and procedures which have regard to this guidance document and the MOPI Code of Practice, while also taking into account the resources available to the force and other policing demands...
b.
Records must be regularly reviewed in order to ensure that they remain necessary for a policing purpose, and are adequate and up-to-date..."
54.
At 7.4, again reference is made to forces being confident that any records that they dispose of are no longer necessary for policing purposes. Records which are accurate, adequate and up-to-date are necessary for policing purposes should be held for a minimum of 6 years from the date of creation. That ensures that forces have sufficient information to identify the offending patterns over time and helps guard individual efforts to avoid retention of police information. That point is emphasised in 7.6, which deals with review and the point is made that the record should hold some value for the police in their effort to fulfil a policing purpose. Where an individual continues to offend or is implicated in continuing offending there is a clear need to hold information relating to them, in order to bring them to justice in the event of re-offending.
55.
Miss Ventham accepts that information such as the remainder of the custody record and the interview transcript or record amount to more than information simply for administrative purposes. What she submits however, in circumstances where there was a signed acknowledgement of the caution by Mr Game, and where no further developments or complaints were raised until 2009, is that it cannot be said that the decision not to retain these records was in breach of the guidance. Even if they were, the question is how such a breach impacts upon the decision of the Chief Constable and, as he indicated, he had taken all circumstances into account, which must mean, says Miss Ventham, the information provided by Mr Game and by the police officers concerned such as it was. In my judgment there is force in that submission and I accept it.
56.
I accept what Mr Game has said to me today, which is that he did nothing between 2004 and 2009 because he had no cause to do so. It was only when looking to take in lodgers that he realised he would have to undergo a criminal records check and that is when he made the enquiry as to whether this caution had been set aside or not. He remembered that he had been arrested. His delay in that is the subject of some criticism by Miss Ventham. But, I am not persuaded that those criticisms are justified. In my judgment Mr Game had no cause to raise these matters until the circumstances which he describes unfolded.
57.
However, for the reasons which I have endeavoured to set out, I am not persuaded that this decision was unlawful or that the discretion of the Chief Constable could be said to have been exercised in a way that was flawed. Accordingly I dismiss the claim.
58.
MISS VENTHAM: My Lord, just two further matters. First, just by way of assistance, at the outset of your judgment you referred to the caution being administered in 2005.
59.
THE DEPUTY JUDGE: Sorry, 2004.
60.
MISS VENTHAM: Yes. Throughout, on a number of occasions, your Lordship referred to the year 2001, when clearly it is 2011.
61.
THE DEPUTY JUDGE: Thank you.
62.
MISS VENTHAM: My Lord, further to that there is an application for costs against Mr Game.
63.
THE DEPUTY JUDGE: Is there a statement?
64.
MISS VENTHAM: I do not have a statement of costs, no, I would ask the costs to be assessed if not agreed.
65.
THE DEPUTY JUDGE: Well, what is the requirement Miss Ventham? This was a case that was set down for 2 hours.
66.
MISS VENTHAM: Yes.
67.
THE DEPUTY JUDGE: Is there not a requirement for a statement of costs and is there not a procedure whereby ordinarily the costs would be summarily assessed?
68.
MISS VENTHAM: I would have to look that up.
69.
THE DEPUTY JUDGE: I am afraid in view of the lateness of the hour, the court staff have to be considered and in any event the court building shuts at 6.30, I am wondering whether you should take the opportunity to consider whether having regard to the late disclosure of this information on the skeleton argument you really would wish to press costs. If so, I would direct written submissions within 7 days on costs, within the schedule and Mr Game, you can make any submissions you want to in writing, send them to the sight on the court within 7 days thereafter, and I will make a decision in writing on costs.
70.
MISS VENTHAM: I will certainly ensure that is reflected upon.
71.
THE CLAIMANT: There was one error in your summing up which was quite a significant which in my view has actually thrown the case in a different direction. It is actually the key point that you made an error on: you said that I was given this information after the interview, which is absolutely correct, but I was also given it in line with a document that you have before the interview. I was told before the interview, as described by the police officers, that it would be deleted after a few years and it's a trivial offence. That's the key point that you've made the decision upon, as to whether it was before or after the interview. But I have stated quite clearly in all of my letters and you said that you agree with my document, that is actually--
72.
THE DEPUTY JUDGE: I do not think--
73.
THE CLAIMANT: Okay, you said you had sympathy with it.
74.
THE DEPUTY JUDGE: No. Mr Game, please, it is very important to understand what I did say about that. I said that I had sympathy with your position: until you realised that there might be checks there was no reason why you should take this matter any further.
75.
THE CLAIMANT: That's correct. The point that you made is that I was given the information after the interview whereas in fact I was given it before, that is the key point about the whole decision, whether it was before or after. You stated--
76.
THE DEPUTY JUDGE: What information?
77.
THE CLAIMANT: The information that it be deleted.
78.
THE DEPUTY JUDGE: Which letter are you referring to now?
79.
THE CLAIMANT: Page 67. (Pause) That is still at a point--
80.
THE DEPUTY JUDGE: Just a moment please.
81.
THE CLAIMANT: Sorry, I should shut up. (Pause).
82.
THE DEPUTY JUDGE: Yes, I have that.
83.
THE CLAIMANT: If you look at the top of page 67: "I was told that it was not criminal. I was only guilty of committing a minor offence and it would have no long-term implications, it would remain for a few years", and that is the key point, because it was actually told as described, it was said whilst in the police van.
84.
THE DEPUTY JUDGE: Then you go on to say, over the page: "I was taken back to the police station several police officers advised that the best that I could do would be to admit the offence and accept the caution and go home in an hour. On that basis I admitted intent during the interview as I had no desire to drag through a court case." That is what you told me today and you told me that you were told of the 3 years during the caution procedure.
85.
THE CLAIMANT: And before.
86.
THE DEPUTY JUDGE: Sorry?
87.
THE CLAIMANT: And before.
88.
THE DEPUTY JUDGE: I made a record Mr Game and I have made my decision. If you wish to take the matter further, it is up to you to apply for permission to appeal. You can apply for permission before me. If I do not grant permission then you can renew that application before the appeal court. I can only grant permission if I feel that you have a realistic prospect of success before the appeal court, or that there is some other compelling reason for an appeal to take place.
89.
THE CLAIMANT: Thank you your Honour.
90.
THE DEPUTY JUDGE: Are you making an application?
91.
THE CLAIMANT: Well, I don't ... I can't say yes or no, because I still think it is wrong and basically if you look at the evidence, I think that there is sufficient evidence to suggest that the police, because essentially have been withholding information from me, so that I could not even make my case until last Thursday.
92.
THE DEPUTY JUDGE: The procedure is if you wish permission to appeal, you need permission, you must first ask me. If I disagree to grant you permission, you can go to the appeal court but the timing limits is very tight, I think you have 21 days. The first step is to ask me if you want permission.
93.
THE CLAIMANT: I would like permission.
94.
THE DEPUTY JUDGE: Is there anything else you wish to say on that application to persuade me?
95.
THE CLAIMANT: Erm, no.
96.
THE DEPUTY JUDGE: I am afraid I am going to refuse permission. I do not think there is a realistic prospect of success and, as I say, it is open to you to renew that if you would wish to do so. Is there anything else?
97.
MISS VENTHAM: My Lord, no. | [
"HIS HONOUR JUDGE MILWYN JARMAN QC"
] | 2011_11_23-2869.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3567/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3567 | 735 |
ca18f8e48d6c061c963f70765b5dd02f273556351225425627e6c3f44e891625 | [2014] EWCA Crim 506 | EWCA_Crim_506 | 2014-02-28 | crown_court | Neutral Citation Number: [2014] EWCA Crim 506 Case No: 201301041/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 28th February 2014 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE CRANSTON MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - B E T W E E N R E G I N A v LIONEL HERRVE NGANDO - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communication | Neutral Citation Number:
[2014] EWCA Crim 506
Case No:
201301041/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 28th February 2014
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE CRANSTON
MR JUSTICE GLOBE
- - - - - - - - - - - - - - - - - - - - -
B E T W E E N
R E G I N A
v
LIONEL HERRVE NGANDO
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Harrison
appeared on behalf of the Appellant
Mr J Clifford appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: On 18th January in the Crown Court at Wood Green before His Honour Judge Carr, the appellant was convicted of section 18 wounding with intent and was sentenced on 30th January by the same judge to 10 years' detention in a young offender institution. He now appeals against conviction and sentence by leave of the single judge.
2.
The facts were these. On the evening on 18th August 2012 the complainant, Omar Kelly, went to his friend, Michael Coker's house for a barbecue. After a few hours they moved onto a house party in Tottenham and at approximately 4.30 am they decided to leave. As they walked outside into a communal area the complainant had what he described as a light-hearted exchange with a young women. She said she was the niece of the woman throwing the party. He then heard a male, who was sitting on a wall nearby saying "lough it" twice, a colloquial term meaning "stop talking to her; or “forget the girl”. The complainant turned to leave but as he did so he heard the sound of liquid being poured onto floor and the thud of someone jumping off the wall. The bottle was then smashed over his head following which he was stabbed to his left side with the bottle.
3.
He said he did not see the bottle but he did see the attacker, who was the man on the wall. He ran to the road where he stopped a passing ambulance. He was taken to hospital and underwent emergency surgery to his bowel. He remained in hospital for 9 days and had to use a colostomy bag for many months. He underwent further surgery and was left with a 12 inch scar to his lift side.
4.
Police recovered a broken beer bottle from the scene. The appellant's DNA was found on the bottle, following which he was arrested and interviewed three times. He denied any involvement in the offence and then refused to answer any further questions.
5.
On 29th August 2012 the appellant took part in an identification procedure. The complainant identified the appellant as the complainant's attacker. So in a separate identification parade did Michael Coker, his friend. Coker had also given evidence that he had seen the attack; indeed he had been knocked unconscious by somebody who was with the assailant at the time. It is right to say that there were certain weaknesses in the identification which were highlighted by the judge in the summing-up, in accordance with the
Turnbull
direction. It was not entirely light, it was dawn at the time; there were various descriptions given at different times by both these witnesses which did not entirely match the description of the defendant; and the glances were relatively fleeting.
6.
The prosecution case was that the complainant and Michael Coker had both correctly identified the attacker. They prayed in aid the DNA found on the broken bottle, the appellant's silence in interview, and that there were certain previous convictions which they alleged showed a propensity for committing acts of violence. The defence case was mistaken identity. The complainant and Michael Coker had wrongly identified the defendant when it must have been someone else they had seen at the party who was the claimant's attacker. The defendant did, however, accept that he was at the party.
7.
There was an application to admit as bad character evidence the three previous convictions for robbery which we have mentioned. These were said by the prosecution to be relevant to an important issue between the defence and the prosecution, namely whether the appellant had a propensity for violence and, if so, whether the conviction should be adduced in evidence because they may be material to the question of coincidence.
8.
The appeal against conviction relates to the admissibility of that evidence. The three robberies were all street robberies committed in 2008, 2009 and 2010 respectively. One of these involved actual violent in the form of a punch or punches though we are told that it is not entirely clear whether the punch emanated from the appellant himself or perhaps one of the other persons with whom he committed the offence. The other two involved jostling and harassing the victim, although in one there was a threat that a knife would be used although no knife was actually produced.
9.
The judge concluded that the evidence should be admitted. He said this:
"It seems to me that although the convictions are for a different offence containing violence within but not in the circumstances of each of these robberies - violence with a weapon and of course some of them, or at least one or two of them, were committed when Mr Ngando was still a very young man, the nature of the defence and the association of coincidence both with the bottle and with the identification parades are such it seems to me right that it is left to the jury properly directed, I hope, to conclude whether they find it of assistance or not and it will not be appropriate for me to rule it out at this stage."
10.
We understand the judge to be saying the conviction was potentially relevant because a jury might infer that someone with a record of violent offending, albeit of the kind present here, would be less likely to be the subject of a mistaken identity than someone of good character. It was, to use the language of
Turnbull
"evidence which was capable of supporting the identification” - of course, along with the more powerful DNA evidence.
11.
The judge had emphasised the need for careful and clear directions so as to ensure the evidence was properly assessed and not given undue prominence. He gave such directions. Whilst not formally directing the jury that they could not use these convictions as evidence of propensity to use violence in the way that it was used in this case, he did say that the jury might think that the violence in the earlier offences was "a long way from the particular offences you are dealing with."
He then continued as follows:
"You may think the only fair thing to do if you find a propensity however, for violence, is to put it into the equation as an issue of coincidence. Just as you are entitled to ask yourself: 'What from the chances that two people pick out a man whose DNA happens to be on the bottle?' you are entitled to ask yourself what is the chances of two men picking a stranger who happens to have the convictions this man does. You may think coincidence would be the only fair way, if at all that is used."
12.
The appellant submits the evidence ought not to have been admitted for any reason. The offences were not of a sufficiently similar character to the attack inflicted on this victim and ought not to be considered material even in the context of rebutting his defence that he had been wrongly and mistakenly identified. The prejudicial effect of allowing the former convictions to go to the jury outweighed their probative value. The identification evidence was weak, and as Rose LJ pointed out in the case of
R v Hanson
[2005] Cr App R 21, it is not legitimate to admit bad character evidence in order to bolster a weak case. Counsel submits there very likely would be a number of persons with similar criminal records at the party; and furthermore, for reasons we have given, the identification of the appellant was not wholly reliable.
13.
We reject this submission. In our judgment, the judge was entitled to allow the evidence to go before the jury. We agree that it would not have been appropriate to do so purely for the purposes of demonstrating a propensity to commit violence of the kind used in this attack. The earlier offences would not we think properly sustain that inference.
14.
But in effect the judge indicated that to the jury, although it would be we think better if he had specifically directed them that the conviction should not be used to support an inference that the defendant would commit violence of the kind used in this offence. But we do not accept the premise that the identification was weak, nor that the case overall was weak. As to the former it, in our view highly pertinent there was identification by two witnesses and that the person identified was, on his own account, at the place where the attack occurred. As to the case being weak, quite apart from identification evidence there is the DNA of the applicant on the bottle used in the attack.
15.
This is not, in our view, a case of bad character being admitted to bolster a weak defence. The judge was entitled to say the evidence was potentially of some relevance albeit perhaps limited to rebut the defendant's claimant that he unfortunately and just by chance had been wrongly picked out by two people in the identification parade. The judge was entitled to admit it on that basis and to direct the jury to use it accordingly if they thought fit. He properly emphasised to them they could not convict solely or mainly on that evidence.
16.
We also bear in mind what Rose LJ said in
Hanson
, at paragraph 15, that this court will interfere in a case of this kind only if the judge has misdirected himself or reached the judgment which is plainly wrong. In our judgment, that test is not satisfied here.
17.
We should add that in any event we are wholly satisfied that even if the evidence had been wrongly admitted, there is no real doubt about the safety of the conviction. In that context we bear in mind the following factors: the appellant's admitted presence; the DNA found on the neck of the bottle; the admitted fact that he had been drinking from a bottle of that kind on the evening in question; the fact that the only broken glass in the area was from that bottle; and the identification by both the victim and by Michael Coker. As we have said, this independent identification by two parties is potentially very strong. Also the appellant gave a "no comment" interview and the jury were directed as to the illegitimacy of drawing inferences from that fact provided certain requirements were satisfied.
18.
In our judgment, therefore, this bad character evidence was properly admitted but even if it was not, the verdict is safe. The appeal against conviction therefore fails.
19.
We turn to sentence. The judge considered this was a level 1 attack with a starting point of 12 years. He reduced it to 10, which gave significant reduction principally for the appellant's age – he was 19 at the time of the offence - and for other matters. In our judgment, this was a perfectly proper sentence. The victim had suffered serious life threatening injuries as well as psychological damage, as he outline in his victim impact statement.
20.
The appellant submitted that it was not a case of higher culpability. The basis of the argument is that the attack was not planned or premeditated, it was an impulsive act and although a dangerous weapon was used, the bottle was not an offensive weapon per se. It was suggested that this rendered the culpability at a lower level and should have caused the judge to sentence by treating the offence as a less serious one, with a sentencing range of 4 to 7 years.
21.
In our judgment, neither of the factors relied upon by the appellant would justify concluding this was not a case of higher culpability. A broken bottle is a very dangerous weapon. Liquid was poured from the bottle before the appellant leapt from the wall and in order to attack the victim. It was wholly unprovoked. In our view, the judge applied the guidelines perfectly appropriately. Accordingly the sentence of 10 years could not conceivably be said to be out of line. Credit was given for the age of this appellant. We therefore reject the appeal against sentence also. | [
"LORD JUSTICE ELIAS",
"MR JUSTICE CRANSTON",
"MR JUSTICE GLOBE"
] | 2014_02_28-3364.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/506/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/506 | 736 |
ef7b0602b8624037655f4e4bd06dcc67966a9bdcdf144a3a2dc76fe89986289b | [2011] EWCA Crim 2087 | EWCA_Crim_2087 | 2011-07-28 | crown_court | No: 201100318 D4 Neutral Citation Number: [2011] EWCA Crim 2087 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28th July 2011 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE MACKAY RECORDER OF NOTTINGHAM HIS HONOUR JUDGE MICHAEL STOKES QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - R E G I N A v JASON ANTHONY CARTY - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of | No: 201100318 D4
Neutral Citation Number:
[2011] EWCA Crim 2087
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 28th July 2011
B e f o r e
:
LORD JUSTICE MOORE-BICK
MR JUSTICE MACKAY
RECORDER OF NOTTINGHAM
HIS HONOUR JUDGE MICHAEL STOKES QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - -
R E G I N A
v
JASON ANTHONY CARTY
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7422 6138
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Miss S Clark
appeared on behalf of the
Applicant
Mr C Ward-Jackson
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE MACKAY: This is a referred application for permission to appeal against conviction by Jason Carty, who appeared at the Crown Court at Reading and, on 29th November 2010, was convicted of two offences of conspiracy to supply a controlled drug of Class A; count 1 relating to a quantity of cocaine, count 2, a quantity of MDMA. Standing trial with him were three other people. Charlene Casey was convicted of the same two counts as was the applicant. There was also Bobbie Faulkner and Lee Runham, who were both acquitted of both counts.
2.
On 15th May 2009 police officers had occasion to stop a Vauxhall Astra car which belonged to the applicant. The applicant was not in the car which was being driven by the co-accused Runham and the passenger was Faulkner. There was no insurance on the car and the police who stopped it exercised their powers to seize it. Three days later it was searched, and in the sunglasses holder above the driver's door were two wraps of MDMA and two wraps of cocaine. In a bag in the boot were £6,840 in cash, together with a note book of telephone numbers, names and amounts of cash. The items in the boot were linked to the applicant and the co-defendant Casey. A further search two days later with a sniffer dog found concealed in the handbrake covering a black pouch containing 12 wraps and a clingfilm package of cocaine. There was then a search of the house which the applicant shared with the co-accused Casey, where there were found expensive consumer goods, evidence of expensive holidays and largish amounts of cash going through the bank accounts of the two occupants. Another Vauxhall Astra stood outside, to which Casey held the keys, and in the handbrake housing of that was a pouch containing a single wrap of MDMA.
3.
The prosecution's case was simple: it was the applicant's car, they were his drugs. The defence case of the applicant was that he had nothing to do with them, the drugs must have been put there by Runham, and that the money that he had in the boot was from legitimate sources. He said he had business interests in underground music, in copying tapes of artists, working in clubs and mixing tapes as an MC, and the various lists and documents related to transactions relating to those activities. He called a number of witnesses to confirm that they had had contact with him in his, what might be called, professional connections. So the issue for the jury was who had put the drugs in the car.
4.
The applicant, as we say, gave evidence after the close of the prosecution case, and he was followed by the co-accused Casey and the defence supporting witnesses. On 25th November, the trial having started on the 17th, the fourth defendant, Runham, gave evidence (the third defendant having elected not to give evidence) and his case was simply that he had borrowed the car from the applicant, who was an old friend of his, his own car was out of action. He wanted to take his children swimming the following day, and in due course there was an admission that they did indeed attend a relevant swimming centre on that occasion. He saw the drugs when he was in the car and they must have been there when he got into it. Faulkner had touched some of the drugs, which accounted for the fingerprints of Faulkner on two of the wraps found in the handbrake cowling, and Runham's only involvement was to tell him to put them under the handbrake cowling to keep them out of the way of his children.
5.
After he had given evidence he called Mrs Fiona Cook, who was related to him by marriage. Her evidence went some way to reinforce the evidence that Runham had given as to the reasons why he had the car on that occasion, the reasons he was in it when he was in it and the time period for which he would have been in the car that evening, which was a very short period and therefore inconsistent with any drug dealing activity.
6.
It is now common ground that, unknown to counsel for the appellant (Miss Clark did not represent the applicant at trial), the witness Fiona Cook was in the public gallery and stayed in the public gallery while the Crown opened its case and the first three police officers gave evidence, all on 17th November, the first day of the trial. The officers' evidence merely recited the bare facts relating to the stopping of the car and did not extend to the subsequent searching of it. This evidence was entirely uncontentious and in due course found its way into the first two of the 16 admissions of fact placed before the jury.
7.
As to what the opening said, there is no note of it. We have the assistance of Mr Ward-Jackson today, who was trial prosecution counsel. He tells us that his recollection is that it was essentially a chronological opening. He would have alluded in the course of it to what Runham had said when interviewed following his arrest, which was essentially the same as the evidence he was later to give in court.
8.
Runham's then counsel noticed that the witness was in court and told her to leave court and not go back to it prior to giving her evidence, but did not think it necessary to alert any other counsel as to what had happened. The defence were therefore not aware until after the guilty verdicts were returned.
9.
The single ground of this appeal, put forward with clarity by Miss Clark, is this. There is a real risk that Fiona Cook might have gained an insight into how the case was being put by the prosecution and by her relative Mr Runham by virtue of having heard the Crown open the case. That might, she argues, have alerted her to features of Runham's case of which she had been previously unaware and which would have enabled her to tailor her evidence accordingly.
10.
Miss Clark accepts that there is no rule of law excluding a factual witness from a trial prior to giving evidence, though all accept, as we do, that it is good practice for witnesses to be excluded in the normal course of things. If authority was needed there is the case of
R v Briggs
(1930) 22 Cr App R 68
, which appears to agree with the proposition that the court had no discretion to exclude a defence witness who was potentially helpful to the defence case who had mistakenly sat in court prior to giving evidence. There is a discussion at paragraph 8-22 of the current edition of Archbold which suggests that that still remains the case, though it is argued that PACE section 78 might operate so as to give the court a discretion to exclude such a witness, if a prosecution witness, if the witness' earlier presence in court might lead to the creation of an adverse effect on the fairness of the trial. That does not apply, of course, to a witness called by a co-accused.
11.
Even had there been a discretion in the court to exclude the evidence of this witness, we cannot imagine any basis on which the judge could have exercised it. In any event, we are satisfied that while it remains good practice for a factual witness who is intended to be called to remain out of court before giving evidence, had the co-defendant's counsel notified this applicant's counsel of what had happened, his counsel could have cross-examined the witness, we cannot think of any basis on which that could have been done to any effect in this case. Her evidence appears to have been freestanding and unrelated to, and therefore not capable of being influenced by, the evidence of any other witness in the case apart from that of Mr Runham, the details of whose evidence she never heard. There is in, our judgment, no reason to believe that this conviction was or might have been rendered unsafe by virtue of what happened in this trial and therefore this referred application must be refused. | [
"LORD JUSTICE MOORE-BICK",
"MR JUSTICE MACKAY"
] | 2011_07_28-2805.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2087/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2087 | 737 |
989851dfacf0572d026b2df018e7d93647bd93c62130b96db2d7854ba90afb5f | [2008] EWCA Crim 3206 | EWCA_Crim_3206 | 2008-12-16 | crown_court | No: 2007/3479/C3, 2007/4610/C3 & 2007/4262/C3 Neutral Citation Number: [2008] EWCA Crim 3206 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 16 December 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE DAVIS HIS HONOUR JUDGE SCOTT GALL (Sitting as a Judge of the CACD) - - - - - - - - - - - - R E G I N A v JOHN DRAPER MARTIN EASTABROOK GARY FROST - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International L | No:
2007/3479/C3,
2007/4610/C3
&
2007/4262/C3
Neutral Citation Number:
[2008] EWCA Crim 3206
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 16 December 2008
B e f o r e
:
LORD JUSTICE HUGHES
MR JUSTICE DAVIS
HIS HONOUR JUDGE SCOTT GALL
(Sitting as a Judge of the CACD)
- - - - - - - - - - - -
R E G I N A
v
JOHN DRAPER
MARTIN EASTABROOK
GARY FROST
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
Mr R Kovalevsky QC
appeared on behalf of
Draper
Mr B Mark
appeared on behalf of
Eastabrook
Mr N Fitzgibbon
appeared on behalf of
Frost
Mr J Black QC and Mr C Brown
appeared on behalf of the
Crown
- - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: We have before us a number of applications which arise from convictions on 14th June 2007 in the Crown Court at Ipswich on a count of conspiracy to smuggle cigarettes. In due course we shall need to consider applications for leave to appeal against sentence by Draper and Eastabrook and an appeal against sentence for which Frost has the leave of this court.
2.
Before we come to that, the position as to applications in relation to conviction by Draper and Eastabrook is a little complicated.
3.
Draper's original ground of appeal challenged the admission in evidence of events in 2000. Shortly before his renewed application for leave was to be heard on 7th November, and after changing counsel, he had a consultation with Mr Kovalevsky QC, who now appears for him and he decided to abandon that application relating to his conviction. Some form of communication was had with the Criminal Appeal Office on or about 29th October, thus about a week before what was expected to be the hearing before the full court. Very shortly after that, but still before 7th November, the Crown disclosed to all parties some additional material, some of it, but perhaps not all of it, post-trial material. It seems that the material had surfaced, to use a neutral expression, during the retrial of a co-accused called Marshall about whom the jury in the trial which we are concerned with had been unable to agree. When Mr Kovalevsky saw the new material he concluded that he would not have given the advice to abandon that he evidently had if he had had sight of the new file.
4.
He now seeks to advance not the original ground but two related new grounds. They are, first, that the new material provides reason to think that Draper's conviction is unsafe and, coupled with that, secondly, a challenge to a ruling made by the judge in the course of the trial that exploratory questions could not be asked of surveillance officers about
inter alia
any observations beyond those already disclosed.
5.
We think we should make it abundantly clear first that if Draper did give notice of abandonment there is simply no jurisdiction in this court to allow him to retract it. That was made clear by this court in
R v Medway
(1976) 62 Cr.App.R 85. It was a strong court convened expressly for the occasion, five judges presided over by the Lord Chief Justice, Lord Lane. The only jurisdiction which exists in relation to an application which has been abandoned arises if the notice of abandonment is truly a nullity - that is to say is one where the mind of the applicant or appellant did not go with his act. The reason for that is in effect that this court is a creature of statute; a notice of abandonment puts an end to either an application for leave or an appeal. A change of mind by the appellant or counsel provides no basis for avoiding that consequence. There is no inherent jurisdiction in this court to allow the revival of an abandoned appeal or application.
6.
However, in the present case it appeared, when we embarked on the hearing, that there was some doubt as to whether notice of appeal in proper form or any form had actually been given. Since the issues which were raised by Draper were in substance very much the same as those raised by Eastabrook, who does not face the same potential difficulty of abandonment, we took the pragmatic view that we should hear argument about those issues and decide whether or not they were capable of disclosing arguable grounds. If they did it might be necessary to go on to see whether Draper had truly abandoned or not. If on the other hand they do not there is no occasion to spend time in that investigation.
7.
The smuggling in question in this case was accomplished through Ipswich Docks. Three importations of containers from Latvia were made between 17th August and 27th October 2005. All three containers were stated in their manifests and other relevant documents to contain acrylic tow. The first container did. It was known that a new importer's container was likely to be checked, and this one was. In other words the first container was a dry run. The next two containers which arrived respectively on 8th September and 27th October 2005 contained not tow but cigarettes by the many million -- as a matter of fact they were also counterfeit cigarettes but what matters for the purposes of the present charge was that duty was unpaid. The duty plus the VAT evaded was something over £2 million. Each of the containers was taken from the docks to a place called Bateman's Farm for unloading.
8.
It is important to record that there was no issue at the trial but that there was a conspiracy to smuggle these cigarettes. There scarcely could be; apart from the bare fact of the undeclared importation of millions of cigarettes a number of people pleaded guilty. They included Frost, whose application for sentence is before us, and they also included a man on the inside at the docks named Wilson. As things now stand it is also clear that a man called Turner was involved as one of the entrepreneurs in the importation. He was convicted and he has now abandoned his applications for leave to challenge either conviction or sentence. Although his sentence was the maximum (seven years) his abandonment of any application in relation to that is realistic. That is because he had a previous conviction for smuggling alcohol for which he had been sentenced to five-and-a-half years in 2001 and he committed the present offence when he was still on licence following provisional release from that sentence. If he had received any shorter a sentence he was at risk of having to serve the outstanding period of his licence also.
9.
We will deal first with the 2000 material which although not now in issue in Draper's case remains in issue in the case of Eastabrook. The previous conviction of Turner, to which we have just referred, was the subject of a bad character application in the trial by the Crown. In fact the Crown tried to admit something else which the judge refused, but the judge admitted the previous conviction of Turner for smuggling alcohol, unsurprisingly when the issue in Turner's case was whether he was proved to be a part of the present conspiracy or whether his actions and various associations with others had some different explanation. The result of that was that counsel needed, as they correctly should, to agree the facts of the previous conviction for the purposes of the trial and to avoid the kind of satellite investigation which should be restrained. When they were attempting to agree that and looked at the evidence from 2000, it transpired that one of the meetings which was in evidence in that case had taken place on 29th February 2000 and had involved not only Turner but also Draper and indeed for that matter Marshall. Not only that, but in the course of that meeting amidst other arguably incriminating conversation about loads, Germany and Romania, Draper had, it was alleged, been heard to say: "I could start to divert fags."
10.
The result of that discovery was that the evidence became not only bad character evidence of propensity against Turner but also similar evidence against Draper, though not (it needs to be remembered) against Eastabrook. What seems to have happened is that either for operational reasons or more likely through a lack of co-ordination of different arms of the 2000 investigation, the lead to Draper had never been followed up at the time. Turner and somebody else were prosecuted for the 2000 conspiracy; Draper never was. At the present trial objection was taken on behalf of Draper to the admission of this material on the ground that he was handicapped in dealing with it. In fact his presence was admitted in the face of a clear photograph. He was able to deny the incriminating remark and he was able to give his own contrary explanation of the reasons for the meeting. In those circumstances, as we have already said, Draper does not pursue any ground here relating to the admission of that evidence. Eastabrook, however, does. His complaint is largely the one which was made on behalf of Draper and, it may well be, by Eastabrook too at the time of the trial. But this evidence was no evidence against Eastabrook. It was no doubt powerful evidence that Turner had a propensity to smuggle and thus reinforcement for the Crown's case that he was guilty of the present conspiracy. The meeting would also appear to be significant evidence that Draper had declared a propensity to smuggle cigarettes and thus supported the Crown's case against him. But Eastabrook's case in this trial was not that there was no conspiracy to smuggle cigarettes; it was simply that he was not part of it. There is no arguable basis upon which proving that Turner or Draper or both were guilty meant that Eastabrook had to be guilty as well. Whether he was or not depended on whether there was some other explanation for what he had done. His ability to explain his association with the others and his actions was not diminished by the evidence that Turner and/or Draper were guilty. As we have said, it was always common ground that there was a conspiracy. No one could possibly suggest that there could be no meeting by anyone with someone who was a conspirator without that meeting necessarily involving the conspiracy. That would be a nonsense. There was in fact a significant amount of evidence that Eastabrook was party to this conspiracy. Among other things he was the link man to the essential man on the inside, Wilson.
11.
There is a secondary associated complaint on behalf of Eastabrook that in the course of reviewing the 2000 evidence the judge said this:
"The two arguments of the Crown and of the defence are these. For the Crown that just as Mr Turner and Mr Huffer were guilty in that conspiracy, the diversion of dutiable and taxable alcohol, so were Mr Draper and Mr Marshall, assisting in that. They were missed at the time and frankly, on the Crown's case, just got away with it, for whatever reason. And it's taken, as you'll have been aware, it's take the circumstances of this case to identify them. But on the Crown's case they were assisting on it and the evidence even shows, says the Crown, the germ of this conspiracy, the one you're dealing with. From Mr Draper's lips, 'I could start to divert fags.' For the defence, that you can't be sure of that. They weren't traced or identified at the time, although they almost certainly could have been, Mr Marshall perhaps even more than Mr Draper. They're doing their best, in this case seven years later [we think he meant five], to remember and tell you what the hire of Unit 10 and the subsequent meeting was all about."
Attention is focused on the remark that the evidence even shows, according to the Crown, the germ of this conspiracy from Draper's lips.
12.
It is perfectly clear that what the judge meant was that that was so far as Draper and Marshall were concerned the case against them. Here was Draper at least contemplating in 2000 what he was alleged to have been doing in 2005. The judge made it crystal clear to the jury that the evidence in question was only evidence against those people who were there at that meeting. That was sufficient to make it plain that it was not evidence in the case of Eastabrook, but sensibly he also said that specifically: "of course it does not apply to any other defendant at all, it cannot possibly. It only applies to these three." The supplemental submission is that the jury might have relied on this evidence against Eastabrook. It clearly did not persuade them against Marshall that the association was not innocent and there is simply no basis for saying that it must have been used against Eastabrook. The judge had told the jury they could not use it, this court proceeds on the basis that jurors honour the clear directions of law which they are given and there is every reason to think that this jury did.
13.
For those reasons, there is no arguable complaint which can be made on behalf of Eastabrook about the admission of the 2000 evidence.
14.
We turn to the combined issues of excluded questions and the newly disclosed material. In the course of the trial the judge ruled certain questions could not be asked of the surveillance officers. One of the categories was as to "(3) any observation other than that disclosed to the defence." It is clear that the reason for that was connected with a danger, which apparently existed, that enquiries might infringe upon territory attracting a public interest in non-disclosure. It is plain, in a case of continuing surveillance, that it could in principle do so. The judge however made it clear in giving his ruling that he had, and this must have been exceptional, reviewed the unused material in order to satisfy himself that the Crown had applied the correct test of disclosure, that is to say that anything which either undermined the Crown's case or could assist the defendants had been disclosed or, failing that, submitted to the judge for consideration of competing interests of public interest immunity. There was no relevant material.
15.
With that background the evidence against both Draper and Eastabrook did consist in large part of association with others who were said to be engaged in this conspiracy. That was not the whole of the evidence. In the case, for example, of Draper there was also evidence of his possession of a contact number for Bateman's Farm which was on the other side of London from where he lived, and there was evidence of telephone traffic. But certainly the evidence of association with other alleged conspirators was a substantial part of the case. Draper asserted at the trial that the relatively few meetings between himself and other alleged conspirators on which the Crown relied were explicable on one or both of two bases. First, he said he was working albeit unofficially for a company called Polymore Limited. That was a company in which Frost was the sole director and the principals appeared on the evidence to be Turner and Marshall. Secondly, said Draper, there were discussions between all of the various people present at these meetings about a proposal that all or some of them should go into the timber trade. That was Draper's case. Eastabrook for his part had no connection with Polymore at all. His case was that the proposed timber business was the explanation for his presence at any relevant meetings and indeed that it was largely his idea as a business proposal.
16.
Mr Kovalevsky and Mr Mark, for Draper and Eastabrook, submit that the effect of the judge's ruling was unduly to restrict the evidence which Draper and Eastabrook could adduce. They say that they wished to show either that they had had other similar meetings with other people in the case or, in the case of Eastabrook, that defendants other than him had had such meetings with each other. In each case, they say, they would have wished to show that such meetings had taken place on various occasions which were not relied upon by the Crown as showing furtherance of the conspiracy in question. That, they say, would advance their case by showing the meetings were not necessarily sinister.
17.
We make, for the purpose of dealing with that argument, the assumption (which if the Crown and the judge were right is a false assumption) that there did exist such material. Supposing that it did, there is still, as it seems to us, a twofold flaw in the argument advanced. First, neither defendant was in the least inhibited in giving evidence of any number of other meetings that he had had with other defendants or for that matter anybody else which were devoted to non-cigarette matters. Second, even if some officer were able to confirm that a meeting had taken place between A and B on such and such an occasion, which might or might not have been unrelated to cigarettes, that is simply neutral both for A and B and even more so for D, E or F upon the significance of the meetings which were in question in this case and in relation to which the rival assertions were made.
18.
That analysis is most clearly demonstrated by consideration of the same argument as it is now founded upon the newly disclosed material. Both Draper and Eastabrook say that two parts of this material would have been of assistance to their case. First, there is a witness statement from a lady called Miss Finnigan who works for one of the mobile phone network providers called "3". Her witness statement, which was made post-trial in 2007, shows that in 2005 she discovered that Polymore were ostensibly selling quite enormous quantities of top-up mobile phone vouchers. So enormous was the apparent through-put via a single outlet that it looked to her like a fraud and she referred the issue to investigators and cancelled Polymore's contract.
19.
The second witness statement is from a solicitor called Mr Smith from a well-known London commercial firm. His witness statement, again post-trial, is to the effect that on 31st October 2005 he was visited by Turner and a man who called himself Peter White for advice in connection with Polymore Limited. It is now common ground that the man calling himself White was Draper using a false name and indeed carrying a printed business card in the same name. What Mr Kovalevsky says is that Draper could have adduced this evidence to show that Polymore had reality and activity. It appears that there may be other witness statements in similar kind speaking of "White" taking some kind of action on behalf of Polymore and unconnected with cigarettes.
20.
We have not investigated whether either of these categories of witness statement was or ought to have been available at the time of the trial in 2007. Making the assumption in favour of the applicants that they either were available or ought to have been, still any failure in disclosure of documents that there may have been does not arguably render the conviction of either Draper or Eastabrook unsafe. We think it is extremely doubtful that Draper would have wished to adduce in evidence that Polymore, in which he claimed an active part, was fraudulent. But if he had wished to say it he could do so and not having Miss Finnigan's statement did not prevent him. He could certainly have called Mr Smith to say precisely what is now in his statement. It cannot have been unknown to Draper, nor is there any possibility that he could have forgotten the meeting because he was arrested very shortly after it outside in the neighbourhood of Mr Smith's office. Moreover, it is perfectly plain that there was no issue at all at the trial whether Polymore had any non-cigarette activity. On the face of it it must have done because the evidence at the trial was that Turner and Marshall were each drawing £100,000 a year from it and Frost was paid £25,000. The question which mattered was whether those three and Draper, or any of them, were simultaneously conducting the smuggling operation which was charged. The smuggling operation was done via a separate company called OCL.
21.
It is true that Draper was challenged at the trial on his evidence that he worked regularly at the offices of Polymore in either Essex or Suffolk. The reason for that was because it emerged in cross-examination that he appeared to have real difficulty in explaining by what route he went from Chertsey to the office of Polymore even though, according to him, he did it habitually. Secondly, he did not seem to know one of the employees in the office who, if he had been going regularly, he must have met routinely. But the question of whether he worked there, as he said he did, was not the same question as whether Polymore had any activity and on the face of it on the evidence at the trial, never mind since, it did. So far as Eastabrook is concerned proving that Polymore had some activity, whether criminal or otherwise, was simply irrelevant. He had no connection with it. His case was that whatever others might be conspiring to do he was not. The submission which Mr Mark attempts to get off the ground is simply incapable of flight.
22.
For Eastabrook, Mr Mark advances some separate complaints about the summing-up. In substance his contention is that the judge deserted judicial neutrality, entered the arena and demolished Eastabrook's case. On inspection that is found to be grounded upon two or three comments made by the judge in the course of dealing with the evidence of Eastabrook. First at one point he made a simple error of speaking of Eastabrook when he meant to say Wilson - that is the kind of thing that happens all the time; he was corrected and he made the correction to the jury with the necessary clarity and certainty and no complaint about that survives. The first area in which complaint is made relates to a comment which Mr Mark had made in closing to the jury about the part played in the conspiracy by a man called Franks who provided a lorry to move the container. Mr Mark had reminded the jury that Eastabrook had many connections within the docks, including many lorry drivers, and had made the submission that if Eastabrook had been involved in this conspiracy and recruited the driver he would not have recruited somebody who appeared to have been a mere dupe and not to know what he was doing. In summarising that submission, the judge set it out fully and clearly for the jury and added the observation that that would depend on whether it had been Eastabrook who had been doing the recruiting of the driver. Mr Mark took exception to that - quite why we are not sure, but he did. He invited the judge to correct it. The judge reviewed the situation and reminded the jury once again at Mr Mark's request of the rival contentions, namely Mr Marks (which we have just summarised) and the position in the evidence which was that no one had ever asserted that it had been Eastabrook who was responsible for recruiting Mr Franks. The judge's comment was perfectly legitimate and there is nothing whatever in the complaint about it. The same applies to a comment made about the likelihood of a sum of money which was seen to change hands being a short-term loan or "sub" from Eastabrook, given the relative means of him and the other party. Once again the judge set out the rival arguments perfectly clearly. The judge is not forbidden to make proper comments. Of course if he descends into the arena and assumes the mantel of Crown counsel the conviction may be unsafe, but what the judge did in this case was nowhere near that.
23.
In all those circumstances it is plain to us that there are no arguable grounds for contending that the convictions of either Draper or Eastabrook are unsafe and their applications for leave are refused. In the case of Draper, it is therefore not necessary to investigate whether there was ever a notice of abandonment or not.
24.
That means that we can turn to sentence. The sentences imposed were as follows. Draper was sentenced to seven years. So was Turner. That is the statutory maximum. Eastabrook was sentenced to six years. Frost, who had pleaded guilty right at the beginning of the trial but not earlier, was sentenced to five-and-a-half years. The inside man in the docks, Wilson, who pleaded guilty was sentenced to two years and there was a sentence midway of three years-odd on another defendant which has no bearing on the present question.
25.
Draper was 51 at the time of sentence. He was not without previous conviction and had been convicted of deception offences in the early 1980s and then of conspiracy to steal and obtaining property by deception in 1990 for which latter offence he had been sent to prison for two years. That conviction meant that he was not a man of good character and indeed had been to prison, but it was of course 15 years or thereabouts before the commission of the present offence with nothing in between.
26.
The substantive submission of Mr Kovalevsky in relation to Draper's sentence is anxiety that the judge has relied upon the 2000 evidence and treated Draper as if he had been convicted of the smuggling of which Turner had been convicted in that year. We agree that the judge would not be entitled to treat the evidence from 2000 as equivalent to a conviction of Draper in 2000. It does not look to us as if that is what the judge did. What it appears that he did was to use the 2000 evidence as reinforcing his conclusion that Draper fell to be sentenced on the basis of professional smuggling with a loss to the Revenue of £2 million or thereabouts and thus attracting a sentence at or close to the maximum provided by law. We have no doubt at all that the judge who saw Draper give evidence and lived with this case for six weeks or thereabouts was entitled to assess the role which Draper had had in it. He was quite satisfied that Draper was an entrepreneur in the transaction and there was ample material to justify that. The effect, however, of passing the sentence that he did, alongside the identical sentence on Turner, is that these two men have been treated the same whereas there was in fact a material distinction between them. Turner had the previous conviction and sentence in 2000. The five-and-a-half years which he had been ordered to serve had clearly not had upon him the deterrent effect which the sentencer who passed it no doubt intended. He had committed the present offence when on licence. It does seem to us that particularly when the maximum sentence was being imposed a distinction needed to be made between the punishment appropriate to these two men. For that reason and for that reason alone we quash the sentence of seven years in the case of Draper and we substitute a sentence of six years.
27.
Eastabrook had a number of previous convictions and importantly for the purposes of the submissions that are made to us he had been sentenced to life imprisonment for murder some several years earlier. He had been released on licence some years before this offence and had been working in the docks and elsewhere, and apparently very hard, for a significant period up to and including the time of this conspiracy. The judge passed upon him a sentence of six years. Realistically Mr Mark does not complain that that is inappropriate to his role in the conspiracy. He invites us however to say that it is wrong for one or other of two reasons. The first is that because on arrest Eastabrook's life licence was revoked, the time that he spent in custody pending trial did not fall to be deducted from the sentence which was imposed. Secondly, says Mr Mark, a sentence of six years is too long because it does not afford sufficient recognition for the hard work en route to rehabilitation which Mr Eastabrook had done in the period since his original release upon licence. We are afraid that there is nothing in either of those arguments. The first is simply the inevitable concomitant of Mr Eastabrook's circumstances and to accede to it would effectively mean he was entitled to have the time that he spent pending trial counted twice. The second, in so far as it is founded upon steps taken towards rehabilitation, fails to recognise that at the same time as he was taking those steps he was also committing the present offence for which he has to be punished. The sentence is perfectly appropriate and in his case his application for leave to appeal is refused.
28.
Frost has the leave of the full court to bring his appeal against sentence. That leave was given on the basis of his medical condition, to which we will come in just a moment. Before arriving at that, Mr Fitzgibbon submits that there are two reasons, apart from his medical condition, why his sentence is too long. The judge passed a sentence of five-and-a-half years, explicitly taking six years as the sentence that he would have imposed had there been a trial. First, says Mr Fitzgibbon, that is too long for the involvement which Frost had in this conspiracy. We do not agree. Whether or not Frost was present at the principal meetings (and in respect of two of them he was), he was critical to the conspiracy. He was a director at Polymore. He was the forger in the case and he was responsible for setting up most of the business and mechanical arrangements for the importation. It was he who dealt, for example, with the shipping agents. He used false names on various occasions and his part was properly assessed by the judge. Secondly, says Mr Fitzgibbon, he has not received sufficient reduction in sentence for his plea of guilty. The trouble with that is that he elected not to enter his plea of guilty until he had first attempted to persuade the judge to exclude certain evidence and thus improve his prospects of contesting a trial when he knew perfectly well that he was guilty. If a defendant chooses to do that and to enter his plea of guilty only after some days of legal argument and either immediately before the jury is sworn or immediately afterwards (it does not matter which) he cannot expect the same recognition as will be given to a man who enters his plea at an early stage. The judge effectively deducted 10 percent or something a little less. He was perfectly entitled to pitch the reduction at that level.
29.
The real point in Frost's case relates to his medical condition. The medical condition of a defendant may not be relevant to sentence at all, but it may be, as Mr Fitzgibbon correctly submits, if it demonstrates that the imposition of imprisonment is for him a significantly greater punishment than it would be for other people. Frost is 53. He has very longstanding and serious rheumatoid arthritis of the seropositive variety. It is not a new condition and he must have got used (to some extent) to living with it. He certainly committed the present offence despite any disability that the condition imposed upon him. But he has this condition which is undoubtedly extremely painful and disabling to a serious extent. He has already had both knees, both hips and a shoulder replaced.
30.
The judge had a much less full medical report available to him than we have. The evidence which we have does demonstrate that he is wholly dependent upon medication, that he is significantly handicapped and also that he is significantly vulnerable to any kind of infection, that is to say the effect of the medication is greatly to reduce his immunity. Inevitably a closed community such as a prison is a place where the risk of infection cannot be avoided. It is also the case that there is an element of reduced life expectancy, but that is some significant time in the future and does not by itself, as it seems to us, enter the equation in the present case. He has trouble dressing. He can manage because he has been doing it for years but he needs aids or help. He is unable to do most of the activities which would otherwise be available to prisoners and he is significantly handicapped in motion and in daily living. Within a short time of incarceration he lost no less than three stones in weight which is a very large amount. That appears to have stabilised but it is perhaps some indication of the pressure which imprisonment inevitably places upon him.
31.
Now that we have the fuller picture, which the judge did not have, we think that justice is done if, starting from the judge's correct beginning point, the sentence is reduced to one of four-and-a-half years in recognition of the additional punishment which imprisonment will necessarily have for somebody in his condition. For those reasons in his case the appeal is allowed. We quash the sentence of five-and-a-half years and substitute one of four-and-a-half years.
32.
In the result therefore the applications for leave to appeal against conviction of Draper and Eastabrook are refused. Eastabrook's application for leave to appeal against sentence is refused. Draper's is granted, the appeal is allowed and a sentence of six years substituted for one of seven years. In Frost's case his appeal is allowed against sentence and a sentence of four-and-a-half years is substituted for that of five-and-a-half years previously imposed.
33.
MR KOVALEVSKY: Might I just ask your Lordships to consider whether it is appropriate to allow Mr Draper -- in fact in this case it would the family of Mr Draper in reality -- a proportion of the defence costs. The section that I am looking at is
section 16 of the Prosecution of Offences Act 1985
, set out at 6-3 on page 989 of the current edition of Archbold. The relevant section for --
34.
LORD JUSTICE HUGHES: This is costs out of central funds.
35.
MR KOVALEVSKY: Yes.
36.
LORD JUSTICE HUGHES: The difficulty about that, Mr Kovalevsky, is this, is it not. He was legally aided at the trial, I take it?
37.
MR KOVALEVSKY: He was. I think -- I do not want to go into it. There was a severe difference of view.
38.
LORD JUSTICE HUGHES: Maybe, but his representation order would have covered his appeal.
39.
MR KOVALEVSKY: Yes, it would, but what in fact I am asking you to consider are the very much cut down provisions in fact of subsection (7), you will see, which allows the court to make a partial order where it is appropriate and I make it absolutely clear that I would only be looking for recovery in relation to the matter of sentence alone given the findings.
40.
LORD JUSTICE HUGHES: I follow that.
41.
MR KOVALEVSKY: And also I take it that the court, if the court were with this application, would wish to go under subsection (9)(b) which is that they are taxed by the appropriate authority in which case it may be very a substantially smaller sum.
42.
LORD JUSTICE HUGHES: I do not want to be thought to be giving any indication but the most you could decently ask for, if anything at all, would be junior counsel, I am afraid, on sentence only, would it not?
43.
MR KOVALEVSKY: Those who funded this of course hear exactly what my Lord says, but there was some merit in the sentence matter at least and I would ask that the court at least consider exercising those powers under this section.
44.
LORD JUSTICE HUGHES: Thank you very much indeed. (Pause) No, I am sorry, Mr Kovalevsky.
45.
In each case the time in custody, where applicable, is to be deducted, as previously. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE DAVIS",
"HIS HONOUR JUDGE SCOTT GALL"
] | 2008_12_16-1755.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/3206/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/3206 | 738 |
df98c0c5c74b8606e2b1546cc253dcbcfe42a4e1af04ebc9f4afbc4e507d506c | [2005] EWCA Crim 971 | EWCA_Crim_971 | 2005-04-11 | crown_court | Case Nos: 2004/05937/C1 , 2004/05938/C1 Neutral Citation Number: [2005] EWCA Crim 971 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday, 11 April 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE OUSELEY MR JUSTICE TREACY - - - - - - - R E G I N A - v - JAMES GORDON JOHNSON JODIE THOMAS HIND - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Tel | Case Nos:
2004/05937/C1
,
2004/05938/C1
Neutral Citation Number:
[2005] EWCA Crim 971
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Monday, 11 April 2005
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
The Lord Woolf of Barnes
)
MR JUSTICE OUSELEY
MR JUSTICE TREACY
- - - - - - -
R E G I N A
- v -
JAMES GORDON JOHNSON
JODIE THOMAS HIND
- - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -
MR R I HUNT
appeared on behalf of
THE APPLICANT JAMES JOHNSON
MR I WEST
appeared on behalf of
THE APPLICANT JODIE HIND
MISS M CONNOLLY
appeared on behalf of
THE CROWN
- - - - - - -
J U D G M E N T
Monday, 11 April 2005
THE LORD CHIEF JUSTICE:
I will ask Mr Justice Treacy to give the judgment of the court.
MR JUSTICE TREACY:
1.
The two applicants in this case are James Johnson and Jodie Thomas Hind. At the start of this morning's hearing they were given leave to appeal against their convictions and so they are now appellants.
2.
Following a trial which took place at Teesside Crown Court before His Honour Judge Fox QC, on 24 September 2004 both appellants were convicted by a jury of burglary (count 1) and of taking a motor vehicle without consent (count 3). At the start of the trial, just before the jury was sworn, both men pleaded guilty to count 2 on the indictment, which was an allegation of theft from the car of the victim of the burglary. The offence was put forward by the appellants as a scavenging theft -- in other words, committed by the two appellants independently of the burglary and the taking of the vehicle which, it was asserted, must have been committed by other people. Having been convicted of the burglary and the taking of the motor vehicle, the judge imposed sentences of five years' imprisonment on each of the two appellants.
3.
The circumstances insofar as they are relevant are these. The victim of the crime was a female in her forties. She was at home alone on the evening of Wednesday 1 June 2004. At about 9.30pm two men knocked on her door. It is not clear if those two men were the appellants. The men said that they were selling items for charity. The complainant did not want to buy anything and she sent them away. She returned to her living room, fell asleep in front of her television and slept until about 3.30am. She awoke at that time and felt a draught. On investigation she found that the front door was ajar and found that her kitchen window and a cupboard door in her hall way were open. When she looked outside her house, saw that her car, a black A Class Mercedes, had gone. She returned to her living room and found that various items were missing, including an overnight bag, a handbag containing nearly £100 in cash, chequebooks, debit and credit cards, a mobile telephone, personal documents and jewellery. In addition to that she found that her car keys had been stolen and a Sony lap-top computer valued at £1200. Property of value had been taken from the car, including a large number of CDs, clothing and paperwork, a briefcase, a portable DVD player and a camera.
4.
The car was later found abandoned. It was examined by a scientist. Fifteen fibres were recovered from the driver's seat and 44 fibres were recovered from the front passenger seat. Scientific analysis showed that fibres taken from the driver's seat matched cotton fibres from the appellant Hind's orange polo shirt and that fibres taken from the front passenger seat matched fibres from Johnson's blue polyester jacket. The defence case was that they were not the burglars; they had found the car abandoned and had got into the vehicle to take items from it and had stolen what they found inside.
5.
It is necessary to give a brief summary of the evidence which was before the court. A Police Constable Turner gave evidence. He said that he had started his shift at about 7pm on the day in question. As part of his daily briefing he was shown pictures on a computer screen of people to whom he should pay particular regard if they were seen by him whilst on duty.
6.
At about 2.30am he was driving his police van when he saw a parked black vehicle similar in shape to the victim's black A Class Mercedes. The interior lights were illuminated. He passed in his vehicle as close as five feet away. He could see two men inside the vehicle. One of them had a torch in his mouth. He was sitting in the passenger seat. PC Turner recognised that man as a person whose photograph he had seen on the computer during his daily briefing at the start of the shift. The officer stopped his vehicle and the consequence of that was that the black car sped off. It was chased by PC Turner, but it got away. In the meantime he had radioed his headquarters. He notified them of the vehicle's getaway and of the fact that he had recognised the passenger. He returned briefly to the police station. He spoke to his sergeant, who gave him Johnson's name. He reviewed the photographs he had seen earlier and identified Johnson as the passenger of the vehicle.
7.
Having obtained Johnson's address, he went to Johnson's house, arriving there at about 2.45am. When he knocked on the door there was no answer and no sign that anyone was inside. He was then called away to what he thought was another incident. In fact it was related to the present matter because it involved the finding by a member of the public of the complainant's lap-top. Having dealt with that matter, PC Turner returned to the police station and there learnt that the complainant's home had been burgled. He then linked the matters that he had seen and the recovery of the lap-top to the burglary of which he had just been informed. Accordingly, he went back to Johnson's address. When he arrived, shortly before 4am, he saw a man at a window whom he recognised as being the same person who had been in the passenger seat of the black car. He went into the house and established that the man he had seen at the window was Johnson.
8.
PC Turner was joined at that address by his colleague, PC Marron. PC Marron's evidence was read to the jury as agreed evidence. Before PC Marron gave his evidence there was an exchange before the jury in which counsel for the defence confirmed that his evidence was agreed. PC Marron said that he entered the house in question and, having gone into the living room, he heard movement coming from the kitchen. He went to investigate. On going into the kitchen he immediately recognised Hind whom he knew from previous dealings. He also noticed that on the kitchen floor there were electrical items. These turned out to be some of those which had been stolen in the course of the burglary in this case. Hind was asked to go into the living room. Once both Hind and Johnson were in the living room, they were told they were under arrest. On being informed of this, Hind attempted to escape through the living room window. Although this was put forward as agreed evidence, when Hind came to give evidence he disagreed with the assertion that he had tried to escape.
9.
In interview Johnson's account was that on the night of the burglary he did not leave home at all, but he recalled Hind coming to his house with a holdall at about 3.10am. He denied that he had ever been a passenger in the black vehicle. He also denied any knowledge of the stolen items. At trial he gave a different account and he had to acknowledge that the account given in interview was a lie.
10.
When Hind was interviewed matters took a different turn. Detective Sergeant Ryder said that fifteen or sixteen hours after Hind's arrest and arrival at the police station he wished to interview him. He therefore went downstairs to the cell area. He was accompanied by Hind's solicitor and a custody sergeant. DS Ryder said that Hind positively refused to leave his cell for the purpose of being interviewed. He said that, having refused to leave his cell for the purpose of interview, Hind was cautioned by him. Because Hind did not leave his cell, he was never interviewed and therefore no explanation or version of events was put forward by Hind at that stage of the investigation.
11.
However, at trial Hind gave evidence. He said on oath that on the evening of the burglary he had met friends and had gone with them to Johnson's house. He, his friends and Johnson had taken heroin and at about 2.30am he and Johnson had gone out to buy some crack cocaine. During their journey, having made a successful purchase of drugs, they found the complainant's car abandoned on a car park with its doors opened. Seeing there was nobody in the area, they decided to steal from the car. Each of the two men got into the car. He (Hind) got into the driver's seat and Johnson sat in the passenger's side. This is consistent with the scientific evidence. They looked for items to steal, took items, left the car and returned on foot to Johnson's house. He denied in his evidence that he had been in the car when the police vehicle came alongside and the black car subsequently drove away. He said that whoever was involved in that incident, it was not himself and Mr Johnson. Further, in the course of his evidence he denied that when he was told that he was under arrest he had tried to escape. He denied that he had positively refused to be interviewed. He claimed that he had been tired and had merely rolled over when the police attended at his cell to take him for interview. He had not made the positive refusal to be interviewed that the officer described.
12.
Hind was cross-examined by counsel for the Crown who put to him that the reason for his refusal to be interviewed was that he had not at the time thought up a convincing account to give in interview.
13.
Johnson's case, as already foreshadowed in this judgment, changed from that which he put forward in interview. He now acknowledged in evidence that he had left home and that the purpose of that was to go and buy drugs with Hind. He now acknowledged that together with Hind he had taken property from the car and taken it home. But he denied that he had committed the burglary or had any part in the taking of the A Class Mercedes in the way alleged by the Crown. He explained his lies to the police in interview as panic as a result of his shock at the suggestion that he had committed the burglary.
14.
During the course of the trial, and before the summing-up, an incident occurred which we must recite. On the penultimate day of the trial a female juror was approached by a member of the public who sought to intimidate her and invited her to find the defendant not guilty. The police carried out an investigation. The investigation showed that the intimidator, who had indeed approached a juror that day, had approached a member of the wrong jury. It appeared on investigation that there was another trial taking place at the same Crown Court, which involved as a defendant the brother of the person who wrongly approached a member of the jury in this case. The judge in this case adjourned the trial while that inquiry took place. When the result of the inquiry was made known to him, the judge addressed the jury. He told them that the police had investigated the incident. He reminded them of the oath which they had taken to reach a verdict on the evidence and said that the matter should not be held against the appellants by the jury in their determination of any issues in the case. We will return in more detail to what was said by the judge at this point. The judge asked the jury whether any of them felt difficulty in continuing to give full and fair attention and consideration to the case. No member of the jury indicated any unwillingness to continue with the case.
15.
In this appeal both appellants advanced a common ground of appeal in relation to the handling of the judge's approach to the jury. It is agreed before us, as it was before the judge, that the police investigation had positively revealed that the juror in this case had been approached in error. In other words, the target of the illegal interference should have been a different juror on a different jury. Complaint is now made that the judge's directions to this jury were insufficient in the light of that known fact, and that the directions did not rule out the possibility of involvement by the appellants in the approach to the jury.
16.
The judge began by telling the jury that the police had investigated the matter, but he did not tell them the result of the police investigation, namely that it appeared that the approach was nothing to do with this case. He went on to say:
"The matter that I want to say is that whatever happened yesterday or anyone's understanding of what may have happened yesterday is not something that should be held in any way against either of the defendants in this case in any decision of yours, the jury, and in any determination of any of the issues in this case. You took an oath to reach a verdict on the evidence in the case. You heard all the evidence in the case and what has arisen since is not something that has any bearing or can have any bearing upon the issues in the case, and so there should not be any inference drawn by any member of your jury with regard to any of the issues in this case and with regard to the verdicts to be returned against either Jodie Hind or James Johnson.
Whatever happened is a matter for separate enquiry, but there is no reason whatever to think that it was initiated or instigated by either or both of them, and so it would be unfair to draw an adverse inference against either of them from whatever may have occurred or your understanding of what may have occurred. So that is the thing that I said I want to say."
The judge went on to ask the jury whether they were able to give full and fair attention and consideration to the case.
17.
Counsel for the appellants submit that that direction given by the judge was inadequate. They submit that it leaves open the possibility that the appellants were involved in the approach; that there was the possibility that others acting on behalf of the appellants were behind the approach; and further, that those directions left the impression that the investigation was not conclusive. It is submitted that, since the information before the court pointed to the fact that this was an error by the person who wrongly approached the juror and who had nothing to do with the appellants, that should have been made clear to the jury, and that the directions which were given left it open to conclude that what had occurred had something to do with the appellants when in fact it was known that it was not.
18.
We have taken account of those criticisms made by the defence. It might have been advisable for the judge to have given a direction in more emphatic terms, given the information in his hands; but he had to deal with the matter based on his feel of the case and his appreciation of the situation as he saw it. We consider that the judge sufficiently protected the appellants' interests by telling the jury that it would be unfair to draw an adverse inference and that they should not hold the incident against the appellants in any way. In our judgment the judge's approach provided the jury with a clear direction that they should not in any way hold the incident against the appellants. We consider that the jury would have understood that. In our judgment this is not a matter in respect of which we feel that the judge fell into error.
19.
We next consider discrete grounds advanced first of all on behalf of the appellant Hind. The first ground concerns his refusal to be interviewed and his refusal to leave his cell for the purpose of interview. It is asserted that the evidence of what took place in the cell area was not admissible and that the judge's comments thereon in the course of his summing-up wrongly allowed the jury to draw an adverse inference from Hind's refusal to be interviewed. The assertion made by the appellant is that in the circumstances no such adverse inference was available to be drawn. The submission is based on the ground that the conditions which are required to be established pursuant to
section 34(1)(a)
of the
Criminal Justice and Public Order Act 1994
had not been established and thus the judge was wrong to allow the jury the possibility of drawing an inference against Hind.
20.
Section 34(1)(a)
of
the 1994 Act
provides as follows:
"(1) Where in any proceedings against a person for an offence evidence is given that the accused --
(a) at any time before he was charged with the offence on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed failed to mention any fact relied on in his defence in those proceedings being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed as the case may be, subsection (2) below applies."
Subsection (2)(d) provides:
"Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."
It is necessary also to draw attention to
section 34(5)
, the effect of which is to preserve the common law as it existed prior to the implementation of
the 1994 Act
. In particular subsection (5)(b) provides:
"This section does not --
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section."
21.
Prior to the commencement of the trial, the judge ruled that the evidence of the refusal to come out of the cell was admissible. The matter was revisited at a later stage of the trial when the judge ruled on whether or not prosecuting counsel could cross-examine in relation to that evidence. The judge said:
"It is plain to me that the provisions of
section 34 of the Criminal Justice and Public Order Act 1994
do not apply to the present situation, save for
section 34(5)
which preserves the common law position."
(The reference to the provisions of
section 34
are, by common consent, agreed to be a reference to
section 34(1)(a)
.) The judge continued:
"The common law position is in this situation in my judgment most helped by reference to Lord Justice Stocker's words to be found in Archbold, Chapter 15, paragraph 412."
(The trial judge was quoting an extract from
R v Raviraj
(1987) 85 Cr App R 93
, 103). He continued:
"I quote:
'The doctrine is only a particular aspect of the general proposition that where suspicious circumstances appear to demand an explanation, and no explanation or an entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge in the defendant. This again is only part of a wider proposition that guilt may be inferred from unreasonable behaviour of a defendant when confronted with facts which seem to accuse.'"
22.
In the summing-up the judge reminded the jury that Detective Constable had given evidence of a positive refusal by Hind to come out of his cell. He then drew the jury's attention to a conflict of evidence between DC Ryder and the appellant Hind, who said that he did not positively refuse; he had merely been asleep and rolled away. The judge told the jury that if they came to the conclusion that DC Ryder was right and that Hind had positively refused to be interviewed, then they should bear a number of things in mind before they came to any conclusion that this was even a straw in the wind which indicated Hind's guilt on either or both of the charges on the indictment. He reminded the jury that Hind had been cautioned at the time of his arrest and told that he had a right to remain silent, and that he was acting in his rights to say that he was not going to answer any questions and was not going to come out of the cell to be interviewed. But he went on to say that the jury had to be fair in their approach to the whole question of what they made of that area of the evidence. Having said that, he reminded the jury of the Crown's case and the cross-examination by Miss Connolly in which she had put forward the suggestion that Hind had refused to be interviewed because he had not by then thought up a story that anyone would swallow. The judge said to the jury that they should only draw an inference of that sort if they thought it was fair and reasonable to do so in the circumstances of a particular case. He warned them to be careful in deciding what inference they should draw. But he said that if at the end of their deliberations the jury felt they could say that this episode was a pointer towards guilt, then they could treat it as such, although it could not prove guilt or even be the main reason for finding guilt. He reminded them at the end of his direction on this area of the case that "the bottom line" was whether the circumstances called for a different reaction on Hind's part and whether his behaviour was fair and reasonable in the circumstances or whether there was an inference to be drawn from his behaviour. He said that it would be a pointer or a straw in the wind if such an inference could be drawn.
23.
The position, therefore, is that evidence of Hind's refusal was admitted before the jury. It was cross-examined to by the Crown and a positive suggestion was made by Crown counsel. It was made the subject of a direction by the judge which, even applying the safeguards referred to by the judge and summaries above, could have resulted in an evidentially adverse finding to the appellant Hind.
24.
The appellant Hind's case was that none of the foregoing should have occurred. It is submitted that the evidence was not admissible, that it should not have been commented on in cross-examination by the Crown, nor should it have been the subject of a possible adverse inference by the jury. The appellant contends that
section 34(1)(a)
does not apply. The judge, as we have seen, agreed with that submission, but said that the evidence was admissible at common law under
section 34(5)
. The appellant contends that that ruling was incorrect. The Crown has argued that the evidence was admissible under
section 34(1)(a)
but, failing that, relies on
section 34(5)
.
25.
The Crown's submission that
section 34(1)(a)
applied is based on the assertion that that subsection is to be construed broadly; otherwise, say the Crown, the provision can be circumvented by a refusal to attend an interview and that this would frustrate the purpose of the legislation. The Crown point to the decision of the House of Lords in
R v Webber
[2004] 1 Cr App R 40
where at paragraph 33 it was said that the object of
section 34
was "to bring the law back into line with common sense". They further say, rightly, that the object of
section 34
is to achieve an early disclosure of a suspect's account.
26.
The Crown argues that there is no qualitative difference between a defendant who is taken to an interview room and who after caution does not answer questions and who subsequently at trial puts forward for the first time a detailed account, and a defendant who, knowing he is to be interviewed, positively refuses to leave his cell for that purpose, even though he has had the caution administered to him.
27.
The difficulty lying in the way of the Crown's submission is in the wording of
section 34(1)(a)
. The wording, to which we have already referred, refers to a suspect who, on being questioned under caution by a constable, fails to mention a fact which he later relies on in his defence. Although in order to construe the statute it may be permissible, as in
Webber
, to give a broad rather than a narrow, pedantic meaning to a word or a phrase, the language of the statute cannot be ignored. Notwithstanding the submissions of the Crown, we do not feel able to regard what occurred as coming within the ambit of the phrase "on being questioned". No question was, in fact, put. What occurred was a precursor to that stage of the process. The matter is emphasised, in our view, by reference to the words of the caution itself which are:
"You do not have to say anything, but it may harm your defence if you do not mention
when questioned
[our emphasis] something which you later rely on in court. Anything you do say may be given in evidence."
Further support for our view may be found in
R v Argent
[1997] 2 Cr App R 27, where at pages 32-33 Lord Bingham CJ laid down six pre-conditions which had to apply before
section 34
could operate. The third of those pre-conditions was that the failure to mention a fact had to occur during questioning under caution. Accordingly, we agree with the view of the trial judge that
section 34(1)
did not apply to this situation.
28.
That leaves the question of whether the position at common law, as preserved by
section 34(5)
, avails the Crown, as the judge held that it did. The judge relied on the passage we have already cited from the judgment of Stocker LJ in
Raviraj
. The appellant Hind asserts that those observations were made in the context of a very different point which related to the effect, if any, of the failure of an offender to offer an explanation for the fact of possession of stolen goods to which the doctrine of recent possession applied. He submits that that is very different from the situation which arose in this case of a failure to respond to an invitation to make himself available for questioning in the context of the investigatory process of this case. It appears that the trial judge was referred only to the extract from
Raviraj
which we have cited above. However, reference to the full report shows that there was material which may well have led the judge to a different conclusion. At page 106 of that report, after considering a number of authorities, Stocker LJ cited from the judgment of this court in
R v Gilbert
(1978) 66 Cr App R 237
. He cited with approval the following passage as an accurate statement of the law as it existed in 1987 (and thus prior to the passing of
the 1994 Act
). He said:
"At page 244 Lord Dilhorne, giving the judgment of the Court, said:
'There are a large number of reported cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker CJ said in
Hoare
(1966) 50 Cr App R 166, 169, not possible to reconcile all of them. It is in our opinion now clearly established by the decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right to silence is a misdirection .... We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply "This defence was first put forward at this trial," or words to that effect, but if more is said it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy. It is not within our competence sitting in this Court to change the law. We cannot overrule the decision to which we have referred. A right of silence is one thing. No accused can be compelled to speak before, or for that matter at, his trial.'"
The passage cited makes plain that the Court of Appeal in
Gilbert
, as approved by this court in
Raviraj
, was stating that as far as the common law was concerned, a judge was not entitled to comment adversely on an accused's failure to respond to police questioning or to volunteer his account of events at a stage prior to the trial.
29.
We view the passage just cited, which was not drawn to the trial judge's attention, as one which has much greater relevance to the circumstances of this case than the passage which was referred to by the judge. In reality the appellant Hind was in an emphatic way exercising his right to silence, which has to be tested under
section 34(5)
of
the 1994 Act
. It has to be tested by reference to the common law in existence prior to the passing of
the 1994 Act
.
30.
It follows that in our judgement, adopting the passage cited and the position at common law prior to the passing of
the 1994 Act
, no comment of the sort made by the judge or the Crown was permitted where there was a failure to disclose the defence ultimately put forward at the trial, even in a case where the questions were put by the police to the appellant. Whatever the position might be at common law in relation to silence in the face of accusations made by others who were not police officers or concerned in the investigation of offences, it does not apply in this situation where the common law provided protection to an offender who did not wish to answer questions and who did not wish to reveal his case before trial.
31.
It follows that the jury in this case should not have been directed that they could draw an adverse inference from the appellant's refusal to make himself available for interview. Nor should the Crown have been permitted to cross-examine as they did. Accordingly, we uphold the appellant Hind's submission on this point. We will return later to the impact our finding has on the safety of the conviction.
32.
The Crown express concern that if the appellant's submissions were upheld it would enable defendants to avoid
section 34
inferences by adopting the course which the appellant Hind did. We do not agree that this is necessarily so. First, no argument was put before us or the trial judge in relation to
section 34(1)(b)
of
the 1994 Act
. Secondly, in circumstances such as the present of a refusal to attend interview, the police may choose to put questions to the suspect, adapting as far as possible the protections contained in Code E. It would be for the Crown Court on some future trial to determine whether such a procedure was fairly admissible and whether, in the event of continued refusal to mention any fact later relied on, the provisions of
section 34
were triggered.
33.
Further, we draw attention to the provisions of the current Codes which regulate interviews. In Code C12.5 and Code E3.4 there are provisions which deal with the situation which arose in this case and give guidance to the police in such circumstances. In our judgment the pessimism expressed by the Crown as to the effect of any ruling in favour of the appellant is not well founded in the light of those matters to which we have drawn attention. We were also informed by Mr West that he was aware anecdotally that in the early days after this provision came into force, some defendants had attempted to frustrate
section 34
by refusing to attend an interview and that the matter had been dealt with by the Metropolitan Police by posing questions to a suspect in the cell area. It is said that such a practice had caused attempts by suspects to circumvent the legislation to cease.
34.
We move on to consider other grounds of appeal advanced on behalf of Hind. Complaint was made about the way in which the judge dealt with factual disputes between Hind and the Crown. It will be recalled that Hind disputed in his evidence that he had attempted to escape and he disputed that he had positively refused to emerge from his cell for questioning. In the light of what we have already said on the latter issue, we do not need to address further that part of Mr West's submissions. But as to the former, we consider that the judge properly highlighted the factual dispute which existed as to the alleged escape between the police officer on the one hand and the appellant Hind on the other.
35.
The judge was fully entitled to draw attention to the fact that Hind disputed the escape at a late stage of the trial. The transcripts which we have show that shortly before the officer was called to give evidence on the point, Hind's counsel, in his presence, told the court that the evidence was agreed. The jury heard this at the time. When Hind, therefore, gave an account which was at variance with that which had been presented to the jury as agreed evidence with the consent of defence counsel and in the presence of Hind, it is hardly surprising that the judge felt compelled to explain to the jury counsel's role in the case and the significance of the apparent change in position. We see nothing wrong in the way in which the judge approached the matter. He was bound to do so following the way matters had developed in the trial.
36.
We do not accept counsel's criticism that the issue of escape or the issue of refusal to emerge from the cell were "manufactured" disputes of fact. It is unclear as to whether counsel was submitting that they were manufactured by the judge or by the Crown, but in either case, because of the events which had arisen during the course of the trial, the judge had to deal with them in the course of his summing-up.
37.
However, in relation to the escape attempt there is some force in a further argument advanced on behalf of the appellant Hind. Complaint is made that the judge failed to invite the jury to consider, as he had done in the case of Johnson when he directed the jury on lies told by Johnson in his interview, whether if they found that Hind had attempted to escape, this was equally consistent with his wishing to conceal his guilt of theft at this stage, as opposed to the burglary or the taking of the vehicle. No such qualification was put before the jury for their consideration in the context of this episode in the evidence. We feel that there is force in the complaint made by counsel in that respect.
38.
Mr Hind further complains about identification directions which were given. Unusually these were identification directions given not in relation to him, but in relation to his co-accused Johnson. Hind says that the directions which were given in relation to Johnson were relevant to his case because although he was not identified by the officer, his case was that he was with Johnson at all material times and thus he was affected by the evidence of identification and any failure or flaw in the directions given in that area would have an impact in his case as well.
39.
Three specific matters are pointed to as being absent from the identification directions. First, the judge did not explain to the jury why there was a special need for caution in identification cases. Secondly, the judge did not tell the jury that a convincing witness might be a mistaken witness. Thirdly, this being a case where part of the process involved looking at a photograph which the jury had not seen, the judge did not draw attention to potential difficulties which may exist when photographs form part of the identification process. Potential difficulties may arise in terms of quality and resemblance to the suspect, but complaint is made that no comment or direction was given to the jury in relation to that aspect of the matter.
40.
No precise form of words is required for a
Turnbull
style direction. What is important is that the jury is exposed to the full force of the
Turnbull
directions in any case where the issue of identification forms a substantial part of the case advanced for the Crown. In our judgment there is some force in the criticisms made in the respects that we have already recited. It is right to say, in fairness to the judge, that his direction was full in terms of potential difficulties or weaknesses of the circumstances of identification. It focused on the necessity for the jury to assess the reliability of the witness's evidence, and of course the identification issue has to be viewed in the context of a case where there was scientific evidence linking the appellant Johnson to the very seat in the vehicle in which the police officer said that he had identified Johnson and where, very shortly after the purported recognition or identification, the police had visited Johnson's home and found stolen goods which related to the burglary in question. The arm of coincidence has stretched a long way in this case in reaching out towards Johnson. However, there are respects, which we have already mentioned, in relation to which criticism can be made of the identification direction. As far as that aspect of the matter is concerned, counsel for Johnson did not make separate submissions, but we understood him to adopt the submissions in relation to identification made on behalf of the appellant Hind.
41.
Johnson himself raised discrete grounds of appeal. The first matter which he raised related to the question of his character. His complaint was that the jury wrongly learnt of his (Johnson's) bad character in a number of ways. First, PC Turner gave evidence in-chief as to having seen Johnson's photograph on a police computer during his evening briefing. That, it is said, would tell the jury that Johnson was of bad character. Secondly, complaint is made because PC Turner gave evidence of having been provided with Johnson's name by another police officer before he checked the image on the computer after he had made purported identification from his car. Again that is said to point in the same direction. Thirdly, complaint is made that the judge in his summing-up spoke of the officer having viewed the images at the briefing as being images of people the officer had a duty to keep in mind on that evening.
42.
It has to be remembered when these complaints are made that Johnson's character in other respects was already before the jury. His own case was that he had been involved in taking Class A drugs; that he had gone out that evening with another to purchase further Class A drugs; that he had stolen items of some value from what he said was the victim's abandoned car; and that those items had then been taken back to his house. Further, his case was that he had lied in the account which he initially gave to the police of having spent the evening at his home and had not left it for any purpose whatsoever. Accordingly, the matters now complained of must be seen in that context.
43.
It seems to us that the evidence as to the officer's viewing to the images before and after the purported identification of Johnson was evidence which was relevant for the purpose of assessing the accuracy of the identification and the circumstances in which it had been made. Given that there was a dispute on identification, it was in our view inevitable that evidence of this sort would emerge at the trial. The way in which it was put before the jury did not go beyond that which was necessary for the relevant purpose which we have identified. We consider that for its probative purpose it was not outweighed by considerations of prejudice.
44.
We have given separate consideration to the judge's remark in summing up. We do not consider that it adds materially to the fact that the image was held on computer, and so we do not conclude that it was objectionable in the context in which it was made. It explained why the officer kept the image in mind when he went out on his duties on the night in question and was thus able to make an identification when he saw a person in the car.
45.
Finally under this heading, complaint is made (and it is made jointly with Hind) of the fact that PC Turner volunteered to the jury that the co-appellant Hind was known to him from some prior incident or dealings between the officer and Hind. It was submitted that Johnson would have been prejudiced by this remark by reason of his association with Hind. In our judgment the judge rightly rejected an application at trial by Hind for the jury to be discharged. The judge said that there was no necessary adverse inference to be drawn from the remark and that no further reference should be made to it. This is not an uncommon situation in a trial. What occurred was not something of such drama or significance as to stand out in a way which would have required a different course. The judge had a discretion. We do not consider that it was wrongly exercised in this instance. Nor are we persuaded that the incident has any cumulative effect in Johnson's case on the ground of character upon which Johnson could successfully rely. Accordingly, the complaints made as to the asserted admission of bad character through these various means is not one which we consider has substance.
46.
In the course of this judgment we have identified two particular areas in which we have said that the judge dealt with matters in a way which was not satisfactory. One is the way in which the question of adverse inference arose. On this type of issue much depends as to the way in which the case was put to the jury by the judge and the place which any particular matter has in the scheme of the case as a whole. In relation to the
section 34
aspect, once the evidence of the confrontation in the cell area was admitted, it is our judgment that under the common law the jury should have been directed either to ignore the incident or at the very least not to hold the refusal of the defendant to attend for interview against him. In other words, there should have been positive direction by the judge to the jury that they should not make use of that material in a way which was adverse to the defendant. That did not happen in this case. The judge, albeit with careful safeguards, left it open to the jury to draw an inference adverse to the appellant Hind from his failure to emerge for interview. The judge called it a pointer or a straw in the wind, but it was something nonetheless which was left in the case, not as something to be ignored or not held against the appellant, but as something which might tell against him if the jury saw fit. Furthermore, the jury had seen Crown counsel cross-examine Hind and put to him positively that the reason for his failure to leave his cell for the purpose of interview was because he had not yet made up the explanation which he was falsely, the Crown would say, putting forward at trial. That assertion by the Crown was repeated to the jury by the judge as an inference that they could adopt if they saw fit, notwithstanding the warnings that the judge had given to them. Therefore, far from being told to ignore or not hold the appellant's actions against him, in those respects it was left open to the jury to use this material against him.
47.
There seems to us to be a further respect, which we have already touched upon in this judgment, of which criticism can be made. It is asserted that in dealing with this issue the judge failed to point out to the jury for their consideration that the failure to emerge for interview might be referable to the fact that the defendant was guilty of theft as opposed to the allegation of burglary or the taking of the motor vehicle. He did not leave that matter for their consideration or leave it to them as a factual scenario on which they could come to a conclusion.
48.
We turn to the question of identification. As we have observed, in many respects the identification made by the police officer was supported by the argument of coincidence and the available scientific evidence. Notwithstanding that, it appears to us that in the three respects which we have earlier identified the direction which was given on identification did not include evidence which should have been included in the direction in the context of this case. It may be that had the question of the direction on identification stood alone, that would not of itself have been sufficient to call into question the safety of the conviction. But we have come to the conclusion that there is a cumulative effect in this case. Hind was affected by the identification direction and directly affected by the matters under
section 34
. Given the matters to which we have already drawn attention, we are unable to say that the conviction in his case was safe.
49.
We turn to the case of Johnson. He would have been directly affected by the identification direction issue and, since both men were alleged to have been together at all material times, he may have been affected in the eyes of the jury by the position which was taken in relation to
section 34
on the account put forward by Hind at trial.
50.
Accordingly, we have come to the conclusion that in Johnson's case, too, the convictions should be regarded as unsafe. In each case the jury's verdicts will be quashed.
THE LORD CHIEF JUSTICE:
Miss Connolly, are you asking for a retrial in this case?
MISS CONNOLLY:
I am, my Lord, yes.
THE LORD CHIEF JUSTICE:
Can you oppose that, Mr West?
MR WEST:
My Lord, yes, we would submit that the court should exercise its powers simply to quash the convictions for burglary and taking the conveyance and proceed to sentence on the matter of theft, which was a separate count to which each defendant pleaded guilty.
THE LORD CHIEF JUSTICE:
Why should there not be? There is a very substantial case against both these defendants. Why should there not be a retrial?
MR WEST:
My Lord, we submit that it would be unfair to send them back for a retrial in relation in particular to two aspects of the case which now they would face a different situation to that which they faced at their trial last year. The first is the bad character provisions. The Crown could now -- whether they would of course remains to be seen -- they could, and we would not be able to oppose it on any lawful grounds or discretionary grounds if they did, be able to put in the evidence in the retrial the bad character of these two defendants. So that is one reason.
The second is this. In particular in relation to Hind, your Lordships have said that in relation to the aspect of not coming out of the cells, effectively Mr Hind should not have had that evidence adduced before the jury, he should not have been cross-examined about it and the direction should not have been given. In the trial that took place there was no reference to any other adverse inference direction. Your Lordships referred to the
section 34(1)(b)
direction. It would be unfair to Mr Hind, when he has had one trial in which matters have gone as awry as he did in relation to the identification of Hind which you found to have substance, and the adverse inference direction which your Lordships found to have substance, when added to the additional prejudice that he may face when it comes to the possibility of a bad character direction in his case, it would not be right effectively to put him through having a second trial on different terms to that on which he had his first trial which should have been conducted in a different way, as your Lordships have found.
So, in our submission, the right course, perhaps exceptionally given the intervention of Parliament in relation to particularly bad character, and the other factors that I have mentioned, the right course would simply be to quash the conviction and sentence him for theft.
THE LORD CHIEF JUSTICE:
Thank you. Anything you wish to add, Mr Hunt?
MR HUNT:
My Lord, I have been listening with care to your Lordships' comments that this seems to be a case distilling towards events after the initial identification in the car. I submit that it is also within your Lordships' discretion to substitute, even on the count of burglary, a count of theft.
THE LORD CHIEF JUSTICE:
Yes.
(
The court conferred
)
THE LORD CHIEF JUSTICE:
We order a retrial. We have to give certain directions. We allow the appeal and quash the convictions. We specify the counts which are quashed, namely those to which the defendants did not plead guilty but which they contested. We direct that a fresh indictment be preferred and direct that the defendants be arraigned on the fresh indictment within two months, as amended by
section 43 of the Criminal Justice Act 1988
. Thank you for your assistance. We are very grateful to you.
____________________________________ | [
"MR JUSTICE OUSELEY",
"MR JUSTICE TREACY"
] | 2005_04_11-484.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/971/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/971 | 739 |
54506877762f8bbff2868321f1312724dda08391e957e53fcb6a8898161df964 | [2004] EWCA Crim 1623 | EWCA_Crim_1623 | 2004-05-19 | crown_court | No: 200400812/A4 Neutral Citation Number: [2004] EWCA Crim 1623 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 19th May 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GRIGSON MR JUSTICE ANDREW SMITH - - - - - - - R E G I N A -v- ALFED WASHINGTON WEEKES - - - - - - - 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 (Of | No:
200400812/A4
Neutral Citation Number:
[2004] EWCA Crim 1623
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 19th May 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE GRIGSON
MR JUSTICE ANDREW SMITH
- - - - - - -
R E G I N A
-v-
ALFED WASHINGTON WEEKES
- - - - - - -
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 REID
appeared on behalf of the APPELLANT
MISS S WHITEHOUSE
appeared on behalf of the CROWN
- - - - - - -
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. The offender is 52 years of age having been born in December 1951. On 12th January 2004 he pleaded guilty to an offence of causing grievous bodily harm with intent, contrary to
section 18 of the Offences Against the Person Act 1861
. He was sentenced, on that occasion, by Her Honour Judge Hughes QC at Snaresbrook Crown Court to 3 years' imprisonment.
2.
In summary, the offender attacked his wife with a hammer, so that she suffered two depressed and commutated fractures of the skull. The attack was witnessed by the couple's 13 year old son, who intervened, with a knife, in order to stop the attack.
3.
In a little more detail, the offender and his wife had known each other for 14 years and had been married for about 8. They had three sons, aged 13, 6 and 4. When Mrs Weekes was pregnant with her second son instability developed in the marriage because the offender became abusive towards her and jealous and possessive. About 3 years before the attack Mrs Weekes told the offender that she wanted to leave. He thereafter threatened to hit her and threatened other forms of violence to her on several occasions.
4.
On 24th April 2003 she was in bed at about 11 o'clock in the evening. The three sons were asleep elsewhere in the house. The offender came in and asked about her work and there was a brief conversation between them, in the course of which the offender became irritated. At that stage Mrs Weekes' mobile telephone rang. This caused the offender to be even more angry. He took the telephone from her, pulled out the land line telephone from its socket and left the room. She followed. She began to run down the stairs, but she fell and, at the foot of the stairs, skidded along the corridor on her knees. She was not seriously hurt but she asked the offender to call for an ambulance because she was frightened of him. He refused but brought a duvet for her and her bag and then fetched a bottle of beer for himself. He told her that if she could not walk she could crawl into the sitting room. He then went back into the kitchen. She lay on the floor for about 20 minutes and then she tried to sit up. As she did so, the offender attacked her with a hammer which had been lying in the hall. The first blow caused her to urinate. The offender hit her again twice as she tried to get up. The 13 year old son, who had been awakened by the noise, saw his father hitting his mother with the hammer and he, with a knife, intervened, challenging his father to stop. Mrs Weekes was able to escape while the offender was distracted by their son and she sought help from a neighbour.
5.
The consequences to the victim were two multiple uneven lacerations of the scalp, mainly on the top and back of the head and two depressed and comminuted compound skull fractures, in connection with which there were pieces of broken bone which could be felt. She underwent surgery. The wounds were stitched and cleaned and she was discharged from hospital after about four or five days. In the meantime, the offender had presented himself at a police station, at 1.30 in the morning, claiming to the police that his wife had hit him and he had hit her. When formally interviewed, he declined to answer any questions.
6.
On behalf of the Attorney-General Miss Whitehouse draws attention to seven aggravating features. First, the attack was in the victim's own home. Secondly, the children were asleep at the time. Thirdly, the attack was unprovoked. Fourthly, it took place when the victim was lying defenceless on the floor. Fifthly, a hammer was deliberately used on the head. Sixthly, the 13 year old son witnessed the attack, and seventhly, the attack only ceased when the child intervened.
7.
Miss Whitehouse draws attention to the mitigation to be found, first, in the fact that the offender was a hard working man of good character. Secondly, he pleaded guilty, in relation to which, although the plea came fairly late, he was given full credit by the sentencing judge. Thirdly, the offender's conduct on this occasion was out of character and took place against a background of depression and morbid jealousy, in the context of the consumption of three or four cans of beer that evening.
8.
The Court's attention has been drawn to a number of authorities by Miss Whitehouse. In
R v Hudson
[2003] 2 Cr App R(S) 327, a sentence of 6 years was upheld by this Court, following a plea of guilty; in
Attorney-General's Reference No 98 of 2002
(R v Bishop) [2003] 2 Cr App R(S) 563, Kay LJ, giving the judgment of the Court, (which included an indication that the appropriate sentence in that case should have been three-and-a-half years in the court below), pointed out that violence in the domestic context is no less serious than other context and, in some cases, can be even more serious. With that observation we agree. In
Attorney-General's Reference No 30 of 2 of 1994
(R v Dawson) 16 Cr App R(S) 710, following a guilty plea, a sentence of 30 months was increased by this Court to 5 years. The offender in that case had a previous conviction for attempted murder. In the course of giving the judgment of the Court Lord Taylor CJ said, at page 713 of the report that the results of an attack of this kind are important but the conduct of the offender is of even more importance. In
Attorney-General's Reference No 19 of 1994
(R v Arnold) 16 Cr App R(S) 541, following a trial, a sentence of 2 years was increased to 5 years and in
R v Davies
8 Cr App R(S) 97, following a plea of guilty, in a case in which the violence had even graver consequences than in the present case, a sentence of 7 years was upheld in relation to a man of good character. Miss Whitehouse's submission is that the sentence of 3 years imposed by the sentencing judge failed to reflect the aggravating features to which attention is drawn.
9.
On behalf of the offender, Mr Reid invited our attention to other authorities: in particular,
R v Mannion
[1999] 2 Cr App R(S) 240, where a sentence of 4 years' imprisonment was reduced to 3 years, following a guilty plea and
Attorney-General's Reference No 68 of 2002
(R v Catteral) [2003] 1 Cr App R(S) 498, where a sentence of two-and-a-half years was increased to 4 years following a trial. In the course of the judgment given in that case, it was indicated that, in the light of the facts of that case, a sentence in the court below of the order of 5 years' imprisonment was to have been expected.
10.
Mr Reid accepts that the sentence passed by the learned sentencing judge was a lenient one towards the bottom of whatever range is appropriate following a guilty plea in relation to
section 18
offences. He stressed the indication of remorse given by the offender in addition to the guilty plea.
11.
He invites the Court, in the light of all the circumstances, not to interfere with the sentence which was passed by the learned trial judge. That is not a submission to which we are able to accede.
12.
In our judgment, a sentence in the court below of the order of five-and-a-half to 6 years ought to have been imposed. It follows that the sentence passed was unduly lenient. Taking into account double jeopardy, that is to say that the offender is being sentenced a second time, the sentence which we pass, in the light of all the circumstances of this matter to which we have drawn attention, in substitution for the sentence of 3 years imposed by the Crown Court judge, is one of four-and-a-half years' imprisonment. | [
"(LORD JUSTICE ROSE)",
"MR JUSTICE GRIGSON",
"MR JUSTICE ANDREW SMITH"
] | 2004_05_19-239.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1623/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1623 | 740 |
eaae966d6fda1c1dfdb247f804add1ca9c66b1585f544112a6b9c00359164ec4 | [2008] EWCA Crim 1803 | EWCA_Crim_1803 | 2008-07-03 | crown_court | No: 2008/2599/A8 Neutral Citation Number: [2008] EWCA Crim 1803 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 3 July 2008 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE AKENHEAD - - - - - - - - - - - - - - R E G I N A v JANE TEMPLE - - - - - - - - - - - - - - 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 78 | No:
2008/2599/A8
Neutral Citation Number:
[2008] EWCA Crim 1803
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 3 July 2008
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE AKENHEAD
- - - - - - - - - - - - - -
R E G I N A
v
JANE TEMPLE
- - - - - - - - - - - - - -
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 S Vine
appeared on behalf of the
Appellant
- - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RICHARDS: This is an appeal against sentence in a relatively straightforward case of benefit fraud. The appellant is a 40-year-old woman with three children now aged 12, 16 and 19. She is separated from her husband, although she remains on good terms with him. She lived in a caravan with the younger two of her children. Her only previous convictions relate to driving offences in 2001. She has suffered from depression for many years.
2.
For a number of years she had made claims to income support, stating on the relevant forms that she had no income, no capital and no bank accounts. That information was originally correct, so far as is known, and she had been entitled originally to the benefit claimed. Her financial circumstances then changed but she failed to inform the department of that fact. In terms of capital limits, entitlement to income support is not affected if a person has under £3,000 in their bank account. Between £3,000 and £8,000 entitlement is reduced. Over £8,000 entitlement is lost. What happened in this case is that from mid-February 2003 the appellant had assets exceeding £3,000 in her bank account. That sum steadily increased to around £8,000 by May 2003. In June 2003 a cheque for £34,000 was paid in, bringing the balance to over £40,000. The money in the account then slowly dwindled, reducing the balance to under £3,000 again by January 2005. At no time during this period or by the time an investigation had concluded in September 2006 did she notify the department of her change of position. As a result she received overpayments of income support in the total sum of £28,617.
3.
She was charged with dishonestly failing to give prompt notification of a change of circumstances, contrary to
section 111
A(1A) of the
Social Security Administration Act 1992
. She pleaded guilty but a written basis of plea by which she sought to attribute the additional sums in her account to her father-in-law was not accepted. Sentence was adjourned for a
Newton
hearing but the appellant then indicated that she would not call evidence at a
Newton
hearing. Sentence therefore proceeded on the basis that the money in the account was hers and she had obtained over £28,000 of public money to which she was not entitled.
4.
On 4th April 2008 at Chelmsford Crown Court, His Honour Judge Gratwicke imposed a sentence of 15 months' imprisonment. She now appeals with leave of the single judge.
5.
It is submitted that the judge failed to give credit or sufficient credit for her plea of guilty or to have regard or sufficient regard to her previous good record, her poor health and her home circumstances and responsibilities.
6.
In written submissions it was suggested that the matter could have been dealt with adequately by a community order or a suspended sentence. Very sensibly, however, Miss Vine in her oral submissions today has put the main focus of her case on the contention that the length of the custodial sentence passed was excessive.
7.
Guidance as to the approach to be adopted in a case of this kind is to be found in
Graham
[2005] 1 Cr.App.R (S) 115 at page 640, where the so-called
Stewart
guidelines were considered and updated for the effect of inflation. Miss Vine has also referred to the policy of the Department of Work and Pensions of prosecuting cases up to a value of £30,000, as is now the position, in the Magistrates' Court, although the threshold was £25,000 at the time when proceedings were taken against this appellant. That too is prayed in aid in support of a shorter sentence than that imposed.
8.
The main aggravating feature of the present case is the sum of money obtained which takes it out of the lower bracket referred to in
Stewart
and
Graham
and suggests a starting point substantially in excess of the 12 month upper limit for that lower bracket. Another matter to be taken into account is the period over which the offending took place. The period when the bank account had in it a capital sum that would have reduced and ultimately removed entitlement to income support was a little short of two years. The overall period covered by the offence, that is to say by the failure to disclose the existence of the account or the existence of the money in it, was something just over three-and-a-half years. So one is concerned with a lengthy period.
9.
The case, however, lacks other features that can aggravate the seriousness of offences of this kind. For example this did not start as a deliberate fraud and there was no sophistication in it. The appellant was entitled in the first place to income support and simply failed, albeit dishonestly, to provide updated information when her circumstances changed. There is nothing to show that the money was put to any use beyond the purchase of day to day necessities. There is, moreover, substantial mitigation, including the plea of guilty, the appellant's lack of significant previous offending, her home circumstances and her long term depression. It is right to note, however, that this is not a case where special consideration needs to be given to the position of a sole carer of young children -- fortunately her relationship with her ex-husband is such that he is looking after the children and there is no serious problem in that connection.
10.
Overall we are satisfied that an immediate custodial sentence was justified in this case. The conclusion we have reached, however, is that the matter could have been dealt with by a somewhat shorter sentence. It seems to us that the appropriate sentence is one of 12 months' imprisonment, rather than the 15 months imposed below. The difference is a small one and we have hesitated about making any adjustment in those circumstances, but by reducing the sentence to one of 12 months we will, on the information given to us, create a situation in which the appellant will be entitled to release on home curfew at the very least and it seems to us that the overall justice of the case is such that we can properly produce that result. For those reasons, the sentence of 15 months is quashed and a sentence of 12 months is substituted. | [
"LORD JUSTICE RICHARDS",
"MR JUSTICE AKENHEAD"
] | 2008_07_03-1568.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1803/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1803 | 741 |
e66842e39df084bfec8c67b960744bbf7ecba49ac332a8e3332de8715f955088 | [2008] EWCA Crim 2950 | EWCA_Crim_2950 | 2008-11-21 | crown_court | Neutral Citation Number: [2008] EWCA Crim 2950 No. 2008/02082/D2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 21 November 2008 B e f o r e: LORD JUSTICE THOMAS MR JUSTICE JACK and MR JUSTICE GRIFFITH-WILLIAMS __________________ R E G I N A - v - SHAED YOUNIS __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Offi | Neutral Citation Number:
[2008] EWCA Crim 2950
No.
2008/02082/D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 21 November 2008
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE JACK
and
MR JUSTICE GRIFFITH-WILLIAMS
__________________
R E G I N A
- v -
SHAED YOUNIS
__________________
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 T McKinnon
appeared on behalf of the Applicant
____________________
J U D G M E N T
LORD JUSTICE THOMAS:
I shall ask Mr Justice Jack to give the judgment of the court.
MR JUSTICE JACK:
1. This renewed application for leave to appeal concerns the exercise of the jurisdiction of Crown Courts under
section 23
of the
Proceeds of Crime Act 2002
to vary a confiscation order made under
section 6
of
the Act
.
2. On 10 March 2005 the applicant, Shaed Younis, pleaded guilty in the Crown Court at Peterborough to two counts of conspiracy to supply class A drugs. On 22 April 2005 he was sentenced to concurrent terms of imprisonment of 12 years. On 5 December 2006 His Honour Judge Coleman found in confiscation proceedings pursuant to
the 2002 Act
that the applicant had benefited from criminal conduct in the sum of £306,670 and he found the realisable assets to be £248,069. He made an order in that sum with 2 years 10 months to be served in default of payment. On 18 March 2008 His Honour Judge Coleman heard an application under
section 23
for a variation of that order. He made a reduction in the realisable amount to reflect assets transferred to Shubina Akhtar against whom a subsequent confiscation order had been made. That reduction was not opposed by the prosecution. He refused to make any further order for a reduction.
3. The main issue in the original confiscation proceedings in 2006 was whether the applicant had hidden assets, that is unidentified assets, which were the fruits of his drug dealing. The judge heard evidence and concluded that he had such assets in the sum of £236,281. In the variation proceedings it was submitted for the applicant that he had no assets apart from his prison income and money given by his family. He was permitted to give evidence to that effect. The judge held however that it was not open to the applicant to use an application under
section 23
to challenge the finding made against him in 2006 as to his hidden assets.
4.
Section 23
provides in so far as material:
"23(1) This section applies if –-
(a)
a court has made a confiscation order, and
(b)
the defendant, or a receiver appointed under section 50 or 52, applies to the Crown Court to vary the order under this section.
(2) In such a case the court must calculate the available amount, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.
(3) If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.
(4) If a person has been adjudged bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.
(5) The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk or realisation under this Part."
Section 9(1) provides:
"For the purposes of deciding the recoverable amount, the available amount is the aggregate of --
(a)
the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and
(b)
the total of the values (at that time) of all tainted gifts."
So under
section 23
the available amount is to be assessed as under section 9 but at the time of the calculation under
section 23
.
5. Prior to
section 23
legislative provisions for subsequent applications by defendants in respect of confiscation orders were contained in
section 17
of the
Drug Trafficking Act 1994
and
section 83
of the
Criminal Justice Act 1988
, each as amended by the
Proceeds of Crime Act 1995
and by the
Powers of Criminal Courts (Sentencing) Act 2000
. They were in the same terms, save for provisions in the latter referring to magistrates' courts. The sections provided for an application to the High Court for a certificate of the inadequacy of the defendant's realisable property to pay the amount previously ordered. Where a certificate was issued by the High Court the defendant could apply to the Crown Court to have substituted for the amount originally ordered such lesser amount as the Crown Court thought just in all the circumstances. Thus
section 83
of the
Criminal Justice Act 1988
provided:
"83(1) If, on an application made in respect of a confiscation order –-
(a)
by the defendant, or
(b)
by a receiver appointed under section 77 or 80 above, or in pursuance of a charging order,
the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order the court shall issue a certificate to that effect, giving the court's reasons.
(2) For the purposes of subsection (1) above --
(a)
in the case of a realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the court shall take into account the extent to which any property held by him may be distributed among creditors; and
(b)
the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift by this Part of
this Act
from any risk of realisation under this Part of
this Act
.
(3) Where a certificate has been issued under subsection (1) above, the person who applied for it may apply --
(a)
where the confiscation order was made by the Crown Court, to that court; and
(b)
where the confiscation order was made by a magistrates' court, to a magistrates' court for the same area,
for the amount to be recovered under the order to be reduced.
(4) The Crown Court shall, on an application under subsection (3) above --
(a)
substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case; and
(b)
substitute for the term of imprisonment or of detention fixed under sub
section (2
) of
section 139
of the
Powers of Criminal Courts (Sentencing) Act 2000
in respect of the amount to be recovered under the order a shorter term determined in accordance with that section in respect of the lesser amount.
(5) A magistrates' court shall, on an application under subsection (3) above, substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all circumstances of the case.
(6) Rules of court may make provision --
(a)
for the giving of notice of any application under this section; and
(b)
for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court."
6. The earlier sections thus provided a wholly different procedure to enable a defendant to come back to the Crown Court to ask for a reduction in the amount originally ordered. It was formerly the High Court which had to consider the adequacy of realisable property: it is now the Crown Court which has to consider whether the available amount is inadequate for the payment of the outstanding balance.
7. The earlier legislation has been considered in a number of cases. We refer first to
Gokal v Serious Fraud Office
[2001] EWCA Civ 368
. The Court of Appeal was here concerned with
section 83
. A confiscation order had been made in the sum of £2,943,115. The defendant had not satisfied the Crown Court that he did not have hidden assets to meet an order in that amount which was the amount of the benefit. An appeal against the making of the order had failed. The defendant subsequently applied to the High Court for a certificate of inadequacy on the basis that he had no realisable property. The application was struck out as an abuse of process. The striking out was upheld by the Court of Appeal. In the course of giving the leading judgment Keene LJ stated:
"16. The evidence in support of the recent application for a Certificate took the form of a witness statement by Adam George William Cowell, a partner in the firm of solicitors acting for Mr Gokal. In the witness statement it is said that the appellant 'seeks to prove that he has no realisable property to be applied in satisfaction of the Confiscation Order'. Apparently an attempt was going to be made to produce evidence at this stage to show that the money which went into the appellant's personal bank accounts had been dissipated. This would take the form of schedules produced by accountants and available at the time of the appeal to the Court of Appeal (Criminal Division) but not produced to that court.
17. That is not a proper basis on which to seek a Certificate. It amounts to an attempt to go behind the original confiscation order finding as to the amount of the defendant's realisable assets. Such a finding can only be challenged by way of an appeal against the confiscation order. The trial judge clearly rejected the argument that the money in the personal bank accounts had gone back to the companies or had been otherwise dissipated. An application for a Certificate does not provide an opportunity to try to make good deficiencies in the case presented at the time of the confiscation order or at the appeal against it. This is a principle to which it will be necessary to return in due course.
....
24. Consequently there does remain the question: what has happened since the making of the confiscation order to the £2.94 million of realisable property found by the judge to be held by the appellant? Evidence as to that is crucial to the grant of a Certificate of Inadequacy. As has been said many times in the authorities, it is not enough for a defendant to come to court and say that his assets are inadequate to meet the confiscation order, unless at the same time he condescends to demonstrate what has happened since the making of the order to the realisable property found by the trial judge to have existed when the order was made: see
R v C
, unreported, 18 November 1997 and
R v W
, unreported, 29 January 1998. Any other approach would amount to an attempt to go behind the finding embodied in the confiscation order, and such an attempt would be an abuse of process. In the present case the appellant does not seek to demonstrate where the realisable property of over £2 million was in May 1997 nor to show how it has decreased in value or otherwise diminished since then."
8.
Gokal
has been applied in a number of subsequent cases, notably in
Re McKinsley
[2006] 1 WLR 3420
. The head note of the report reads:
"On an application by a defendant who had been convicted of a drug trafficking offence for a certificate, pursuant to
section 17
of the
Drug Trafficking Act 1994
, to the effect that his realisable property was inadequate for the payment of any amount remaining to be recovered under the confiscation order made against him, it was not open to the defendant to challenge the Crown Court judge's findings as to his realisable assets and any attempt to do so was in abuse of the process of the court.
Where, therefore, a defendant applied for a certificate of inadequacy on the ground that he did not have, and had not had when the confiscation order was made, the hidden assets identified by the Crown Court judge, and, as a preliminary issue, the judge held that it was not open to the defendant to seek to challenge the Crown Court judge's findings as to his realisable assets and the defendant appealed –-
Held, dismissing the appeal, that the judge's ruling was correct."
9. In paragraphs 42 and 43 of his judgment Scott Baker LJ stated:
"42. It is true that under
the 2002 Act
an application for a certificate of inadequacy is no longer to be made to the Administrative Court; in future the Crown Court is seized of the whole procedure. We do not, however, regard this as a point in favour of Mr Owen's submission. In passing
the 2002 Act
in the terms that it has Parliament must be taken to have affirmed the hard edged rule laid down in
Gokal
's case.
43. We agree with the judge that he was bound by the hard edged rule. In our view this court too is likewise bound. But absent authority we should have reached the same conclusion. Having listened to detailed argument on the construction of the statute we are persuaded that it points clearly to the hard edged rule. Further, this accords with the general principle that it is not ordinarily open to a party to relitigate an issue that has already been decided against him in the Crown Court."
10. The question for us is whether it is indeed right as stated by Scott Baker LJ that the position under
section 23
is no different to that under the earlier sections in relation to the ability of a defendant to raise issues previously determined against him. We are satisfied that it is indeed so. In
McKinsley
Scott Baker LJ considered the structure of the relevant provisions of
the 1994 Act
, but we do not find anything there which distinguishes them for this purpose from those of
the 2002 Act
. In paragraphs 23 and 24 of his judgment he stated:
"23. It is true that
section 17
nowhere expressly states the court can only take into consideration changes that have occurred to the defendant's financial position since the order was made. But nor does it say that the court can look at the defendant's realisable property regardless of what the Crown Court has previously decided. Mr Owen, who has appeared for the defendant on this appeal argues that subsection (1) is expressed in wide terms. As Toulson J pointed out there are three potentially different factual situations where a defendant seeks to argue that he currently does not have assets and never did: (i) he wishes to reargue the identical case to that presented to the Crown Court; (ii) he wishes to present a case directly contra-dictory to that presented to the Crown Court; (iii) he wishes to adduce material that was not previously considered. Mr Owen's arguments are only directed towards the third of these situations because the other two are obviously impermissible. The third situation is not, so he submits, truly to be regarded as relitigation of the same issue.
24. We can see no justification for construing
section 17
in this way. Not only the defendant but also a receiver is entitled to apply for a certificate of inadequacy. If a defendant is entitled to go behind the confiscation order the same must be the case for a receiver but we cannot envisage circumstances in which that could possibly be appropriate."
Although the procedure is now different, the substance of the jurisdiction is not changed by the wording of
section 23
. The logic of the remarks of Scott Baker LJ remains applicable.
11. We are satisfied that it cannot have been the intention of Parliament in
section 23
of
the 2002 Act
that a defendant should be entitled to relitigate matters which were determined against him in the original confiscation proceedings.
12. We conclude that His Honour Judge Coleman was correct to hold that the applicant was not entitled under
section 23
to raise again the issue as to his hidden assets. We believe that the point has not previously been raised in this court in relation to
section 23
and so we grant leave. But the appeal must be dismissed.
13.
MR McKINNON:
My Lord, your Lordships granted leave because the point had not been argued before. Might I apply for a representation order today for myself because your Lordships granted leave?
14.
MR JUSTICE JACK:
Yes, we will make that order.
15.
MR McKINNON:
I am very grateful. Thank you.
____________________________________ | [
"LORD JUSTICE THOMAS",
"MR JUSTICE JACK"
] | 2008_11_21-1731.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2950/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2950 | 742 |
bec393d70a48489cc91d18357bd5cd811fa920096e0c9588aa2deb3acb417e71 | [2022] EWCA Crim 1837 | EWCA_Crim_1837 | 2022-11-25 | 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: 2022/01891/A2
Neutral citation number:
[2022] EWCA Crim 1837
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 25
th
November 2022
B e f o r e:
LORD JUSTICE BEAN
MRS JUSTICE FARBEY DBE
HIS HONOUR JUDGE FORSTER KC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E X
- v -
HARRISON FRYER
____________________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr N Murphy
appeared on behalf of the Applicant
____________________
J U D G M E N T
____________________
MRS JUSTICE FARBEY:
1.
On 30
th
May 2018, in the Crown Court at Basildon before HHJ Leigh, the applicant (then aged 24) pleaded guilty to counts 1 and 2 on the indictment. On 8
th
October 2018, he was sentenced by the same judge as follows. On count 1, aggravated burglary, contrary to section 10(1) of the Theft Act 1968: an extended sentence under section 226A of the Criminal Justice Act 2003, comprising a custodial term of 12 years and an extension period of three years. On count 2, possessing an imitation firearm at the time of committing an offence, contrary to section 17(2) of the Firearms Act 1968: a determinate sentence of three years' imprisonment, which was ordered to run consecutively to the sentence on count 1.
2.
There were co-accused. Joseph Pearl pleaded guilty to counts 1 and 2 and was sentenced on count 1 to an extended sentence of 15 years, comprising a custodial term of 12 years and an extension period of three years, and on count 2 to a determinate sentence of three years' imprisonment to run consecutively to the sentence on count 1. In this court, on 8
th
October 2019, his appeal against sentence was allowed and his sentence was reduced to a determinate sentence of 15 years' imprisonment. Jerome Johnson pleaded guilty to counts 1 and 2 and was sentenced on count 1 to an extended sentence of 14 years, comprising a custodial term of 11 years and an extension period of three years, and on count 2 to a determinate sentence of three years' imprisonment, to run consecutively. On 8
th
October 2019, his appeal too was allowed and his sentence was reduced to a determinate sentence of 14 years' imprisonment. Christopher Salvador was convicted of count 1 and was sentenced to an extended sentence of 17 years, comprising a custodial term of 14 years and an extension period of three years. Again, on 8
th
October 2019, his appeal was allowed and his sentence was reduced to a determinate sentence of 12 years' imprisonment.
3.
The facts of the case can be taken from this court's judgment in the cases of the co-accused:
R v Johnson and Others
[2019] EWCA Crim 2503. The court observed:
"3. This was a very serious offence of aggravated burglary. The victims were the Wood family who lived in a flat above a dry cleaners in Grays, Essex. There was Mr Wood, his partner Miss Carter and their two children aged 14 and 4.
4.
On the evening of 4
th
December 2017 a number of men … burst into the flat. They were dressed in black and had their faces covered. They claimed to be the police. The men who entered were Johnson, Pearl, a co-accused Harrison Fryer and Paul Robertson. Salvador had been involved in the planning of the burglary, including being involved in reconnaissance but was not physically present when it took place… The burglars were armed with axes and an imitation firearm.
5.
Robertson was the ring-leader. He had recruited [the others] … It would appear that the attackers had intelligence that a large amount of money was in the flat, although in fact it appears they may have had the wrong flat. There was some money there, but not as much as they expected.
6.
In any event, they staged a brutal burglary. Having burst in, they screamed demands for money. The imitation firearm was placed against the children's heads with the adults being warned that unless they revealed the whereabouts of the believed money the children would be shot. Mr Wood was beaten with axes and threatened with having his head cut off, which he believed. A gun was also pointed at his head.
7.
At some point he got free and scuffled with Robertson who sustained fatal injuries from an axe … The other men left with money and jewellery in the mistaken belief that the police had arrived."
There is no doubt that this was a violent, terrifying and sustained burglary at night in the presence of two children who were threatened with being murdered.
4.
The applicant had previous convictions for six offences. They were driving offences, assault, a public order offence and fare evasion.
5.
As we have said, the judge recognised the seriousness of the offending by the imposition of a 12 year custodial term for the burglary and a consecutive term of three years' imprisonment for the imitation firearm. Those custodial terms do not form the subject of this appeal. The single target of the appeal is the imposition of the extended licence period.
6.
In his helpful submissions, Mr Murphy emphasises that the judge concluded that the applicant was dangerous and imposed an extended licence period without a pre-sentence report. He submits that she should not have done so. He submits further that the judge failed to give sufficient weight to a series of factors that had an impact on the assessment of dangerousness and that diminished the risk of future harm presented by the applicant. He submits that the judge failed to give reasons why factors outside the nature and circumstances of the offences themselves were not relevant to the assessment of dangerousness.
7.
We cannot improve on the reasoning of this court in
Johnson
at [21]:
"Section 156(3) and (4) of the Criminal Justice Act 2003 requires a sentencing court to obtain a pre-sentence report before passing sentence unless it thinks such a report is unnecessary. The judge did not do so in this case. That was understandable given the nature of the crime and that only one defendant was asking for a report. However, we consider with respect that she should have obtained reports. An extended sentence has severe consequences for a defendant, including only being eligible for consideration for release by the Parole Board at the two-thirds point of the sentence as opposed to automatic release at the halfway point and such a sentence should only be imposed after the most careful consideration of all the relevant information as is emphasised in section 229 of the 2003 Act. Assessing whether a defendant is dangerous is not always easy. In
Mayers
[2018] EWCA Crim 1552, this court said that it was normal to obtain a pre-sentence report to assist in the determination of dangerousness. Earlier, in
Attorney General's Reference No 145 of 2006 (R v Carter)
[2007] EWCA Crim 692 at para 18, the court said that generally such a report should be obtained where dangerousness is being considered, save in extreme cases. In our judgment, this was not such a case. That is because although, as we have said, this was an extremely serious offence, it is a notable and unusual, indeed extraordinary feature of the case, that none of the three applicants had any previous convictions for violence or indeed much of a criminal record at all. Although the judge said that the fact that they had gone straight into such violent offending supported a finding of dangerousness, the matter can be argued the other way. In short we think it was unwise for the judge to have embarked on what was not a straightforward sentencing exercise without reports on the question of dangerousness."
In its overall conclusions the court said this:
"26. … We remind ourselves that the imposition of an extended sentence is discretionary even where there is a finding of dangerousness. Before passing an extended sentence the judge must be satisfied that a lengthy determinate sentence would not be appropriate. … As we have said, this aggravated burglary was very serious indeed and involved violence and threats against children. However, the reports we have received indicate that the offence was borne out of particular circumstances in which the applicants were when they committed the offence. The risks of Johnson and Pearl re-offending are assessed as low. The ringleader and organiser of the crime, Robertson, is dead and the applicants have little or no criminal record. We are unable to conclude that lengthy determinate sentences, well into double figures, are insufficient for public protection. … Although the report that we have obtained for Salvador did reach a finding of dangerousness, we prefer the consistent view of the authors of the reports of the other two applicants that they are not dangerous within the meaning of the statute. For consistency we will treat Salvador in the same way because we do not see any proper basis for distinguishing him from the others …"
8.
We have had the benefit of a report from the Probation Service for this appeal. The author of the report does not minimise the seriousness of the offending, the life-changing effect on the victims, or the applicant's responsibility for what happened. The applicant was an immature young man attracted to the "gangster lifestyle", with little thought for the consequences. Despite maturing in prison, he is assessed as posing a high risk of harm to the public.
9.
Nevertheless, in our judgment, the risk of harm is reduced by the very lengthy overall custodial term imposed by the judge. Each case turns on its own facts. But, like the court in
Johnson
, we are unable in this case to conclude that a lengthy determinate sentence is insufficient for public protection. We take the same approach as in
Johnson
. We extend time, grant leave, quash the extended sentence on count 1 and substitute for it a determinate sentence of 12 years' imprisonment. The sentence on count 2 remains unchanged.
10.
Finally, we observe, as did the court in
Johnson
, that when passing the extended sentence the judge aggregated the custodial element of the extended sentence with the determinate and non-extended consecutive sentence for the firearms offence and said that the appellant had to serve two thirds of both before being considered for release. That was not correct. The two-thirds requirement applied only to the extended sentence. However, as we have quashed the extended sentence, we need say no more.
11.
Accordingly, and to the extent set out, this appeal against sentence is allowed.
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______________________________ | [
"LORD JUSTICE BEAN",
"MRS JUSTICE FARBEY DBE",
"HIS HONOUR JUDGE FORSTER KC"
] | 2022_11_25-5512.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1837/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1837 | 744 |
dcfae3c93c432bfdf060d175fd8621795eea2e2d0fe77a016e9c965d85e18af4 | [2010] EWCA Crim 2383 | EWCA_Crim_2383 | 2010-10-05 | crown_court | Neutral Citation Number: [2010] EWCA Crim 2383 Case No. 2010/02648/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 5 October 2010 B e f o r e: LORD JUSTICE AIKENS MR JUSTICE SWEENEY and THE RECORDER OF NORWICH ( His Honour Judge Peter Jacobs QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - Mohamed Azrad Hossein Nuthoo __________________ Computer Aided Transcription | Neutral Citation Number:
[2010] EWCA Crim 2383
Case
No. 2010/02648/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 5 October 2010
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE SWEENEY
and
THE RECORDER OF NORWICH
(
His Honour Judge Peter Jacobs QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
__________________
R E G I N A
- v -
Mohamed Azrad Hossein Nuthoo
__________________
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)
__________________
Miss S Samuel
appeared on behalf of the Appellant
____________________
J U D G M E N T
LORD JUSTICE AIKENS:
I shall ask Mr Justice Sweeney to give the judgment of the court.
MR JUSTICE SWEENEY:
1. On 8 March 2010, in the Crown Court at Wood Green, the appellant (now aged 44) pleaded guilty on re-arraignment to count 1, dishonestly making a false statement or representation in connection with housing benefit, and to count 5, failure to notify a change in circumstances in relation to housing benefit. On 29 March 2010 he was sentenced by Mr Recorder Jay QC as follows: on count 1, a suspended sentence order comprising twelve months' imprisonment suspended for twelve months with a requirement of a curfew from 7pm to 7am, supplemented by electronic tagging, for six months. No separate penalty was imposed on count 5. In addition, an order was made that the appellant pay the sum of £5,508 in prosecution costs to the prosecuting authority (the London Borough of Enfield) under the provisions of
section 18(1) of the Prosecution of Offences Act 1985
. He now appeals against sentence by leave of the single judge, limited to the costs order.
2. The facts, in short, are these. On 17 January 2005 the appellant submitted an application for housing benefit but he failed to notify the Council that he had £25,000 in a bank account. That money came from a loan that he had taken out to pay off a car debt. Thus between 24 January 2005 and 23 November 2008 the appellant was paid a total of £15,298.94 housing benefit to which he was not entitled (count 1).
3. In 2008 the appellant opened a fresh bank account and failed to disclose it and the money that was in it (count 5).
4. He was arrested on 17 November 2008. When interviewed, he admitted making false statements and representations on his various claims for housing benefit. He added that he could not make the repayments on the loan and that subsequently the loan had been transferred to his brother.
5. The appellant put forward a basis of plea in which he accepted that he had taken out a loan of £25,000 from Barclays Bank, but asserted that he had benefited only to the extent of £5,000 of that money because he could not afford the repayments. He asserted that he had discussed matters with his brother who had decided to take over the loan for his (the brother's) business and for the brother to make the repayments. In December 2005 the appellant had made a transfer to the brother's business account. The basis of plea continued that the £5,000 went towards paying a car debt and pointed out that the appellant had made full admissions in interview, where he had also mentioned the car debt with the Bank of Scotland. The basis of plea was not disputed.
6. The appellant is a man of previous good character. A pre-sentence report categorised the offences as being sophisticated, calculated and well-planned, but recognised that the appellant was sorry and appeared genuinely motivated to change his behaviour.
7. It is of significance to note that, by virtue of section 17(2) and (6)(c) of the
Prosecution of Offences Act 1985
, the London Borough of Enfield was not entitled to seek its prosecution costs from central funds. During the course of his opening, prosecuting counsel informed the learned Recorder, amongst other things, that:
(1) under an arrangement with the Department of Work and Pensions the appellant was repaying the £15,298.94 owed to the London Borough of Enfield at the rate of £128.44 per month, deducted at source from his sickness benefit, which the pre-sentence report recorded as otherwise being approximately £388 per month; and that
(2) if a costs order in the sum sought of £5,508 was made against the appellant, it would simply be added to the amount of his dishonest benefit to be repaid and the Department of Work and Pensions would carry out another means assessment to see if the appellant could add to the sum already being deducted from his benefit.
8. In passing sentence the learned Recorder imposed the suspended sentence order to which we have already made reference, and then imposed the costs order. He said that the circumstances in which the appellant would be required to pay the costs would not be determined by the court -- a clear reference to the assertions made by prosecuting counsel and the learned Recorder's anticipation that a means test would be carried out by the Department of Work and Pensions.
9. The grounds of appeal are: first, that the order to repay the costs was not just or reasonable since orders for costs should not be made which were beyond the means of the appellant; and second, that the order was disproportionate to the principles of means testing and that any application of discretion should have considered the basis of plea, the appellant's level of culpability, his loss of good character and his medical background.
10. In support of the grounds of appeal Miss Samuel on the appellant's behalf draws our attention in particular: (1) to the principle that orders for costs should not be made which are beyond the means of the defendant (see
R v Mountain
(1979) 68 Cr App R 41
,
R v Maher
(1983) 5 Cr App R(S) 39, and
R v Nottingham Justices, ex parte Fohmann
(1987) 84 Cr App R 316
; and (2) to the principle that orders should enable the defendant to pay the relevant sum within a reasonable period (see, for example,
R v Olliver and Olliver
(1989) 11 Cr App R(S) 10).
11. The court has also considered a letter from the London Borough of Enfield which underlines the fact that, absent a costs order against the appellant in its favour, the burden of the costs of the prosecution will fall on local council tax payers. It also draws our attention to how the appellant's actions caused the costs to reach the figure that they did. The letter asserts that it was open to the learned Recorder to infer that the appellant had assets in addition to his sickness benefit income.
12. In our view the position is this:
(1) By virtue of
section 18(1) of the Prosecution of Offences Act 1985
, to which we have already made reference, the learned Recorder undoubtedly had the power to make a costs order in favour of the London Borough of Enfield.
(2) The question for us is whether the order that he made is wrong in principle or whether there is anything manifestly excessive about it: see
R v Macatonia
[2010] 2 Costs LJ 262.
(3) On the material before us it appears that the learned Recorder made the order in the expectation that it would be enforced as a civil debt; that the appellant's means were limited to his net sickness benefit; that his means to pay would be judged in due course by the Department of Work and Pensions, as the prosecution had suggested; and that it would be many years before the costs order was met.
(4) In contrast, the correct position in law is that such a costs order is to be enforced as if it had been adjudged to be paid on conviction in the magistrates' court (see
section 41 of the Administration of Justice Act 1970)
; that it is the duty of the court to consider the defendant's means (see, for example
Mountain
(above)); that it is the court that has the power to allow an individual to pay by instalments (see
section 141 of the Powers of Criminal Courts (Sentencing) Act 2000)
; that in default of payment, imprisonment will be imposed, in this case up to a maximum of six months (see
Schedule 4 to the Magistrates' Courts Act 1980)
; and that therefore, in order to avoid sending an offender to prison by the back door, and to ensure that the length of time over which the order would be paid is not oppressive, the amount and length of time for payment must be just, albeit that a period of up to three years for payment in an appropriate case is not necessarily too long (see
Olliver and Olliver
(above)).
(5) Notwithstanding the written submissions made by the London Borough of Enfield, the only evidence of means before the learned Recorder was the appellant's sickness benefit which, after deduction of the ongoing repayment of the housing benefit unlawfully obtained, amounted to only about £260 per month.
Taking all these matters into account, we have concluded that the order that was made was both wrong in principle and manifestly excessive in both amount and length of time required for payment. Accordingly, we quash the order. To that extent this appeal is allowed.
____________________________ | [
"LORD JUSTICE AIKENS",
"MR JUSTICE SWEENEY"
] | 2010_10_05-2513.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2383/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2383 | 745 |
5d9f8ff4d53d4008d3fa8a253b1c91c87eb3147dd58a7e70de46d00da21f6e9f | [2019] EWCA Crim 420 | EWCA_Crim_420 | 2019-02-28 | crown_court | Neutral Citation Number: [2019] EWCA Crim 420 No: 201802037 C1/201802039 C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28 February 2019 B e f o r e : LORD JUSTICE GROSS MR JUSTICE SOOLE MR JUSTICE MURRAY R E G I N A v ISAAC COKER 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 | Neutral Citation Number:
[2019] EWCA Crim 420
No: 201802037 C1/201802039 C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 28 February 2019
B e f o r e
:
LORD JUSTICE GROSS
MR JUSTICE SOOLE
MR JUSTICE MURRAY
R E G I N A
v
ISAAC COKER
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 E Renvoize
appeared on behalf of the
Appellant
Mr R Harding
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
1.
LORD JUSTICE GROSS: The facts of this case are straightforward and, as will be seen, point overwhelmingly to the safety of the conviction. But en route a short point has arisen as to the direction given in respect of the offence charged under section 4(3)(b) of the Misuse of Drugs Act 1971 ("the Act"), namely being concerned in supplying a controlled drug, here a class A drug, to another. As will be suggested, the leading textbooks may, with respect, wish to clarify their treatment of this subsection.
2.
Section 4 of the Act, in so far as material, provides as follows: "4(1) ... it shall not be lawful for a person-
...
(b) to supply or offer to supply a controlled drug to another.
...
(3) ... it is an offence for a person-
(a)
to supply of offer to supply a controlled drug to another in contravention of subsection (1) above; or
(b)
to be concerned in the supplying of such a drug to another in contravention of that subsection; or
(c)
to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug."
3.
On 12 January 2018, in the Crown Court at Oxford, the appellant, now aged 25, pleaded guilty to possession of a controlled drug of class B, cannabis.
4.
On 2 May 2018, again in the Crown Court at Oxford and before Her Honour Judge Smith, the appellant was convicted unanimously of being concerned in supplying a controlled drug of class A, crack cocaine, to another and possessing criminal property, counts 1 and 2.
5.
On 2 May, he was sentenced concurrently on each count as follows. Possession of a
controlled drug of class B, 2 months. Being concerned in supplying a controlled drug
of class A to another, section 4(3)(b) of the Misuse of Drugs Act 1971, 5 years and 6
months - that was count 1. Count 2, possessing criminal property, 5 years and 6
months. All the sentences were concurrent, thus producing a total sentence of 5 years and 6~months' imprisonment.
6.
He now appeals against conviction by leave of the single judge.
7.
It is necessary to underline that, as appears from the indictment, count 1 charged the appellant with an offence under section 4(3)(b) of the Act, not section 4(3)(c).
8.
We turn to the facts. On 21 November 2017, police officers attended an address in Banbury. The appellant was present in one of the rooms. He was, according to an officer, in bed fully clothed. A cannabis joint and a bag full of herbal cannabis were observed and there was a strong smell of cannabis. He was arrested. He gave a false name. He was searched and found in possession of a small phone, a black Zanco Wasp; a total of £1,850 in cash, of which some was found in a sunglasses case; a set of digital scales; a kitchen knife found under a pillow; two other mobiles, both Samsung, one white, one blue, were also recovered.
9.
The phones were analysed. In the opinion of another police officer the user of the Zanco Wasp and the blue Samsung was involved in drug dealing.
10.
He was interviewed. He answered no comment to all questions. He did not give evidence at trial.
11.
In his defence case statement, he denied both counts. He did not accept possession of the blue Samsung. He denied involvement in any drug dealing associated with that phone. He accepted possession of the white Samsung and the Zanco Wasp. He said the SIM card used in the Zanco was found by him while he was sofa surfing. At the time, he was homeless and staying at various addresses. He denied using either phone to supply class A drugs. He did not accept possession of the kitchen knife or the digital scales. He was staying the night there and was at the address on a temporary basis. He accepted possession of the money, which he said was given to him by his family.
12.
In summing-up, the judge directed the jury as to the elements of count 1 and what needed to be proved. She said this:
"Now, in count 1, members of the jury, for an offence to be shown to be committed, the prosecution must prove, firstly, that there has been a supply of class A drugs to another, or the making of an offer to supply class A drugs to another. Secondly, that the defendant participated in such an enterprise involving such supply or such an offer to supply; and, thirdly, that he knew the nature of that enterprise, i.e., that it was the supply of class A drugs."
13.
There followed an extended courteous discussion between counsel and the judge, prompted, essentially, by the industry of Mr Renvoize, who appeared then and today for the appellant. In the event, no change was made by the judge to her direction.
14.
The point raised by Mr Renvoize was that the wording "or the making of an offer to supply" and "or such an offer to supply" in the direction was incorrect. In a nutshell, subsections 4(3)(b) and 4(3)(c) of the Act created two separate offences. The direction, in the wording given, involved an impermissible "either/or" with the risk of the appellant being convicted under section 4(3)(c) with which he had not been charged or of leaving the jury with the impression that provided some agreed on one basis and some on another they would be entitled to convict. Instead, in order to convict the appellant, the jury needed to be sure that he was concerned in the supply of drugs to another because that was the subsection under which the prosecution had elected to proceed.
15.
That, essentially, was Mr Renvoize's submission then and remained his submission today and we are grateful to him for raising it then and arguing it now.
16.
For the Crown, Mr Harding sought to defend the direction both at the time it was given and now. The essence of his submission appears succinctly from the respondent's notice:
"The Crown submits
(i)
That the learned Judge directed the jury that being concerned in the supply of a drug of Class A may include the offer to supply. The Judge went on to direct the jury that it must also include factors (b) and (c) as set out in the case of
Hughes (1985) 81 CrApp R
p.348.
(ii)
In response to submissions that the Defence made stating the direction was wrong, submissions were made on behalf of the Crown that further to the case of
Martin
[2015] 1 WLR 588
(11)
which said the term 'supply' is a broad term, an 'offer of supply' can be included in the broader term 'being concerned in the supply of drugs'."
(iii)
Provided the additional requirements as per p 348 of Hughes, as above, were included in the directions, the directions were in accordance with the law.
(iv)
Accordingly, whilst offering to supply is a separate offence, it does not preclude an 'offer of supply' from being included in 'being concerned in the supply' contrary to section 4(3)(b). A person can be concerned in the supply of drugs by making an offer."
17.
We return in a moment to consider the rival cases.
18.
As to sentence, the judge emphasised the aggravating feature of the appellant having previous convictions for dealing in class A drugs. She then passed the sentence she did on count 1. The sentence on count 2 was made concurrent to the sentence on count 1.
19.
Unsurprisingly, the single judge observed that the sentence on count 1 was fully justified. So too the total sentence was not manifestly excessive. However, having given leave to appeal conviction on count 1 and in the event that that appeal proved successful, he referred the application for leave to appeal on count 2 to the full court. The point as to sentence thus only acquires any traction should we allow the appeal against conviction on count 1.
The appeal against conviction
20.
The starting point is the decision of this court in
R v Hughes
(1985) 1 Cr App R 344
. The accused was charged with an offence under section 4(3)(b) of the Act and the crucial question was whether the Recorder had properly directed the jury on the meaning of the expression "concerned in" in that subsection. After setting out the relevant provisions of section 4, Robert Goff LJ (as he then was), giving the judgment of the court, said this at page 347:
"So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned."
21.
At page 348, he went on as follows:
"... for an offence to be shown to have been committed by a defendant contrary to sub-section (b) or sub-section (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another in contravention of section 4(1) of the Act;(2) participation by the defendant in an enterprise involving such supply or, as the case may be, such offer to supply; and(3) knowledge by the defendant of the nature of the enterprise, ie that it involved supply of a drug or, as the case may be, offering to supply a drug."
22.
In the event, the Recorder's misdirection was such in that case, in particular his failure to assist the jury with the meaning of the expression "concerned in", that the appeal was allowed.
23.
In
R v Martin and Brimecome
[2014] EWCA Crim 1940
;
[2015] 1 Cr App R 11
, the issue was the meaning of the word "supply" in section 4(3)(b) of the Act and in particular whether, as the appellant there submitted, the offence required a completed supply by delivery. This argument was rejected, with the court holding at paragraph 16 that the word "supply" is a broad term.
24.
For present purposes, the analysis of
Hughes
contained in
Martin
at paragraph 11 is to be accepted, as this court held subsequently in
R v Abi-Khalil and Porja
[2017] EWCA Crim 17
;
[2017] 2 Cr App R 4
. In this regard it is to be noted that, in
Martin
at [11], the court said that Robert Goff LJ in
Hughes
had drawn attention "to the fact that there were three principal offences contained within subsection(3)", namely those set out at subsections (a), (b) and (c).
25.
In our judgment, the wording of the section as authoritatively explained in
Hughes
and
Martin
(endorsed in
Abi-Khalil
) is clear. Section 4(3) of the Act gives rise to three separate and distinct offences. Section 4(3)(a) deals with "supply" or an "offer to supply". Subsections 4(3)(b) and (c) broaden the ambit of the section by applying to those who are "concerned in"
either
the supply
or
an offer to supply controlled drugs. This view is underpinned by Robert Goff LJ's use of the wording "as the case may be" throughout his exposition of the section (at page 349 of
Hughes
set out above).
26.
It follows that there is no room for an either/or direction. When the issue goes to whether a defendant was concerned with supply or an offer to supply controlled drugs, the count in question must either relate to subsection (b) or subsection (c). Here, the appellant was charged under subsection (b).
27.
We therefore accept the argument of Mr Renvoize as to the true construction of the section and his criticism of the direction given by the judge. Conversely, we are unable to accept Mr Harding's submissions in this regard. On his construction there is a danger of rendering subsection (c) otiose. Moreover, his construction does not give effect to the wording "as the case may be" used by Robert Goff LJ in
Hughes
.
28.
Accordingly, applying
Hughes
,
Martin
and
Abi-Khalil
, the elements of the offence under section 4(3)(b) of the Act, of which the prosecution must make the jury sure, are:
29.
(1) that there has been the supply of a controlled drug to another in contravention of section 4(1);
30.
(2) that the defendant in question participated in an enterprise involving such supply;
31.
(3) that the defendant knew the nature of the enterprise, namely that it involved such supply.
32.
Necessarily, therefore, subject to such tailoring as is required for the individual facts, these elements of the offence are to be included in directions given to the jury when considering a charge under section 4(3)(b). To reiterate, there is no room for an "either/or" direction encompassing the separate offence of an offer to supply which falls under section 4(3)(c).
33.
With respect, therefore, we are persuaded that the judge's direction was incorrect in the manner we have sought to explain.
34.
We are not without sympathy for the judge. Though counsel approached the matter with admirable diligence, the treatment of this offence in
Archbold
(2019) at paragraph 27-41 is, perhaps, with respect, unduly compressed. For its part,
Blackstone
(2019), at paragraph 19.49, wrongly it would seem, in our respectful view, includes the "either/or" formulation in its summary of the ingredients of the offence. As it appears to us, that formulation involved a misreading of
Hughes
. We draw the matter to the attention of the learned editors of both works for their consideration.
35.
We add only this:
(1)
While, generally at least, “being concerned in the supplying” of a controlled drug may well be preceded by “being concerned in an offer to supply” such a drug, where the prosecution elects to proceed under s.4(3)(b), it is
being concerned in the supplying
which must be proved.
(2)
No argument was addressed to us on the construction of s.4(3)(a) of the Act. Other than that it constitutes one of the three principal offences contained within s.4(3), as explained in
Martin
, at [11], we express no view on s.4(3)(a).
(3)
Equally, nothing in this judgment deals with the situation where the indictment contains separate counts, one under s.4(3)(b) and another under s.4(3)(c). No such question arose in this case and we heard no argument upon it. If, however, the facts should so warrant, we cannot envisage a difficulty in an indictment containing both counts, doubtless as alternatives.
36.
It remains to consider whether the misdirection rendered the appellant's conviction unsafe.
37.
In his submission today, Mr Renvoize contended that there was here a risk with regard to whether the jury had been unanimous.
38.
For his part, Mr Harding submitted that on the facts of this case there was no such risk. He pointed to all the evidence and indeed the conviction on count 2 of possessing criminal property, namely the cash, knowing or suspecting it to represent the proceeds of criminal conduct.
39.
For our part, we have no hesitation in concluding that there was no risk of the conviction being unsafe. The evidence as to the Zanco Wasp and blue Samsung phones, the cash and its location, the scales and the kitchen knife, made for an unanswerable case against the appellant under section 4(3)(b). It is, in our judgment, fanciful to suppose that that conviction was unsafe.
40.
We therefore dismiss the appeal against conviction.
The sentence application
41.
As earlier foreshadowed, this application hinged on the conviction appeal succeeding. It has not. This application therefore falls away and we refuse leave to appeal against the sentence on count 2.
42.
We were very impressed with the way this matter was raised and dealt with before the judge and subsequently and are, accordingly, grateful to both counsel.
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Tel No: 020 7404 1400
Email: [email protected] | [
"LORD JUSTICE GROSS",
"MR JUSTICE SOOLE",
"MR JUSTICE MURRAY"
] | 2019_02_28-4524.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/420/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/420 | 746 |
c95bacaab7546a4c6ed66059d254c1ab9fbf7c90826e8d9e3a297ea3ee69a8c2 | [2008] EWCA Crim 1745 | EWCA_Crim_1745 | 2008-07-16 | crown_court | Neutral Citation Number: [2008] EWCA Crim 1745 No: 2008/0902/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 16 July 2008 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LORD JUSTICE LATHAM) MR JUSTICE GRIGSON HIS HONOUR JUDGE PERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v NSANGU LAKU - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Intern | Neutral Citation Number:
[2008] EWCA Crim 1745
No:
2008/0902/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 16 July 2008
B e f o r e
:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(LORD JUSTICE LATHAM)
MR JUSTICE GRIGSON
HIS HONOUR JUDGE PERT QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - -
R E G I N A
v
NSANGU LAKU
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr R Furlong
appeared on behalf of the
Appellant
Mr A Rooke
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 14th December 2007 at the Crown Court at Snaresbrook this appellant was convicted of three counts of making a false representation, contrary to
section 111A of the Social Security Administration Act 1992
and three counts of failure to declare a change of circumstances under
section 111A
(1A) of the same Act. He was sentenced on 23rd January 2008 to 12 months' imprisonment on each of the counts to run concurrently. He was also convicted of money laundering and sentenced at the same time to 18 months' imprisonment. We are not concerned with that conviction or that sentence. He appeals against conviction in relation to the indictment relating to false representations by leave of the single judge.
2.
The indictment related to the representations he made to the Borough of Newham and to the Department for Work and Pensions in order to obtain relevant benefits. The charges were based upon the fact that he failed to disclose that he had capital in excess of the prescribed limits. The fact was that at all relevant times he had significant bank accounts or bonds in which very substantial capital sums were deposited, well in excess of the relevant prescribed limits and in relation to counts 1, 2 and 3, if they were established, he was not in a position to claim any entitlement. Counts 4, 5 and 6 alleged that in later statements he failed to notify the department and the council of changes in circumstances which could affect his entitlement.
3.
This court has held in the case of
Mote
that in such circumstances where there was originally no entitlement any subsequent documentation that comes into existence cannot bring a relevant change of circumstances sufficient to justify a count in the indictment such as those which were added in this case. That is now accepted by the respondent and accordingly as far as counts 4, 5 and 6, which are the counts which charged a failure to notify a relevant change of circumstances, the convictions on those counts must be quashed for that reason.
4.
Mr Furlong on behalf of the appellant submits that the convictions on counts 1, 2 and 3 are also unsafe, essentially for two reasons. First, because the judge failed to give to the jury any direction which could help them as to how they should treat the fact that in interview the appellant on eleven occasions indicated that he was not prepared to comment in relation to a question at that time.
5.
In order to put the matter into context we should say just a little more about the underlying facts.
6.
As we have indicated, the basic prosecution case was that this appellant had the accounts and bonds which in total amounted at the relevant time to more than £90,000. It was the defendant's case that when he filled in the forms in which he failed to disclose those accounts he did not consider that the forms required him to disclose those accounts because although those accounts were nominally his, they were not accounts which were for his benefit; they contained monies which had been supplied to him by, amongst others, his father for him to utilise at his father's instructions. That was the defence which was put to the jury and which ultimately the jury clearly disbelieved.
7.
In interview he was asked on a number of occasions, as might be imagined, about these accounts and why he had not disclosed their existence. Whilst generally he gave an account which was similar to the account that he gave to the jury, in answer to a number of questions he said that he was not going to make any further comment "at present".
8.
The interviews were put to the jury in an unexpurgated form - in other words the "no comment" answers were before the jury - and although prosecuting counsel did not, as we understand it, ask any questions of the appellant during cross-examination as to that, they remained essentially therefore as part of the material which the jury had to consider.
9.
Before the summing-up counsel for the appellant elicited from the judge that he was not going to give any direction under section 34 that the jury would be entitled to consider those no comment answers as part of the material against the appellant and accordingly he submitted that the jury should be directed in accordance with the principles set out by this court in the case of
McGarry
that the jury should not draw any adverse inferences from those no comment answers. Mr Furlong before us accepts that the
McGarry
principle is usually prayed in aid where the defendant in a case simply makes a no comment interview, but he submits that where, as here, no comment was made to a number of what might be considered by the jury to be pertinent questions, there is the same risk that unless the jury is instructed not to draw an adverse inference it might draw an adverse inference in circumstances where the judge has himself concluded that no direction indicating that they could draw an adverse inference should in fact be given.
10.
On behalf of the respondent, Mr Rooke accepts that perhaps it would have been better, given that the judge took the view that he did about these answers, for the judge to given some direction in relation to the no comment answers; but he submits the judge was perfectly entitled to take the view in this case, as he did, that to have given the jury any direction in relation to those no comment answers might have drawn attention to them in a way which could have been to the appellant's disadvantage.
11.
The fact is that in this case the evidence against the appellant, who gave evidence and his evidence was therefore capable of full evaluation by the jury, was overwhelming against him. It seems to us that in the circumstances the question that we have to ask ourselves in relation to this aspect of the case is: "Do we consider that the fact that the judge did not give the jury any direction in relation to these answers rendered the verdicts unsafe?" We have come to the firm conclusion that there is no reason to believe that the way in which the matter was dealt with by the judge renders these verdicts unsafe in that respect and accordingly we dismiss the appeal on that ground.
12.
Mr Furlong secondly put before us a ground of appeal based upon the fact that the judge made certain comments about documents put before the jury by the appellant, particularly from his father, which were comments which were undoubtedly adverse to the appellant and had not been part of the prosecution's case, so that the judge was, as Mr Furlong puts it, descending into the arena in a way which rendered the passages in his summing-up relating to that material unfair.
13.
The fact is that the judge undoubtedly did make adverse comments about some of the material which had not been made by the prosecution. But it was comment which was certainly available to the judge if he considered it appropriate to make it, provided that he made it clear to the jury that it was for the jury to determine what inferences to draw from that material and the mere fact that he (the judge) was making the comment was not in itself material. The judge did give the jury that standard direction and we do not consider that in those circumstances the jury will have been in any way misled to the extent that the verdict would be unsafe. The fact is that the comments were perfectly proper comments. There is no way in our judgment that the fact that the judge made those comments in the circumstances renders the verdicts unsafe. We accordingly dismiss this appeal. | [
"MR JUSTICE GRIGSON",
"HIS HONOUR JUDGE PERT QC"
] | 2008_07_16-1587.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1745/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1745 | 747 |
31ee9da482a3106fd303fa12c86eade7f918246fdcdadce1b506c42e4e22e4db | [2018] EWCA Crim 1942 | EWCA_Crim_1942 | 2018-07-18 | crown_court | No: 2018 01208 A2 Neutral Citation Number: [2018] EWCA Crim 1942 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 18 July 2018 B e f o r e : LADY JUSTICE THIRLWALL DBE MR JUSTICE WILLIAM DAVIS THE RECORDER OF NOTTINGHAM HIS HONOUR JUDGE DICKINSON QC - - - - - - - - - - - - - R E G I N A v J.T. - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email | No: 2018 01208 A2
Neutral Citation Number:
[2018] EWCA Crim 1942
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 18 July 2018
B e f o r e
:
LADY JUSTICE THIRLWALL DBE
MR JUSTICE WILLIAM DAVIS
THE RECORDER OF NOTTINGHAM
HIS HONOUR JUDGE DICKINSON QC
- - - - - - - - - - - - -
R E G I N A
v
J.T.
- - - - - - - - - - - - -
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 JAMES GOULD
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.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
MR JUSTICE WILLIAM DAVIS: On 14 August 2017, in the Crown Court at Sheffield, the appellant pleaded guilty to an offence of arson being reckless as to whether life would be endangered. On 12 March 2018 he was sentenced at the same court to a period of three years' detention pursuant to
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
.
The appellant was born on 6 November 2000 (so he is still 17). We make an order pursuant to section 45 preventing publication of any matter likely to lead members of the public to identify him. This order shall continue until his 18th birthday. We shall refer to him in this judgment as the appellant throughout.
At around 10.40 pm on Sunday 15 May 2016 the appellant was a passenger on a bus which arrived at the bus station in Rotherham. He intended to get off the bus there. He was the last passenger to do so. The driver had already alighted in order to stretch his legs. Before the appellant got off, he set fire with a cigarette lighter to newspapers and magazines which had been left on the floor of the bus.
A short while later new passengers got on to the bus. They smelt smoke and alerted the driver. The driver got on to the bus. He now could see flames coming from seats near to the back of the bus. He tried to put out the fire with his fire extinguisher supplied on the bus itself. He could not do so. Quickly, the whole bus was engulfed in flames. It was completely destroyed.
Worse was to follow. The fire spread to the bus station itself. Very significant damage was done to the fabric of the bus station. Damage was caused to power and electrical cables, which disabled lights, automatic doors, ticket machines and the like. Roof cladding in an area of the multi-storey car park above the bus station was damaged. The overall cost of reinstatement was said to be region of £1.8 million.
The appellant was readily identifiable from CCTV footage, in particular on the bus. For reasons of which we are not aware, he was not arrested and interviewed until January 2017. When interviewed, he accepted he was the person depicted on the CCTV footage from the bus but denied starting a fire.
It was another six months before he was summoned to attend court. The reason for that delay was not apparent even by the time of the sentencing hearing.
The youth court immediately sent him to the Crown Court under the grave crime provisions.
On 14 August 2017 the appellant pleaded guilty at the first hearing in the Crown Court to the offence of arson being reckless as to whether life would be endangered.
This was on an unacceptable basis. He said that the fire had been started by a carelessly discarded cigarette. The judge who conducted the hearing determined that a Newton hearing was required. That hearing was fixed for 18 January 2018.
Why there was such a long delay in the listing of a case for a defendant then aged 16 is not clear to us; the issue to be determined was hardly complicated. In the event the hearing was not necessary: the appellant's solicitors subsequently notified the court and the prosecution that the basis of the plea now was that the appellant deliberately had lit a newspaper and had left it without ensuring that it had gone out. This was accepted as an accurate account.
Unfortunately, the psychiatric report which had been ordered at or shortly after the entering of the plea was still not available by the date on which the Newton hearing was due to take place. It was only available on 12 March 2018, which was, as we have already indicated, the date of sentence.
The judge had a full pre-sentence report prepared by a member of the Rotherham Youth Offending Team. That disclosed that the appellant had been a 'looked after' child since November 2015, which is when his mother had placed him voluntarily into care. The appellant did not want to go into care, but all of his various family members made it clear that he could not live with any of them. Despite this, he continued to visit the area of Rotherham where they all lived. It was as he was on his way back from that area to a children's home in Barnsley that the offence was committed in May 2016.
The pre-sentence report recounted the appellant's criminal history since the events of May 2016. At that time, he had no findings of guilt. His subsequent history consisted of appearances in the youth court: first, in October 2016, for offences of theft, criminal damage and threatening behaviour, when a referral order was made - the offences dating from the same period as the arson offence; second, in September 2017 he was sentenced for offences of theft and criminal damage, the sentence being a twelve-month youth rehabilitation order. The offences dealt with then dated from May 2017.
The period between May 2016 and May 2017 was a period during which the appellant had been moved to no less than four different placements.
In June 2017 the local authority sent him to an activity placement centre in Lancashire for a period of twelve weeks. This had led to a turnaround in his behaviour. He then returned to South Yorkshire, where he lived in semi-independent accommodation, undertaking education and training.
On 28 January 2018 the author of the pre-sentence report was able to write:
"[The appellant was] a very different young person, having matured and developed into a young man open and willing to change his behaviour and focused on making a success of his life."
The report indicated that this progress would be at risk in the event of a custodial sentence.
The judge also had a psychiatric report from a child and adolescent psychiatrist. This report concluded that the appellant had symptoms consistent with ADHD - a condition likely to give rise to impulsive behaviour. Psychiatric intervention in the community was suggested.
In sentencing, the judge referred to previous decisions of this court concerning the sentencing of young people convicted of this offence: in particular,
Finnerty
[2016] EWCA Crim 1513
and
Attorney-General's Reference No 58 of 2007
[2007] EWCA Crim 2057
. These were cases of young defendants in respect of whom sentences of three-and-a-half years and four years' detention respectively were the outcome.
In our view they provided no real assistance to the judge in this case. In
Finnerty
(a young man who was 16) the appellant set two separate fires in a church about a week apart. The fires were set deliberately. The second fire put children at risk. The damage caused was estimated at £4.5 million. In
Attorney-General's Reference No 58 of 2007
the offender had broken into a school in order quite deliberately to set a fire. Having done so, he stayed to watch the flames take hold, which they did, causing £3 million worth of damage. That offender had a poor record. He showed no signs of responding to the help offered to him.
The judge in this case crystallised his sentence with these words:
"The arithmetical approach that I take to your case is to start with a sentence of seven years' detention if you'd been an adult, but, in accordance with the way the guideline on the subject of sentencing youths suggests, to take more appropriately not that starting point ... but a starting point ... two-thirds of that - the sentence therefore of 56 months. From that, you are also entitled to credit for your guilty plea, and ... giving you a generous full discount for your plea of guilty ... the sentence I am going to pass upon you is one of three years' detention."
The first criticism that can be made of that encapsulation of the sentencing process is that the starting point, even for an adult was too high. The usual range of sentences after trial for arson intending to endanger life is recognised as being between eight to ten years in the ordinary case. The authorities recognise that some cases of reckless arson can come close to the culpability involved in intentionally endangering life, in which case a sentence close to the lower end of the eight to ten-year range will be appropriate.
This is not such a case. It is, in reality, difficult to imagine an ordinary adult doing what this appellant did, namely messing around with a cigarette lighter and setting fire to some newspaper on the bus. It might be possible to anticipate an adult with some form of alcohol problem or the like doing so. If the consequences were as occurred here, the sentence after trial for that adult would not exceed six years' imprisonment.
The second criticism is that the judge's reference to the guideline on sentencing for youths was cursory and inadequate. He simply stated, as we have rehearsed, that the sentence after trial should be two-thirds of the sentence appropriate for an adult.
Not only was this an inaccurate reflection of the reduction suggested in the guideline, but it also failed to reflect the detailed guidance set out in that guideline. This appellant first appeared at court after 1 June 2017. Thus the Sentencing Council guideline on sentencing children and young people applied.
It is unnecessary for us to cite from this guideline at length: it is a public document. But it is a guideline that was considered very carefully and in detail by the Sentencing Council, and sets out clear and unequivocal sentencing principles in relation to young people.
Paragraphs 1.2, 1.5, and 1.16 of the general sentencing principles are particularly apposite in this case.
Paragraph 1.2 emphasises that, whilst the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person as opposed to offence focused, with the focus being on rehabilitation where possible.
In paragraph 1.5 it is emphasised that children and young people are not mini adults; they have not attained full maturity. That impacts on their decision-making and risk-taking behaviour.
Paragraph 1.16 in some detail deals with the effect and significance of an offender being a 'looked after' child and the complexities and difficulties to which that gives rise.
It is clear that proper consideration of these principles was not applied by the judge in his sentencing.
The third matter we must raise is that the guideline sets as a broad guide the appropriate sentence for those aged 15-17 as being in the region of a half to two-thirds of the adult sentence.
This appellant was to be treated for sentencing purposes as a 15-year-old. That was his age at the date of the offence. Though the guideline is not to be treated rigidly, there is no proper basis for this appellant's reduction having been set at two-thirds rather than a half.
The consequence of those matters is that any sentence of custody after a trial would have been three years' detention. The judge gave full discount for plea. There is no criticism of that. The plea was indeed tendered at the first opportunity. Therefore, the maximum sentence of custody the judge should have imposed was two years' detention. If a sentence of custody then was appropriate, it would have been a sentence by way of detention and training order.
The appellant, as is clear, was sentenced nearly two years after the event. The judge found that most of that delay was the fault of the appellant. This was not a finding justified on the chronology. It is unclear why seven months elapsed between the offence and the appellant's arrest. There is no indication that it was any fault of his. Once he had been arrested, there was a completely unexplained delay of six months whilst a charging decision was made. The appellant could not have been sentenced without a psychiatric report. That report was ordered at or shortly after the date of the plea being tendered and it was not available until some seven months later. Any equivocation by the appellant in relation to his plea had no causative relevance to the delay.
The delay in this case should have been a significant factor in the sentencing exercise. Twenty-two months in the life of an immature troubled teenager is a very long time indeed. This was delay largely outside the control of the appellant.
The judge, in sentencing, came to the conclusion that the seriousness of the offence, in terms of the loss and damage caused was such that nothing other than, as he put it, "a not insignificant custodial sentence" was possible. That approach perfectly properly reflected seriousness of the offence, but it failed to reflect the very low culpability involved in the offence and it failed to reflect the approach required by the Sentencing Council guideline.
There will be many cases in which an offence of this kind, committed even by a 15-year-old, will result in immediate custody. But this, given all of the circumstances we have set out, was an exceptional case. We have come to the conclusion that the proper course for the judge in this case would have been to take the course suggested by the author of the pre-sentence report, namely a youth rehabilitation order coupled with an intensive supervision and surveillance programme.
It follows, therefore, that we propose to quash the sentence of three years' detention and substitute in its place just such a programme as suggested. Inquiries have been made this morning. It has been confirmed that such a programme remains available and a youth offending team is anxious to have the opportunity to put it into effect. Therefore, we make a youth rehabilitation order for a period of eighteen months.
There will be an intensive supervision and surveillance programme attached to that youth rehabilitation order.
It will involve a curfew requirement - an electronically monitored curfew - for three months. The period of curfew will be between 7 pm and 7 am. The address at which the curfew applies will be the address as notified from time to time by Sheffield Youth Offending Team.
There will be an unpaid work requirement to complete 100 hours.
There will be an activity requirement to engage with sixteen sessions of junior attendance centre.
The youth rehabilitation order will also have attached to it a supervision requirement for eighteen months.
The purpose of the order is as set out in the Youth Offending Team report.
This is clearly an exceptional course, but this was an unusual and exceptional case. It follows that we allow the appeal in the way we have set out.
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 WILLIAM DAVIS",
"HIS HONOUR JUDGE DICKINSON QC"
] | 2018_07_18-4358.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1942/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1942 | 748 |
e59f006cad6ea67cbf91c910482fd7693d90b794697fdd1d93d214515405dec2 | [2019] EWCA Crim 2177 | EWCA_Crim_2177 | 2019-12-03 | crown_court | Neutral Citation Number: [2019] EWCA Crim 2177 Case No: 201903297/A3 & 201903306/A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southwark Crown Court HHJ Bartle QC T20197010 & T20197009 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/12/2019 Before : LORD JUSTICE GREEN MR JUSTICE NICOL and HER HONOUR JUDGE WALDEN-SMITH - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - Niah GEORGE Darrius Everett INGRAM (Transcript of the Handed Down Judgment. Copies of th | Neutral Citation Number:
[2019] EWCA Crim 2177
Case No:
201903297/A3
&
201903306/A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Southwark Crown Court
HHJ Bartle QC
T20197010 & T20197009
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 03/12/2019
Before :
LORD JUSTICE GREEN
MR JUSTICE NICOL
and
HER HONOUR JUDGE WALDEN-SMITH
-
- - - - - - - - - - - - - - - - - - - -
Between :
REGINA
-
and -
Niah GEORGE
Darrius Everett INGRAM
(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 Daniel Wright
(instructed by
Crown Prosecution Service
) for the
Crown
Mr Richard Craven
(instructed by
Kingsbury Ellis LLP
) for the
Applicants
Hearing date: Tuesday 3rd December 2019
Judgment As Approved by the Court
Crown copyright ©
Lord Justice Green :
A.
Introduction: The scope of the slip rule
1.
The Registrar of Criminal Appeals has referred to this Court applications for leave to appeal against sentence in a case in which the judge, having passed sentence, reflected and concluded that he had committed an error of principle. He immediately notified the parties of his change of view and permitted skeleton arguments to be submitted. He heard oral argument at a fresh sentencing hearing and in the light of this increased the sentences hitherto imposed.
2.
This was not a case where it could be argued that the sentence initially imposed were at risk of a reference by the Attorney General to the Court of Appeal upon the basis that the sentence was “
unduly lenient
”. Nor was this a case where the Judge considered that he needed to address a statutory obligation or requirement that he had failed to address first time around. Here the Judge came to the conclusion that he had misapplied the Guidelines on Burglary and had therefore applied the wrong approach to the weight that he should attach to aggravating factors. There is a power to correct sentences conferred by
section 155(1)
Powers of Criminal Court (Sentencing) Act 2000
. The question arising is whether the judge erred in his exercise of this “slip rule” power to increase the sentence.
3.
In the course of helpful written and oral submissions to this court, reference has been made to a series of cases upon the scope of the power of a judge to rectify, within the statutory period of 56 days, a sentence. These comprise:
R v
Nodjoumi
[1985] Cr App
R(S) 183 (“
Nodjoumi
”);
R v
Reynolds
[2007] EWCA Crim 538
(“
Reynolds
”);
R v Jama
[2009] EWCA Crim 2109
(“
Jama
”);
R v Scott
[2013] EWCA Crim 2651
(“
Scott
”)
R v Grieves
[2014] EWCA Crim 540
(“
Grieves
”);
R v Goss
[2016] EWCA Crim 541
(“
Goss
”) ;
R v Warren
[2017] EWCA Crim 226
(“
Warren
”); and,
R v O’Connor
[2018] EWCA Crim 1417
(“
O’Connor
”).
B.
Facts
4.
It is sufficient to summarise the facts of the present case briefly.
5.
In the early hours of 3
rd
October 2018, at around 3.25am, the two applicants (George and Ingram) and Jake Maunders committed a burglary at Soumer Jewellers in Westbourne Grove, London. The central events were followed on CCTV. A Jeep and several mopeds arrived at the same time. The defendants covered their faces wearing full face helmets to avoid identification. An initial unsuccessful attempt was made to force entry. They then used the Jeep to ram the door open. Two of the defendants ran inside, smashed cases with hammers and other tools, and stole approximately £30,000 worth of jewellery. This has never been recovered. They caused upwards of £20,000 worth of damage to the premises. The burglary took less than five minutes. The Jeep was subsequently abandoned and the defendants left on mopeds. Police witnessing the mopeds leaving the scene of the crime gave chase but ultimately were forced to abandon the pursuit when the defendants diverted into areas where police cars could not follow. Eventually all three defendants were arrested. Maunders pleaded guilty but George and Ingram pleaded not guilty. They were convicted by a jury who rejected their defences that they were not involved.
C.
The initial sentencing exercise
6.
The applicants came to be sentenced on 28
th
July 2019. It was common ground that there were significant aggravating features including: (i) that this was a group action; (ii) that it was pre-planned; (iii) that there was the use of tools to both break into the premises and to smash open display cases to enable jewellery to be removed; (iv) that considerable damage was caused; and (v), that mopeds were used to evade capture. There was no dispute that this was a Category 1 burglary within the Guidelines. This involved a starting point of 2 years custody with a category range of 1 – 5 years custody. Both applicants had significant previous convictions.
7.
In the course of argument, counsel for Ingram contended that the Judge was required to avoid double counting and that to avoid this risk the identified aggravating factors (save with regard to previous convictions) could, in principle, do no more than neutralise the mitigating factors such that the effect was that the judge should apply the starting point and then apply previous convictions as the only factors which could increase the sentence beyond that starting point.
8.
In his sentencing remarks, the judge reflecting this submission stated as follows:
“I accept entirely the point made by Mr Craven, which applies to defendants, that I must not double count in relation to the factors which lead me to the conclusion that there is greater harm and higher culpability. As such, the starting point according to the Guidelines is 2 years imprisonment with a range of 1 to 5 years, and there are aggravating factors to which I have referred.”
9.
The judge therefore concluded that taking account of aggravating factors he should adopt the starting point. He then increased the sentence by 6 months o take account of previous convictions. He concluded that the role of the defendants was the same and no distinction should be drawn between them. He imposed a total determinate sentence of 2 years and 6 months imprisonment on each defendant.
10.
On 29
th
July 2019, the judge sent an email to the parties in which he explained, having reflected overnight, that he had come to the conclusion that on the facts of the case it had been wrong to impose a sentence of 2 years 6 months imprisonment and that the sentences should have been 3 years 6 months imprisonment. He attached two cases (
Grieves
(ibid) and
Scott
(ibid)) which were said by the judge to “
appear to me to be of assistance
”. It is evident from the facts of these cases that where aggravating factors exist these can push a sentence towards the top of the sentencing range, i.e. beyond the starting point. He invited written and oral submissions from the parties and relisted the case to be heard.
D.
The second sentencing exercise
11.
The matter came back before the judge for reconsideration of sentence under the slip rule on 7
th
August 2019. In the course of the hearing the judge set out the issue of principle which he considered he had misapplied at the previous hearing. In his sentencing remarks, the judge articulated the issue in the following way:
“In arriving at the sentence I considered that at step 2 I could not increase the starting point of 2 years by taking account of any factors relating to the offence as that would be double counting and that I could only increase that starting point of the aggravating factor of the defendants’ previous convictions outweighed their personal mitigation. I considered that the aggravating factors did outweigh the personal mitigation and that an increase of 6 months properly reflected the aggravating factors for both defendants.
That approach was wrong in principle and was a material error as it failed to take account of that part of the guidelines at page 12 dealing with Step 2, named and I quote “a case of particular gravity reflected by multiple features of culpability or harm in Step 1 could merit upward adjustment from a starting point before further adjustment for aggravating or mitigating factors set out on the next page”.”
12.
Put shortly, the judge had initially considered that under the Guidelines the net effect of aggravating factors was to do no more than neutralise mitigating factors such that the court should apply the starting point. The exception to this was previous convictions which could properly result in an increase of sentence beyond the starting point.
13.
In his new sentencing remarks the judge, now seeking to remedy his previous error, re-applied the Guidelines and found that there were four factors from within the Guidelines which were present and which indicated higher culpability namely: (i) the deliberate targeting of premises; (ii) the existence of a significant degree of planning or organisation; (iii) the going equipped for burglary by the carrying of implements and/or the use of vehicles; and (iv), membership of a group or gang. The judge then proceeded to analyse each of the factors. He concluded that this should have resulted in an initial sentence of 3 years and 6 months imprisonment for both defendants. He then applied a modest discount of 3 months to take account of the “…
appearance of justice and the impact of the change upon a defendant where an error has not been induced by anything he has said or done
”. This left ultimate sentences of 3 years and 3 months imprisonment for each defendant.
E.
The Applicant’s submissions: The Judge misapplied the slip rule
14.
It is now submitted that the Judge erred in his use of the slip rule to increase the sentence. It is accepted that had the judge imposed the sentence of 3 years and 3 months imprisonment (or indeed 3 years 6 months) in the first place, this could not have been criticised as either wrong in principle or manifestly excessive. The starting point of 2 years imprisonment relates to individuals of good character which the applicants were not. Their previous records would have justified a starting point of 3
years imprisonment or more. It is, nonetheless, submitted that the judge erred. The arguments may be summarised as follows.
15.
First, the Judge chose to increase a sentence which was neither unduly lenient or unlawful and even though it would have erred upon the side of generosity it could not be said to be wrong in and of itself.
16.
Second, the approach to application of the slip rule has become more tailored and nuanced since the restrictive decision of the Court of Appeal in
Nodjoumi
(ibid), which focused upon whether there would be an affront to the appearance of justice for a sentence to be increased. The modern approach was to adopt a “
flexible approach
” whereby fairness to the defendant and to the public interest in the passing of appropriate lawful sentences had to be weighed one against the other: see for example, per Sir Brian Leveson PQBD in
Jama
(ibid) at paragraph [13]; and per Irwin LJ in
O’Connor
(ibid) at paragraph [36]. The mere fact, therefore, that the judge made an error of principle did not trigger by itself an obligation to remedy that error. A broader assessment was required.
17.
Third, case law demonstrated that (applying the flexible approach) even otherwise perfectly valid adjustments to sentence could be outwith the scope of the slip rule. For example, in
Goss
(ibid) the defendant had been sentenced for three historical rapes and other sexual offences to a term of sentence of 16 years imprisonment. He had been given a full discount for plea. The judge brought the defendant back to court and increased the sentence to 18 years imprisonment upon the basis that it was inappropriate to have accorded him a full credit for plea. Had the judge adopted this position at the first hearing, no criticism could have been levelled at him for reducing credit for plea due to the lateness of it having been tendered. On appeal the Court held that the judge was wrong to reduce the discount for plea and to increase the sentence. It is said that the present case is analogous to that in
Goss
. Properly analysed the present case was one where the judge concluded that his earlier sentence was lenient albeit lawful. This was, as in
Goss
, insufficient to trigger exercise of the power. It was wrong therefore to bring a defendant back in order to increase a lenient but perfectly proper sentence.
18.
Fourth, in
Reynolds
(ibid) the judge brought the defendant back to court in order to apply a statutory obligation that he had, hitherto, overlooked. It was held in that case that it was a proper exercise of the power if the mistake to be rectified was that the court had earlier failed to appreciate that the “
specified offence
” was a “
serious offence
” so that the mandatory provisions of
Sections 225
or
227
CJA
2003, requiring an indeterminate sentence as opposed to an extended sentence, were applicable. There could be no inhibition on increasing a sentence where that was done in order to comply with a statutory obligation. However, in the present case all that had occurred was that the judge had misconstrued the Guidelines, which were not statutory obligations, and now wished to give greater weight to matters of fact (the aggravating features) than he had earlier attributed to them.
19.
Fifth, in general terms, the judge simply had a “
change of mind
” about the nature and length of the sentence and sought to reflect this change in a new sentence.
20.
Before this Court the Crown submits, in summary, as follows.
21.
First, the judge was permitted to use the slip rule to increase the sentence in circumstances where he was persuaded that he had made material error in the sentencing process of fact and law:
Warren
(ibid) at paragraph [22]. There was no requirement that a sentence had to be “
unduly lenient
” before the judge was empowered to adjust the sentence:
Warren
(ibid) at paragraph [22]. It was made clear there that a judge who considered that the sentence imposed might be corrected upon appeal upon an application by the Attorney General could seek to revisit the sentence.
However, such an assessment was not exhaustive of the circumstances where there is an error requiring correction under the slip rule.
22.
Second, the modern approach is reflected in the dictum of the Court of Appeal in
O’Connor
(ibid) at paragraph [34] where the Court stated:
“Where a judge concludes on reflection not merely that he wishes to be more punitive or lenient, but that the approach taken in a sentence was wrong in principle, indeed wrong as to an important aspect of sentence, such as the protection of the public, we see no difficulty in the judge seeking to correct such an error, as speedily as possible and with the offender present and represented. No sword of Damocles hung over Judge Devaux in this case, in the sense he was not under the pressure of any prospect of an Attorney General’s Reference of his sentence.”
The Crown argues that whilst the present case was not a case of an arguably unduly lenient sentence, it was a case where the judge properly recognised that he had erred as a matter of law, namely in his construction of the Guidelines, and that the error was material.
23.
We turn now to our conclusions.
F.
Analysis
24.
In our conclusion the judge did not err. We start with some general observations.
25.
First, we endorse the statement of earlier courts to the effect that in deciding whether to correct a previous error, the judge should apply a flexible test balancing the public with the private interest. The test is no longer the old affront to the appearance of justice test though, where such an affront exists, a Judge can still take this into account in deciding whether to use the slip rule. More broadly, there is a public interest in legal certainty and finality and a sentence should not be increased unless it would lead to a material change in the sentence. Otherwise, there will be a risk of a perception of needless tinkering for no discernible good reason. Equally, a defendant who has been sentenced might feel a sense of grievance if shortly thereafter he or she is brought back to court and handed a harsher sentence. On the other hand, there is a
strong public interest in the imposition of appropriate sentences since it is relevant and important to the confidence that the public repose in the courts that judges will act in a deliberate, conscientious and correct manner and if needs be repair significant errors.
26.
Second, the exercise of the power is not confined to those case where there is a risk of a reference by the Attorney General to increase an unduly lenient sentence. Nor is the exercise confined to cases where the judge makes an clear legal error such as the misapplication of a statute. In our judgment it also applies where there is a misapplication of relevant Guidelines, not least because under the CJA 2003 judges are required to apply those Guidelines. Case law makes clear that errors of fact can also serve to trigger the exercise of power.
27.
Third, we endorse the emphasis in case law upon materiality. In this context “
material
” takes into account both the nature and extent of the error of fact or law which has been made and the impact of that error upon the increase in the sentence. There is an obvious connection between the two since not every error of law or fact (even if it
seems
prima facie serious) will lead to a material increase in sentence. If the error would not lead to a material increase in sentence, then the power should not be exercised. What amounts to “
material”
will vary from case to case, but it can apply to any aspect of a sentence. The applicant places considerable weight upon
Goss
(ibid). That case does not assist. There the Court concluded that the initial sentence was the correct sentence i.e. there was no “
slip
” to correct. Another way of looking at the case would be to say that any error made was not material. Neither of those analyses applies to the present case.
28.
Fourth, case law indicates the sorts of (non-exhaustive) factors that a judge might consider. These include whether the desire to change the sentence is simply a change of heart about leniency. If it is then it might be inappropriate to use the slip rule. But if the error goes to an “
important
” component of the law or Guidelines relating to sentencing then this will militate in favour of using the slip rule. We would add that we are concerned in this case
only
with an increase in sentence. The power applies to a reduction in sentence also (see the citation from
Warren
at paragraphs [22] above). This is not the case to express any view on how materiality applies to the different position of a judge who decides that the sentence imposed was, wrongly, too severe.
29.
Fifth, in balancing the strong public interest in the imposition of correct and appropriate sentences against a justifiable sense of grievance on the part of a defendant who is brought back to court to be re-sentenced, a court can substantially address the interest of that defendant by the conferral of an appropriate level of discount to the new sentence that the judge considers should be imposed.
30.
We turn now to the present case.
31.
Here the Judge acknowledged that he had made a significant error in his interpretation of the Guidelines. The error made was, at base, one of law. The judge had initially held that the aggravating factors could do no more, in principle, than negate the mitigating factors with the consequence that aggravating considerations served only to bring a sentence to the starting point. Upon mature reflection the judge concluded that on a proper construction of the Guidelines aggravating factors did not merely neutralise mitigating factors but could be of such a nature as to outstrip the mitigation and lead to an increase in sentence from the starting point. The authorities cited by the judge in his email reflect this. The judge was correct. Under the Guidelines when mitigation and aggravation both exist and are weighed the scales of justice do not necessarily simply sit in equilibrium; they may tilt one way or the other and, where there is serious aggravation and but modest mitigation, might tilt significantly in the direction of an increase of sentence beyond the starting point to reflect the gravity of the wrongdoing.
32.
In his new sentencing remarks, the judge identified the substantial aggravating factors and explained why they more than outweighed the mitigating factors. The impact upon the sentence was plainly material. The judge took account of the interest of the Defendants by applying an appropriate discount to the sentence that he imposed.
33.
In these circumstances we conclude that the judge properly applied the flexible balancing test and acted properly in the approach that he adopted to the application of the slip rule. For these reasons we dismiss the applications. | [
"LORD JUSTICE GREEN",
"MR JUSTICE NICOL",
"HER HONOUR JUDGE WALDEN"
] | 2019_12_03-4778.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2177/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2177 | 749 |
03fbfc2ecabf1a62b0e28bf13f02b7887598c17c8ca91f98efe1e6dce51fcfe4 | [2018] EWCA Crim 1554 | EWCA_Crim_1554 | 2018-07-03 | crown_court | Neutral Citation Number: [2018] EWCA Crim 1554 Case No: B3 201702458 IN THE COURT OF APPEAL (CRIMINAL DIVISION) AN APPEAL UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968 ON APPEAL FROM DERBY CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/07/2018 Before: LORD JUSTICE LEGGATT and MRS JUSTICE MCGOWAN DBE - - - - - - - - - - - - - - - - - - - - - Between: NAJIB AND SONS LIMITED Appellant - and - CROWN PROSECUTION SERVICE Respondent - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2018] EWCA Crim 1554
Case No: B3 201702458
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
AN APPEAL UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968
ON APPEAL FROM DERBY CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
03/07/2018
Before:
LORD JUSTICE LEGGATT
and
MRS JUSTICE MCGOWAN DBE
- - - - - - - - - - - - - - - - - - - - -
Between:
NAJIB AND SONS LIMITED
Appellant
- and -
CROWN PROSECUTION SERVICE
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Stephen Hockman QC and Mr David Hercock
(instructed by
SAS Daniels LLP
) for the
Appellant
Mr Richard Wright QC and Mr Howard Shaw
(instructed by the
Crown Prosecution Service
) for the
Respondent
Hearing date: 9 March 2018
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lord Justice Leggatt:
1.
For the reasons given in a judgment handed down on 26 April 2018, the court allowed the appeal in this case and quashed the appellant’s conviction and sentence for an alleged offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 (SI 2010/801) of failing to give an inspector assistance required to take samples. That judgment is at [2018] EWCA 909 (Crim).
The essential ground on which the conviction was quashed was that under the Regulations an inspector had no power to require the appellant to provide samples and the appellant’s failure to do so therefore did not constitute an offence in law.
2.
The appellant has applied for an order that its costs of the proceedings (both in the Court of Appeal and below) be paid by the respondent. The application is made under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, made by the Lord Chancellor under powers conferred by
section 19
of the
Prosecution of Offences Act 1985
. This provides that:
“… where at any time during criminal proceedings –
…
(c) the Court of Appeal
is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party.”
3.
By agreement, the requirement for an oral hearing has been dispensed with in this case and the application is being determined on the basis of written submissions made by each party.
4.
In
R v Cornish
[2016] EWHC 779 (QB)
Coulson J reviewed the authorities on the meaning of “unnecessary or improper act or omission” in regulation 3, and derived from them (at para 16) the following principles:
“(a)
Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of
s.19
.
(b)
Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly.
(c)
The test is one of impropriety, not merely unreasonableness. The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it.
(d)
Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because no one has a monopoly of legal wisdom, and many legal points are properly arguable.
(e)
It is important that
s.19
applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions.
(f)
In consequence of the foregoing principles, the granting of a
s.19
application will be very rare and will be restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him.” [citations and quotation marks omitted]
5.
It is common ground that this is an accurate summary of the law.
6.
The present case is one in which the prosecution failed as a matter of law. Moreover, it failed because the offence with which the appellant was charged did not exist. In these circumstances the question whether costs have been incurred as a result of an unnecessary or improper act or omission by the prosecutor is one which naturally arises.
7.
The fact is, however, that when the appellant sought a preliminary ruling in the Crown Court that the facts alleged did not amount to an offence within the scope of the Regulations, the judge after hearing four days of legal argument gave a detailed written judgment in which he rejected the appellant’s arguments. Then, when after pleading guilty to the charge in the light of the judge’s ruling the appellant applied for permission to appeal, permission was initially refused by the single judge on consideration of the papers. In those circumstances we think it impossible to say that the prosecution was improperly brought or that the case was improperly advanced by the respondent in the Crown Court. In particular, we think it impossible to say in those circumstances that it was or should have been plain that the prosecution case was without legal merit.
8.
The position changed, in our opinion, after the oral hearing in the Court of Appeal on 9 March 2018 at which permission to appeal was granted without calling on the appellant. On that occasion the court made the following observations:
“…. it is not at the moment obvious to us what answer there is to the first ground of appeal and the third ground of appeal insofar as it is essentially linked with the first ground of appeal. It is not apparent where there is to be found in these Regulations, if there is to be found anywhere in the Regulations, a provision which either enables and requires inspectors to arrange a programme for sampling and monitoring of sheep for TSE or which requires companies to provide assistance in that regard. We cannot find in the ruling of the judge any provision of the Regulations that he identified which imposes such an obligation. So, unless there is one, we cannot at the moment see how there is any peg on which to hang the criminal charge, but that is a matter which we would expect to be addressed in the respondent’s skeleton [argument] in due course.”
9.
The effect of those observations should have been to put the respondent on notice that, unless it could identify a provision of the Regulations which provided a proper basis for the charge, then it would, if it resisted the appeal, be at risk of an order for costs.
10.
It is no criticism of the respondent’s counsel, who did their valiant best, to say that neither in their skeleton argument for the appeal nor in their oral submissions were they able to identify any such provision. We consider that in these circumstances the test under regulation 3 is satisfied and the appellant is in principle entitled to an award of costs in respect of the proceedings in the Court of Appeal after 9 March 2018.
11.
The appellant has produced a schedule of its costs of the appeal in a total amount of £52,046.44. However, this figure includes all the costs incurred after the judgment in the Crown Court was handed down on 17 January 2017. Although it is not possible from the schedule to ascertain the precise split, it is apparent that the majority of these costs were incurred in the period up to and including the permission hearing on 9 March 2018. Nor do we think it right to award all the costs incurred after that date. In particular, the fees charged by the appellant’s representatives are higher than those which we think it appropriate to order another party to pay; and a significant discount should also be made to reflect the fact that, in addition to the grounds on which the appeal succeeded, the appellant pursued two other grounds of appeal which failed.
12.
Taking these matters into account and adopting a broad view for the purpose of a summary assessment, the amount of costs that the respondent will be ordered to pay is £10,000. | [
"LORD JUSTICE LEGGATT",
"MRS JUSTICE MCGOWAN DBE"
] | 2018_07_03-4343.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1554/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1554 | 751 |
56aaf7eb75873c253e4df59523cc1e31d5302ffb360f2e2b95635edf211e62b1 | [2019] EWCA Crim 145 | EWCA_Crim_145 | 2019-01-31 | crown_court | NCN: [2019] EWCA Crim 145 No: 2018 03433 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 31 January 2019 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE ELISABETH LAING DBE HIS HONOUR JUDGE BURBIDGE QC (Sitting as a Judge of the CACD) R E G I N A v KAPIL DOGRA 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 | NCN:
[2019] EWCA Crim 145
No: 2018 03433 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 31 January 2019
B e f o r e
:
LORD JUSTICE SIMON
MRS JUSTICE ELISABETH LAING DBE
HIS HONOUR JUDGE BURBIDGE QC
(Sitting as a Judge of the CACD)
R E G I N A
v
KAPIL DOGRA
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.
Ms Laura Wilson
appeared on behalf of the
Appellant
Mr Simon Heptonstall
appeared on behalf of the
Crown
J U D G M E N T
JUDGE BURBIDGE
:
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.
2.
On 2nd October 2017, in the Crown Court at Reading, the appellant was convicted after trial by a jury of four offences, all committed on 12th April 2017. Count 1 was the oral rape of 'A', contrary to section 1 of the Sexual Offences Act 2003; count 2 was assault by penetration, whereby the appellant penetrated A's vagina with his fingers, contrary to section 2 of the same Act; count 3, a further assault by penetration, whereby he penetrated A's anus with his fingers; and count 4, causing A to engage in sexual activity with him without consent, namely causing her to masturbate his penis. That was contrary
to section 4 of the same Act.
3.
On 3rd November 2017 the trial judge imposed sentences as follows: on count 1, an extended sentence of fifteen years' imprisonment, comprising of a thirteen-year term of imprisonment, to be served with an extension of two years, pursuant to section 226A of the Criminal Justice Act 2003; counts 2 and 3, eight years' imprisonment, concurrent on each and concurrent to the sentence on count 1; and on count 4, four years' imprisonment concurrent. Having been convicted of an offence listed in Schedule 3 of the 2003 Act, the appellant was also required to comply with the provisions of Part 2, and therefore to notify his address indefinitely. Having been convicted of an offence specified in the Schedule to the Safeguarding Vulnerable Groups Act 2006, the appellant was told that he will or may be included in the relevant list by the Disclosure and Barring Service.
4.
The appellant renewed his application for an extension of time (256 days) in which to apply for leave to appeal against sentence after refusal by the Single Judge. Having heard oral submissions from Miss Wilson on 18th January 2019, we granted leave in respect of the extension of time to appeal against sentence. Given the nature of the case, we adjourned in order to allow the prosecution to be in a position to respond to the application to appeal against the sentences. We have had that response in writing by Mr Blake, the Senior Crown Advocate who appeared in the court below; and also Mr Heptonstall represents the respondents at court today.
5.
The facts are as follows. At 22.36 pm on 12th April 2017 police received a telephone call from an 'RW', who reported that he had been on the telephone to his girlfriend 'A' when she suddenly told him to call the police, before the line went dead. Police met RW in the centre of Datchet and they began to search for A. She was found on Majors Farm Road shortly after. She was distressed and told officers that a male had grabbed her, told
her he had a knife and forced her into some bushes, before sexually assaulting her.
6.
It appeared that A had arrived in Datchet by train at 10.15 pm that evening. Upon leaving the station she telephoned RW (her boyfriend), who was due to meet her halfway. As she walked along London Road, the appellant made an effort to speak to her, but she was wearing headphones - and there was disputed evidence as to whether he did. But he followed her, before taking a different path, which ran parallel to the one taken by A. As the two paths joined, the appellant walked closely behind her; and, without warning, he put his hand over her mouth, threatening her with violence if she tried to scream. She managed to shout for help down her mobile telephone, before the applicant snatched it
away.
7.
She was taken to a small wooded area. He threatened to rape her if she did not masturbate him, which she was made to do. While she was on her knees, the appellant then forced his penis into her mouth. He then forcibly digitally penetrated her vagina and anus. This caused A significant pain. The applicant then left A alone at the scene, where
she remained for a short time, before calling further for help.
8.
The appellant was seen on closed circuit television following A from the train station. He was first interviewed by police on 14th April 2017. His account was that he had gone to purchase cocaine and, whilst walking around, had bumped into A, who was previously unknown to him. He claimed they chatted for a little while, before sharing a line of cocaine. The appellant then said they had engaged in consensual sexual activity, before A told him that she had to meet her boyfriend. He denied threatening A or sexually
assaulting her. This lying account he developed at the trial.
9.
The sentencing judge had the advantage of a victim personal statement from A which had been video recorded. It was dated 14th August 2017. It is a model for assisting the court for it indicates, without, it would seem to us, the use of any over-exaggeration in its contents, the effect this dreadful experience had upon her and would have helped the court enormously, as it has helped us, in understanding the devastating nature of these offences upon her and her wider family. It has caused her sleep deprivation, eating problems, a feeling of paranoia and being unable to go out on her own; she has lost trust in people. Understandably there has been wider adverse effect on the family. She has a younger sister; her parents are anxious for them both when they go out. She herself is anxious about the wellbeing of her younger sister because of this experience. Her anxiety has increased and increases especially when she goes out. She was then and is now engaged in studies, but her concentration levels are affected. Her part-time work was
also affected.
10.
In the judge's sentencing remarks he detailed some of the facts to which we have referred.
In particular he said that, on the date in question, A (aged then only 18) was travelling to Datchet to meet her boyfriend. She was still at school, studying for her A levels and had a part-time job. She had been at work in that part-time job that evening. Usually her boyfriend would meet her at the train station, but had injured himself at the gym and so planned to meet her halfway. The judge said, regrettably, the appellant had also travelled to Datchet that day, intending to purchase cocaine. He went to a hotel, where he had a drink and took some lines of that cocaine in the hotel toilet. He then walked to the train station; and this is when he first saw A. It was then approximately 10.15 pm. The judge said he was in no doubt the appellant formed a plan to follow A, with the intention of sexually assaulting her in some way. He followed A through Datchet out into
a
semi-rural area approximately three-quarters of a mile from the train station. It was then that A was on the telephone to her boyfriend when the appellant put his hand over her mouth, dragged her to some nearby woodland and threatened to stab her if she did not do as he said.
11.
The judge indicated how A was sexually assaulted in the four different ways in which she was, namely that she was forced to masturbate the appellant, who then pushed her on to her knees and forced her to give him oral sex. He digitally penetrated her vagina and then her anus, causing her extreme pain. During the assault the appellant had taken away A's mobile telephone to ensure she could not call for help at that time; then he fled. The judge said A was terrified. She ran away, leaving a number of her possessions in the woodland. The sentencing judge said that he had seen body worn footage of her
moments later. It was clear, he said, that she was left in extreme shock.
12.
The appellant was identified from closed circuit television footage of the area. He was asked through family contacts to hand himself in, but he did not. He was eventually arrested at a tube station. During the police interview, as we have indicated, he asserted
that this was a consensual sexual experience in the woods.
13.
The judge referred to the fact that the appellant had a number of convictions, but none for sexual offences. The court, he said, proposed to treat all offences as one incident. So the sentence on count 1 for rape would be aggravated by counts 2, 3 and 4 - although they were each, especially counts 2 and 3, extremely serious in their own right. The judge said he would, and did, consider the guidelines. He had read the victim impact statement,
a
pre-sentence report and a reference on behalf of the appellant.
14.
There were a number of features to place the rape offence within Category 2, said the judge in his remarks: the threats of violence that went beyond the use of violence inherent in offences of rape; A was particularly vulnerable: she was alone, late at night, in a secluded area, she was dragged from a path to nearby woods; and in his view it was a sustained incident, lasting between 20 and 22 minutes. There were elements of the case, said the judge, that were extreme in nature. Therefore, he said, it fell between the
top of Category 2 and the bottom of Category 1.
15.
The judge then went on to conclude, in consideration of culpability, that there had been a significant degree of planning, given the period of time over which A was pursued. He referred to the closed circuit television, indicating that the appellant had followed A through Datchet, separated from her, looked through the woodland to see where she had gone, and overtook her, before doubling back to attack her from behind. That, said the
judge, placed the offence within culpability A.
16.
The judge agreed with the assessment of the pre-sentence report that the appellant was of a high likelihood of sexual reconviction and posed a high risk of serious harm to the public, particularly females. The judge concluded that he posed a significant risk of serious harm, occasioned by the commission of further serious specified offences. Thus he considered an extended sentence appropriate and that was the order that he eventually
made.
17.
Grounds of appeal in this case have been settled in writing by Miss Wilson and were supported by a short, focused and helpful skeleton argument. Her oral submissions today have also been extremely helpful and focused, and therefore of benefit to the court. She
did not appear in the court below. She asserts that the sentence imposed is manifestly excessive. In support of that she asserts that the learned judge had erred when
determining culpability in deciding that there was a significant degree of planning on the facts, and also, when assessing the factors relevant to harm, determined that one or more of them were extreme, and therefore consequently placed the offence into the wrong level within the sentencing guidelines. She submits that the offence falls within Category 2B and not 2A, which was where the sentencing judge had placed the offence. In those circumstances the starting point should have been eight years, not ten, before
consideration of any further elevation.
18.
It should be noted, it has not been claimed in any ground of appeal nor any oral submission to us by Miss Wilson that the appellant is other than a
'dangerous offender
', within the terms of section 226A of the Criminal Justice Act, namely that he is an offender who the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Nor is it suggested that a determinate sentence of length would be suitable to protect the public from that risk. We commend counsel's realism in this matter and thus as we have
said the focused submissions to this court.
19.
The judge said (at page 3D of his sentencing remarks in the transcript):
"In relation to culpability, the issue that I have been looking at is whether there was a significant degree of planning in this case; there clearly was a degree of planning. In my view, when one assesses the period of time over which you followed A from the station, following her up around the back of Datchet; separating from her, as we saw on the closed circuit television; looking through the woodland to see where she had gone; overtaking her just before that in order no doubt to have a proper look at her, and then taking the opportunity to double back so that you came up behind her again, as was clear on the closed circuit television, before then attacking her, in my view, that amounts to a significant degree of planning."
20.
Miss Wilson states these facts, as the judge found them to be, are suggestive of
some planning
(our emphasis) but, only a small degree of such and does not reach the "significant threshold" that would be required by the categorisation of culpability A.
21.
We have now had the advantage of seeing the full transcript of the exchange between counsel and the sentencing judge as to this issue and generally as to what category within which the judge should place this offending. Mr Blake (then for the prosecution) raised with the judge the fact that the author of the pre-sentence report had said there was no
evidence of preplanning. Mr Blake rightly said to the sentencing judge:
"Clearly the question of planning and how far the offending was preplanned, is a matter for the court having seen all the evidence, and to some extent it is perhaps a question of degree; clearly there is preplanning that can be many days before an offence, as opposed to planning just before an offence is committed."
22.
He went on to say that the court could find that A was targeted from arrival at Datchet Station, which was at 10.15 pm. There was then a walk, first past the green in Datchet, then down London Road, until the point at which she was dragged into the wooded area, where there was cover and a dark area for the offence to be committed. Thus, said the prosecution, he had calculated where to launch his attack upon A. This is a submission that Mr Heptonstall repeats to us today, indicating that the closed circuit television material in the case that the judge saw showed the appellant had followed A for around three-quarters of a mile, at one point overtaking the victim, then doubling back to get behind her, then walking on a parallel axis road on the other side of the hedge, and could be seen pausing, looking through a hedge until she drew close, which was about 30
minutes after first seeing her. He then accosted her, having selected a location suitable to attack her, dragging her into a small piece of woodland. The respondents submit that this
is
significant planning
.
23.
In addition, the respondent said at the time, and have repeated in their response, that A was
abducted
. It is said by the respondents that by being taken into the wooded area the offence was
sustained
, as the victim's ordeal lasted some twenty minutes, and that there
were threats of violence beyond that which were inherent in the offence.
24.
The respondents maintain that there was significant planning, with a sustained attack, and where the level of harm caused was such that the judge would be entitled to raise the level of harm to that of Category 1 in the guidelines, given the extreme nature of one
factor or a combination of factors in Category 2, as the judge had expressed.
25.
Counsel who acted for the appellant at the sentencing hearing and at trial made points to the sentencing judge similar to that advanced on behalf of the appellant today by Miss Wilson. She asserted that the offences fell within Category 2, and made the point that for the offences to fall within Category 1 there either had to be a combination of Category 2 factors which caused extreme impact or if one or more of the factors were
extreme in nature that could then elevate the matter into Category 1.
26.
It has been contended that there was no prolonged detention; that the psychological harm
and physical harm caused to A, though
"
significant", would not be described as "severe", and that the contention by the prosecution that this was a case involving 'abduction', whilst accepting that A was dragged from the path for a few metres into a wooded area,
would be an incorrect terminology within the guidelines.
27.
Miss Wilson does accept that A was a
vulnerable
victim, by reason of the circumstances; albeit she indicates that A has no personal traits, such as disability, that may have made her more vulnerable. Moreover, Miss Wilson's principal submission to us is that, although there was some planning, it was not the significant planning again contemplated by the guidelines. So the submission is made that the starting points were too high and
there were no extreme factors.
28.
We remind ourselves that the sentencing judge was the trial judge, and would have had the facts and A's evidence (which he would have seen and heard) well in mind at the date of sentence. Undoubtedly the offences committed by the appellant and the circumstances in which he committed them are of the utmost seriousness. However, a central question for this Court is whether the judge was justified in approaching the categorisation in the way that he did, particularly, on the facts of this case, notwithstanding the extreme seriousness of what the appellant did, whether that can or should be described as "significant planning", because that may inform the issue of whether the sentence is manifestly excessive.
29.
There was undoubtedly a pursuit, with the appellant contemplating his moves within that pursuit of his victim. It was a protracted pursuit, calculated and determined from when
he first saw her. In effect he 'stalked' her - that term not used in any legal sense, but to describe the nature of that pursuit - perhaps even 'hunted' her down. Prior to him seeing the victim at the railway station, there is no evidence of any prearrangement of or thoughts to pursue a sexual assault, but, rather, that his thoughts were apparently formed from that moment on.
30.
The stark reality is, having made a purchase of drugs and consumed them, he saw a young woman on her own, he walked some considerable distance for a considerable period of time, and there was no doubt a degree of foresight in what he determined to carry out, for he awaited until they were some distance from the railway station, in a reasonably remote or out-of-the-way spot, ensuring, as he had to, that no one was about. He had diverted his own route so he could better view the victim and be in a position to attack her from behind. He approached her from behind, pounced upon her and forcibly moved her - in reality dragging her into the area of woodland from where he would be less likely to be seen. He put his hand over her mouth to stifle her screams and threatened to stab her if she did not submit in accordance with his wishes. She was raped by him, by forcing her head on to his penis with a lot of force, and she suffered other
serious sexual assaults for his sexual gratification.
31.
As to whether this grave conduct amounts to "a significant degree of planning" within the terminology of the Sentencing Council Definitive Guidelines on Sexual Offences cannot be regarded as a mere matter of semantics because it is a term that categorises whether the culpability of the offence falls potentially within Category A or Category B, which in turn have starting points: if 1A to 2A, a five-year difference ; or if 2A to 2B, four years' difference.
32.
What then is
significant planning
in this context, given that the applicant, obviously in his pursuit by the actions captured on closed circuit television, made a calculation as to how and at what stage and when he could carry out his attack? The words themselves, of course, do not require further definition. Each case must be considered on its own facts. However, some assistance may be afforded by looking at the other matters of culpability that places an offence into Category A, that is to say creates that higher degree of culpability when consideration is given to this most serious of sexual offending. Those matters include: that an offender acts with others to commit the offence; that there is use of alcohol or drugs on the victim to facilitate the offence; that there has been previous violence against the victim; that the offence is committed in the course of burglary; or that the offence is motivated or demonstrates hostility for particular reasons. Whilst these are all self-contained issues that raise culpability, they are matters that provide a clear indication of what may amount to raised culpability and may give some indication of the threshold envisaged. In cases of sexual abuse there may, as a matter of inevitability, be some planning, such as the locking of a door on a victim or a short pursuit, but the determination of when a degree of planning reaches that higher level of culpability denoted by a
significant degree of planning
has to be a matter of judgment based on all
the facts of the case.
33.
As Miss Wilson for the appellant contends in this case, it is not suggested, for example, that the appellant had got on the same train as the victim at a distant station waiting until she got off to pursue her; nor that he had espied her and stalked her on some day or days before biding his time to attack; or had previously carried out recognisance trips; or deliberately and with aforethought taken and carried with him a weapon of offence or some form of restraint to be better able to carry out an attack on finding a victim; nor was there any evidence that he carried a disguise to use. Without determining any of these factors to be definitively descriptive of "a significant degree of planning", they
may be
indicative of such.
34.
We are also reminded by Miss Wilson that the sentencing judge at one stage in his
remarks (page 2B of the transcript) said:
"It was very unfortunate that [the applicant] and [the victim's] paths crossed when they did and it was not until that moment when he saw her that he formulated the intention to assault her sexually."
35.
Counsel submits that that comment is more illustrative of an opportunistic encounter
followed, than by some planning.
36.
We are not convinced the instant case is a clear case that can be categorised by the factor "a
significant
degree of planning" as determinative of culpability. That being so, the categorisation of the case is as to culpability B, for it is not contended any other factors of culpability applied in the case. Nonetheless the pursuit of this victim was significant in
a
different way: he pursued her for some time and determined to attack her.
37.
We next turn to the categorisation of harm. The judge started at Category 2, for he said that the victim was vulnerable because she was young, alone and it was dark (and, we would add, she was attacked in a relatively isolated area). Moreover he said that it was
a
sustained incident. Whilst the facts of this case might not easily fall within the terminology of a further factor relating to harm of the victim being abducted, undoubtedly the victim was deliberately and forcibly removed from a more public place to a wooded area so that she was isolated even more - in itself a most terrifying ordeal for the victim. Then she was subject to the threat that a knife would be used upon her if she was not compliant. No knife was produced; but she was not to know how she was then to be treated. The judge, as we have said, indicated in his sentencing remarks that he determined there were elements of the case that were extreme in nature. Thus in his view it fell somewhere between the top of Category 2 and the bottom of Category 1. The
guideline indicates:
"The extreme nature of one or more Category 2 factors or the extreme impact caused by a combination of Category 2 factors may elevate to Category 1."
38.
The judge, it would seem to us, was not placing this case firmly in Category 1. We find it unnecessary, therefore, to consider whether there were one or more elements that can be described as
extreme in nature
, for we agree with the judge's analysis due to the number of harm factors identified.
39.
In a Category 2B and 1B offence this means that the cross -over range is of the order of nine or ten years. This was the basis for a single offence of rape. A was not only raped, but she was subject to other degrading sexual acts over and above the rape. Whilst it was entirely appropriate to make those crimes - serious in themselves - concurrent to the principal offence of rape to encompass the overall offending, it did require a substantial increase to the sentence on the principal offence to determine the appropriate overall sentence, albeit not increasing the principal offence by the full effect of any term applicable to any other offence.
40.
In our judgment the increase of sentence, even accepting an original starting point from Category 2B with a movement to the highest point of that range - thirteen years and a two-year extension period - cannot be criticised as manifestly excessive for this terrifying attack. The increase beyond such a position of three to four years with an extension, bearing in mind the other significant criminal offences, could not be criticised. There were no mitigating factors of any degree of weight of which the appellant could avail himself. Whilst he had no previous convictions for sexual offences, he has a not insignificant antecedent criminal record. He had consumed cocaine a little time before he committed these offences; this itself is a further aggravating factor specified in the guidelines. The pre-sentence report indicated, because of his stance at trial and subsequently, he showed little remorse or empathy - although that fact would additionally inform the judge and indeed this Court that this appellant was indeed a
dangerous offender
, rather than increase the sentence from any appropriate starting point. In those circumstances, whilst the sentences imposed would be regarded as being at the very highest end of the range, we dismiss this appeal for we do not determine them to be manifestly excessive. | [
"LORD JUSTICE SIMON",
"MRS JUSTICE ELISABETH LAING DBE",
"HIS HONOUR JUDGE BURBIDGE QC"
] | 2019_01_31-4484.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/145/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/145 | 752 |
2e474774745f0270dd4d345a21dcdd8cc158accbe95fc8ddb0cb2dcd0d197934 | [2014] EWCA Crim 1197 | EWCA_Crim_1197 | 2014-06-18 | crown_court | Case No: 201304691 A4 Neutral Citation Number: [2014] EWCA Crim 1197 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Shrewsbury Crown Court HHJ Onions T20127081 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/06/2014 Before: LORD JUSTICE TREACY MR JUSTICE KENNETH PARKER and THE RECORDER OF CARDIFF (HER HONOUR JUDGE REES)(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - Shaun Kevin Docherty - - - - - | Case No:
201304691 A4
Neutral Citation Number:
[2014] EWCA Crim 1197
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Shrewsbury Crown Court
HHJ Onions
T20127081
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/06/2014
Before:
LORD JUSTICE TREACY
MR JUSTICE KENNETH PARKER
and
THE RECORDER OF CARDIFF (HER HONOUR JUDGE REES)(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- and -
Shaun Kevin Docherty
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Philip Rule
(instructed by
Registrar of Criminal Appeals
) for the
Appellant
Mr Simon Heptonstall
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date: 7th May 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Treacy:
1.
On 13 November 2012 in the Crown Court at Shrewsbury, before HHJ Onions, the appellant pleaded guilty to two charges of wounding with intent, contrary to
section 18
of
the Offences Against the Person Act 1861
. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection (“IPP”) with a specified minimum custodial term of 5 years and 4 months. One of the charges under
s.18
of
the 1861 Act
was an alternative to a charge of attempted murder, which was count 1 on the indictment. He now appeals against sentence by leave of the Single Judge.
2.
The facts were as follows. The two victims, Jonathan Cook and Anthony Lord, had lived together with the appellant in a hostel for homeless people. On 12 July 2012 they had been out drinking together. The appellant became aggressive and challenged Lord to a fight. Lord declined and avoided confrontation. The appellant’s mood improved and he later invited the two men home. They agreed. On the way alcohol was bought, and all three had a lot to drink. They visited the room of a fellow lodger, and the appellant again became aggressive. He challenged Lord to a fight and was asked to leave. The three men then went to the appellant’s room, where he continued his aggressive behaviour.
3.
He then slapped Cook across the face, and Lord and Cook then went to leave. The appellant followed Lord down the stairs, and when they got outside, the appellant went away briefly, and returned with a vegetable paring knife. Cook was present, speaking with Lord, when he felt a sharp pain to the back of his neck. He fell to the ground. There were further blows to his chest. As he tried to crawl away he received another three or four sharp stabs to his back. These were very painful and Cook feared for his life.
4.
Lord tried to protect Cook, whereupon the appellant lunged at him; stabbing him in the face and head, and cutting Lord’s arms as he tried to protect himself. Eventually Lord managed to grab the appellant’s arms, but the appellant head butted him more than once. Eventually the appellant ran off. When the attack was over, the knife was still lodged in Cook’s chest.
5.
The appellant went to a nearby public house and told those present he had stabbed somebody eight times in the stomach and back for “shagging his girlfriend”. The police arrived and arrested the appellant. Cook had been stabbed at least half a dozen times, both to his chest and his back. His kidneys were damaged and he was detained in hospital for four nights. Lord had a deep penetrating wound to the scalp which required nine stitches and a number of lesser injuries to his head, arms and hands. Both victims were significantly affected by the attacks on an ongoing basis.
6.
The appellant is now 35 years of age and had 16 previous convictions for 28 offences between 1994 and 2012, including burglary and theft, criminal damage, affray, public order offences and road traffic matters. Of most significance for present purposes was a conviction in 1997 for causing grievous bodily harm with intent, contrary to
section 18
and an offence contrary to section 20 of the same Act.
7.
There was a pre-sentence report before the court in which it was reported that the appellant was continuing to assert that he had merely been defending himself in this incident. As was clear from the antecedents, there was a manifest pattern of alcohol fuelled offences over a period of 11 years. The police domestic violence unit also had reports of three call outs to three separate incidents involving the appellant, all relating to further drink-fuelled aggression on the appellant’s part. It was reported that the appellant recognised his drinking was a problem, but his motivation for change was not straightforward and that he still struggled to understand the views of others about his behaviour.
8.
Importantly for present purposes, the probation service concluded that the appellant posed a high risk of serious harm to the public, to his associates, his family and any partners, with the perceived risks ranging from attacks with his bare hands to the use of a knife as on the occasion of the instant offences. There was, it was stated, a very high risk of violent re-offending. The report did not equivocate: it found that the appellant fitted the criteria for dangerousness and concluded that the most appropriate sentence was IPP.
9.
There was also before the court a psychiatric report of 26 October 2012, addressed it seems primarily to questions of fitness to plead. The report referred inevitably to the long history of alcohol dependence, but concluded that the appellant did not suffer from any mental illness. It was thought by the doctor that there might be some anti-social personality characteristics, but no firm diagnosis of personality disorder had been made. While the appellant suffered from a very significant problem with alcohol it could not be inferred that he could not form the requisite intent, contemplated by the charges, namely an intent to kill or to cause really serious harm to others.
10.
There were also before the judge a letter from the appellant’s sister in his support and a letter from the appellant himself expressing remorse. We have read and have considered both those letters.
11.
In passing sentence, the judge noted the appellant’s record, identifying the offences in 1997 (leading to a 5 years sentence of imprisonment) as being the most relevant. The record subsequently had been less serious, but there had continued to be a continuing thread of drink related offences. Later offences, referred to by the judge, in 2012, although less serious than these offences, illustrated that the drink problem was indeed still serious. The judge described the instant offences. The attack on Cook had been a determined one with a deadly weapon, inflicting at least 6 separate stab wounds to the back and chest. The victim had feared his life was in danger, as indeed it might have been but for the intervention of the second victim, Lord, who had acted (said the judge) with bravery and determination and had in turn received serious injuries.
12.
In considering whether the appellant was a dangerous offender within the meaning of the
CJA 2003
, the judge said that the best predictors of violence and future risk of violence were the past convictions. The risk factor was present and he presented a significant risk of violence to others unless the appellant began to address the issues contributing to his violence. The judge referred to the conclusions in the PSR, which we have already summarised. Importantly, the judge said that the appellant needed fully to accept the extent of his alcohol dependence over a number of years and there was no time limit by which to assess as to when work on that would be completed. The risks, in the judge’s opinion, could be reduced by intervention from alcohol treatment services, lifestyle changes and by his addressing the attitudes, values and beliefs underpinning past violence and aggression.
13.
The judge said that counsel had argued for a lengthy determinate sentence, but the judge rejected that and stated expressly that he found that the appellant represented a significant risk of serious harm to others by the commission of further specified offences of violence and that he was accordingly dangerous within the meaning of the
CJA 2003
. The judge then concluded that the appellant should be sentenced to IPP on each count. The judge then went on to consider the appropriate minimum custodial term, in respect of which no ground of appeal is raised.
14.
There are two grounds of appeal. First, it is argued that the judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection (“EPP”) under
the 2003 Act
, instead of IPP would have enabled proper protection of the public. Secondly, it is argued that “the abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights (“ECHR”) and the international norm and principle of “lex mitior”.
15.
For the Crown it is submitted that the judge was obliged to sentence on the basis of the law in force at the date of sentence and that, as the appellant could have been sentenced to imprisonment for life, even if convicted after 3 December 2012, the principle of lex mitior does not arise.
16.
We need to say a little about the state of the law at the relevant time as it related to sentences upon dangerous offenders. This appellant was sentenced to a term of IPP on 20 December 2012. IPP was abolished by the
Legal Aid Sentencing and Punishment of Offenders Act 2012
(“LASPO”), with effect from 3 December 2012, in respect of convictions after that date. The appellant was convicted on 13 November 2012 when he entered his plea. By reason of Article 6 of the relevant commencement order, (S.I. 2012 No 2906), a sentence of IPP was still open to the judge in this case since the conviction was recorded prior to the relevant date (3/12/12). See also
Saunders
[2014] 1 Cr App R (S) 45
at paragraphs 2 and 3.
17.
From 3 December 2012, in respect of offenders convicted after that date, LASPO introduced a modified form of “extended sentence” for dangerous offenders. Such extended sentences (in various guises) have existed for a number of years. The new form of sentence has some different attributes from its predecessors, including sterner licence provisions, but, in its essentials, it provides for a sentence of imprisonment, consisting of a custodial term and an extended period of licence after release.
18.
Thus, at the time of this sentence, both IPP and an extended sentence of the old type, under the old statutory regime, were available sentencing options. The new style extended sentence was not available. In addition, of course, there remained open the option of a discretionary life sentence as a maximum under the terms of
the 1861 Act
.
19.
The first ground of appeal is that the learned judge should have considered and imposed an old style extended sentence instead of passing the indeterminate sentence that he did.
20.
We were referred to the judgment of Lord Judge CJ in
C & ors
[2009] 1 WLR 2158
at paragraph 14 where an IPP is referred to as the “most draconian sentence” apart from life, and the court states that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. Mr Rule’s argument is that the sentence is disproportionate, given the other sentencing options open, (e.g. old style extended sentence and ASBO and drink banning order), and that lesser restrictions than an IPP would enable proper protection of the public.
21.
It is true that the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures. However, in our judgment, the reason for that is entirely clear. As we have said, the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated. The judge mentioned that factor expressly at p. 5 D – E of the sentencing remarks. The option of a discretionary life sentence had been considered, but was rejected given the availability of an IPP. The judge commented that under the LASPO regime the life sentence criteria might change, but that if life was not appropriate under that regime, a new-style extended sentence of some length would have been required. Finally, the judge referred in the course of his remarks to his Parole Board experience and to the need for the Parole Board to assess the risk posed by this appellant in the future. We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.
22.
In our judgment, there was no fault in the judge adopting the course that he did to meet the concerns about the danger posed by the appellant which stretched beyond any ascertainable time frame. The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. As this court has mentioned, as recently as 4 March this year, in
AG’s Reference No.27 of 2013 (Burinskas) & other appeals
[2014] EWCA 334 in a judgment of the Lord Chief Justice, the new sentencing regime under LASPO may mean that life sentences may have to be imposed where sentences of IPP had been passed under the old law: see paragraphs 19 and 23. In this sense, the judge’s prediction was borne out.
23.
Subject to the next grounds of appeal, we take the view that the sentence of IPP was neither excessive nor wrongly imposed in this case.
24.
Although the grounds of appeal as summarised at paragraph 14 above were set out in the form of two grounds, it is convenient to divide the original second ground into two distinct grounds. We will therefore first of all deal with submissions based on Articles 5 and 14 of the ECHR.
25.
Mr Rule’s submission is that the appellant as a dangerous offender was in the circumstances being subjected to differential and discriminatory treatment not related to the risk which he poses to the public, but by reference to the date of his conviction. He submits that the matter falls within the general ambit of Article 5 so that if there has been discrimination towards the appellant on a ground encompassed by Article 14, that Article is breached in the absence of objective justification.
26.
He submits that there is no objective justification for the treatment received by this appellant since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012, and thus prior to his date of sentencing on 20
December 2012.
27.
It is common ground between the parties that the matter in issue falls within the general scope of Article 5, so that the requirement for Article 14 to derive from another Convention right is satisfied.
28.
Turning to Article 14 itself; it is agreed that the only ground within Article 14 which could apply to this case would be “other status”. The appellant argues that he falls within this ground by virtue of his status as a prisoner made subject to an IPP.
29.
It seems to us that there is an obstacle in the appellant’s path which is fatal to this ground. In
R (Clift) v Secretary of State for the Home Department
[2007] 1 AC 484
Lord Bingham, with whom the other members of the House agreed, held at paragraph 28 that classification as a prisoner was insufficient to amount to “other status” for the purposes of Article 14. That decision is binding on us, notwithstanding the judgment of the European Court of Human Rights in
Clift v UK
[Application 7205/07], and Mr Rule’s attempt to differentiate a prisoner subject to an IPP from a prisoner, as
Clift
was, serving a determinate sentence of 15 years or more.
30.
Although the later Strasbourg ruling came to the opposite conclusion to that reached in the House of Lords, it is clear from
Kay & Others v Lambeth LBC
[2006] 2 AC 465
that domestic courts are bound by the House of Lords precedent, subject to a limited partial exception, which does not apply here. See also
R (Purdy) v DPP
[2009] 1 Cr App R 32
at paragraphs 51 to 54.
31.
It also seems to us to be doubtful that in the circumstances of this case there has been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of
Clift
(H of L).
32.
Parliament has chosen a variety of methods to implement the legislation relating to dangerous offenders. The original provisions in the
Criminal Justice Act 2003
applied to offences committed on or after 4 April 2005. The amendments effected by the
Criminal Justice and Immigration Act 2008
took effect by reference to sentencing on or after a specified date. The further provisions under LASPO are governed by the date of conviction.
33.
Each of those different methods of implementation of the legislative provisions is a legitimate way of providing certainty as to when the relevant version of the provisions is applicable. Whichever method is adopted there will inevitably be differences in treatment. Such distinctions are inherent in legislative change. On the appellant’s own case, if he had been sentenced before 3 December 2012, (as he might well have been), he could have had no ground for complaint. But the actual date of sentence itself is a somewhat fortuitous factor.
34.
Given Parliament’s legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.
35.
The same conclusion applies to the appellant’s further submission asserting a violation of Article 14 within the context of Article 7.
36.
We therefore turn to the Article 7 ground.
37.
In this it is submitted that there was a failure to comply with Article 7 of the ECHR and the international principle of “lex mitior”. It is submitted that if the appellant had contested the charges the case might not have been concluded until after 3 December 2012 when the sentence of IPP was no longer available. It was therefore purely arbitrary and unfair that he was amenable to the sentence of IPP. Moreover, had he been sentenced on the same day alongside a person convicted after 3 December 2012 who was in otherwise identical circumstances, the two men would be sentenced differently: the latter would not be subject to an indeterminate sentence since the new-style extended sentence results in release by expiry of time.
38.
Article 7(1) of the Convention reads as follows:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.”
39.
Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of “lex mitior”. In this respect, Article 7 is in contrast to a number of international instruments. See for example Article 15 of the International Convention on Civil and Political Rights (ICCPR) adopted by the General Assembly of the United Nations on 16 December 1996 (and entering into force on 23 March 1976):
“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
”(our italics)
40.
However, it is submitted that the modern law of the Convention applies more widely than the express wording of Article 7. The basis for this contention is the decision of the Strasbourg court in
Scoppola v Italy (No.2)
[2010] 51 EHRR 12.
41.
In that case, the applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.
42.
The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated.
43.
In relation to the Article 7 challenge, the European Court decided to depart from its earlier decision in
X v Germany
[Application No 7900/77] that the Article did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence.
44.
At paragraphs 106 to 109 of its judgment the Grand Chamber said:
“106. The Court therefore concludes that since the
X v Germany
decision a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law. It is also significant that the legislation of the respondent State had recognised that principle since 1930 (see Article 2 and 3 of the Criminal Code, cited in paragraph 32 above).
107. Admittedly, Article 7 of the Convention does not expressly mention an obligation for Contracting States to grant an accused the benefit of a change in the law subsequent to the commission of the offence. It was precisely on that basis of that argument relating to the wording of the Convention that the Commission rejected the applicant’s complaint in the case of
X v Germany
. However, taking into account the developments mentioned above, the Court cannot regard that argument as decisive. Moreover, it observes that in prohibiting the imposition of “a heavier penalty… than the one that was applicable at the time the criminal offence was committed”, paragraph 1
in fine
of Article 7 does not exclude granting the accused the benefit of a more lenient sentence, prescribed by legislation subsequent to the offence.
108. In the Court’s opinion, it is consistent with the principle of the rule of law, of which Article 7 forms an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considers appropriate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. The Court notes that the obligation to apply, from among several criminal laws, the one whose provisions are the most favourable to the accused is a clarification of the rules on the succession of criminal laws, which is in accord with another essential element of Article 7, namely the foreseeability of penalties.
109. In the light of the foregoing considerations, the Court takes the view that it is necessary to depart from the case-law established by the Commission in the case of
X v Germany
and affirm that Article 7(1) of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant.”
45.
Mr Rule thus sought to claim the benefit of this ruling for the appellant and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed.
46.
It seems to us that there are a number of possible arguments against applying this decision in the present case:
a)
The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under
the 2008 Act
which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if
Scoppola
were applied, but there is an anomalous feel to it.
b)
There is a tension between the phrases “it would amount to disregarding any legislative change favourable to the accused which
might have come in before the conviction”
(paragraph 108), and “differences between the criminal law in force at the time of the commission of the offence and subsequent criminal
laws enacted before a final judgment is rendered
” (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in
Scoppola
: it is central in this case. The applicant’s conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.
c)
The reference in paragraph 108 to “foreseeability of penalties” as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant’s crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.
d)
The decision in
Scoppola
was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.
e)
In
Scoppola
, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.
47.
We also note that there is some uncertainty as to how the principle of lex mitior is intended to apply to subsequent changes in substantive law and also to appeals against sentence (or even conviction). Some of the language of the Grand Chamber in
Scoppola
supports a wider application of the principle, and the wording of Article 15 of ICCPR, to which the court attached importance, might suggest that even a court on appeal should apply a more lenient sentence enacted subsequently to the commission of the offence.
48.
As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (
Section 16(1)
(d) and (e) of the
Interpretation Act 1978
), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial:
Bentley
[2001] 1 Cr App R 21
, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example,
Hawkins
[1997] 1 Cr App R 234
.
49.
This court’s obligation pursuant to
Section 2(1)
of the
Human Rights Act 1998
is “to take into account” the judgment of the European Court of Human Rights. In the absence of special circumstances, the domestic court should follow any “clear and constant jurisprudence” of that court – see
R (Alconbury Developments Ltd) v Secretary of State for the Environment
[2003] 2 AC 295
at paragraph 26. The phrase “clear and consistent” has been used elsewhere.
50.
There has recently been a full review of the authorities by Maurice Kay LJ in
R (Hicks) v Commissioner of Police of the Metropolis
[2014] EWCA Civ 3
at paragraphs 69 to 80. It is convenient to cite the court’s conclusions at paragraph 80 which we gratefully adopt:
“80. What conclusions can be drawn from this domestic case law on how English courts should deal with Strasbourg decisions on the interpretation of the ambit of a provision of the Convention itself, as opposed to an ECtHR decision on how a provision in the Convention is to apply to particular factual circumstances? We think that the following principles are clear:
(1)
It is the duty of the national courts to enforce domestically enacted Convention rights.
(2)
The ECtHR is the court that, ultimately, must interpret the meaning of the Convention.
(3)
The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the ECtHR when its interpretation was being applied to English circumstances.
(4)
The same principle and qualification applies to a “clear and constant” line of decisions of the ECtHR other than one of the Grand Chamber.
(5)
Convention rights have to be given effect in the light of the domestic law which implements in detail the “high level” rights set out in the ECtHR.
(6)
Where there are “mixed messages” in the existing Strasbourg case law, a “real judicial choice” will have to be made about the scope and application of the relevant provision of the Convention.”
51.
Noting that
Scoppola
is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that
Scoppola
does not represent a “clear and constant” line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the
Scoppola
interpretation, subject to its application to the particular facts of the case. We do not consider that the matters set out in paragraphs 46 to 48 displace this conclusion.
52.
We have considered
R v Saunders
(supra), where at paragraphs 2 and 3 the court clearly stated that for offenders convicted before 3 December 2012, but sentenced after that date, the sentencing regime in force at the date of conviction applies. The court was concerned with the approach to non-mandatory life sentences arising from the changes to the sentencing of dangerous offenders brought about by LASPO. It does not appear that the Article 7 “lex mitior” argument was advanced for consideration, or indeed that it would have been germane to the cases under consideration.
53.
The next step is to consider whether there truly is a “lex mitior” to be applied in this case.
54.
It is important to recognise that the maximum sentence of life imprisonment for
Section 18
offences was unaffected by LASPO. In
R (Uttley) v SSHD
[2005] 1 Cr App R 15
, the House of Lords held that in the context of Article 7(1) the penalty that was “applicable” was the penalty that the legislature had prescribed for a criminal offence at the time it was committed. Thus IPP and the old style extended sentence were lesser penalties available within the range of available sentences.
55.
Attorney General’s Reference No 27 of 2013 (Burinskas)
makes clear that the dangerousness provisions post-LASPO are not to be interpreted as if the sentence of IPP continues to exist. The result is that as a result of the changes introduced by LASPO, life sentences will now be imposed more frequently than before. The IPP sentence approximated closely to a life sentence which was previously reserved for cases of the utmost gravity or culpability requiring a denunciatory element. Its abolition would, but for the wider use of life sentences, leave a gap in the court’s powers in relation to dangerous offenders since the new style extended sentence does not permit indefinite detention but mandates release at the end of the custodial term. Paragraph 23 of
Burinskas
clearly identifies this wider use of life sentences as the intention of Parliament, and thus implicitly recognises the gap that would otherwise have been left in the effective protection of the public. Contrary to the submissions of Mr Rule, Section 225(2)(b) dealing with the criteria for a life sentence has to be read in the new context as
Burinskas
makes clear at paragraph 22 where the relevant considerations are set out. See also
Saunders
at paragraph 18.
56.
It will not necessarily follow that every case which would previously have attracted an IPP sentence will require a life sentence. Public protection may be adequately reflected in a new style extended sentence. So, the issue before this court should not simply be determined by reference to the fact that a life sentence remains the maximum sentence available. We consider that a more nuanced approach is necessary.
57.
It seems to us that the correct test would be whether there was a real possibility of the imposition of a life sentence applying the considerations set out at paragraph 22 of
Burinskas
. If the answer to that question is in the affirmative, then the “lex mitior” principle does not apply.
58.
Turning to the facts of this case; it is clear that these were offences of considerable gravity involving the use of a knife. The attack on Cook was particularly sustained and serious, with long term consequences for him. The offender’s record for violence, including a previous
Section 18
conviction, aggravates the position. Given his propensity to offend when in drink, and that he will for an unforeseeable period continue to represent a very high risk of violent offending resulting in serious or life threatening harm, it seems to us that a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility.
59.
The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that “the position may well change with the changes in the law”. As we have already noted, that prediction was correct, but the comment also illustrates that, had the LASPO sentencing framework applied, the judge would have undoubtedly given serious consideration to a life sentence in this case. We think he would have been right to do so.
60.
For these reasons, we do not consider that, even if the principle of “lex mitior” were to be recognised in our courts, it could apply in this case.
61.
Accordingly, the appeal against sentence is dismissed. | [
"LORD JUSTICE TREACY",
"MR JUSTICE KENNETH PARKER"
] | 2014_06_18-3431.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1197/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1197 | 753 |
bdf954b005a2083f9b5c1837bbdf15bb636b6426a0c753ec17dd507c0ca9b26e | [2013] EWCA Crim 2357 | EWCA_Crim_2357 | 2013-12-13 | crown_court | Case Nos: 2011/04304/C4,2012/01815/C4, 2011/06502/C4, 2011/06490/C4, 2011/06411/C4, 2011/04305/C4, 2011/04306/C4 Neutral Citation Number: [2013] EWCA Crim 2357 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL QUEEN ELIZABETH II LAW COURTS LIVERPOOL Date: 13/12/2013 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE COX and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Mehmet Sirin Baybasin Appellants | Case Nos: 2011/04304/C4,2012/01815/C4, 2011/06502/C4, 2011/06490/C4,
2011/06411/C4, 2011/04305/C4, 2011/04306/C4
Neutral Citation Number:
[2013] EWCA Crim 2357
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
QUEEN ELIZABETH II LAW COURTS
LIVERPOOL
Date:
13/12/2013
Before :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE COX
and
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
Mehmet Sirin Baybasin
Appellants
Andrew Molloy
Martin Anthony McMullen
and
Neil William Bogle and others
Applicants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
N Wrack
for the appellants
Baybasin
and
Molloy
;
Colin Wells
for the appellant
McMullen
K Sutton and M Reid
for
the Crown
The applicants
Bogle
and
Oyuncu
were represented by
B Carville, Fairbrother
by
P Lewis
and
Smith
by
F Fitzgibbon QC
Hearing dates : 13 and 14 November 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales :
1.
The applications for leave to appeal before us relate principally to large scale conspiracies to import cocaine and other class A drugs. The applications were heard by this court sitting in Liverpool.
2.
The Crown’s case against all those involved was that they were involved in the importation and supply of cocaine and other class A drugs. However for convenience their involvement had been divided up into six separate indictments. In April and May 2011, prior to the trial of Baybasin, McMullen and Molloy, the applicants Azis, Smith, Oyuncu and Geraghty pleaded guilty to counts on the indictments. On 15 May 2011 the applicant Fairbrother pleaded guilty.
3.
The trial of Baybasin, McMullen and Molloy at the Crown Court of Liverpool before His Honour Judge David Aubrey QC and a jury began on 18 May 2011. On 8 July 2011 each was convicted of conspiracy to import cocaine; Baybasin was also convicted of concealing criminal property
4.
We will consider first the applications for leave to appeal against conviction.
THE APPEAL AGAINST CONVICTION
Introduction
5.
The applications of Baybasin, McMullen and Molloy for leave to appeal against conviction were based on two principal grounds:
i)
The general practice in the Crown Court at Liverpool of balloting jurors by number in cases of over two weeks in length was said to be unlawful. There was no basis for the judge to have balloted by number, as the prosecution had specifically abandoned their application for that to be done. The judge had also failed to give proper directions to the jury in relation to arrangements relating to their transportation to the court and to their separation from other jurors during the course of the trial.
ii)
On the basis of fresh evidence obtained through an inquiry by the Criminal Cases Review Commission, it was contended that a member or members of the jury had found on the internet and in a book material relating to the members of the Baybasin family who had been engaged in drug dealing. The judge had specifically excluded evidence relating to the activities of Baybasin’s family.
6.
The two grounds gave rise to more general issues relating to the adoption of local practices and inquiries into alleged misconduct by jurors. We grant leave on the first ground only.
The factual background
7.
In the light of the very limited nature of the appeal against conviction, it is only necessary to set out the facts in very brief outline:
i)
The prosecution alleged that there was a well planned conspiracy between (1) a group of criminals in London headed by Baybasin, (2) a group of criminals based in Liverpool headed by Taylor and (3) other drug dealers based overseas.
ii)
On 16 July 2008 Baybasin travelled to Liverpool with the applicant Azis and another. They went to Taylor’s house. A bag was taken by Taylor from the van belonging to the applicant Fairbrother (part of the Liverpool group of drug dealers). Baybasin travelled back to London alone. Aziz and another travelled back in a separate car. That car was stopped; £126,000 was found in it. Part of that sum was in a bag that matched the description of the bag taken by Taylor from Fairbrother’s van. It was Baybasin’s case that he had nothing to do with the money; he had not handled it and his fingerprints were not found upon it. He had travelled to Liverpool to try and secure an Irish passport. These matters formed the basis of the count of concealing criminal property said to be the proceeds of drug trafficking (count 3 of indictment 1).
iii)
The prosecution alleged that between September 2008 and April 2009 there was a sophisticated and large scale conspiracy to import cocaine from Central America to the UK. It was alleged that Baybasin and members of his group had several meetings with Taylor in relation to this importation. It was alleged that Baybasin also had travelled extensively and had meetings with Ricardo Ocampo, a Columbian, and Javier Oponte, a Venezuelan. It was the prosecution’s case that Baybasin provided the link to Ocampo who was, in turn, the link to drugs supplies in Central America. It was Baybasin’s case that he was on legitimate business and had no involvement with the conspiracy. These matters formed the basis of count 4 of indictment 1.
iv)
The prosecution case against McMullen was that he was a member of the Liverpool team providing expertise in transportation. It was alleged he travelled to Central America. It was McMullen’s case that he was not involved in the conspiracy and had not been to South America. He had other businesses interests that did not involve drugs. His links with Taylor were explicable.
v)
The case against Molloy was that he was a person who delivered the drugs; Molloy’s case was that when he had delivered articles he was not delivering drugs.
8.
The evidence adduced by the prosecution comprised surveillance evidence and evidence of recorded conversations obtained from probes installed in buildings.
9.
It is not necessary to set out any more of the evidence; we can turn immediately to the first issue.
ISSUE 1: BALLOTING BY NUMBER AND OTHER JURY PRACTICES
(a)
The general practice as to ballot by number: R v Comerford
10.
The usual procedure for empanelling a jury is to ballot from those assembled by calling out the names of the jurors in open court in the presence of the defendant. As each person’s name is called, that person steps into the jury box and is sworn. In this way everyone in court knows the names of the jurors who are to try the defendant.
11.
In
R v Comerford
[1998] 1 Cr App R 235, this court (Lord Bingham CJ, Potts and Butterfield JJ) considered an appeal from a trial in the Crown Court at Middlesex Guildhall where jury nobbling was anticipated. The assembled jurors were each allocated a number before being brought into court. Instead of their names being called out in the ballot, their number was called for the ballot. No juror was identified in court by name. This court held that this procedure was lawful as it had no material and adverse effect on the fairness of the trial for reasons we set out at paragraphs 26-29 below. At the conclusion of the judgment Lord Bingham giving the judgment of the court made clear:
“It is highly desirable that in normal circumstances the usual procedure for empanelling a jury should be followed. But if, to thwart the nefarious designs of those suspected of seeking to nobble a jury, it is reasonably thought to be desirable to withhold juror's names, we can see no objection to that course provided the defendant's right of challenge is preserved.”
(b)
Prosecution application for balloting by number and its withdrawal
12.
On 17 May 2011, immediately before the trial was due to begin, the judge raised with counsel the empanelling of the jury. The prosecution then invited the judge to proceed to ballot by number. The judge asked the prosecution if they would indicate why it was that the prosecution suggested that it was in the interests of justice that the jury be balloted by number; he said that the defence would then be entitled to make representations.
13.
The prosecution then put before the court information which they contended justified that process. Mr Wrack who was then representing only Baybasin asked for a good deal more information. Counsel for the prosecution observed that the request for further details was a fair one but the judge then observed:
“there are many, many cases up and down the country where, in fact, jurors are balloted by number especially in long cases, especially where there are a number in the jury panel. We have moved beyond
Comerford
to the Criminal Procedure Rules…”
14.
When Mr Wrack observed that it was fundamental that balloting should be by name unless there were exceptional reasons, the judge said that he disagreed and added:
“Let us live in the twenty first century. In fact, I am aware that in this building it may be that a similar application is being made in another long trial that is about to commence. So may be as far as this buildings is concerned if I were to grant this application, it would actually be the norm as opposed to an exceptional circumstance. As I say each case is fact specific, but it depends upon what is said to a jury”
15.
The judge said he could not rule on the matter until further information was available. On the following day, 18 May 2011, the prosecution decided that they would not pursue the application for balloting by number.
(c)
The judge’s decision to ballot by number
16.
Mr Wrack then made a submission to the effect that, given the stance taken by the prosecution, there was no need for any jury protection of any sort in the case. The judge made clear that he was not prepared to say in open court what arrangements would be made. Submissions were made by Mr Wrack in support of his position relying on
Comerford
.
17.
On the following day, 20 May 2011, the judge gave his ruling.
“The issue has been raised whether a jury should be balloted by name, which is the customary manner, or balloted by number. Notwithstanding the Crown’s withdrawal of any application for the jury to be balloted by the latter method and having reflected upon all the matters and having taken into account the submissions previously made by counsel and all the defence counsel - and this court is not going to receive any further submissions - it is, in fact, standard practice in this building for juries in long cases to be balloted by number. This court is clearly of the view that no prejudice whatsoever is occasioned by such a jury provided, of course, that the panel is told that it is the normal practice in this building for cases of some length.
“…In my judgment there is no reason whatsoever to depart from that standard practice. Furthermore, in my judgment in this specific case it is proportionate, necessary and in the interests of justice. I have been referred to the case of
Comerford
on many occasions…I also remind myself that that authority and judgment is of some antiquity and predates by many a year the Criminal Procedure Rules and the overriding objective ”
The judge concluded that the overriding objective in dealing with a criminal case justly included not only dealing with the case efficiently and expeditiously, but by respecting the interests of jurors.
18.
The court then proceeded that day to empanel the jury by balloting it by number. The judge explained the process to the assembled jurors in waiting saying in the following terms that it was standard practice in the court, as he had indicated:
The position is this, that we now have a panel of 23... We are in fact going to do it by numbers but I think you have all been given a number, is that right? It is the normal way of doing this in long cases, it is the standard practice in this building in longish cases, it makes it much easier for the administration and that is the reason and the only reason we do it this way
(d)
The judge’s initial directions to the jury on other arrangements
19.
In his general directions to the jury at the outset of the trial the judge told them that they would start at 10 o’clock and have a break for coffee. They were going to be provided with coffee and tea making facilities in their room. He told them that was normal practice in long cases to make things as comfortable as the court possibly could.
20.
Later that day, though not in open court and unknown to counsel for these appellants (who did not normally practise in Liverpool), the jurors were told by the jury manager that additional arrangements would be made which was standard practice for trial with an estimate of over two weeks. Those arrangements were that the jury would be met at an agreed pick-up point by a member of the court staff and taken to the court by specially provided transportation; at the end of the day they would be taken from the court to that same location. They were also told that, when they were not in court, they would be accommodated in their jury room and would not return to the jury assembly area.
(e)
The general practice at Liverpool
21.
The Crown Court at Liverpool was directed by this court’s order of 22 November 2012 to provide a statement of the practice at Liverpool as to balloting by name and whether the practice was applied to other cases. In accordance with that direction, the Deputy Court Manager of the Crown Court Liverpool provided the following information:
“The practice at Liverpool which was instigated by the judiciary is for any trial that is over two weeks length the jury will be balloted by number. Having said that it is still at the discretion of the trial judge and they will give the appropriate direction to the jury.”
22.
That statement, provided by the court manager was a succinct statement of the practice. Inquiry by this court during the hearing at Liverpool of the appeal and applications showed that the practice had originated in a
Guidance Note: Trial Management in Long/Secure Cases
issued on 15 January 2004 by the then Recorder of Liverpool and approved by the Presiding Judge of the Northern Circuit. The
Guidance
set out in a clear and careful manner the practice to be followed at Liverpool under a series of headings. We refer only to those parts relevant to the selection of a jury by ballot and other arrangements for the jury
“
Pre-trial case management
5. In high security trials the parties to be told at a PDH/PTR that special arrangements would be made for the jury including the fact the ballot will be by numbers and not names. The parties should not be told the nature of the arrangements except in relation to the procedure for jury selection…
The
Guidance
set out in some detail how in such cases the jury was to be selected. It next contained a section entitled: “
Special jury arrangements during the trial
”. Amongst the arrangements were
“1. At the outset of the trial, the judge should tell the jury that special arrangements have been put in place. They can be told that when the building was designed no great thought was given to the practicalities and in a long case there is the greater risk that jurors and witnesses /defendants/legal representatives may accidentally come into contact with each other and this can cause embarrassment. The jury can also be told the arrangements will help to ensure the smooth running of the trial and hopefully will be of help/assistance to the jurors themselves.”
The
Guidance
then set out details about collection points in the city and the provision of tea and coffee making facilities in the jury room.
23.
It appears that the practice as summarised by the court manager and that applied by the judge in the present case had been modified in the period after 2004 so that in all cases of more than two weeks in length, subject to the discretion of the judge, jurors were balloted by number and special arrangements about transportation and refreshment were made for them. Each jury to which this practice was applied were told that these arrangements were standard practice.
24.
It is therefore clear that in the present case the procedure followed by the judge was in accordance with the general practice adopted at the Crown Court at Liverpool for all cases over two weeks in length, irrespective of whether there was any evidence of risk of jury nobbling.
(f)
The position in the Crown Court at locations other than Liverpool
25.
At our request, the Registrar of this Court conducted an enquiry to ascertain whether the practice adopted at Liverpool extended to locations of the Crown Court in other cities:
i)
At the majority of other locations of the Crown Court, there had never been a case where a jury had been balloted by number.
ii)
At locations of the Crown Court where there had been balloting by number, such balloting had only taken place on a minuscule number of occasions and then only in exceptional circumstances where there had been an application by the prosecution.
iii)
Three locations, apart from Liverpool, have written guidance – Kingston, Woolwich and Southwark. At Kingston, the detailed protocol makes clear that the decision to ballot by number is one for the judge to make on application by the prosecution as part of the jury protection procedure. The standard form direction to the jury makes clear that they must not hold the arrangements against the defendants.
(g)
The effect on the fairness of the trial of the appellants
26.
Although therefore it is clear that the practice adopted in the Crown Court at Liverpool is one that is unique to that location of the Crown Court, we cannot see how in the circumstances of this case it had any effect on the fairness of the trial.
27.
In
Comerford
this court determined the fairness of the trial was not affected by the procedure of balloting by number as long as the right of the defendant to challenge was not impaired. It is difficult to see how these rights could be impaired given the right to inspect the panel from which the names of jurors might be drawn under
s.5(2) of the Juries Act 1974
. There is no suggestion in the present case that the right of challenge was in any way impaired.
28.
Nor could it have had any effect on the perception of the jury in the light of the explanation given by the judge to the jury as set out at paragraph 18 above.
29.
In any event we would agree with the comment made in the Criminal Law Review in its report on
Comerford
at [1998] Crim LR 285
:
With the procedure adopted by the judge in this case, it is unlikely that the jurors themselves would have known that the procedure was unorthodox, so there is no reason to suspect that they adopted a different attitude to the accused because of it.
30.
Nor in our view did the arrangements for lunch and coffee have any effect on the fairness of the trial. Although the jury were not directed that they should not hold these arrangements against the defendants, the jurors would have attached no significance to the court making such arrangements for refreshments; it is fanciful to suggest that these could have that effect.
31.
This is quite distinct from the situation where the jury have to be given special protection as was the other part of the arrangements made in
Comerford.
In such a case as Lord Bingham said at page 242:
It is axiomatic that no matter what the exigencies of any case, no procedural application should be granted which might in any way jeopardise the fairness of the outcome of the trial. That consideration is paramount. If a defendant cannot be fairly tried he must not be tried at all.
Our practice has, however, sanctioned measures for the protection of juries in appropriate cases. The practice is to warn the jury in very clear terms that they must not in any way hold it against the defendant that such measures have been taken. Such a warning was given in this case, and no complaint is made that it was in any way inadequate. As in any other case the jury must decide the case on the evidence they hear in court and nothing else. We have no reason to doubt that the jury paid proper attention to the warning given.
32.
The practice of picking jurors up at a point in the City is, in our judgment, not a measure that is akin to special protection of which the jury might become aware and so lead jurors to be tempted to “view with disfavour an accused person whose friends or associates are thought likely to act in a criminal way”. It is, however, an unusual step and could give rise to some suspicion as to why it was being done. In the present case, as this was the practice at Liverpool in cases of over two weeks duration, the jury were rightly told that this was the usual practice. There was no risk that the jury would therefore hold this against these applicants.
33.
We have therefore reached the conclusion that the fairness of the trial was not affected and the safety of the conviction not in any way impaired by the practice adopted at Liverpool.
(h)
Observations on local practices
34.
It was submitted on behalf of the appellants that the Crown Court was a single court and local practices should not be permitted. There is very considerable force in this submission. The practice at Liverpool of balloting by number was adopted before the creation of the Criminal Procedure Rules Committee and the gradual systemisation of procedure and practice through the Criminal Procedure Rules and Practice Directions by the Lord Chief Justice.
35.
Such local practices, including the practice at Liverpool, can therefore no longer be justified. The Crown Court is a single court; its procedure and practice must be the same in all its locations, unless there is an objectively justifiable basis for such a practice based on local conditions. If a court considers that such a practice is required because of local conditions, then in these rare circumstances, details of the practice and the justification must be submitted to the office of the Lord Chief Justice before it is implemented. The Lord Chief Justice may, if appropriate, refer it to the Criminal Procedure Rule Committee.
36.
No such justification for the local practice of balloting at Liverpool was advanced by the prosecution before us. However, the practice has some advantages; it may be the case that balloting by number is a practice which should be allowed in defined circumstances in the Crown Court. We will therefore ask the Criminal Procedure Rule Committee to consider the issue.
37.
Although these observations are directed at local practices which are needed because of objectively justifiable local conditions, there are practices that are initiated in some courts with a view to improving the just and fair despatch of the business of the Crown Court. Such initiatives are to be greatly welcomed and encouraged. However, to ensure such initiatives are looked at in the wider context that there is a single Crown Court, courts should inform the office of the Lord Chief Justice of such initiatives before embarking on them. The initiative can then be referred to the Criminal Procedure Rules for consideration and monitoring. If the practice is beneficial, that benefit can be extended to the whole of the jurisdiction of England and Wales. If not, such a practice must cease.
ISSUE 2:
THE ALLEGATIONS OF JURY ACCESS TO THE INTERNET
(a)
The judge’s direction to the jury at the outset of the trial
38.
Immediately after the jury had been empanelled, the judge gave the jury the standard directions, including a direction that they must not research matters on the internet. He said that included looking up anything to do with the trial, including the lawyers. His remarks were clear and suitably forceful.
(b)
The allegation immediately after the conclusion of the trial
39.
On 8 July 2011 the jury returned verdicts of guilty in respect of these three appellants. Some of the members of the jury then went to a public house in Dale Street.
40.
After that a juror, who was referred to in open court as juror A, went to another public house, Taff’s Tavern, where he was a regular drinker. There he met and spoke to someone he had know many years, Darryn Robinson. Darryn Robinson was a close friend of Martin McMullen, the son of the appellant McMullen. During that meeting, juror A told Darryn Robinson that he had been one of two jurors who had been in favour of a not guilty verdict but had ultimately voted guilty. He said one of the jurors, referred to in open court as juror B, had googled the defendants. After making an enquiry of others in the public house Darryn Robinson told Martin McMullen, the son of the applicant McMullen, what had been said. On 11 July 2011 Martin McMullen contacted the solicitor for the appellant McMullen stating that witnesses could provide evidence that a member of the jury, juror A, had disclosed that internet research had been carried out. The solicitors took statements from those at the public house, including Darryn Robinson and sought to obtain a statement from juror A. He declined to give one.
41.
Based on that material an application was made to this court for leave to appeal against conviction.
(c)
The directions given at directions hearings
42.
On 20 December 2011 this court (Pitchford LJ, Wilkie and Sharpe JJ) decided that a reference should be made under
s.23A of the Criminal Appeal Act 1968
to the Criminal Cases Review Commission for the conduct of an investigation.
43.
The investigation was then conducted in the usual thorough and clear way by the Criminal Cases Review Commission who were assisted by the Merseyside Police in conducting interviews. The Court is extremely grateful to the Commission for their detailed and most helpful report.
44.
On 22 November 2012 this court, (Hughes LJ, the then Vice-President, Ramsey and Irwin JJ) gave directions for the hearing of the appeal, including directions for further interviews and for the attendance of some of the jurors at the hearing of the application for leave to appeal.
(d)
The conduct of the appeal
45.
In the result it was directed that four jurors, juror A, juror B, juror C and juror D attend. We heard evidence from each at the hearing at Liverpool. With the agreement of counsel they gave evidence anonymously screened from public view. As the allegations, if proved, might expose the jurors to penal sanctions, we warned each that he or she need not answer questions that might tend to incriminate them. Save in the case of juror A, the prosecution led the evidence of each juror. In the case of juror A, his evidence was led by Mr Wrack.
46.
Darryn Robinson also attended the hearing in anticipation that he might be called to give evidence. In the course of the hearing we concluded with the agreement of counsel that it was not necessary for the court to consider his evidence as it was accepted that juror A had spoken to him in the terms we have outlined. It was not suggested by the prosecution that juror A had in any way been suborned or otherwise prompted to say what he had said by either Darryn Robinson or by anyone else on behalf of the appellants.
(e)
The allegations
47.
In the course of the investigations by the Criminal Cases Review Commission of the allegations of a serious irregularity by the jury in researching on the internet, four specific allegations emerged:
i)
Juror C had read during the currency of the trial a book entitled
Cocky
about an infamous Liverpool drug dealer, Curtis Warren, which referred to the Baybasin family. He had told the other jurors of this.
ii)
Juror B had researched matters on the internet relating to the trial. There was on the internet material about the Baybasin family and Baybasin’s brothers which detailed their extensive involvement in drug dealing.
iii)
Jurors B and C talked about the value of Baybasin’s house.
iv)
Juror D had been attracted to one of the barristers and looked him up on the internet. This allegation evaporated during the evidence before us; juror D made it clear in no uncertain terms that she had not been attracted to any counsel. In any event it would have been impossible to see how looking up counsel on the internet could have had any effect whatsoever on the safety of the conviction.
(f)
The allegation of reading of books on drug dealing
48.
Juror D gave evidence that she recalled juror C reading the book about Curtis Warren during the trial. Juror B also gave evidence that juror C was reading a fictional book about international drug dealing during the trial, but he did not recall what it was.
49.
We found Juror C to be a most impressive witness. We had no hesitation after hearing his evidence on the first day of the appeal in accepting his evidence that he did not read any book about drug dealing during the trial. He had said that he had bought
Cocky
the book about Curtis Warren and another book to do with drug dealers after the trial, as he was interested in learning more about international drug dealing. He was, however, plainly incensed at the attack on his integrity. After he had given his evidence, he examined his account with Amazon; it showed that he had bought the book
Cocky
and another book about drug dealing two weeks after the conclusion of the trial. He informed the court of this by a note. This was not accepted as evidence. He was therefore recalled. He produced a print out of the account. Even then he was challenged on the basis he might have read another book on drug dealing. He was plainly extremely upset at this further imputation on his integrity; we unhesitatingly reject this imputation. We are sure that he was a witness of unimpeachable honesty and had carried out his civic duties with complete integrity. As it is clear the book on Curtis Warren was purchased by juror C after the conclusion of the trial, juror D’s recollection when she was asked about this a year after the trial must have been mistaken; even if juror B’s recollection was correct (and we do not think it was) and juror C had been reading a fictional book on drug dealing, it would not have mattered. It would be absurd to suggest, for example, that a juror trying a murder could not read novels involving a murder.
50.
The first allegation of jury irregularity therefore fails on the facts.
(g)
The allegations of research on the internet
51.
This second allegations rested substantially on the evidence of witness A. He was interviewed by the police on behalf of the Criminal Cases Review Commission on 23 August 2012. He made clear in his evidence to us that his recollection was best set out in that interview. In it he said that although he was not really interested, he knew that two jurors had googled Baybasin and one had googled a barrister, as he had overheard conversations. He identified one of the persons who had conducted the google search on Baybasin as juror B; juror B had said he had googled Baybasin and had said Baybasin had a past. He also identified the juror who had looked the barrister up on the internet as juror D; he said she had “fancied” him. He had not reported anyone for doing this during the trial as he did not want to get them into trouble.
52.
In his evidence to us he repeated the allegation that juror B had said on one occasion that he had googled Baybasin, but as juror B had not told anyone what he had found, he, juror A, had not told the judge. He said later in his evidence that juror B must have said Baybasin had a past. He added that he was shocked at the conduct of juror B; he had been brazen and he was disgusted with him. The other jurors had laughed and said that he must not do that. He accepted that juror B might have said something which he did not hear properly. He also repeated the allegation about juror D googling the barrister she “fancied”
53.
In addition we were provided with a statement from juror E whose evidence was to the effect that jurors B and C had both suggested looking on the internet, but neither had said they had researched anything on the internet. All the other jurors who were interviewed by the Criminal Cases Review Commission made it clear that no jurors had researched matters on the internet.
54.
In his evidence to us Juror B denied emphatically that he had conducted any research on the internet during the trial. He said he did so only after the end of the trial when the jury were told they could do so. He had then googled “Baybasin” on his mobile phone when he went to the pub with other jurors, but could not recall what if anything came up; he thought there was nothing specific.
55.
Juror C told us that he only looked at the internet in relation to the case after the trial had finished when he was told that the jury could do so. He did not do so during the currency of the trial. He told us that no juror looked anything up on the internet. One of the other jurors in his or her statement to the Criminal Cases Review Commission also looked on the internet about the case after the conclusion of the trial when the jury was told that they could do so.
56.
We have considered all of the evidence very carefully. We accept the further part of juror C’s evidence as entirely truthful. We are satisfied that Juror B also gave truthful evidence. Neither these jurors nor any other juror looked up matters relating to the trial during the trial. Juror A was on his own account a man who kept himself to himself. He told us he was an alcoholic who was on anti-depressants. We are quite sure that juror A was an entirely unreliable witness; we have no hesitation in rejecting his evidence. We have no doubt that when he found out that one of those who drank regularly at Taff’s Tavern was a friend of McMullen’s son, he invented the account that he had wanted an acquittal to minimise his own role in the conviction. It is also likely that he also made up the allegations of googling to provide some help to McMullen.
57.
This allegation fails
(h)
The allegations in respect of the value of Baybasin’s house
58.
The location of Baybasin’s house in London was given in evidence at the trial. Juror D said that she vaguely recalled jurors B and C speaking about the value of Baybasin’s house; she did not say that they had conducted any research on the internet. We have concluded that her recollection was unreliable in relation to the book about Curtis Warren. We accept the evidence of jurors B and C that they never discussed the value of Baybasin’s house. The allegation fails.
(i)
Conclusion
59.
All the allegations of jury impropriety and irregularity fail.
60.
We would add that great care has to be exercised before this kind of appeal proceeds. In
Lewis
[2013] EWCA Crim 776
this court observed at paragraph 25 that the inference that complaints after verdicts simply represent a protest by a juror at verdicts with which he or she disagrees are likely to be overwhelming.
61.
It was evident to us that each of the jurors who had undertaken public service in an 8 week trial found it deeply distressing to be recalled to court over 2 years later, to be accused of wrongdoing and to have their integrity questioned. The allegation which led to this appeal was a complaint by a juror who probably was motivated by the desire to disassociate himself from the verdict for personal reasons which we have explained.
62.
Although that was not known at the time the investigation by the Criminal Cases Review Commission was initiated, the fact that complaint of irregularity was first made after the verdict should henceforth be a very firm indication against the initiation of any inquiry into the way the jury acted, absent other compelling evidence. Juries are now told in very clear terms to report irregularities during the trial. The evidence from this and other cases demonstrates that juries take their responsibilities with great seriousness and care as one would expect of citizens called to perform such a high civic duty. The evidence is that they do report irregularities if they occur.
63.
We therefore have little doubt that if one of the jurors during the trial falls below the standards expected of a juror, the other jurors will report that to the judge during the trial and before the verdict. That is the presumption upon which this court should act, if the complaint is first made after the taking of the verdict. Inquiries should therefore not be ordered in such cases and the finality of the verdict accepted, absent other strong and compelling evidence. To do otherwise is neither fair nor just. Jurors doing their public duty should not in such circumstances be put through an examination of their conduct some considerable time after the performance of their civic duties.
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE
64.
The appellants Baybasin, (born 01.01.63 and now 50) and McMullen (born 18.07.50 and now 63) renew their applications for leave to appeal against sentence. Similar application are made by the applicants Huseyin Azis (born 25.10.67 and now 46), James Fairbrother (born 19.12.57 and now 55), Neil Smith (born 14.02.61 and now 53), Neil Bogle (born 04.08.77 and now 36), Neil Smith (born 14.02.61 and now 52), Tosun Oyuncu (born 25.05.59 and now 54), and Anthony Geraghty (born 23.07.70 and now 43). We can deal with these applications comparatively briefly.
The decision of the single judge
65.
In each case leave to appeal was refused by the single judge, Globe J. who made the following general observations relevant to all the applicants:
“1. The lengthy observations by the trial judge in setting out his sentencing reasons are indicative of the grasp of detail that the judge had about the case as a whole which had arisen partly from having dealt with the case over many months and also partly from having spent 8 weeks trying Baybasin and McMullen on count 4 of indictment 1 and Molloy on count 9 of indictment 1. He was ideally placed to assess the evidence and the criminality and roles played by those involved in the conspiracy in count 4 as well as other associated counts and to make the factual findings that he made. None of the grounds of appeal relied upon by those seeking permission to appeal against sentence which invite consideration of any different factual finding provide an arguable basis for an appeal.
2. In relation to count 4 specifically (Baybasin, McMullen and Fairbrother only):
a. The judge was entitled to conclude:
i.) That there was a stockpile of 40 tonnes of cocaine available to be shipped from abroad,
ii.) That the money was available for it, and
iii.) That all Defendants were thereby to be sentenced for their part in international drug trafficking on a vast scale which was highly organised and had been planned and in the course of existence for a considerable time.
b. It is apparent from the judge’s reasons that he had full regard to the principle that in circumstances where no drugs have actually been imported a lower sentence may be imposed to take account of that fact.
c. Nonetheless, the judge formed the view on the facts and authorities that the extent of the conspiracy was such that for those at the top of the conspiracy a sentence in the region of 30 years was an appropriate sentence.
d. In view of the factual findings that were made, it cannot reasonably be argued that the judge’s approach was wrong in principle or led to manifestly excessive sentences by reason only of the fact that he took a sentence in the region of 30 years as that starting point.”
66.
We agree with those observations. We emphasise that the judge was in the best position to assess the individual roles and level of criminality of the defendants.
The scale of the conspiracy to import cocaine
67.
The conspiracy to import cocaine to which we have referred at paragraph iii) above was the most serious of the offences which were before the court. It was highly organised drug trafficking on a vast scale, which had been planned and was in execution for a considerable time. We strongly endorse the judge’s sentencing remarks as to the greed of the appellants and applicants, who showed complete disregard for the consequences to others of their evil trade of drug dealing, and for the impact of their activities on the fabric of society.
68.
Two points arise in relation to the conspiracy which were the subject of submissions on behalf of several of the applicants.
i)
The judge as we have indicated was entitled to be satisfied as to the correctness of the prosecution’s allegation that there was an available stockpile of about 40 tonnes of cocaine, which was to be brought into this country piecemeal. That allegation was soundly based on a recorded conversation between Taylor and Fairbrother in April 2009, and had been a feature of the evidence which the judge heard during the trial.
ii)
A number of the applicants emphasised that no drugs were in fact imported, and submitted that the judge gave insufficient weight to that fact. They submitted that this crime should be treated either as a conspiracy which failed because it lacked sophisticated planning and organisation, or as a conspiracy which was voluntarily abandoned. We do not accept either of those arguments. It is true that a planned importation was frustrated because no suitable shipping arrangements could be made, but the judge was entitled to find as he did that the conspirators had been frustrated by circumstances beyond their control. He was entitled to conclude that “drugs were available and waiting to be shipped, payment was not an issue and the ultimate problem – but not for the want of trying – was over transportation”.
69.
We accept, as did the judge below, that the failure to achieve any actual importation is a factor which the court should bear in mind in sentencing: see e.g. the cases cited to the judge of
Hardy & O’Sullivan
[2004] EWCA Crim 2906
,
Clough
[2010] 1 Cr App R (S) 53
and
Shaw
[2011] EWCA Crim 98
. As against that the court must also have regard to the harm which would have been caused if the intentions of the conspirators had been fulfilled.
70.
None of the applicants who pleaded guilty has advanced any ground of appeal to the effect that he received insufficient credit for his plea. It is therefore unnecessary for us to recite the details of the differing stages of proceedings at which specific pleas were entered.
Baybasin
71.
Baybasin was, as we have set out, convicted of two offences charged in indictment 1: concealing criminal property – see paragraph ii) above; and conspiracy between 1
st
July 2008 and 30
th
April 2009 to import cocaine (Count 4) – see paragraph iii). He was sentenced to concurrent terms of four and a half years, and thirty years’ imprisonment.
72.
On behalf of Baybasin submissions were made as to a number of reported cases in which a starting point for sentence of less than 30 years was either adopted at trial or found to have been appropriate when a higher sentence was considered on appeal. Reference was made, amongst other cases, to
Soares
[2003] EWCA Crim 2488
,
Brookhouse
[2004] EWCA Crim 3471
, and
Gonal
[2011] EWCA Crim 587
. The submission was made, putting it broadly, that those cases involved equal or greater criminality.
73.
In our judgment, however, there is nothing in any of those cases which leads to the conclusion that the sentence on Baybasin was manifestly excessive in all the circumstances of his case. We take into account that Baybasin was treated by the judge as being a man of previous good character, and we take into account the point made on his behalf that after the abandonment of the planned importation, Baybasin did not involve himself in any other criminal activity in the months before his arrest. Those points, however, could carry only limited weight having regard to the scale of this drugs conspiracy, and the importance of Baybasin’s part in it.
74.
We reject in particular the argument based on a suggested disparity between Baybasin’s sentence and that of Taylor (whose overall sentence for a number of serious offences was based on a starting-point of 33 years). Although the judge below spoke of Taylor having been the head of the Liverpool end of the drugs operation, and Baybasin the head of the London end, it is not correct to say that he thereby equated them in all respects. The evidence showed plainly that Baybasin had engaged in extensive travel to South America in connection with the drugs conspiracy, and the judge was entitled to conclude as he did that Baybasin was near the top of the supply chain and distribution organisation, and was not only controlling and directing operations in London but also had international connections.
75.
In Baybasin’s case, accordingly, we can find no arguable ground of appeal against his sentence.
McMullen
76.
McMullen, a man of previous good character, was convicted on Count 4 of indictment 1 of the main conspiracy to import cocaine. He was sentenced to 23 years’ imprisonment. He seeks an extension of time in which to renew his application for leave to appeal against that sentence.
77.
We take into account his recent diagnosis of a significant medical problem, and the other matters which he has drawn to our attention. We can however find no merit in his submissions that his sentence was too high either in itself, or by comparison with any of his co-defendants. There is no basis on which there could be a successful challenge to the assessment that McMullen, whose drug trafficking activities included travel to Venezuela, was at the heart of the conspiracy and playing a middle-ranking but very significant role.
78.
We reject as entirely groundless the suggestion made in written submissions on his behalf that the judge might have shown some unfair hostility to this applicant because of matters occurring in a trial many years ago at which the judge had been counsel representing one of McMullen’s then co-accused.
Azis
79.
Azis, whose only previous convictions were for comparatively minor offences, pleaded guilty to three serious and separate offences. On Count 3 of indictment 1, he pleaded guilty to concealing criminal property in the circumstances which we have set out at paragraph ii), for which he received a sentence of 2 years’ imprisonment, concurrent with his other sentences. On Count 2 of indictment 2 he was sentenced to 6 years’ imprisonment for his admitted role in a conspiracy to supply heroin of which he was in possession of a sample. On Count 15 of indictment 2 Azis pleaded guilty to his part in a conspiracy (also involving Taylor and Oyuncu) to supply false passports for use in assisting persons to enter the UK unlawfully. He had been engaged in that serious criminal activity for about 4 months and had been paid for doing so. He was sentenced to 3 years’ imprisonment, consecutive to his sentence on Count 2. Thus his total sentence was 9 years’ imprisonment.
80.
His grounds of appeal are that the sentence of 6 years for conspiracy to supply heroin was manifestly excessive having regard to his role and his personal mitigation, and that the total sentence of 9 years was in any event manifestly excessive. We cannot accept those submissions. We bear in mind that the judge assessed Azis’ role as that of a foot soldier and an employee of the criminal organisation. Azis nonetheless played an important part, and his personal mitigation could carry only limited weight in the context of this serious offending.
81.
We also reject the argument that his total sentence, or any part of it, was excessive by comparison with the sentences on other defendants; as Globe J pointed out in his reasons for refusing leave, there were too many differences between Azis’ offending, and that of others, for there to be any arguable basis for contending that his sentence should be reduced on grounds of disparity.
Fairbrother
82.
Fairbrother pleaded guilty to the main offence of conspiracy to import cocaine (Count 4 of indictment 1) for which he was sentenced to 15 years’ imprisonment. He also pleaded guilty to offences of transferring criminal property (Count 1 of indictment 1), conspiracy to supply heroin (Count 2 of indictment 2) and conspiracy to import heroin (Count 3 of indictment 2). For those offences he received concurrent sentences of 30 months, 6 years and 12 years respectively. Thus his total sentence was 15 years’ imprisonment.
83.
The judge was in our view entitled to find as he did that Fairbrother was a trusted subordinate providing advice and assistance to Taylor and also passing on information to McMullen. He was also entitled to find that the overall level of criminality which the evidence established meant that Fairbrother’s involvement in drugs was considerable. These offences were greatly aggravated by two previous convictions: in 1993 Fairbrother had received a sentence of 3 years’ imprisonment for supplying controlled drugs, and in 2009 he was sentenced to 8 years’ imprisonment for possession with intent to supply of a class A controlled drug.
84.
By the time he was sentenced for these offences, Fairbrother had served about two and a half years of that 8-year sentence. In our judgment the judge had proper regard to that fact when he reduced the total sentence of 20 years which he would otherwise have passed to a total of 15 years’ imprisonment. We cannot accept the submission made by Mr Lewis that the judge took too high a starting point. Nor can we accept the arguments based on totality and disparity. In our judgment, there is no ground on which it could properly be argued that that total sentence was either wrong in principle or manifestly excessive.
Bogle
85.
Bogle, who had previous convictions for comparatively minor offences, had pleaded guilty to four separate counts of conspiring to supply Class A controlled drugs. The basis of those pleas was that he had been a local distributor of those drugs, as follows:
i)
On count 8 on indictment 1 in April 2009 in relation to dealing in kilo amounts of heroin,
ii)
On count 9 on indictment 1 in May 2009 in relation to dealing in 1.22 kilos of cocaine,
iii)
On count 3 on indictment 3 in November 2009 in relation to dealing in 1 kilo of cocaine, and
iv)
On count 9 on indictment 2 in December 2009 in relation to dealing in 1 kilo of heroin.
86.
Bogle was sentenced to concurrent terms of 6 years on the first, third and fourth of those offences, with a consecutive term of 6 years 8 months for the second offence. Thus his total sentence was one of 12 years 8 months’ imprisonment.
87.
Each of those offences was serious in itself and was aggravated by the commission of the others. We cannot accept the written submission made on his behalf to the effect that his offending should have been treated as if it were as single offence of dealing in 5-6 kilos of a Class A drug. Once again, we take the view that there are so many differences between the offending of individual defendants that there can be no successful ground of appeal based on any suggested disparity. We are not persuaded by Mr Carville’s oral submissions to the effect that all the sentences should have been ordered to run concurrently. On the contrary it would in principle have been open to the judge to impose consecutive sentences in each case, and he plainly had regard to totality when he decided to make only one of the sentences consecutive to the other concurrent terms. In our judgment there is no arguable basis for contending that the total sentence of 12 years 8 months’ imprisonment was wrong in principle or manifestly excessive in all the circumstances of Bogle’s case.
Smith
88.
Smith, who had previous convictions for offences of dishonesty, pleaded guilty to four offences on indictment 2; Count 9, conspiracy to supply heroin, for which he was sentenced to 6 years; Count 16, conspiracy to import amphetamine, for which he received a concurrent term of 4 years; Count 17, conspiracy to supply heroin, for which he received a concurrent term of 12 years; and Count 18, offering to supply amphetamine, for which he received a consecutive sentence of 4 years. Thus his total sentence was one of 16 years’ imprisonment. He seeks an extension of time in which to renew his application for leave to appeal against his sentence.
89.
The first of the amphetamine offences related to the importation between June and December 2009 of about 79 kilos of amphetamine, at a high level of purity, from the Netherlands through England into Northern Ireland. The other amphetamine offence, committed in December 2009, related to an offer to facilitate the supply of up to a further 500 kilos. As to the heroin offences, Count 9 related to 1 kilo of heroin which was seized by the police. On count 17 the judge found, and was entitled to find, that Smith had played a significant and important role in brokering the supply of 30 kilos of heroin, at a high level of purity, which was immediately available to him, and the prospective supply of a further 90 kilos which would become available to him at a later date.
90.
Plainly those offences were individually and collectively very serious. We cannot accept the submission that the judge over-stated the seriousness or exaggerated Smith’s role in the offences. Nor do we accept that the judge gave insufficient weight to Smith’s mitigation. The judge took full account of totality by ordering that the sentences for the amphetamine offences should be concurrent with one another, and that the sentences for the heroin offences should also be concurrent with one another. There can be no possible criticism of his decision that the overall sentences for each of those two groups of offences should run consecutively. It follows that in our judgment there is no ground in respect of which it could be argued that the total sentence was wrong in principle or manifestly excessive.
91.
An additional submission was advanced orally by Mr Fitzgibbon QC on behalf of Smith to the effect that Globe J should have recused himself from acting as the single judge in this instance. The basis of this submission was that in July 2009 Globe J had sentenced a man called Corish for offences of conspiracy to import heroin and cocaine. Later, investigations into these defendants showed that some of them had also been involved in the same crimes: in particular, the relevant conspiracies became the subject of charges against Taylor and Bogle in these proceedings. It was accepted that Smith himself was not charged with any offence which had also involved Corish, and that when Corish was sentenced the involvement of others would not have been known to the court. Nonetheless it was submitted that Globe J should not have acted as the single judge who initially determined Smith’s application for leave to appeal against sentence because there might be an appearance of bias.
92.
We reject this submission as wholly without foundation. We cannot think that a fair-minded and informed observer would think there was any risk that a judge might be biased against a defendant merely because the judge had some years previously dealt with a man who could indirectly be linked to the present defendant.
Oyuncu
93.
Oyuncu, who had a previous conviction in 1999 for possession of cannabis with intent to supply, pleaded guilty to the main conspiracy to import cocaine (Count 4 of indictment 1), for which he was sentenced to 19 years’ imprisonment. He also pleaded guilty to conspiracy to supply cocaine (Count 2 of indictment 2) and to conspiracy to possess false identity documents with intent (Count 15 of indictment 2). Thus his total sentence was one of 19 years’ imprisonment. He seeks an extension of time in which to renew his application for leave to appeal against that total sentence.
94.
Oyuncu’s grounds of appeal are based on submissions also raised on behalf of other applicants, in particular as to the fact that the main conspiracy did not result in the importation of any cocaine. We have already addressed that point. The judge concluded, as he was entitled to do, that the evidence showed Oyuncu capable not only of acting as Baybasin’s lieutenant but also of operating in his own right in drug trafficking. Notwithstanding Mr Carville’s helpful oral submissions, we can see no ground on which there could be a challenge either to the judge’s findings in respect of Oyuncu’s role or to the length of his total sentence.
Geraghty
95.
We turn finally to the applicant Geraghty, who has not sought to appeal against his prison sentence of 20 years for his part in the main conspiracy to import cocaine (Count 4 of indictment 1) and for other offences, but renews his application for leave to appeal against the financial reporting order which was made in his case. It is submitted on his behalf that any such order was wrong in principle, or alternatively that the duration of the order for the maximum permitted term of 15 years was manifestly excessive. We cannot accept those submissions. The judge was entitled to make the assessment he did of the risk of future re-offending, and in the light of that assessment it cannot be said that the order was unnecessary. Nor was it disproportionate or excessive in its duration; the order does not impose any particularly onerous demands upon Geraghty, and its duration has to take account of the fact that he will be in prison for a number of years, and that important parts of the order will not effectively bite until he is released.
Conclusion on the applications
96.
For those reasons, each of the renewed applications for leave to appeal against sentence fails. It follows that there is no purpose in our granting any extension of time to those applicants who seek one. All applications for extensions of time and for leave to appeal are accordingly dismissed.
97.
We conclude by paying tribute to the care and thoroughness with which the judge dealt with a most complex sentencing exercise, involving not only these applicants but also other defendants and a total of 44 counts on five indictments. | [
"MRS JUSTICE COX",
"MR JUSTICE HOLROYDE"
] | 2013_12_13-3313.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2357/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2357 | 754 |
4de3fb1e9fd344c789bf9705835c9e2606b64817c68eeedfd8f2537f8ab6774c | [2014] EWCA Crim 1862 | EWCA_Crim_1862 | 2014-09-19 | crown_court | Case No: 201203693 C3 Neutral Citation Number: [2014] EWCA Crim 1862 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Central Criminal Court His Honour Judge Marks T20110318 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/09/2014 Before : LORD JUSTICE FULFORD MR JUSTICE GRIFFITH WILLIAMS and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between : Ochaine Williams - and - Regina - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M B | Case No:
201203693 C3
Neutral Citation Number:
[2014] EWCA Crim 1862
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Marks
T20110318
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/09/2014
Before :
LORD JUSTICE FULFORD
MR JUSTICE GRIFFITH WILLIAMS
and
MR JUSTICE NICOL
- - - - - - - - - - - - - - - - - - - - -
Between :
Ochaine Williams
- and -
Regina
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
M Bromley-Martin QC and K Appleton
(instructed by
Joseph Hill & Co
) for the Appellant
A Edis QC
(instructed by
the Crown Prosecution Service
) for the Respondent
Hearing date: 15 July 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
Background
Introduction
1.
On 16 May 2012 a jury at the Central Criminal Court convicted the applicant by a majority of 9 to 1 of the murder of Steven Grisales. He stood trial alone.
2.
On 13 June 2012 the trial judge, HHJ Marks Q.C., ordered the applicant to be detained at Her Majesty’s pleasure and 10 years 6 months (less 280 days served on remand) was stipulated as the minimum term under
section 269(2) Criminal Justice Act 2003
.
3.
The Court of Appeal granted the Attorney General leave to refer the sentence under
section 36 Criminal Justice Act 1988
on 9 October 2012; the sentence was quashed as regards the minimum term and the court substituted a period of 12 years (
[2012] EWCA Crim 2352
;
[2013] 1 Cr. App. R. (S.) 124
)
.
4.
In these proceedings, the applicant renews his request for leave to appeal his conviction following refusal by the single judge.
The central issue
5.
The central substantive issue raised on this application relates to the admissibility of hearsay evidence of suggested confessions by another individual to the crime of which the defendant was convicted, along with the extent to which the judge ought to direct the jury as to the potential dangers that accompany evidence of this kind. However, there are multiple other grounds of appeal that relate to wide-ranging aspects of the trial and the judge’s summing up.
The incident and subsequent events
6.
Shortly before 7.00 pm on 31 August 2011, Steven Grisales, who was 21 years old, was walking from Joyce Avenue, Edmonton, London N.18 to Silver Street Station. He was on his way home, having had dinner with his grandmother. His route took him along College Cross, where he encountered the applicant, who a few minutes earlier had been caught on CCTV footage in the company of two other males, Courtis Granville and Danele Smith. The applicant was wearing a dark coloured top with a brightly coloured pattern on the front and back, distinctive patterned jeans and a blue baseball cap, whilst Granville and Smith were both wearing dark hooded upper clothing. There were a number of other young people in the street at the time. The applicant and two of his companions who were walking towards Mr Grisales obstructed the latter’s route along the pavement. When Mr Grisales passed the applicant, there was an altercation concerning some conkers that had been thrown by the applicant’s group. Mr Grisales confronted them.
Martin Casey
7.
At this point a witness called Martin Casey saw two black males shouting at Mr Grisales (who was white). The two black men were throwing punches in the direction of Mr Grisales and they were attempting to kick him, but as far as Mr Casey could recall they did not make contact. As he watched, Mr Grisales put down his jacket and a bag and he picked up a skateboard with both hands which he lifted above his head. Mr Grisales then hit one of the black men with the skateboard. Mr Casey saw the skateboard fall to the ground, and at this point the man who had been hit pulled out a black-handled kitchen knife with his gloved right hand from his pocket and he lunged at Mr Grisales in a stabbing motion. Although Mr Casey did not see the knife enter Mr Grisales’s body, the latter shortly afterwards clutched at his chest, and came towards Mr Casey, asking him to telephone the police. Mr Casey saw that Mr Grisales was bleeding and “
his eyes were rolled back
”. It appeared that the black “
lads
”, who came towards him, were intending to stab Mr Grisales again. Mr Casey picked up his child and ran back inside his house. He shouted at the youths and the one with the knife threatened him. Some of his neighbours then appeared on the scene and the two black men ran away. Mr Casey believed he had seen the black man who carried out the stabbing on four or five previous occasions in the local area.
8.
On 31 August 2011, Mr Casey described the stabber as having a short Afro/fuzzy hair; he described this as “
the way you wear it when you shave it
”. He had quite a thin face, with quite dark skin and he had quite big dark eyes. He said he looked like a Somalian with high cheekbones. He was about 8 or 9 stone and was 5’ 6” to 5’ 7” in height. He was wearing a black glove and a hoodie of a “
shell
” like material, blackish and dark grey, with dark tracksuit bottoms (the top and the bottom matched as if they were a suit). He was aged between 16 and 20. This description, to a significant extent, tended to match Smith.
9.
At an identification procedure on 6 September 2011 he picked out Granville and not the applicant. However, Mr Casey said in evidence that he was not 100% certain at the time of this identification because none of the youths in the photographs were wearing headgear.
10.
On 17 January 2012 he identified the applicant’s clothes as those worn by the man with the knife. Although these items did not match his original description (the matching shell tracksuit), he said in evidence “
When I was shown the photos, everything came straight back to me
”. It was suggested to Mr Casey that the man he had originally described matched the appearance of Smith as seen on the relevant CCTV footage, to which Mr Casey replied “
it looks that way but it was a mistake
”.
11.
In evidence he described the man who stabbed Mr Grisales as wearing a darkish-coloured hoodie, with the hood up. He saw the purple peak of a cap sticking out from underneath, which may have had some writing on it. The hair underneath was “
shortish Afro
”. He had faded jeans which possibly had one or two badges on them. He described the hoodie as being two-tone: greyish at the shoulders and darker on the arms. He gave his age as 16 to 20 and his height as 5’ 6”.
12.
The defence extensively criticised the description of the perpetrator given by Mr Casey and the identification procedures set out above, whilst the prosecution highlighted that the witness gave evidence that the man responsible for the stabbing was the man who had been hit by the skateboard (it was accepted in the case that the applicant was the only person who had been hit by Mr Grisales with the skateboard)
Tamisha Williams indicated that Mr Grisales hit Granville, but she did not state this was done when he was holding the skateboard; instead she simply said that Mr Grisales hit him back.
.
Mandy Addy
13.
Mandy Addy was also watching this incident. She noticed four people: a black male who was responsible for the stabbing, his victim (who was white), a light-skinned female and a second black male who had braided hair. As she recalled these events, only the victim and the man with the knife were actively involved in the incident. She noticed the victim was holding a skateboard. The man with the knife was shouting loudly at Mr Grisales, notwithstanding the fact that he was holding his hands in a placatory gesture. The black male then swung his right arm towards Mr Grisales in a punch-type gesture which seemed to connect with his left side. Mr Grisales went down to one knee, dropping the skateboard. He then got to his feet, once more holding the skateboard, whereon the black male hit him for a second time using a similar blow to the same part of the body. This caused Mr Grisales to fall backwards. Thereafter the victim got up once more and ran off across the road to a nearby garden. The black male and his companions also ran away. Ms Addy did not see the knife. She described the man who was responsible for the punching as black, 17 – 19 years of age, 5’6” to 5’7”, close-cropped hair, dark clothing, medium to stocky build. She was not asked to participate in an identification procedure.
Mary Stokes
14.
Mary Stokes, Mr Casey’s partner and the witness on whom the Crown placed greatest reliance, heard shouting from her house and she went out to see what was happening. She could hear Mr Casey shouting “
Forget about it about it, boys, just leave it
”. She saw two black males in front of Mr Grisales. One of the males had a knife (similar to a kitchen knife Ms Stokes owned); he was getting increasingly enraged, and kept trying to reach Mr Grisales, moving the weapon backwards and forwards. She did not see if any of these attempted blows landed, but she became aware that Mr Grisales was bleeding and she concluded that something must have happened before she arrived on the scene. She shouted at the man with the knife to go away but he looked “
angry and evil
” and said “
No: he hit me with a skateboard
.” The prosecution submitted, therefore, that on this witness’s account the person who had the knife was the applicant, given he was the only person who had been hit with the skateboard (save for the suggested possibility, based on Williams’s evidence, that Granville might also have been hit with the skateboard, as canvassed in footnote 1).
15.
On 31 August 2011, Ms Stokes described the man with the knife as follows: “approximately 5’11”, very skinny, with a long Afro which was half tied up. A dark-skinned black man wearing dark blue jeans and a black leather belt. I did get a good look at this face and so would recognise him again”. This did not match the applicant as regards height (he is less tall) or length of hair (the applicant’s was shorter).
16.
On 3 September 2011 she gave the following detailed description of the man with the knife: “5’9 to 5’11”, very skinny, quite dark skin, some type of Afro. I could only see a bit of it. A baseball hat, purple, possibly ‘NY’ on the front and a hoodie over it. Baggy jeans, a thick black belt, late teens, early 20s, 18 or 19, a hoodie, black with bright colours on it on the back and the front”. She remembered a yellow colour in particular and that his eyes were “poppy”. This description broadly matched the appearance of the applicant as shown in the relevant CCTV footage, but it is to be noted that it was provided before the video recording had been retrieved. Ms Stokes had attended a VIPER procedure on 6 September 2011, but she did not identify any of the suspects.
17.
On 17 January 2012 she was shown still photographs from the CCTV footage and she picked out as the clothes worn by the youth with the knife those worn by the applicant.
18.
In evidence she described the man with the weapon as being black, quite thin and about 5’ 10” in height. She said his clothing included some bright colours, and his top included a significant amount of yellow. He was wearing a purple baseball cap with the design “NY” on the front, over which there was a “hoodie” (also with bright colours on the front). He was wearing jeans that were partially coloured red and yellow with a black belt. He was quite young, 17 or above. She saw some short but bushy hair sticking out over his ears. As for his companions, one was black – she could not remember his clothing but he was under 20 and was about 5’9” tall. The third black male wore a v-shaped bandana round his neck like a scarf. His hair was arranged in short plaits, in cane rows.
Other evidence
19.
CCTV footage revealed the applicant, Granville and Smith moving away from the area. The applicant had removed his cap and the distinctly coloured and patterned top which he was now holding in front of him. The other two men had not changed their clothes.
20.
Mr Grisales died at 15.13 the following day (1 September 2011) from a single stab wound to the left side of his chest, which had penetrated his heart. There were no signs of defence-type injuries on the deceased’s body.
21.
Officers searched the applicant’s family home on 2 September 2011 but the applicant was not present. The clothing that he had been wearing during the incident was not found (save perhaps for an Emporio Armani shirt); there was a knife scabbard under the bed.
22.
On 3 September 2011 the applicant, Granville and Smith attended at the offices of a firm of solicitors, Joseph Hill & Co, when it is said they spoke with Mr Hill. In due course the latter represented the applicant and Granville but Smith transferred to a separate firm of solicitors, Farradays.
23.
The applicant was arrested on 5 September 2011 when he attended Edmonton Police Station, accompanied by a representative of Joseph Hill & Co. He was arrested on suspicion of the murder of Mr Grisales. The applicant said in evidence that he handed himself in with Granville because the police “had their names”. In interview, during which he was accompanied by an appropriate adult, he simply relied on a prepared statement in the following terms:
“On Wednesday 31
st
August, 2011 I was with Courtis Granville and another man whose name I am not willing to supply at this stage. I will refer to that man as “A”. During the early evening of that day we were walking along College Close in Edmonton. We were going to Sainsbury’s. As we walked along College Close I saw 2 girls who are known to myself, Courtis and man “A”. Those girls’ names are Ashley and Tamiesha. Tamiesha lives in the corner house in College Close. As we passed, Tamiesha she said that she wanted to speak with my friend “A”. Tamiesha and “A” were talking to each other whilst I waited with Courtis. We were just around the corner but still in College Close. There is an area where there is a bush, a tree and grass and on the grass was some spiky things like concors (conkers) which I think had fallen from the tree. Myself and Courtis started throwing them at each other. Ashley had joined us at that time. A very short time later myself and Courtis started throwing the spiky objects at Ashley and Tamiesha and also at man “A”. We did this recklessly and one of the spiky objects went close to a man who was walking in the street. I shall refer to him as “B”. This man started shouting and swearing at me. I was shocked. I cannot recall what the man “B” said but it was aggressive and abusive. He was very angry. I was closest to him. The man crossed the road and picked up a skateboard which was on the floor outside Tameisha’s house. He came at me very quickly. He tried to hit me on he head with the skateboard twice. I blocked each of his attempts to hit me with my left arm. He was holding the skateboard with both hands. The man was very close to me at this time. I punched him in the face. I punched him with my right hand. I did so in self-defence. I felt that with the skateboard he could cause me serious injury. Whilst I was being attacked I heard Tamiesha say “A” “Take the knife” and I then heard her say something like “take this”. I did not actually see Tamiesha give anything to anyone.
After I punched “B” once I backed off. “B” was still in front of me holding the skateboard above his head. I saw my friend “A” appear to punch “B” in the chest. I saw blood on “B’s” T-shirt. I ran away down College Close. My friends “A” and Courtis were running in the same direction. I did not know that Tamiesha was in possession of the knife at any time prior to the time when I heard her say “A” “Take the knife”. I did not know or suspect that anyone might be in possession of a weapon. I was not involved in any violence towards “B” prior to the time when I punched him on one occasion only in the face and I did this in self-defence because at the time I was under attack. From the time when “B” picked up the skateboard to the point when I saw blood on “B’s” T-shirt was about 20 seconds. Everything happened very quickly. The only injury that I was responsible for inflicting on man “B” was the punch to his face and that was in self-defence”.
24.
The applicant did not answer any of the questions put to him by the police in interview.
25.
Granville also surrendered on 5 September 2011. He provided the police with an account that was broadly similar to that of the applicant. They both blamed a “man A” for the murder but they did not identify him to the police.
26.
On 6 September 2011 Mr Casey was invited to attend an identification procedure. He did not pick out the applicant as the person whom he had seen lunging towards Mr Grisales with a knife. Nonetheless, on the same day the applicant was charged with the murder of Mr Grisales.
27.
On 14 September 2011 the applicant’s mother, Sandra Espeut, provided a statement to the police identifying “man A” as Smith.
28.
On 21 September 2011, police officers spoke with Smith at his home, when he denied he had been present during the incident. In a later ABE interview at the police station Smith claimed that the applicant had confessed to the murder when they had both been with Romario Melhado.
29.
It is to be noted that Melhado denied in evidence that this conversation had taken place. Melhado also testified that Smith confessed to him, and that he had been told by Shay Williams, Tamisha Williams’ brother, that Mr Grisales had been stabbed by Smith. However, his reliability was undermined by the contents of his ABE on 13 October 2011 when he told the police that he knew nothing about the murder of Mr Grisales (contrary to some extensive details concerning the incident that he said in evidence had been provided to him during September 2011.)
30.
Notwithstanding that denial by Smith on 21 September 2011 of involvement in, or presence at, the incident, Ms Espeut recorded on her mobile telephone a conversation she had with Smith two days later, on 23 September 2011. She provided this to the police two months later, on 25 November 2011. The exchange, as it appears in the transcript, begins with the person who is said to be Smith stating “
they say someone say it was me”
. Thereafter, the conversation includes the following extracts:
“Female: “so you now handing yourself in again.”
Male: “yeh, I’m going to have to now, I’m going to have to now, they come to my house already.”
Female: “yeh but you can’t make Ochaine go down for that Daniel.”
Male: “I know”.
Female: “when you know Ochaine did not do it.”
Male: (INAUDIBLE) “I know that.”
Female: “eh.”
Male: “I know that.”
Female: “its hard for Ochaine, its hard for Ochaine Daniel.”
Male: “I know […].”
[…]
Female: “okay an what you gonna tell them.”
Male: “I’m just like gonna. I told my solicitor that I said I’m gonna hand, their like all right, well I just like going to have to defend you and say yeh.”
[There was then reference to Courtis Granville, which included the following:]
Male: “[Granville] say that he was gonna punch me up and [INAUDIBLE].”
Female: “no, punch you up for what.”
Male: “and drag me to the police station.”
Female: “no he not punch you and drag you to no police station.”
Male: “that what Courtis told me.”
[In the context of a conversation about bail, the following was said:]
Male “by how Courtis get bail.”
Female: “I don’t know. I don’t know how Courtis get bail and everything is just down on Ochaine, its just everything is just down on him. He stressed out.”
Male: “for real, yeh but I’m going in there, but I just wanna know how Courtis is meant to be all three of us in, no, a yeh, three of us yeh, I’m meant to do the most.”
Female: “yeh.”
Male: “then not even Ochaine and Courtis meant to do the same amounts, cause Ochaine defended himself.”
Female: “yeh.”
[…]
Female: “yeh so what about the girl she going.”
Male: “she, she I don’t know, she gone disappear; I don’t know where she is.”
[…]
Female: “oh, she gonna get herself in problem to.”
Male: “yeh yeh for passing.”
Female: “yeh because are you gonna say what she did.”
Male: “yeh I have to, I have to. I’m gonna say I defend, I defended myself, my friends, but she gave it to me. And I’m going to say what she was doing with the knife right outside her house [INAUDIBLE] and ting.”
[…]
31.
Smith did not “hand himself in”, and instead he was arrested on 19 October 2011 on suspicion of perverting the course of justice. He provided the police with a prepared statement in which he accepted he had been present at the scene, but otherwise he denied involvement in the stabbing. He referred to threats and persuasion to which he had been subjected by associates of the applicant. He was charged with the offence of perverting the course of justice. Those proceedings were discontinued on 1 January 2012.
32.
The applicant’s case at trial was that Danele Smith, who been passed the murder weapon by Tamisha Williams, had stabbed Mr Grisales. He accepted in evidence that he had been involved in the altercation at College Cross. He said he saw Smith standing in front of Mr Grisales from where he punched him in the chest, and that about 5 seconds later Mr Grisales started to bleed. The applicant testified that he then ran away, but as he did so he looked back and saw that Granville now had the knife which he was waving about. He then met up with Granville and Smith behind ‘the Salon’ hairdressers, at which stage Smith indicated he was responsible for the stabbing, having been given the knife by Williams. The applicant claimed that Granville said that he had hidden the knife.
33.
The applicant called Granville whose account was that the applicant had not killed Mr Grisales. Instead, he claimed that although he did not see any weapon, he heard Tamisha Williams say “
here’s the knife, take the knife
”. After that Smith hit out in a punch-like motion, causing Mr Grisales to step back and to stumble. Shortly afterwards he saw blood on Mr Grisales’s T-shirt. Granville did not agree with the applicant’s suggestion that he (Granville) had been waving the knife around after Mr Grisales was stabbed. Indeed, he denied having seen the knife at any stage during the incident.
34.
The applicant gave evidence about four issues which he had not set out in the prepared statement he gave to the police on 5 September 2011. First, that about 20 minutes after the stabbing Smith, in the presence of Granville, confessed to the stabbing. Second, that shortly after leaving the scene he discarded a number of items of his clothing in a bin near to a friend’s house and he put his jacket under a baby bath in the garden of his home. Third, he left College Cross within moments of the stabbing (and before Smith and Granville) which meant that he could not have been the man seen by Mary Stokes. Fourth, as he ran away, he turned and saw Granville waving the knife, which meant that two of his companions had held the knife during the incident, and that the person Mary Stokes saw with the knife was unlikely to have been the person responsible for the stabbing.
The Grounds of Appeal
Ground 1: The First Recorded “Confession” of Danele Smith
Introduction (Ground 1)
35.
Mr Bromley-Martin Q.C., on behalf of the applicant, complains that although on 20 April 2012 the judge ruled that the digital recording of the 23 September 2011 conversation between Smith and Ms Espeut (see [30] above) was admissible, on 25 April 2012 he erred by later ruling that it could only be introduced during the defence case as part of the evidence of Ms Espeut (following an indication by the defence that she was to be called). In outline, it is contended that this improperly prevented Mr Bromley-Martin from asking questions about the conversation during his cross-examination of prosecution witnesses, and he was prevented from introducing it during his re-examination of the applicant (see below).
36.
In advance of the trial, the prosecution, in its Pre-Trial Agenda dated 9 April 2012, set out its position on this issue. It argued that Smith, along with Williams, should give evidence if statements on their part were to be relied on. It was suggested by the Crown that the applicant or the judge should call them, but in either event the defence should be permitted to cross-examine these individuals. Mr Edis Q.C. for the Crown submitted that introducing hearsay evidence from these individuals should only be contemplated if they refused to cooperate.
37.
However, the judge concluded on Friday 20 April 2012 that neither the court nor the defence could properly be expected to call Williams or Smith. As a consequence, certain hearsay evidence was admitted during the trial as to the contents of conversations between Williams and a police officer, along with evidence that Smith had allegedly confessed to the applicant, Granville and Romario Melhado.
38.
Following this decision by the judge, the prosecution submitted on Monday 23 April 2012 that the introduction of the recorded conversation on 23 September 2011 should be contingent on Ms Espeut giving evidence as to the circumstances in which the recording was made. It was suggested that it was likely that there had been other conversations between Smith and Ms Espeut (the telephone records revealed extensive telephone contact between them), and therefore it was possible that not all of what was said on 23 September 2011 had been recorded. Furthermore, the prosecution maintained there was a significant risk that Ms Espeut was a part of an attempt to enable the applicant to present a false defence, namely that Smith had stabbed Mr Grisales in defence of the applicant. The prosecution submitted that there were a number of issues about which Ms Espeut should be questioned:
i)
On 17 June 2011 she had called the police because the applicant had threatened her with a kitchen knife and a shovel when she tried to get him out of bed to go to school. He was still behaving violently when the police arrived and he was arrested. Ms Espeut made a statement on the same day supporting this account, albeit 4 days later (on 21 June 2011) she made a further statement indicating she did not want to give evidence against her son. However, she did not suggest the earlier allegation was incorrect. Ms Espeut did not attend at the trial and as a result the prosecution offered no evidence. (It is of note that the prosecution decided only to seek to introduce this evidence if Ms Espeut gave evidence because of the evidential difficulties that existed in her absence, and it did not form part of the bad character evidence otherwise admitted against the applicant.)
ii)
Kayan Brown, Ms Espeut’s partner, acted as the appropriate adult for Granville when he attended at the police station. She gave evidence during the defence case that Granville had told her, when they were alone on this occasion, where he had disposed of the murder weapon, which he had picked up after the stabbing. She claimed that she retrieved it shortly afterwards. She then hid the knife under a stone in her garden until, following discussions with Ms Espeut, she decided to deliver it to the police on the same day that Ms Espeut’s telephone containing the 23 September 2011 conversation between Smith and Ms Eseut was provided to the police: 25 November 2011. There was an issue at trial as to whether this was an honest account, although the prosecution submitted,
inter alia
, it was highly significant that the applicant’s family had control over the murder weapon.
iii)
Ms Espeut was involved in concealing at least one item of the applicant’s clothing from the police: his coat. Ms Espeut was asked as to its whereabouts when the police were searching for it on 17 October 2011. In response she merely smiled.
iv)
From the defence application to introduce hearsay evidence, it was clear that Ms Espeut claimed that Smith had made a further “confession” to her by telephone which she indicated was overheard by two social workers via a speakerphone. The three relevant witnesses had been traced by the prosecution and they denied that this event had taken place.
v)
Ms Espeut was of bad character.
vi)
She had been present when Granville visited her son in prison, when they had the opportunity to discuss their evidence.
39.
An important limb of the prosecution’s case was that there was clear material from which the jury could conclude that a number of those present at the killing had attempted to pull the wool over the eyes of police, concealing what had occurred. This was to be inferred from the fact that three of them had attended together at the offices of Joseph Hill on 3 September 2011. Thereafter, the applicant and Granville both went to the police station on 5 September 2011, believing the police had their names, when they provided written statements in broadly similar terms in which they admitted presence at the scene and claimed that man “A”, acting in self defence, had stabbed Mr Grisales. However, on the prosecution’s case this plan fell apart when the applicant was charged with murder. It then became necessary to unmask man “A” as Smith, a step taken by Ms Espeut. Furthermore, there was evidence that when, on 21 September 2011, Smith denied involvement in the incident, pressure was brought to bear on him to fall in line with the accounts given by the applicant and Granville. As set out above [31], in the prepared statement he provided to the police he spoke of threats and persuasion.
40.
Against that background, and bearing in mind the equivocal or uncertain nature of Smith’s utterances during the conversation, the prosecution argued that it was apparent Smith was expressing only a “
guarded willingness
” to speak to the police in order to assist the applicant. The prosecution submitted that it was in the interests of justice for the jury to be in a position to resolve whether he was in fear of Ms Espeut and her associates, whether he was simply “
fobbing her off
” or whether he was truly admitting an offence that he had committed. Absent Smith as a witness, it was suggested that these various options could only properly be addressed if Ms Espeut gave evidence.
41.
Mr Bromley-Martin argued that this conversation was admissible without calling one or both of those involved, and he sought to introduce it as part of his questioning of a police officer during the prosecution’s case. He suggested that the judge was not entitled to limit the circumstances in which it could be introduced. Furthermore, Mr Bromley-Martin opposed the admission of the prepared statement that Smith gave to the police when he was arrested on 19 October 2011.
42.
The judge, in his reserved ruling on 25 April 2012, indicated that
“the ideal scenario in terms of attempting to unravel all of this”
would have been for Smith to have testified. However, the judge recognised that it was highly unlikely that evidence useful to the jury would have been forthcoming if anyone attempted to call him.
43.
As to the submission that the applicant should be permitted to introduce the details of the conversation of 21 September 2011 via a police officer, the judge ruled that this would involve the introduction of multiple hearsay, thereby failing to meet the requirements of
section 121 Criminal Justice Act 2003
(“CJA”). Even if that conclusion was erroneous, the judge decided that permitting the applicant to introduce this evidence by questioning a police officer who had merely been handed the digital recording would have the effect of depriving the prosecution of an opportunity to explore the whole background of the conversation, including earlier discussions between Smith and Ms Espeut, and this would be grossly unfair and undermine the spirit and reasoning behind the justification for admitting this evidence. The judge concluded that the “confession” was susceptible to one of two explanations. First, it represented the truth of what occurred or, second, Smith said what Ms Espeut wanted to hear because of the pressure to which he had been subjected. The judge concluded that this could not be satisfactorily investigated unless she was called to give evidence.
44.
Additionally, the judge ruled that the jury should not hear a partial account from Smith, as advocated by Mr Bromley-Martin, but instead the prepared statement of 19 October 2011 was to be admitted in conjunction with Ms Espeut’s recording of the conversation with Smith on 23 September 2011 and Smith’s false alibi that was provided to the police on 21 September 2011.
45.
Against that background it is argued by Mr Bromley-Martin that the applicant had been prevented from “
establishing Danele Smith’s relevant and admissible confession during the prosecution case
”. It is suggested that it should have been open to the applicant to ask one of the police witnesses whether, first, they accepted the voices were those of Ms Espeut and Smith and, second, they agreed that Smith had admitted that he had been handed the knife by Williams which he used to stab Mr Grisales. The applicant submits that Smith’s alleged confession was first-hand hearsay, and it was irrelevant how many individuals may have been involved in its transmission prior to being provided to the court. It is suggested that the judge, in ruling that the admissibility of the evidence depended on Ms Espeut giving evidence, confused the interests of justice test with the mechanism by which admissible evidence ought to be introduced. Once it had been decided that the evidence was relevant and admissible, the judge had no authority to rule as to the route of its admissibility. The court is reminded that the prosecution had been in possession of the recording for 5 months prior to the trial, providing ample opportunity to investigate the identity of those speaking.
46.
Additionally, it is contended that the prosecution, contrary to its pre-trial position and at a late stage, improperly adopted the stance that it intended to introduce bad character evidence relating to the applicant and Ms Espeut if the latter gave evidence. Once this indication had been given, the applicant decided not to call Ms Espeut. It is starkly submitted that the prosecution deliberately sought to introduce the evidence of bad character in questioning Ms Espeut, rather than during the prosecution’s case, in order to discourage the applicant from calling Ms Espeut to give evidence about Smith’s suggested confession. It is submitted that this impermissible stratagem was successful and, as set out above, the defence decided not to call Ms Espeut. Furthermore, it is observed the prosecution’s approach would in any event have made it necessary for the applicant to apply to be recalled in order to address this evidence from Ms Espeut.
47.
The prosecution is criticised for having not made a written application to introduce this evidence under Rule 35.4 of the Criminal Procedure Rules:
“Notice to introduce evidence of a defendant’s bad character
(1) This rule applies where a party wants to introduce evidence of a defendant’s bad character.
(2) That party must serve notice on—
(a) the court officer; and
(b) each other party.
(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—
(a) 28 days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 14 days after the defendant pleads not guilty, in the Crown Court
[…]”
48.
It is highlighted that the oral application was made out of time and the judge had not given permission to proceed without a written application, made in accordance with the Rules. When the prosecution first referred to this evidence (in its pre-trial agenda dated 9 April 2012) it was suggested that it was potentially admissible under
section 101(1)(g)
CJA
(an attack on another person’s character). At that stage the prosecution did not refer to
section 101(1)(d)
(an important matter in issue such as propensity). It is observed that no evidence was served in this context, and equally no application was made to admit this evidence was made during the course of the prosecution case under
section 114(1) CJA
, in the interests of justice. Accordingly, it is emphasised that this material was not relied on to rebut any aspect of the defence case and it had not arisen “
ex improviso
”.
49.
It is contended that the evidence of the June 2011 incident between the applicant and Ms Espeut was inadmissible because it related to an isolated event, the facts of which were disputed and it did not result in a conviction. In the result, it is suggested it would have led to inappropriate satellite litigation. Furthermore, it principally concerned a family disagreement, albeit it encompassed a threat (with a kitchen knife) made to the police officers who attended at the scene. It is argued that in those circumstances it was an allegation that stood alone and that it concerned circumstances that were very different to the present incident. It is contended that this incident did not establish a predisposition to commit an offence of the kind with which he was charged, namely murder, and that in any event its prejudicial effect far outweighed its probative value.
50.
The applicant argues that introducing the June 2011 incident was an attempt by the prosecution to use evidence of bad character to bolster a weak case and that in ruling on its admissibility the judge wrongly took into account the nature of the defence case.
51.
There are two yet further discrete elements of this ground of appeal. First, it is suggested that the judge erred in refusing to allow Mr Bromley-Martin to question Detective Chief Inspector Beadle about the 23 September 2011 conversation, following evidence from Mr Beadle to the effect that there was insufficient evidence to charge Smith and that the prosecution’s view as to the identity of the perpetrator (the applicant) had remained unchanged. The judge is said mistakenly to have believed that this issue was dealt with in cross-examination, followed by re-examination. Instead, this matter arose during the officer’s evidence in chief, when he expressed his views as to the extent of the evidence against Smith. We note that in the course of the summing up the judge directed the jury that this evidence from DCI Beadle was irrelevant. It is contended that the judge should have discharged the jury once this evidence had been given, particularly given – as it is submitted – there was “
ample evidence”
to justify charging Smith with the murder of Mr Grisales.
52.
Second, it is contended that Mr Bromley-Martin should have been permitted to re-examine the applicant about the conversation between Smith and Ms Espeut once Mr Edis had cross-examined the applicant on the basis that he had recently invented his evidence that Smith had confessed to the applicant that he had killed Mr Grisales shortly after the incident. It is argued that his “confession” to Ms Espeut on 23 September 2011 increased the likelihood that he had confessed to Williams.
53.
The prosecution observes that DCI Beadle was only called because the applicant’s counsel had elicited in cross-examination of a junior officer that Smith remained on police bail for the offence of murder. The prosecution, fearful that this could cause a misleading impression, called the Detective Chief Inspector given the Crown had grounds to suspect that two people had been involved in the murder of Mr Grisales since the incident had involved a number of males.
Discussion (Ground 1)
Discretion to exclude hearsay
54.
The first aspect of this ground of appeal is whether – as Mr Bromley-Martin contends – the judge had no discretion and was obliged to permit the conversation to be admitted during the prosecution case (for instance via DCI Beadle) once the court had ruled that Smith’s alleged confession was admissible, or whether he was entitled to stipulate that the person to whom the statement had been made should give this evidence. In answering that question it is to be borne in mind that Ms Espeut’s account of this conversation (if she had given evidence and introduced the digital recording on her mobile telephone), would have been hearsay. Smith’s account as to what had occurred was made otherwise than in oral evidence in the proceedings and it was made with the purpose that it was to be believed by Ms Espeut (see
R v Finch
[2007] EWCA Crim 36
;
[2007] 1 Cr. App. R. 33
, at paragraph 4). Further, an out-of-court confession or admission is an exception to the common law hearsay rule only to the extent that it is to be used
against
the person who made it, as explained by Lord Steyn in
R v Hayter
[2005] UKHL 6
at [7]:
“7. A voluntary out of court confession or admission against interest made by a defendant is an exception to the hearsay rule and is admissible against him. That was so under the common law. That is also the effect of
s.76 of the Police and Criminal Evidence Act 1984
(“PACE”). (Given the wide definition of confession in
s.82(1) of PACE
I will simply refer to confessions.) A confession is, however, generally inadmissible against any other person implicated in the confession. The rationale of the rule was stated in the twelfth edition (1936) of a Digest of the Law of Evidence by Sir James Fitzjames Stephen as follows (at 36):
‘A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are
deemed to be relevant facts as against the persons who make them only
.’ (
Emphasis added
.)
(See also Phipson on Evidence, 18
th
edition, 28-16)”
55.
If DCI Beadle had introduced the recording, it would have been second-hand hearsay: his evidence would have been to the effect that Ms Espeut told him that Smith had described to her what had occurred during a conversation on 23 September 2011 which she had recorded on her telephone.
56.
Additionally, it is to be noted that Ms Espeut was in a position to provide critical ingredients of the circumstances of this conversation, including who was speaking, when the conversation took place and the context in which it occurred. Although the judge, for the purposes of his ruling, proceeded on the basis that this was a conversation between Smith and Ms Espeut, as far as this court is concerned we are unaware of any evidence identifying the voices (the applicant refers only to scientific analysis by a police forensic scientist relating to the integrity of the recording). Mr Edis highlights that for the police officers it would be no more than their opinion or belief as to who was speaking, given no formal process of voice recognition appears to have occurred. And even allowing that the defence rather than the prosecution sought to rely on this material, none of the preconditions of admissibility – the safeguards set out in
R. v. Flynn and St John
[2008] 2 Cr App R. 20
– had been satisfied. It had not been established whether any of the prosecution witnesses were in a position reliably to give voice recognition evidence.
57.
It follows that although the judge sustainably ruled that evidence of what Smith said to Ms Espeut was admissible (it was relevant to the issues in the case), he nonetheless had to consider whether it should be admitted as hearsay evidence. The relevant route to admissibility if Ms Espuet was to give this evidence was
section 114(1)(d)
CJA
which provides:
“(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—
[…]
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
Additionally, by
section 114(2)
:
In deciding whether a statement not made in oral evidence should be admitted under section (1)(d), the court must have regard to the following factors (and to any others it considers relevant) –
[…]
(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 on the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.”
58.
However, if this evidence was to be given by DCI Beadle (or another officer), for the reasons set out above it was multiple hearsay, in which case
section 121 CJA
was engaged, which is in the following terms:
“Additional requirement for admissibility of multiple hearsay
(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—
[…]
(c)the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
(2) In this section “hearsay statement” means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.”
59.
The reasons for concluding that it was not in the interests of justice to admit this conversation as (multiple) hearsay evidence were rehearsed by the judge at length. There was a clear basis for suggesting that a number of those present at the killing had attempted to deceive the police as to the true identity of the perpetrator, thereby concealing what had occurred. The applicant, Smith and Granville attended together at the offices of Joseph Hill & Co on 3 September 2011. Thereafter, the applicant and Granville both went to the police station on 5 September 2011 and provided similar written statements in which they admitted presence at the scene and claimed that man “A”, acting in self defence, had stabbed Mr Grisales. However, when the applicant was charged with murder Ms Espeut (the applicant’s mother) almost immediately revealed that man “A” was Smith. Of particular significance, there was evidence that after Smith denied involvement in the incident when he spoke to the police on 21 September 2011, pressure was applied on him to support the accounts given by the applicant and Granville: in the prepared statement he provided to the police on 19 October 2011 he spoke of threats and persuasion.
60.
What Smith was communicating during the conversation was far from clear (e.g. “
yeh I have to, I have to. I’m gonna say I defend, I defended myself, my friends, but she gave it to me. And I’m going to say what she was doing with the knife right outside her house [inaudible] and ting
.”). We accept the prosecution contention that Smith demonstrated only a “
guarded willingness
” to speak to the police in order to assist the applicant, and it is far from clear that what he was intending to say represented what he believed to be the truth: “
I’m gonna say/I am going to say
” are ambiguous expressions and create doubt as to whether the account he proposed to give was false or true. Without Smith or Ms Espeut as a witness the prosecution would have been placed at a considerable disadvantage, and there would have been a wide range of critical questions relating to whether this was properly to be described as a genuine confession that would have been left unanswered. She was available to testify (indeed, the applicant had indicated his intention to call her).
61.
In all the circumstances, it was in the interests of justice for the jury to be in a position to resolve whether he was in fear, whether he was saying what Ms Espeut wanted to hear simply to avoid a difficult situation or whether he was truly admitting an offence that he had committed. Given the extent of the contact between Smith and Ms Espeut and the clear allegation of pressure set out by Smith in his statement of 19 October 2011, the judge sustainably decided that admitting second-hand hearsay evidence of this conversation would not be in the interests of justice.
62.
We therefore reject the submission by the applicant that once the judge had ruled that the evidence was admissible, he had no discretion as regards the suggested route of introduction. The judge was wholly entitled to stipulate that – in the absence of Smith – the person to whom he had spoken (Ms Espeut) should give this evidence and that second-hand hearsay evidence of the alleged confession (
e.g.
from DCI Beadle) was inadmissible.
The impugned tactics on the part of the prosecution
63.
We unhesitatingly dismiss the allegation that has been made by Mr Bromley Martin to the effect that Mr Edis, when he indicated he intended to raise certain matters in questioning Ms Espeut, resorted to inappropriate tactics in order to dissuade the applicant from calling her. We deprecate that these allegations were made without any justification that survives sensible scrutiny. The issue of the admissibility of this conversation developed during the trial, and the central importance of Ms Espeut in this regard only became clear once the judge rejected the prosecution submission that the defence (or the court) should call Smith if the conversation of 23 September 2011 was to be relied on. Thereafter, as set out above, Mr Edis properly identified a number of matters about which he sought to question Ms Espeut if she was called:
i)
The 17 June 2011 incident (when Ms Espeut called the police because the applicant had threatened her with a kitchen knife and a shovel). The reasons for not attempting to rely on this material as bad character evidence during the prosecution case were self-evident. Although Ms Espeut made a statement setting out the assault by her son, she later indicated her unwillingness to give evidence against him. This did not result in a conviction, and absent evidence from Ms Espeut it was likely to have been difficult to establish that this was bad character evidence, given her equivocal and untestable attitude to the original complaint. However, if Ms Espeut was to be called, it then became possible properly to investigate whether she accepted the contents of her original witness statement on the subject, without risking extended satellite litigation.
ii)
This witness was likely to be able to assist as to how a knife that was likely to have been the murder weapon was in the possession of the applicant’s family after the incident.
iii)
The reason Ms Espeut failed to reveal on 17 October 2011 where the applicant’s coat had been hidden.
iv)
The circumstances and justification for what appeared to have been a false claim by the applicant that Smith had confessed in the hearing of two social workers.
Procedural objections and bad character
64.
The arguments relating to procedure – most particularly, the failure by the Crown to make a written application prior to the trial to introduce this evidence of bad character – are without foundation. Given the developments during the trial to which we have just referred, it is unsurprising that this was not addressed in advance. The defence had been aware that the prosecution wished to rely on this material (as was clear from the pre-trial Agenda prepared by Mr Edis, dated 9 April 2012) and there is no prohibition on the prosecution applying to introduce bad character evidence after it has closed its case. The critical issue is whether the circumstances of the admission of the evidence were unfair. The judge had generally permitted the prosecution to lead evidence of the applicant’s bad character, an issue addressed later in this judgment. As regards this particular incident, the judge indicated that it satisfied
sections 101(1)(g)
(the defendant has made an attack on another person’s character) and 101(1)(d) (it is relevant to an important matter in issue between the defendant and the prosecution). Focussing on
section 101(1)(d)
CJA
the judge ruled:
“If true the incident on that date demonstrates a willingness on the part of the defendant when confronted with a relatively insignificant but volatile situation, and when challenged, to act in a highly impetuous way by using a kitchen knife in a threatening and aggressive manner. There are, therefore, significant similarities between the facts of the 17 June incident and the incident with which this jury is concerned, albeit that in the earlier incident the defendant was disarmed and so did not in fact actually used the knife so as to cause injury. The clear implication however of the manner in which the incident is described by the mother is that he may well have done if she had not been able to disarm him. ”
65.
Although this was one incident, it was close in time to the index offence and it involved a number of highly similar features. As the judge concluded, the prosecution acted fairly by not attempting to introduce any material relating to this incident until Ms Espeut gave evidence. The authorities in this area, which it is unnecessary to rehearse, clearly permit one event to be used to prove bad character, depending always on overall circumstances. For the reasons set out below [80] this was not a situation where evidence of bad character was impermissibly being used to bolster a weak case, because the evidence linking the person who was hit with the skateboard (the applicant) and the stabber was clear-cut. The area of dispute as regards Ms Espeut’s evidence was narrow, given the applicant suggested he had threatened to kill himself as opposed to making threats to his mother, and resolving that issue would not have involved significant court time. The judge indicated that the applicant would be permitted to return to the witness box to address this evidence and – notwithstanding Ms Espeut was a defence witness – he would have permitted Mr Bromley-Martin to cross-examine her on this issue.
Application to cross examine DCI Beadle on the “confession”
66.
We address next the argument that the judge erred in refusing to allow the applicant to question DCI Beadle about the conversation between Smith and Ms Espeut after the officer suggested, first, there was insufficient evidence to charge Smith and, second, that the prosecution continued to hold the view that the applicant was the perpetrator. Whether this topic arose in evidence-in-chief or in cross-examination of DCI Beadle, it was only under consideration because Mr Bromley-Martin had sought to establish that Smith may have been responsible for killing Mr Grisales: he elicited from a junior officer that Smith was on bail for this murder. That self-evidently opened up the issue of the prosecution’s stance towards Smith and, if it was left without further explanation, it potentially created the wholly misleading impression that there was additional evidence against Smith - but withheld from the jury – that had led the prosecution to consider he was a possible perpetrator. Therefore, DCI Beadle’s assessment was only given because the applicant decided to explore the prosecution’s stance towards Smith, and in those circumstances it was clearly correct for the Crown to explain that he was not on bail for murder because he was suspected of having stabbed Mr Grisales. Instead, Smith had been suspected only on the basis that this was a joint-enterprise attack, albeit the Crown ultimately did not pursue a charge of murder against Smith on this basis. The history set out above did not entitle the applicant to seek to introduce inadmissible hearsay evidence, which the prosecution in any event did not consider provided a basis for suspecting Smith had stabbed Mr Grisales. Furthermore, we repeat that in the course of the summing up the judge directed the jury that the opinion of DCI Beadle as regards Smith was “
utterly irrelevant
”.
Application to re-examine the applicant on the “confession”
67.
The contention is equally unsustainable that Mr Bromley-Martin should have been permitted to re-examine the applicant about the conversation between Smith and Ms Espeut once Mr Edis had cross-examined the applicant on the basis that he had recently invented his evidence at trial that Smith had confessed shortly after the incident to the applicant that he had killed Mr Grisales, as set out below. During his evidence the applicant claimed that a number of things had occurred that had not been included in his defence statement (see [34] above). When Mr Edis asked the applicant if he had recently made up the suggestion that Smith had confessed shortly after the murder, Mr Bromley Martin intervened to suggest that this contention was contained within the applicant’s proof of evidence. Although when the jury left court the relevant section of the proof was not produced, Mr Bromley-Martin read out a passage in which the applicant claimed he had said to Smith “
Why did you stab that man
?”. As Mr Edis observes, this was not an admission by Smith, and we do not accept Mr Bromley-Martin’s suggestion that an admission is to be “
implied
”. Given this was one of a number of matters that had not been included in the defence statement, the prosecution was entitled to investigate whether it had been recently made up. Furthermore, there is no logical basis for the contention that Smith’s “confession” to Ms Espeut on 21 September 2011 reduced the likelihood that the applicant had recently invented an additional alleged confession shortly after the murder on 31 August 2011. These were two wholly unconnected events. Prosecuting counsel had asked an appropriate question, and once Mr Bromley-Martin objected it was not pursued. Therefore the judge correctly refused to permit the applicant to introduce the 21 September 2011 conversation during re-examination.
Ground 2: The Second Recorded “Confession” of Danele Smith
Introduction (Ground 2)
68.
On 30 May 2012 a young man, who we refer to as “witness B” in this judgment for his protection, provided an unsigned statement to the applicant’s solicitors to which he exhibited a voice note/digital recording of Smith (“
Dmadz
”) allegedly confessing to stabbing Mr Grisales. This recording was provided to the police on 2 July 2012. Witness B gave evidence before us on 23 July 2013. His testimony, in summary, was that he had been imprisoned for possessing class A drugs with intent to supply, and he was released on 9 May 2012. Smith contacted him on his Blackberry mobile telephone via the Blackberry Messenger service. During the exchange of text messages that followed, Smith allegedly asked witness B if he had seen the applicant (“
Spider/Spida
”). Witness B told Smith that when he encountered the applicant in prison, the latter was talking about Smith. Witness B told Smith that the applicant had been unhappy, upset and stressed and he asked Smith “
Are you really going to let him stay in gaol for this crime which he did not do?
/
Are you going to let him ride the bird in gaol?
”. Smith allegedly replied that he did not know what to do. Shortly afterwards witness B asked what happened on the night, to which Smith replied he was going to send a voice recording (a voice note) because it was going to take too long to type the reply. The text of the messages that were allegedly exchanged as set out above have not been retrieved but the voice message was as follows:
“Yeah, so anyway this what happened yeah, me, him and Courts walking down the road innit, and obviously he’s going out with that that Tammy, that Tammy girl at the time innit, so obviously mans seen her now, mans gone over to her innit, but these times they weren’t too talking innit, so mans gone over to her and start talking and Courtis and Spider start rushing man innit, so man like chill out bruv, hold out like, then man like little kids start dashing conkers and thing like and then obviously the man walk past yeah, one hit him, my man went across the road, got the skateboard licked Spider like 3 times in his head (inaudible – mine was like?), my man like Spider was busy/dizzy yeah and then man just went over to him and just yeah fuck, do my ting basically.”
69.
During his evidence witness B was asked to interpret or explain what Smith was saying during the voice message. When asked what “
do my ting
” meant, the witness replied “
From what I’ve heard, I’ve heard the guy was stabbed, so he’s saying that he’s gone over to him and done his thing, and so he’s gone over there and stabbed the guy.”
However, the witness also stated that “
do my
ting” meant simply that he had done something, although he maintained that he considered this meant Smith had committed the murder. Not long after this exchange, witness B was with a friend (whom he was not prepared to name) when the applicant telephoned this unnamed friend. The applicant and witness B spoke, including about the voice message. Thereafter, the witness received a telephone call from Ms Espeut to whom witness B sent a copy of the voice message (to her telephone). The witness suggested during his testimony that the text messages had been deleted and that in any event the telephone had been damaged as a result of overheating. This latter contention conflicted with the account he provided to the representative from Joseph Hill & Co on 15 April 2013 when he said the police had seized the telephone, and that he had been able to listen to the voice recording during the month before he met with the solicitors.
70.
It is the applicant’s contention that the evidence of witness B and the contents of the voice note are capable of belief and they afford a ground for allowing the appeal. The credibility of this material is said to be “
self-evident”
(“
palpably capable of belief”)
;
it is averred that it is clearly the voice of Smith; and it is suggested that the “
content of the recording speaks for itself
”. Moreover, in elaboration of his submissions Mr Bromley-Martin, having accepted that interpreting the voice message necessarily involves an understanding of particular street slang, suggested that this court was bound to accept the interpretation of the meaning of the words provided by witness B. Additionally, he argued that the only credible meaning was that Smith had stabbed Mr Grisales. It is said that the evidence would have been admissible at trial as hearsay evidence under
section 114(1)(d)
in the interests of justice, and it is noted that it was a confession by a person against his interests.
Discussion: (Ground 2)
71.
The account of witness B was not available during the applicant’s trial and this court must make its own assessment of this evidence and, in light of that assessment, ask what effect the evidence has on the safety of the conviction (
R v Ishtiaq Ahmed
[2002] EWCA Crim 2781
, paragraph 37). Our central conclusion is that we do not accept that what Smith allegedly said on the voice message to witness B amounts to a confession by Smith that he stabbed Mr Grisales (see [68] above). It is an extremely unclear and ambiguous description of what occurred. The word “
man
” is used during this short passage to describe the actions of at least three different people: the victim, the applicant and another person. It is wholly unclear who the third – and last – “
man
” is (
“and then man just went over to him”
) and it is equally uncertain who is being described in that sentence as “
him
”. We do not consider that this tends to establish that Smith admitted that he went over to Mr Grisales, given the identity of the person to whom he is referring is wholly obscure. But of even greater significance, however, is that it is impossible to conclude that Smith was confessing to having stabbed Mr Grisales. “
Do my ting
” on witness B’s own evidence means no more than he did something. It is pure conjecture on his part to suggest that the “something” was to take a knife from Williams and then use it to stab Mr Grisales. It is untenable for Mr Bromley-Martin to submit, as he did in oral argument, that this court is bound to accept the interpretation of the meaning of the words provided by witness B. The witness was simply making an assumption which this court is not in any sense obliged to accept.
72.
Added to that speculation and uncertainty is the extent to which there is a clear basis for concluding that some of those present at the killing set about deceiving the police as to the true identity of the perpetrator (see [39] above). A striking pattern has emerged in this case of an attempt to manipulate the court process on the part of the applicant, Granville and Smith, as demonstrated by the similar statements the applicant and Granville prepared at the offices of Joseph Hill & Co, which included references to “man A” in those documents notwithstanding their undoubted awareness of Smith’s identity. We have had the advantage of being able to consider all of the evidence on which the applicant seeks to rely on this application, and it is significant that Smith is said to have “confessed” on a number of occasions, not to the police but instead to the applicant, his mother or his associates. To a significant extent these suggested confessions have been in vague and equivocal terms and they have not been tested, and what is alleged to have been said would have provided Smith with ample room to argue, if arrested, that he has been misunderstood or that he had been placed under pressure falsely to implicate himself. Therefore, not only is this wholly unpersuasive evidence standing alone but it also appears to form part a scheme to conceal the identity of the perpetrator of this murder.
73.
It follows that we do not consider that the evidence of witness B has any material impact on the safety of the applicant’s conviction. The voice message does not amount to a confession on the part of Smith that he stabbed Mr Grisales – the critical passage at the end of the recorded statement is wholly unclear as to its meaning – and, in any event, this material is seemingly part of a coordinated attempt improperly to manipulate the court process by implicating Smith in ways that are designed to enable him to avoid a successful prosecution should he become a suspect. Whether or not this evidence is formally admitted in these proceedings is a technicality that we do not need to resolve: either way, it does not afford a ground of appeal.
Ground 3: The Admission of Danele Smith’s “Denial”
Introduction (Ground 3)
74.
It is argued that the judge erred in admitting the contents of Smith’s prepared statement of 19 October 2011(under
section 114(1)(d)
CJA)
in which he denied responsibility for the death of Mr Grisales. It is submitted, first, that the judge failed to distinguish properly or at all between a confession (a declaration against interest) and a denial (an assertion in his own interests that implicated the applicant). Second, it argued that the prosecution should have called Smith, as opposed to relying on the statement of 19 October 2011. Third, the applicant suggests the judge failed properly to take into account the matters listed in
section 114(2) CJA
and that, in any event, the evidence of Smith’s denial of involvement in the offence was introduced for a reason that never materialised: it was not needed as a counterweight for the conversation between Smith and Ms Espeut, because the defence did not call the latter witness.
Discussion
:
(Ground 3)
75.
The prepared statement by Smith of 19 October 2011 was admitted as part of the prosecution case under
section 114(1)(d)
CJA
because the defence had informed the court that Ms Espeut was to give evidence, as part of the defence case, about the conversation with Smith on 23 September 2011. Therefore, Smith’s denial of involvement in the murder of Mr Grisales was only introduced – albeit in anticipation – in order to provide the jury with the complete picture as to whether he was, or may have been, responsible for the stabbing, and whether his suggested confession to her was voluntary and genuine. The applicant changed his mind and decided not to call Ms Espeut once the prosecution had made an application in advance of her evidence that she could be questioned about the matters set out earlier in this decision. In our judgment, the ruling that the prosecution was entitled to introduce various matters in cross-examination of Ms Espeut, leading to a new tactical decision on the part of the applicant, does not render the trial unfair. The judge dealt with the 19 October 2011 prepared statement as follows:
“You heard that Denali Smith, interviewed by the police, said that Ochaine had confessed to the stabbing in Tottenham High Street in the presence of Romario Melhado whereas Romario for his part denied such a conversation had taken place.
You have not, of course, heard from Sandra Espeut nor have you heard from Denali Smith so, as with Tamisha, you need to approach with considerable caution what they have or have not said to others about these events or matters not tested in your presence and hearing by the evidential process of witnesses being called and cross-examined.”
76.
In light of the defence strategy to introduce the 23 September 2011 conversation, Smith’s statement of 19 October 2011 was plainly admissible – it was directly relevant to whether Smith had stabbed Mr Grisales – and the attempt by Mr Bromley-Martin to limit the issues that could be raised with Ms Espeut in cross-examination was unsustainable. Save exceptionally, the evidence of a witness should not be restricted so as to deny another party the opportunity to explore in questions live matters that have arisen in the trial, and about which the individual is able to give relevant evidence. The judge had properly concluded that there was no prospect of Smith giving evidence that would assist the jury, and the defence contention that he should have limited hearsay evidence in this context to declarations by Smith against his interest is without any legal foundation. The hearsay regime established by the CJA does not prohibit the prosecution from introducing evidence that may establish that an individual who is implicated by the defendant did not, in fact, commit a crime, and the applicant has not advanced any jurisprudence to support this argument. The linked submission by Mr Bromley-Martin that Smith’s denial of involvement was inadmissible because it was a “previous consistent statement” is equally without any proper basis in law. These circumstances did not engage the
general rule of evidence that prohibits a party from introducing statements a witness has made on other occasions which tend to confirm the instant evidence from the witness. These are entirely different circumstances – not least, Smith did not give evidence and the 19 October 2011 statement is relied to contradict, not to establish consistency with, other evidence. These arguments are without any merit.
77.
The judge properly admitted this material, having assessed the relevant factors, as follows:
“In seeking to achieve a balance of fairness between both the prosecution and the defence I have no doubt whatsoever that there would a real and serious risk of the jury being misled if they were to hear only a partial account of what Danele Smith said about involvement in these events, thereby from Mr Bromley-Martin’s point of view, the jury being told about the plums but not the duff. In my judgment, the jury need to hear the full picture so as to put them in the best possible position to evaluate the veracity and reliability, or lack thereof, of the confession which the defence allege that Danele Smith made to Sandra Espeut, the defendant’s mother.
I this regard, and particularly in relation to the admissibility of the Danele Smith prepared statement made to the police, I have had very much in mind the provisions of
section 114(2)
of the Criminal Justice Act which I am enjoined to take into account in considering whether the prepared statement made by him should be admitted under
section 114(1)(d)
.
Before referring to the matters se out at (a) – (i) of
section 114(2)
, I should emphasise that in addition to those matters, the court is entitled to have regard to any other it considers relevant. As to this, as I have already observed, in my judgment, it is of particular importance for the jury to have the full picture and not just those selected highlights that favour one side.
Turning to the sub-paragraphs of
section 114(2)
. As to (a): clearly the prepared statement has high probative value, if true, both in relation to what happened in College Close and in explaining why Danele Smith said what he did to Sandra Espeut. As to (b): there is of course other eye witnesses as to the events in College Close, but clearly the more direct evidence the jury have of the events, the better able they will be to evaluate and decide the truth of what occurred. As to (c): the evidence is clearly of very great importance as to the context of the case as a whole. As to (d): it can properly be argued that Danele Smith did have strong interests of his own to serve in saying what he did to the police whilst under arrest for murder. With regards to (e): in the light of the different accounts Danele Smith has given at different time, both parties accept, as they are bound to, that his reliability is seriously in issue, which of course is why neither seek to call him. Regarding (f): there is no issue as to the integrity of the circumstances in which the prepared statement was made. As to (g): some oral evidence of the matter stated has been given in the form of eyewitnesses called. As to (h): the defence will be in a position to call Sandra Espeut to set against the contents of the prepared statements. Lastly regarding (i): the absence of Danele Smith from the witness box clearly has the potential for prejudice so far as both sides are concerned.
Overall, weighing the up the pros and cons for both sides from a consideration of the matters in
section 114(2)
which, in my view are mixed in nature, as I have indicated, I am clear that the defence cannot have it both ways. If they want in, as they do, the Sandra Espeut conversation and the Danele Smith false alibi, the jury must be entitled to have the whole picture to include the later prepared statement.”
78.
This approach, in our judgment, was faultless. The judge considered all of the relevant issues, and for the reasons set out above he was fully entitled to conclude that the jury should be given the full, as opposed to a one-sided, picture of what Smith had said about his involvement, or lack of it, in the death of Mr Grisales.
Ground 4: The Submission of No Case to Answer
Introduction (Ground 4)
79.
The applicant submits there was insufficient evidence for the case to go before the jury. On the basis of the accounts from the witnesses, set out above, it is argued that no jury could properly have convicted the applicant. In particular, the applicant relies on i) the discrepancies in the descriptions of the witnesses as to the appearance of the perpetrator; ii) the extent to which the judge relied on the evidence of Martin Casey and Mary Stokes that tended to indicate that the male who stabbed Mr Grisales had been hit with the skateboard; and iii) the unequivocal evidence of Williams that she had handed the knife to Smith.
Discussion (Ground 4)
80.
This argument can be shortly addressed. The Crown candidly accepted that there were certain weaknesses in the prosecution case against the applicant as regards the original descriptions by Mr Casey and Ms Stokes of the man who stabbed Mr Grisales. It was acknowledged that the jury would need to focus on the reliability of evidence they provided at a later stage which tended to identify the clothing of the applicant. However, the jury were not limited to the descriptions of the alleged perpetrator that had been given at the outset of the investigation. Critically, they were entitled to consider the
clear link that the evidence established between the only man who the prosecution suggested Mr Grisales hit with the skateboard (the applicant) and the man who stabbed the victim (see, for instance, the evidence of Ms Stokes, set out above). This provided a clear basis for the applicant’s conviction, and it was for the jury to assess whether the criticisms of the prosecution’s evidence meant that they were nonetheless unsure of the applicant’s guilt. That was a decision for the jury at the end of the trial and not the judge on a half-time submission of no case to answer.
Ground 5: Bad Character
Introduction (Ground 5)
81.
It is argued that the judge wrongly admitted the applicant’s previous convictions (via gateway (g) of
section 101(1) CJA)
. As set out above, this followed the suggested attack that he had made on Smith and Williams, neither of whom were called to give evidence and neither of whom were victims. In support of this contention the applicant relies on the case of
R v Nelson
[2006] EWCA Crim 3412
, which we address later in this judgment [85].
82.
Further, the judge is criticised for having not excluded this evidence under
section 101(3) CJA
on the basis that it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Discussion (Ground 5)
83.
At the heart of the applicant’s defence was the contention that Williams had provided the knife that Smith then used to stab Mr Grisales. Against that background, the judge admitted the applicant’s previous convictions which included a reprimand for assault in February 2009; convictions for three offences of robbery, attempted robbery and battery in September 2009; another offence of robbery and breach of a referral order in November 2009; and a domestic burglary in July 2011. During submissions on this issue the applicant accepted that in these circumstances
section 101(1)(g)
of the
CJA
were engaged, but the judge was urged to exclude the applicant’s previous convictions under
section 101(3) CJA
. These provisions are in the following terms:
“Defendant’s bad character
Section 101
(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—
[…]
(g) the defendant has made an attack on another person’s character.
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
84.
Indeed, before the judge it was argued that the previous convictions of an accused should never be introduced when the person whose character has been attacked is neither a victim nor a witness. The judge rejected this submission as being “
clearly wrong
” and he concluded:
“In my judgment, the circumstances here are highly unusual whereby the defendant, by way of seeking to exculpate himself for the offence of murder, has chosen to introduce [material] before the jury which inculpates in the murder not one by two others. His attack on their character therefore goes absolutely to the heart of the case and a more serious and substantial attack upon individuals it is difficult to imagine. ”
85.
In support of the contention that it was impermissible for the applicant’s previous convictions to go before the jury, Mr Bromley-Martin relied on the case of
R v Nelson
[2006] EWCA Crim 3412
. However, on analysis this authority simply indicates that although this may not be a regular occurrence, ultimately it will always be a matter for the judge’s discretion, depending on the facts of the individual case. The court observed:
“14. We take the gateway aspect of the case first. There is no doubt that the wording of
section 101(1)(g)
, "an attack on another person's character", does not confine that gateway to the situation where a defendant, personally or through his advocate, attacks the character of a prosecution witness. It goes beyond the wording used in the earlier statutory provision which dealt with this area of law, namely
section 1(3) of the Criminal Evidence Act 1898
, which by paragraph (ii) referred to "imputations on the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime." Apart from the case where there was a deceased victim, the earlier statutory provision effectively confined this basis for admitting evidence of a defendant's bad character to situations where there had been an attack during the trial on the character of a prosecution witness, including a person whose statement was read at trial. It did not extend to cases where the defendant attacked the character of a non-witness, save that of a deceased victim (see the decision in R v Lee (1976) 62 Cr App R 33).
15. That has been changed by
the 2003 Act
, which simply refers to "an attack on another person's character", apparently irrespective of whether that person is a witness at trial. It must be taken, in our view, as Parliament's intention deliberately to widen the gateway in this fashion. Nonetheless, we would emphasise that the trial judge still has a discretion as to whether the jury should hear about a defendant's bad character when he has merely made imputations about the character of a non-witness. Not only does he have such a general discretion under
section 78 of the Police and Criminal Evidence Act 1984
, but
section 101(3)
of
the 2003 Act
specifically provides that: "the court must not admit evidence under subsection (1)(d) or (g) if on an application by the defendant to exclude it it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
16. How the trial judge exercises that discretion is a matter for him or her, but it seems to this Court that it would be unusual for evidence of a defendant's bad character to be admitted when the only basis for so doing was an attack on the character of a non-witness who is also a non-victim. The fairness of the proceedings would normally be materially damaged by so doing.
17. Having said that, the facts of cases do vary. […]”
86.
In this case evidence from Smith and Williams was before the jury and the applicant had accused them of having caused the death of Mr Grisales. This attack on their character was extremely grave, and it was well within the judge’s discretion in those circumstances to introduce evidence of the applicant’s convictions. That step did not have such an adverse effect on the fairness of the proceedings that in consequence the court ought to have excluded this material; indeed, to the contrary it was entirely appropriate that the jury were put in a position of the being able to use this material when assessing the credibility of the defendant who was accusing others of being in possession of a knife and, in Smith’s case, of using it to kill Mr Grisales. As the judge said to the jury:
“The reason why I gave permission to the prosecution to adduce that evidence before you is because of the allegations made by the defendant to the police and subsequently repeated to you in evidence against Tamisha Williams and Denali Smith. He has accused Danele Smith of carrying out the stabbing and he has accused Tamisha Williams of effectively encouraging the stabbing by off her own bat producing a knife and handing it over to Denali Smith for use.
It is, therefore, only right where serious allegations like that are made against others that you should know of the character and background of the individual who makes such allegations but the use that you are entitled to make of your knowledge of these previous matters in which the defendant has been involved is limited. You are entitled to consider the convictions in your evaluation of the defendant’s credibility. That is to say it would be open to you to be less inclined to accept his account of what occurred in College Close than you might the account of a person with an unblemished character. What weight, if any, you attach to his previous offending is though, as far as credibility is concerned, entirely a matter for you. You are not entitled in any way whatsoever to regard his convictions as making it in any way more likely that he has committed this stabbing. They have no relevance in that regard at all.”
87.
This was a model direction that reveals that it was appropriate for the jury to hear of these convictions when assessing the credibility of the individual who had accused two others of responsibility for the murder with which he was charged.
Ground 6: The Summing Up
Background (Ground 6)
88.
The verdict is said to be unsafe because of a number of errors in the summing up, some of which were left uncorrected. The central contentions in this regard are as follows.
“Tamisha Williams: the warning
i)
The judge erred in directing the jury to approach the evidence of Williams with considerable caution and circumspection, reminding them that her truthfulness had not been tested in front of the jury.
Tamisha Williams: offering the knife to Smith
ii)
The judge failed to mention sufficiently early in the summing up that Williams’ account was that she had offered the knife to Smith.
Romario Melhado and Shay Williams
iii)
As regards the evidence of Romario Melhado and his suggestion that Smith confessed to him, the judge incorrectly directed the jury to be very careful about his evidence and that it was of limited value. Similarly, the judge should not have warned the jury to approach the hearsay evidence of Shay Williams with very considerable caution.
A modified Turnbull direction for the clothing
iv)
The judge wrongly directed the jury on the subject of the clothing of Martin Casey and Maria Stokes, and he failed to give a modified
Turnbull
direction (
63 Cr App R 132
). It is contended that the judge should have warned the jury of the “
special need
” for caution as regards the identification procedure on 17 January 2012 during which the applicant’s clothing was identified by Martin Casey and Mary Stokes, and that he should have adapted the
Turnbull
formula to clothing. Furthermore, it was suggested that it was necessary for the judge to direct the jury as to the risk of collusion on the part of these witnesses. We note in this regard, however, that the unchallenged evidence by the prosecution was that there had been no opportunity for collusion on the part Mr Casey and Ms Stokes between their individual identification procedures. Generally, it is argued that the judge inadequately addressed the identification evidence, and the inconsistent details that were provided by various witnesses.
The
section 34
direction
v)
The judge gave an incorrect direction pursuant to
section 34 Criminal Justice and Public Order Act 1994
as regards the applicant’s failure to mention when questioned matters that he later relied on in court. It is argued that this was not a case in which these matters
“called out”
for an explanation. It is contended that this was not an ambush defence and the applicant had provided a detailed account in his prepared statement.
The Lucas direction
vi)
A lies direction in accordance with
Lucas
(
73 Cr App R 159
) should not have been given as regards the telephone call the applicant said he made to Williams shortly after the incident (her telephone records revealed no such call had been made) and his assertion that he had not been wearing an item of clothing with a hood. It is suggested that even if these matters were lies, they did not have any bearing on his suggested guilt and they did not relate to a material issue. Furthermore, the judge failed to set out the matters for the jury that may be relevant when they are deciding whether he may genuinely and reasonably have relied on legal advice.
Self-defence
vii)
The judge undermined the applicant’s true defence by summing up the ingredients of self-defence, and that there was no evidence before the jury that raised this issue.”
Discussion (Ground 6)
i) Tamisha Williams: the warning
89.
Although Tamisha Williams was arrested on suspicion of the murder of Mr Grisales, she was not charged with any offence and she did not testify during the trial. DC Durham gave hearsay evidence that Williams told her that she had been inside her house at the time of the stabbing, and had only gone outside in order to give first aid. However, on being informed as to the contents of the applicant’s prepared statement (set out above), she changed her account and described a conker-throwing incident which started an argument. She suggested that Mr Grisales “
got mad
” and hit the applicant (“
Spider
”) with a skateboard, whereon the applicant hit him. Granville and Mr Grisales exchanged blows and there was then a general fight, which included a third man who, until that point, had been watching on the side lines. She agreed she had said “
take the knife, take this
”, but she declined to give the name of the man at whom this instruction was directed. On her account this was not the applicant or Granville, and viewed realistically it must, therefore, have been the third man (Smith). She then walked away in the direction of her house, but she heard screaming and she turned round and saw the now injured Mr Grisales crossing the road.
90.
The judge reminded the jury of the evolution of her account, and he then went on to direct them as follows:
“You will recall that these exchanges between her and the police all occurred when she was being interviewed as a witness. No solicitor had been present and she did not have access to legal advice and had not been cautioned. She was then arrested. She was now interviewed under caution in the presence of her solicitor and went no comment.
Importantly, ladies and gentlemen, you have not heard from Tamisha herself; only what she said to the police. Both sides agree that she did say those things to the police because those are a matter of record but, of course, the truthfulness of her account has not been tested in your presence and hearing because she has not given evidence before you. It therefore follows that you need to approach what she said to the police with a degree of caution and circumspection.”
91.
In our judgment, this warning to the jury was entirely appropriate. The witness had given, over a short period of time, two wholly different accounts as regards what she had seen. She had not made a witness statement. On any view, the jury needed to be warned that neither version had been verified on oath or tested by cross-examination. The need for caution and circumspection in those circumstances were undoubted. The judge did not undermine or shift the burden and the standard of proof in giving the jury this indication of the need to take care when they were considering these two untested and contradictory accounts, and when they were assessing whether the witness may have been telling the truth. It is untenable to suggest that the judge is obliged to warn the jury of the dangers that can accompany hearsay evidence that is relied on by the prosecution but is obliged to remain entirely silent on this issue when the hearsay evidence is said to support the defence case.
92.
The hearsay regime established by CJA applies equally to both the prosecution and the defence, although when the court is applying its various provisions
the identity of the party may well be relevant. For instance, it does not necessarily follow that the interests of justice will point in the same direction upon an application by the Crown as they might upon an application made by a defendant (
R v Y
[2008] EWCA Crim 10
;
[2008] 1 Cr. App. R. 34
, at paragraph 59)
. But the legislation does not structurally favour the defence over the prosecution
, and this reflects the longstanding position at common law (see
R v Turner and others
(1975) 61 Cr App R 67, at page 88). Critically, although the CJA provides for the wider admissibility of hearsay evidence than had been the position hitherto, it is not to be considered the equivalent of first-hand or direct evidence. As this court pointed out in
R v Riat
[2012] EWCA Crim 1509
; [2013] 1 Cr. App. R. 2:
“3. […] The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. […]”
93.
Counsel failed to cite one of the few relevant authorities from this court on this issue:
R v Abiodun
(2003) EWCA Crim 2167
, referred to in one of the leading text books (Blackstones at F16:47). That case concerned the admissibility of evidence under
section 23 Criminal Justice Act 1988
as regards two defence witnesses who were abroad and the judge directed the jury as follows (as set out at paragraph 29 of the judgment):
“Then the statements of Mr Adedeji and Mr Akerele were read. I should explain, Members of the Jury, that there is a statutory procedure under which where witnesses are abroad and cannot come to this country, their statements can be read, so their evidence goes in in statement form. Obviously from your point of view, when it comes to assessing what weight to give to their evidence, the disadvantage is, of course, that you have not had the benefit of seeing them give evidence and seeing them cross-examined so you don't know, at the end of the day, how well or badly they would have fared, particularly in cross-examination, to what extent they would have impressed you, if at all. That is, of course, denied to you, but nevertheless, their statements are in evidence before you perfectly properly and have been read to you.”
94.
Of that direction, the court observed as follows:
“66. The disadvantage, it is said, of admitting the statements under S. 23, was that the judge was bound by R v McCoy (John) 10 December 1999, [2000] 6 Archbold News 2 to direct the jury in the terms that he did, and that the jury would inevitably place less, perhaps much less, weight on the evidence of Mr Adedeji and Mr Akerele. Further the absence of the witnesses meant the jury could not assess their evidence properly.
67. Even if McCoy obliged the judge to give such a direction (we note that the facts of McCoy are very different from the instant case) then in our judgment the direction the judge in fact gave was mild. In any event it did no more than remind the jury of what in any event would have been obvious to them i.e. that the witnesses had not been cross-examined and that they were under some disadvantage in assessing how well or badly they would have fared in cross-
examination. Furthermore, from the appellant’s standpoint the absence of the two
witnesses meant that the risk of their evidence being damaged, had they been cross-examined, was eliminated.”
95.
Furthermore, it is of note that in
R v Marsh
(2008) EWCA Crim 1816
, a decision by the trial judge was upheld on appeal to refuse to admit a hearsay account of what a prisoner – a man called Rossier – had said to another inmate (Bennett), about the appellant Marsh’s lack of involvement in the offence of conspiring to supply cocaine. Hughes LJ indicated that the second of the court’s two reasons for concluding that the exclusion of this evidence did not render the verdict unsafe was “[…]
the very clear warning or direction which the judge would admittedly have had to give about the extreme caution needed before relying on second-hand evidence of this kind of what Rossier had said”
[26]. In other words, the judge would have needed to give the jury strong directions about hearsay evidence relied on by the defence.
96.
We repeat that the judge, when giving directions to the jury on hearsay evidence relied on by the accused, must be scrupulous to ensure that he does not shift the burden of proof away from the prosecution. But it was unobjectionable in this case for the court to identify the weaknesses in the evidence and to highlight the need for caution as regards material that had not been tested, particularly when the witness had given two completely contradictory accounts that have not been investigated in cross-examination. The judge’s remarks were balanced and proportionate and these directions do not provide an arguable ground of appeal.
ii) Tamisha Williams: offering the knife to Smith
97.
It is suggested that the judge failed to mention sufficiently early in the summing up that Williams in her account was, as a matter of logic, indicating that she had offered the knife to Smith. When first dealing with her evidence on the first day, the judge reminded the jury:
“The police then read to her that part of Ochaine’s prepared statement in which he referred to Tamisha having said, “Take the knife”. She was asked if this was correct. She paused and nodded. She admitted saying “Take the knife, take this” to a male although would not name him.”
98.
On the second day of the summing up (after a day’s break), the judge said to the jury:
“[…] a very brief further observation about Tamisha Williams. I wanted to remind you that, in accepting as she ultimately did the truthfulness of Ochaine’s account when it was put to her by the police, although she did not name the third man to whom she agreed that she had said “Take the knife”, that person must on her account have been Denali Smith.”
99.
By the time the jury retired, the evidence on this issue had been set out in full. There is no substance to the complaint that the verdict is unsafe because the reference to Smith was delayed until the second day of the summing up. It was arguably to the applicant’s advantage that the link between the knife and Smith was rehearsed shortly before the jury retired.
iii) Romario Melhado and Shay Williams
100.
Mr Bromley-Martin asserts that the judge incorrectly directed the jury to approach the evidence of Romario Melhado and his suggestion that Smith had “confessed” with very considerable caution, given it was relied on by the defence. Instead, he submits that the judge ought to have been directed the jury that if they accepted, on the basis of the hearsay account, that the statement may have been made, then they had no choice but to conclude that may have been a genuine account of what occurred. No other direction, in the applicant’s submission, should have been given. Therefore, Mr Bromley-Martin contends that if it was possible that Smith uttered the words of the “confession”, the applicant was entitled to be acquitted.
101.
The problems with Melhado’s account were considerable. He gave evidence of having heard from Shay Williams on 1 September 2011 that Smith had got into an argument and stabbed someone. It was unclear whether Shay Williams was speaking about something he had seen or whether this was an additional piece of hearsay (resulting in the judge observing that this evidence from Shay Williams needed to be treated with very considerable caution). Melhado also suggested that he had heard that the applicant was “snitching” on him and that Smith had indicated that he had heard Tamisha Williams say “here’s the borer”. However, he also told the police when interviewed by the police at length on 13 October 2011 that he did not know and had not heard anything about the murder. The judge concluded his rehearsal of Melhado’s evidence as follows:
“Two things are clear from his evidence: firstly, what he said to you is entirely at odds with what he said to the police and, secondly, in any event he is telling you not what he saw but rather what he claims others have told him, others from whom of course you have not heard. You may conclude, although it is a matter for you, that his evidence is of limited value. ”
102.
In light of the above, it is clear that the parts of Melhado’s account the defence sought to rely on were, certainly in the main, hearsay evidence and possibly multiple hearsay. Melhado had given starkly contradictory accounts as to his state of knowledge – on any view he had lied at one stage on this issue – thereby calling into question the reliability of his evidence. Given the extent to which he was (if truthful) dependent on what others had told him and bearing in mind the inconsistencies in his account, the jury undoubtedly needed to approach his evidence (along with the suggested information that had come from Shay Williams) with significant care. In our judgment the applicant’s submission that the only direction that ought to be given when the defence rely on a suggested hearsay confession to crime, regardless of its origins or its circumstances, is to invite the jury to consider whether the confession had been, or may have been, made is wholly untenable. We note this argument is based solely on an illustrative direction set out the 2010 Crown Court Bench Book at page 220. Instead, as set out above [90] so long as the judge does not undermine the correct approach to the burden and standard of proof, he is fully entitled to draw the attention of the jury to the potential strengths and weaknesses of hearsay evidence in order to ensure that the possible limitations of evidence of this kind are understood by them (
e.g.
the lack of any cross-examination), whomsoever introduces or relies on it. There is no rule of law – nor should there be – that the judge must simply direct the jury to consider whether the “confession” may have been made and to ignore all other matters relating to that piece of evidence. In this instance, the comments of the judge did not in any sense undermine his earlier directions as to the burden and standard of proof, and in those circumstances the comments he made about his evidence were justified and entirely appropriate.
iv) A modified Turnbull direction for the clothing
103.
The applicant argues that the judge wrongly directed the jury on the subject of the clothing of Martin Casey and Maria Stokes in the sense that he failed to give a modified
Turnbull
direction. The judge’s direction was as follows:
“Identification evidence. Martin Casey and Mary Stokes are clearly very important witnesses and I shall be reviewing their evidence with you shortly. Neither of them picked out the defendant at the VIPER identification procedure but on 17 January both did so from the clothing images of three individuals, each of whom, as you know were wearing different clothing.
You need to approach their evidence with great caution. I will, of course, remind you of the description which they gave at different times of the person who they say was in possession of a knife and you will have to reach a conclusion as to the extent to which, if at all, the description that they variously gave undermines the prosecution case that it was the defendant who committed this offence. […]”
104.
It is contended that the judge should have warned the jury of a “
special need
” for caution as regards the identification procedure on 17 January 2012 during which the applicant’s clothing was identified by Martin Casey and Mary Stokes, and that he should have adapted the
Turnbull
formula for these purposes. There is no legal basis for the suggestion that the judge needed to give a modified
Turnbull
direction in the manner suggested, and the warning by the judge set out above was entirely appropriate and sufficient in these circumstances. It is of note in this regard that
no
Turnbull
warning is required in respect of a photofit: it is sufficient to direct the jury that it is simply an attempt to reconstruct the features of a person to the best of the witness’s ability (
R. v. Constantinou
,
91 Cr.App.R. 74
). That approach applies equally in the present circumstances. The arguments in relation to collusion fall away given the undisputed evidence that no such opportunity existed. Finally, the judge set out the various descriptions of the witnesses in significant detail. The applicant’s submissions under this heading are wholly lacking in merit.
v) The
section 34
direction
105.
As to the ground of appeal that the judge gave an incorrect direction pursuant to
section 34 Criminal Justice and Public Order Act 1994
concerning the applicant’s failure to mention when questioned matters that he later relied on in court, this is equally lacking in substance. The judge carefully set out for the jury the four matters which formed part of the applicant’s defence that had not been included in the prepared statement:
i)
That 20 minutes or so after the incident Denali Smith, in the presence of Curtiss Granville, confessed to having carried out the stabbing;
ii)
That shortly after leaving the scene he discarded a number of items of his clothing in a bin near to a friend’s house which has had the effect of preventing the recovery of those items and also that he put the jacket under a baby bath in the garden of his home;
iii)
That he left College Cross within moments of the stabbing and before the other two which, if right, would mean that he could not have been the person seen by Mary Stokes;
iv)
Lastly, that as he ran away he turned round and saw Curtis Granville in possession of the knife, waving it about, which, if correct, means that two people were in possession of the knife during this incident so that the person Mary Stokes saw with the knife is unlikely to have been the person who carried out the stabbing.
106.
Contrary to Mr Bromley- Martin’s submissions, the prosecution did not accept that any of these suggested facts were true – they were all clearly in dispute. As to i), in the prepared statement and in his interview, the applicant made no mention of the confession by Smith shortly after Mr Grisales had been stabbed. As to ii), as part of his defence at trial the applicant needed to explain why the main items of clothing he had been wearing that night were not discovered by the police when they searched his home. The applicant gave an elaborate explanation in this regard during the trial, none of which was referred to in the statement and during the no comment interview. As to iii), the prepared statement describes the three companions running away in the same direction at the same time, and on iv) there is no mention of Curtis Granville waving the knife. All of these four matters, relied on by the applicant at trial in support of his defence, which were disputed and which had not been set out in the prepared statement or during his interview, provided a proper basis for a
section 34
direction and the applicant’s submissions to the contrary are without any sustainable foundation.
107.
Furthermore, there is no basis for suggesting that the judge should have directed the jury as to the possibility that the applicant may have not mentioned these matters as a result of legal advice is entirely without foundation. He did not give evidence to that effect.
vi) The Lucas direction
108.
Contrary to the applicant’s submissions, a lies direction in accordance with
R v Lucas
(
73 Cr App R 159
) was entirely appropriate in this case as regards the telephone call the applicant said he made to Williams shortly after the incident (her telephone records revealed no such call had been made) and his assertion that he had not been wearing a hooded item of clothing at the time of the stabbing (this evidence was demonstrated to be untrue). There was a clear basis on which the jury could conclude that these were lies on separate or distinct issues that supported the prosecution’s case against the applicant on the charge of murder. The Crown suggested that the applicant had lied as regards the telephone call because he needed to explain why he had evaded the police and that he lied about the clothing in an attempt to undermine the suggestion that he had stabbed Mr Grisales. This direction ensured that these undoubted lies were not used improperly against the applicant by the jury, and the direction operated to his advantage.
vii) Self-defence
109.
We unhesitatingly reject the applicant’s complaint that the judge undermined the applicant’s true defence by summing up the ingredients of self-defence, along with the linked submission that there was no evidence before the jury that raised this issue. On the facts of this case the judge had to guard against the possibility that the jury may reject the applicant’s defence that he had not wielded the knife. In that eventuality, it was necessary – in his interests – for the jury to consider whether he may have acted in self-defence, given there was clear evidence that he had been hit at least once by Mr Grisales with the skateboard. This attack on him by the victim raised the issue of self defence in the clearest possible way, and the judge would have failed in his obligations if he had failed to direct the jury as to the elements of this possible defence.
Other suggested errors of fact and law in the summing up
110.
At paragraph 43 (xiii) of the Final Advice on Appeal 27 August 2012, certain supposed “
errors of fact”
are referred to. These were, in the main, slips by the judge which were brought to his attention at the end of the first day of the summing up. Those of any merit were dealt with at the beginning of the second day of the summing up, prior to the jury going into retirement. Those which the judge did not address or correct were either unimportant or without merit. It is unnecessary to deal with these issues in the course of this judgment: none of them, viewed separately or collectively, undermines the safety of the conviction.
Conclusion
111.
Notwithstanding the myriad arguments advanced in support of this application, none of them arguably support the suggestion that the verdict is unsafe. The application is accordingly refused.
Post Scriptum
112.
The exceptionally long delay between hearing the evidence of witness B and the final hearing of the application (12 months) was solely the result of repeated requests by the applicant to be afforded additional time to locate the original recording sent to witness B by Smith and to instruct one or more relevant experts. It is unnecessary to rehearse the details of the repeated applications that were made to this court to delay the proceedings for these investigations to take place, but the requests to postpone the case continued right up until the final hearing of the application on 15 July 2014. Given the importance of this issue to the applicant – as a teenager convicted of murder – the court, with considerable reluctance, was prepared to allow the applicant’s solicitors to complete what proved to be extensive researches. In the result no material of relevance was produced and the applicant accepted that the final submissions should be presented on 15 July 2014. | [
"LORD JUSTICE FULFORD",
"MR JUSTICE GRIFFITH WILLIAMS",
"MR JUSTICE NICOL"
] | 2014_09_19-3475.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1862/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1862 | 755 |
20fae964f64c46a5e594251e317259d3b8cf9926ddac0070eb30dff04108a162 | [2005] EWCA Crim 517 | EWCA_Crim_517 | 2005-03-10 | supreme_court | Neutral Citation Number: [2005] EWCA Crim 517 Case No: 200204942D1 2004/3648/D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHELMSFORD CROWN COURT HIS HONOUR JUDGE BALL, QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 10 March 2005 Before : LORD JUSTICE MANCE MR JUSTICE NEWMAN and MR JUSTICE FULFORD - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - RICKY WEST Appellant - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2005] EWCA Crim 517
Case No:
200204942D1
2004/3648/D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHELMSFORD CROWN COURT
HIS HONOUR JUDGE BALL, QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10 March 2005
Before :
LORD JUSTICE MANCE
MR JUSTICE NEWMAN
and
MR JUSTICE FULFORD
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
RICKY WEST
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Gareth Hughes
(instructed by the
Crown Prosecution Service
) for the
Respondent
Mr Patrick Cahill
(instructed by
Alistair Meldrum & Co
) for the
Appellant
Hearing date : 17 February 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Mance :
1.
On 5
th
October 2004 we heard a renewed application for permission to appeal in respect of the applicant’s conviction and sentence to 7 years’ imprisonment on 29
th
July 2002 before HHJ Ball QC at Chelmsford Crown Count on two counts of possessing Class A drugs (in the one case cocaine, in the other MDMA tablets) with intent to supply. The application was presented by Mr Cahill who was not counsel appearing for the applicant at the trial. We dismissed the application save in one respect relating to conviction, which we adjourned for further consideration, with an order that the Crown attend to assist us with regard to a public interest immunity application which it made to the trial judge.
2.
A more detailed outline of the factual background appears in the judgment which we gave on 5
th
October 2004. But the following summary suffices for present purposes. The applicant’s defence at trial was that he had in early January 2002 arranged to buy from a supplier, a man called Kenny, a small amount of pure cocaine for his personal use, for which he paid some £550 on 9
th
January 2002. Instead of this small quantity being supplied, he said that, during the afternoon of 9
th
January 2002, while he was away from the house where he lived but while the woman owner of the house was in, someone planted there in the kitchen a substantial quantity of drugs, consisting of 283 MDMA tablets, 174.266 grammes of cocaine, 1.57 grammes of methamphetamine and a quantity of cannabis. These quantities were so substantial that the drugs could only sensibly have been for a purpose or purposes including supply to others. He suspected Kenny or someone connected with Kenny of having in this way framed him.
3.
The evidence at trial was that the police had information that led PC Parish at 6.30 p.m. on the afternoon of 9
th
January 2002 to obtain a magistrate’s warrant, which the police executed at the house at 7.30 p.m. They then found in the kitchen the substantial quantity of drugs to which the two counts on which the applicant was convicted relate. As a result of a public interest immunity application made by Crown counsel, the trial judge confirmed that the Crown need not disclose further information to the defence about the police's source of information. During the trial the defence case was that Kenny or one of his agents must have set the defendant up. But the defence had no information about the nature or timing of the information which had led the police to obtain the search warrant.
4.
In summing up to the jury, the trial judge said this:
“In this case, we know that the police were acting as a result of information. We were told it was an information-led inquiry. You do not know what that information was. You do not know, for example, whether a bug had been placed at No. 66, whether a telephone tap had taken place, whether it had been the next door neighbour who had rung up and complained about activities next door, whether it had been a parent whose child had been taken ill having taken an Ecstasy tablet and they had found out where it had come from, or whether it was a drugs user who had been stopped on the street and said, ‘This is where I got it from.’ You do not know, and there is no point in speculating. All we do know – and indeed it is an important part of Mr West’s defence – is that the police had information which caused them to go there.
The policy is he is not to be told and you are not to be told. Except there is one huge exception to that public policy, and it is this. The exception is that where it is necessary for a defendant to have a fair trial to be able to put forward his defence in the best possible light, if that information that they ha is such which would assist or advance his defence, then it becomes liable to be disclosed.
Mr West’s defence, as we now know it, is that the drugs came into his house through the agency of someone called Kenny who he had met earlier that day and had arranged to take some drugs from him. He had I think placed an order for some pure cocaine which Kenny said he would drop round. Mr West’s case as we now know it, is that Kenny or one of his agents in fact must have deposited this combination of drugs. Mr West tells us that in a phone call to Kenny, Kenny said something about it being ‘on top’, and so he let himself in and put the drugs there. That is his case. His case is ‘I am just a user’. These aren’t really anything to do with me. They were deposited there at the eleventh hour by somebody else.’
If there was a shred of information available to the police which supported that account or even tended to support it in some way, then you would be entitled to hear it, he would be entitled to see it. I would be duty-bound to make it available to him.
Now again it is not quite – there is still more to it than that, but it is important that you understand the way the system operates.
The prosecuting authorities have a duty to disclose, as I have just indicated, where it would assist a defendant in the presentation of his defence, and a system exists whereby the defence can make known in advance what their defence is, so that enables the prosecution to review their material and see if there is anything there that might conceivably assist. The prosecution cannot reveal matters if they have not got a clue what the defence is. There is a procedure whereby the defence are able to serve a defence statement before a trial begins so the prosecution know what the defence, in broad terms, is and can consider the material to see if they have got anything that helps. They would look, of course, at what a defendant said when he was arrested and interviewed to see if he was triggering the right to receive this material.
Here Mr West, of course, said nothing in interview, so that gave no clues to the prosecution. There was no disclosure statement prior to trial. But once the trial began, his defence gradually emerged; and as it emerged, the prosecution were then able to review the material. I reiterate: if anything existed which was known to prosecuting counsel in this case – which would have to be put before the judge and therefore would be known to the judge – which assisted Mr West’s defence, it would be liable to disclosure. No such material has come forward.
Again, there is another layer about which I need to tell you as well, because that is not an end of it. It is unknown for a defendant in a drugs trial to assert that the drugs have been planted; to assert, for example, that he had fallen out with his regular supplier, and his regular supplier must have stitched him up (given him the drugs and then told the police, ‘He’s got them’). That is a classic example if that happened. And if a defendant came along and said, for example, ‘My supplier is Kenny Bloggins. I have had a row with him. And he gave me these drugs, and he’s tipped you off’ – if that, for example, were the defence that was being run and it were true it was Kenny Bloggins that had tipped the police off, the fact that Kenny had tipped the police off would be liable to be disclosed to the defendant.
However then, of course, the police would be in a quandary. They have got this public policy: ‘We must keep secret the identity of informants to protect them.’ The defence here are asserting that they have been informed on by Kenny. So what would happen? Well the prosecution would be then faced with a decision either to disclose the fact that their informant was Kenny – and they would be loathe to do that, because that again is contrary to public policy and would undermine the confidence that exists in informants to pass information.
So almost certainly what they would do is they would say ‘Well, we are not going to let that information out as to how we got the information, but what we will do is we won’t proceed with the charges. We will throw in the towel. We will offer no evidence. We will bring the trial to an end.’
Again, that response is something which is susceptible to exploitation by defendants, because they know if they can press the right button, run the right defence, they can so embarrass the prosecution that they have to throw the towel in.
The judge presides over all of this: Receiving the material, seeing what exists, judging whether it is remotely relevant to the defence that is being run.
For the last time I say: if prosecuting counsel had placed before me a shred of material that in any way advanced Mr West’s defence, he either would have had it made available to him so that he could place it before you, or the Crown would have packed up their bags and gone away.
That is a little more about PII. It is becoming increasingly at the centre of criminal trials, because much of police work is indeed intelligence-led.
The overriding concern of this court – and you might think sometimes a court has gone too far to accommodate this. But the overriding concern of this court, above all other, is to ensure that both defendants have a fair trial and that they are able to put whatever their defence is in the best possible light before you.
That is public interest immunity and disclosure, public policy and informants.”
5.
Among the considerable number of complaints made by the applicant in applying to this court for permission to appeal was a complaint about the withholding of information about the source of the police information leading to the search warrant and to his arrest. In this respect, after reading certain material held by the Registrar of the Court of Appeal Criminal Division which indicated the information before the trial judge, we adjourned the defendant’s application and ordered the Crown to attend to explain to us more fully the course of the public interest immunity hearing before the trial judge and any significance that it might have in the context of the trial.
6.
The matter came back before us on 17
th
December 2004, when the Crown was represented by Mr G. Hughes of counsel, who was himself not counsel appearing for the Crown at trial. Counsel appearing for the Crown at trial had become indisposed and has since sadly passed away. After hearing from Mr Hughes and the officer in the case in the absence of Mr Cahill, Mr Cahill was informed that we were further adjourning the matter for further factual investigations to be made, with regard to matters not investigated at the time of trial.
7.
The application came back before us on Thursday, 17
th
February 2005, by when we had been supplied with the further information which we had requested. In the absence of Mr Cahill, we again heard Mr Hughes and he took and communicated to us further instructions with regard to the Crown’s position. After considering the matter, we announced in open court and in Mr Cahill’s presence that we allowed the applicant’s application and would treat the matter as the hearing of the appeal, and that the appeal against conviction would be allowed for reasons to be given in a judgment to be delivered in writing. We also made a defendant’s costs order to cover the costs before us. These are now our reasons for our decision.
8.
The defence was given no information about the nature or timing of the information received by the police leading to the search warrant, but they were assured by the trial judge that there was no shred of evidence available to the Crown which supported or in any way tended to support his account that the drugs had been planted on him. Having seen the further information made available to us on 17
th
February 2005 and in the light of all the information before the court on the present application, Mr Hughes accepts that information is now available that could have been relevant to the conduct of the applicant’s defence, even if not in a way which the judge or the applicant may have envisaged. But Mr Hughes also informs us and we accept that, had the prosecuting authorities known at the time of trial all that is now known, they would have declined to make any further disclosure to the defence, and would have preferred, in the manner contemplated by the judge, not to proceed with the charges and so to offer no evidence against the applicant. This would have led to his acquittal.
9.
In these circumstances, it would not have been right for us, having regard to the character of the relevant information, to order its disclosure to the applicant. We are not in a position to express any view as to its ultimate significance before a jury if it had been disclosed. There are other features of the evidence at trial which could on any view have caused the defence difficulty, such as the defendant’s fingerprints found on, and on an envelope in, the tin containing some of the drugs. The applicant’s case at trial was both that he had discovered the tin just before the police arrived and had briefly opened it to see what it was, and also (implausibly as the jury must have thought in the light of the police evidence) that the police must have switched the drugs after executing the search warrant. But what is clear, in the light of all the material now available to us, is that the further information which we have seen as a result of the public interest immunity hearings which we have held would have been of potential relevance and value in the conduct of the defence at trial. In those circumstances, whatever a jury might ultimately have thought of it, the applicant’s conviction can no longer be regarded as safe. For that reason, we considered it appropriate to grant permission to appeal, and to allow the appeal and quash the applicant’s convictions accordingly. The Crown has not sought a retrial in these circumstances.
10.
We add only that the course and outcome of this appeal show the importance attaching to the most searching investigation by the police, by prosecuting authorities and by courts of the facts relating to matters in respect of which public interest immunity is claimed, coupled with the most searching consideration of their possible relevance in the light of whatever defence is being advanced. The judge was not given a complete factual picture by the police in this case. Indeed, even the officer in the case who appeared before us at the first adjourned public interest immunity hearing in this application on 17
th
December 2004 was himself surprised to discover the complete factual picture on the police side as it thereafter emerged and was put before us on 17
th
February 2005 as a result of the further enquiries which we had ordered that he make. This course of events underlines the great caution necessary in the handling of public interest immunity applications made in the absence of the defence. | [
"LORD JUSTICE MANCE",
"MR JUSTICE FULFORD"
] | 2005_03_10-469.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/517/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/517 | 756 |
5ac10d908f331912044b659a8a9b97b4b047fe209e281bd39f47fe034ca64f8c | [2010] EWCA Crim 258 | EWCA_Crim_258 | 2010-02-03 | crown_court | Case No: 200900940 D5 / 200901536 D5 Neutral Citation Number: [2010] EWCA Crim 258 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 3 February 2010 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE SHARPE DBE THE COMMON SERJEANT (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN CHISHOLM - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internatio | Case No: 200900940 D5 / 200901536 D5
Neutral Citation Number:
[2010] EWCA Crim 258
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 3 February 2010
B e f o r e
:
LORD JUSTICE TOULSON
MRS JUSTICE SHARPE DBE
THE COMMON SERJEANT
(SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
JOHN CHISHOLM
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MR J ELVIDGE
appeared on behalf of the
Appellant
MISS H MALCOLM QC
appeared as
Special Counsel
MR R WOODCOCK QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON:
John Chisholm appeals, with leave, against convictions for causing grievous bodily harm with intent and violent disorder, and against the sentence imposed for the first of those offences. He was convicted at Newcastle-Upon-Tyne Crown Court on 27 January 2009, before HHJ Lancaster. There was a third Count of witness intimidation on which he was acquitted. He was later sentenced on Count 1 to imprisonment for public protection with a minimum specified term of 5 years, less days spent on remand, and on Count 2, to 2 years' imprisonment concurrent. Two other men, the appellant's son and Karl Waters, were acquitted on Count 1 on the judge's direction, and pleaded guilty to Count 2 at the outset of the trial. They were each sentenced to 18 months' imprisonment on Count 2.
2.
The case arose from an incident on Hylton Road, Sunderland, at around 1pm on 24 May 2007, when the appellant inflicted several stab wounds on Robert Anderson as he was sitting in the driver's set of a black BMW which was stationary at traffic lights. The issue for the jury was whether the appellant was acting in self defence.
3.
The BMW had three occupants: Anderson, Alan Smart, who was the owner of the vehicle, and Ryan Lloyd. The evidence of all three was that Smart was in the front passenger seat and Lloyd was in the back. Hylton Road is a major arterial road which leads west from Sunderland City Centre. It is a road with retail outlets and a public house called Oddies which features in the story. The road was busy with traffic and pedestrians, including women and children. The BMW had travelled from Smart's house on the west side of Sunderland to Gillbridge Police Station, where Smart had to report, and was on its way back heading westwards.
4.
On the day of the incident, the appellant, his son, and Waters, were travelling in a green Volvo. Waters was the driver. Before they set off from the appellant's home, the appellant armed himself with a knife and his son armed himself with an axe. The prosecution's case was that they were on a revenge mission. Back in February 2007, the appellant's son had been the victim of an attack with a gun, which the prosecution and defence were agreed had been carried out by Smart and Anderson. At the time of the incident giving rise to the present appeal, legal proceedings against Smart and Anderson had not yet begun; they were subsequently tried and acquitted. Their trial was in November 2007, ie between the date of the incident giving rise to the present appeal and the appellant's trial.
5.
The appellant's evidence was that he feared that Smart and his gang intended to cause serious harm to himself or other members of his family because of a past feud, and more particularly because of various violent or threatening things which Smart and his associates had said and done, including but not limited to the grave attack on the appellant's son three months earlier, so they armed themselves for protective purposes. While they were on the road, they saw Smart's car and decided to follow it. The appellant's evidence was that they decided to follow it to see that it did not go near his family.
6.
The Volvo, carrying Waters, the appellant, and his son, was about three vehicles behind the BMW when they both came to a stop in a line of traffic at the lights in Hylton Road. What happened next was the subject of oral evidence by the three occupants of the BMW -- all of whom were of thoroughly bad character -- six other witnesses for the prosecution, and the appellant. The six other witnesses for the prosecution all gave evidence anonymously, out of sight of all but the judge and jury, and with voice modulation, pursuant to rulings made by the judge under the
Criminal Evidence Witness Anonymity Act 2008
. They were referred to by letters of the alphabet. It would be tedious in this judgment to refer to each anonymous witness as "he or she", and because our language has no gender neutral word for he or she, we will refer to each anonymous witness as "he".
7.
A good deal of what happened was common ground. The appellant's son got out of the Volvo and went towards the BMW. He smashed either the rear or passenger window with his axe. The noise of that and shouting drew the attention of the anonymous witnesses. For the reasons which will become apparent, I will summarise the evidence of "X", but not that of all the other anonymous witnesses.
8.
"X" at first said that he was on the street, but later revealed that he was inside Oddies on the ground floor in the bar. He said that he had not wanted to reveal his whereabouts in case he could be traced. He said that he first heard an angry male voice. On looking out of the window, he saw the man with the axe rushing to the BMW and striking the back of it. The Volvo then pulled out of its line of traffic and moved forward to the front of the BMW where it stopped. He saw the appellant, whom he recognised, get out of the driver's side of the car. The appellant was carrying a knife. He went a short distance to the door of the driver of the BMW and thrust the knife through the driver's window into the driver's chest three or four times. He then jumped back into the Volvo. "X" was looking towards the front of the BMW, and the driver's door was nearest to him. From his place in the bar, looking through the ground floor window to the BMW, he estimated the distance to be about 10 yards, and a scale drawing would suggest that this was about right. The BMW would have been coming from his left to his right and so was on the opposite side of the road. He saw the passenger door of the BMW open; a man got out, picked up a traffic sign and shook it towards the Volvo. The Volvo then sped towards that man, mounting the pavement, and drove off. As to the other occupants of the BMW, he said that he saw the driver crawl out of the passenger door and move gingerly towards the church yard of a church on the opposite side of the road from Oddies. He also saw Smart, whom he recognised, get out of the back of the BMW after the driver had been stabbed. Smart jumped in the front of the BMW and drove it off.
9.
In cross-examination, it was put to him that it was Smart, not the third occupant of the BMW, who waved the traffic sign. He disputed this, but the majority of the witnesses, including Smart and Lloyd, said that it was indeed Smart who waved the traffic sign. He was questioned about the fact that in his written witness statement he had said that Smart had climbed from the back of the BMW to the front. He said that this must have been a misunderstanding between himself and the police officer who took the statement, which "X" failed to pick up before signing it. It was notable that, in his evidence, he several times spoke of Smart "jumping" into the front, and his implicit suggestion was that the officer may have understood "jump" to mean getting over the front seat, whereas what Smart had done, and what he was intending to convey, was that Smart had got out of the back seat and got smartly into the front seat. He was questioned along the lines that he had been trying to suggest that Smart never got out of the car, which was what Smart first said to the police, because he was trying to minimise Smart's involvement in the incident, the implication being that Smart, or someone on his behalf, had briefed him about what he was to say.
10.
Significantly, there was no cross-examination of "X" about his evidence of what the appellant did, except for the question whether the appellant got out of the front or rear passenger door of the Volvo, which was not a matter of any significance. Nor was there any cross-examination as to his evidence about what the appellant's son did. Nor, for that matter, was it put to him that Smart had got out of the car before the appellant went to the driver's window and stabbed Anderson, as the appellant was to say in his evidence, this being contrary to the evidence of "X". We make no criticism of the appellant's counsel for not cross-examining "X" on that point, ie whether Smart got out of the car before or after Anderson was stabbed, because he may well not have regarded it as significant. After all, it was no part of the appellant's case that what caused him to stab Anderson was anything that Smart was doing at that time. Nor was "X" cross-examined on his evidence that the appellant was openly carrying a knife in his hand as he went from the Volvo to the BMW.
11.
Other anonymous witnesses gave evidence which was similar to that of "X" in important respects, although there were differences on matters of detail. For example, witness "A" was walking along the road on the Oddies's side of the road. Witness "A"'s evidence was inaccurate in that "A" described the appellant as being hooded; in fact it was the appellant's son who pulled up a hood over his head as he was approaching the BMW. "A" was also inaccurate in stating that the appellant had got out the driver's door; the appellant had in fact got out of the passenger door. However, more importantly, "A" described, first, an attack by a man with an axe -- who, it is common ground, was the appellant's son -- followed by the Volvo moving in front of the BMW; followed by a man getting out of the Volvo -- who, it is common ground was the appellant -- and making stabbing movements three or four times through the driver's window.
12.
The appellant's case was that after the Volvo stopped in the line of traffic, his son got out and mentioned something about the car's indicator. His son then walked towards the BMW, pulling his hood up. The appellant heard a couple of loud bangs, presumably caused by the axe hitting the windscreen, but at the time he thought that it sounded like gunshots. The Volvo then edged out and pulled in front of the BMW. He got out because of concern for his son. When he reached the BMW, only Anderson was in it. His knife was in his pocket as he approached the BMW but when he arrived there, Anderson was leaning across the passenger seat looking out of the passenger door. There was a gun on the passenger seat. Anderson went for the gun and turned towards the appellant. At that point, the appellant stabbed Anderson in self defence.
13.
By their verdicts, the jury rejected the appellant's evidence that he had acted in self defence.
14.
The grounds of appeal fall under two headings. The majority of the grounds relate to the witness anonymity orders made by the judge, and particularly the anonymity order made in relation to "X". A separate complaint is made about the judge allowing certain evidence of the appellant's bad character to go before the jury.
15.
The grounds in relation to the anonymity orders have partly to do with matters of procedure and partly to do with the alleged unfairness caused by allowing "X" to give evidence as he did. The judge made the anonymity rulings in closed proceedings, in which special counsel, Miss Malcolm QC, was appointed to represent the appellant. She has also appeared in the same capacity on the hearing of the appeal. In the course of the closed proceedings, "X" was asked certain questions by Miss Malcolm for the purpose of exploring whether the criteria for making the orders sought were made out. She was careful not to cross-examine on matters beyond that remit.
16.
We turn to the complaints made by Mr Elvidge, on behalf of the appellant. First, he complains that the appellant did not have the opportunity to compare the evidence in the closed proceedings with the evidence before the jury. Having read the full transcripts of the closed proceedings, and listened to the submissions of Miss Malcolm, we are satisfied that where there was something in the closed proceedings which was material to the issue to be decided by the jury, or had the potential to undermine their assessment of "X"'s credibility, this was disclosed. That applied to the disclosure that in closed proceedings "X" had said that he was inside Oddies's, whereas in his witness statement, and initially in his evidence before the jury, he had said that he was outside on the road.
17.
Mr Elvidge submitted, however, that the court had to consider not merely whether there were material discrepancies which ought to have been disclosed to him, but whether there were grounds to believe that "X" was holding back on other things which might have been helpful to the appellant, but refrained from disclosing them because he had been corrupted by Smart. Specifically, he submitted that "X" might have been able to see whether there was a gun on the passenger seat of the BMW and had refrained from disclosing it because of the influence of Smart. In passing, we would observe that if one were to entertain that theory -- and we stress that it is no more than a theory -- it would not have meant that there was falsity in "X"'s evidence, nor would a refusal of the anonymity order have led to such evidence being before the jury, because "X" would not have been a witness. There is no way that the order in some way caused unfairness to the appellant by such conjectural evidence not being introduced.
18.
There are other points to be made in relation to this complaint. It was not suggested to the court that it was likely, on balance, that "X" would have been able to see if there was a gun on the passenger seat in the BMW, and doing the best that we can to reconstruct the scene from the plan and photographs, and from reading the statements of the anonymous witnesses and the evidence of "X", we consider it decidedly unlikely. "X"'s evidence was, at all times, that what he saw was through the downstairs window of Oddies -- that is after he had admitted that he was not on the street -- so he would have been looking obliquely across the road towards a car with tinted windows; the driver was nearest to him; Anderson, on the appellant's account, was turning towards the passenger door, ie away from Oddies; and the gun was on the far side of Anderson from "X". Furthermore, by this stage, the Volvo had come in front of the BMW, and at the time when the appellant got to the window, he would have been broadly in line between "X" and Anderson. It is quite impossible to be precise or scientific about any of those matters, but we think counsel were sensible in not suggesting that there was a real likelihood that "X" would have seen a gun if there was one. The highest it could be put was that it was a possibility. On the face of the evidence, "A" would have been in at least as good, and probably better, position than "X", because "A" was out on the pavement and walking past Oddies. "A" was never asked in cross-examination whether he saw a gun in the BMW, presumably because it was not thought likely that "A" would be able to help on the point, and the same must apply to "X".
19.
Furthermore, the theory as to "X" being compromised by Smart was just that, and no more, on any material before the judge. Complaint was made by Mr Elvidge that he was not able to explore full details of any common relationships which there might be between "X" and Smart, ie their mutual knowledge of somebody who might have been a intermediary, for fear that such line of questioning could ultimately narrow the range of people who might be "X". But that is no basis for a conclusion that the proceedings were unfair, absent some more solid foundation for the suggestion of the corruption of "X", which was, in truth, tenuous.
20.
It was also submitted that there ought to have been made available to the appellant's legal team the material relied on by the prosecution in support of the witness anonymity applications, at least to the extent that the material raised matters to which the appellant might have been able to put forward answers had he known what the material was. Indeed, at one stage Mr Elvidge's argument seemed to be that, not merely should there be disclosure of the material relied upon to persuade the judge that the statutory criteria were met, but also that the appellant should have an opportunity to explore whether the relevant source of that material might have a motive to implicate the appellant which the court and the prosecution and the police could not possibly imagine unless the appellant were given all the material necessary for him to be able to say whether there was such a possible motive.
21.
If fairness required disclosure of these matters, it is obvious that the statutory provisions would be unworkable in many, if not most or all, cases. In argument, the example was given of a witness who is a former wife or partner of a defendant. The witness tells the police that she is able to give evidence that the defendant has committed a particular crime, but she is terrified of doing so because they were in an abusive relationship and she fears for the consequences. On Mr Elvidge's argument, the appellant would have to be given the opportunity to rebut the suggestion that he had subjected her to abuse, which would immediately blow her cover. If one extends his argument to the point that the appellant must have the opportunity of investigating whether there might be some motive for falsehood on the part of the witness, beyond the possible suspicion of the police on the material available to them, that would seem to be a submission of general application which would apply to every source of any material relied upon in support of a witness anonymity order. Parliament cannot have had such an intention.
22.
It is perfectly correct that in the case of
Mayers
[2008] EWCA Crim 2989
, the Lord Chief Justice, giving the judgment of the court, said at paragraph 12:
"The disclosure process cannot be circumscribed by a minute analysis of the text of the defence statement, and some of the considerations identified in section 5, (to which we shall return) such as, for example, the possibility of collusion between intended anonymous witnesses, where there is more than one, should be specifically investigated and addressed in the context of disclosure, not least because the defence may be ignorant of material which could or would be included in the case statement if it was known to the defendant. In short, the Crown must be proactive, focussing closely on the credibility of the anonymous witnesses and the interests of justice".
23.
It is one thing to say that the prosecution need to consider positively whether there is reason to suspect collusion between witnesses. It is quite another thing to submit that when there is no such apparent evidence, the prosecution must nevertheless pre-suppose that there is such collusion and set out in order to be able to prove the negative. This would be to require the prosecution to prove that the haystack does not contain a needle.
24.
Complaint was also made that the judge did not give in open court the reasons for the witness anonymity orders which he made, and it was submitted that this amounted to a breach of Article 6. We reject that submission. It is clear from the transcript of the closed proceedings that the judge considered, in relation to each of the witnesses for whom anonymity was sought, whether each of the statutory conditions was made out. In the case of a number of witnesses he ruled that they were not, and so refused to make anonymity orders and those witnesses were not called. In the case of others he ruled that the criteria were made out. He gave his reasons for arriving at that conclusion in relation to each of the criteria and each of the witnesses in a judgment running to some 12 pages, which we have read. It would have been impossible for him to set out the reasons which led him to be satisfied that the criteria were satisfied in relation to each of those witnesses without defeating the purpose of the order itself.
25.
The position of the appellant was protected in two ways: first, by the involvement in the proceedings below of special counsel, although we do not mean thereby to suggest that special counsel must always be instructed in such cases; and secondly, by the judge having to give his reasons which are open to careful review by this court. It is, of course, not a perfect system, but no system can be perfect, given the difficult problem with which the court is dealing. But Parliament has set out a comprehensive statutory scheme for dealing with the problem in a way which is intended to, and does, take proper account of the appellant's right to a fair trial. As we reiterate, to require the judgment of the court to be given in open court would render the scheme impossible. Nor do we think that it would be satisfactory or realistic for the court to seek to give in open court some sort of filleted judgment. At best, it could, from the appellant's point of view, be an anodyne statement that the court had considered each of the criteria and was satisfied that they were fulfilled.
26.
While dealing with the statutory criteria, which it is unnecessary for us to spell out in this judgment, it is convenient at this point to mention one submission which was made by Miss Malcolm in closed proceedings but which is a point of general application, and therefore we address in this open judgment. The point concerns section 4(3) of the Act. An order can only be made if the court is satisfied that each of conditions A to C is met in relation to the measures specified in the order. Section 4(3) provides, so far as material, as follows:
"Condition A is that the measures to be specified in the order are necessary (a) in order to protect the safety of the witness or another person, or to prevent any serious damage to property".
27.
Miss Malcolm's submission was that this requires the court to judge the matter objectively, in the sense that the court must be satisfied that the witness' physical safety would be, in truth, jeopardised without the order, and that it is not enough that the witness may reasonably believe himself or herself to be in peril.
28.
In
Mayers
, the court considered the application of the statutory conditions, and at paragraph 29 said as follows:
"Condition A is linked to subsection 6. The order must be necessary. Some time was spent at the hearing comparing synonyms for "necessary". None is needed, although we agree that this is a requirement which goes well beyond what may be described as "desirable" or "convenient". Condition A is not fulfilled unless the order is necessary for the protection of the safety of the witness or any other person, or to prevent serious damage to property, or, alternatively, to prevent real harm to the public interest. In relation to human beings, the issue is un-embellished by adjectives. The question is safety, and this may encompass the risk of personal injury or death, or a reasonable fear of either".
29.
In our judgment, the last words of that sentence are important, and they fit with the statutory purpose of the scheme. We consider that Miss Malcolm seeks to introduce an over-subtle distinction when she submits that a reasonable fear is insufficient. Not only do we think that this would lead to overly complex arguments, but there is also an important practical consideration. Take again the example of the person who has been in an abusive relationship. There is a good deal of evidence about the effect that such a relationship may have on a victim; it can distort, over a process of time, their resilience and perception of the risk which they may be under from the abusive partner, because of the dominance which the abusive partner has assumed over her. It can therefore happen that somebody in that situation may quite realistically entertain a fear which another person who has not been subjected to the same experience might not have. In our judgment, it is enough to justify the making of the order that the court is satisfied that the witness does have a real and reasonable fear for their own safety.
30.
It was also submitted by Mr Elvidge that the orders, particularly in relation to "X", ought not to have been made, and that the convictions were unsafe, because the evidence given by "X" was the decisive evidence implicating him. If that were the case, it would not, of itself, mean that the order could not lawfully be made (see the decision of the Supreme Court in
Horncastle
[2009] UKSC 14
), but one of the relevant statutory considerations identified in section 5(2)(c) is:
"Whether evidence given by the witness might be the sole or decisive evidence implicating the defendant".
31.
We reject the submission that the evidence of "X" was the sole or decisive evidence which led to the jury's verdicts. In the first place, "X" was not the only bystander to describe an attack with an axe by the appellant's son, followed by the Volvo pulling across in front of the BMW, and the appellant stabbing the driver with a knife. We have already referred to the evidence of "A". There was no reason whatever to suppose any collusion between "X" and "A".
32.
We mention also that, after the jury had retired to consider their verdict, they asked to be reminded of the evidence of the anonymous witnesses. We note that they did not ask for the evidence merely of "X"; they asked to be reminded of the evidence of all the anonymous witnesses.
33.
It is also right to stand back. The jury knew that a car containing the appellant and his son had been tailing the Volvo; the appellant and his son had armed themselves; when the vehicles stopped, father and son got out in turn, one with an axe and one with a knife which they proceeded to use. Add to that the background of the severe assault on the appellant's son and the evidence that the appellant and his son had not only failed to help the police but were positively uncooperative. Add to that the fact that the son, at least, was unseasonably dressed for that time of year, and that at least one of them had what are known as "slasher's gloves". There was an obvious case that this was a revenge attack. It was not only an obvious case, but a strong case.
34.
We conclude that the judge properly applied the statute in the decisions that he made, and that there is no ground to believe that the verdicts were unsafe by reason of the anonymity orders.
35.
That leaves the bad character issue. The judge allowed the prosecution to introduce evidence that the appellant had a conviction for drug dealing, for which he had received a sentence of imprisonment for 10 years. He also allowed the introduction of evidence that, after he had been arrested, the appellant tried to bribe a police officer to provide him with a mobile phone which he could use in prison. In his ruling on the application, the judge noted that it was undisputed that the case fell within the gateway of
section 101(1)(g)
of the
Criminal Justice Act 2003
. This was because, as Mr Elvidge properly acknowledged below and in his submissions before this court, the defence had gone beyond the matters opened by the prosecution in the appellant's defence statement and in his cross-examination of Anderson, Smart and Lloyd. Furthermore, the appellant's counsel had attacked the integrity of "X" by accusing him of deliberately giving false evidence favourable to Smart. The question, therefore, for the judge was whether this evidence should be excluded under section 101(3).
36.
Mr Elvidge's submission was that, in a case where the prosecution itself was putting forward the bad character of the Smart gang as the alleged motive for the crime with which the appellant was charged, it was unfair that his own character should be put in issue merely because he attacked vigorously the character of the prosecution witnesses.
37.
The judge, in his ruling on the point, said:
"In this case, the defendant has made very serious allegations of misbehaviour against the three principal witnesses for the prosecution, which include allegations of violence of the most extreme kind. It is only fair, in my judgment, that the jury should have material before them on which they can form their own opinion on whether the defendant is any more worthy of belief than the Crown's witnesses. This, therefore, may include the two matters which Mr Woodcock seeks to put to the defendant".
38.
Mr Elvidge's submission was that this was unfair, and that the extent to which he had put matters to the chief prosecution witnesses was merely, in his words, the "development of a theme". The difficulty of this court is that we are not in the position which the judge was in. We have not read, or been asked to read, the transcripts of the cross-examinations of Smart, Anderson and Lloyd. We are not, therefore, in a position to evaluate the full nature of the attacks made on them in cross-examination and how far they went beyond the matters opened by the prosecution, or the way in which these attacks were made. This court will be slow to interfere with the exercise of a judge's discretion under section 101(3) precisely for the reason that this court is unlikely to have anything like the feel for the case which the judge had. It will, therefore, only find that the judge's discretion was wrongly exercised if it is plain that the decision was unfair. In our judgment, it cannot be said that the judge's decision on this point was irrational or wrong.
39.
A subsidiary complaint was made about the way in which this evidence, once submitted, was used by the prosecution. We do not develop the point because Mr Elvidge, realistically, conceded in his argument that if it were the sole point, his appeal would not have a realistic prospect of success. It was really a point supplementary to his other ones.
40.
We conclude that none of the grounds of appeal have been made out. The trial judge conducted this case properly; the convictions are safe; and accordingly, the appeal against conviction must be dismissed.
41.
There remains the appeal against sentence. The complaint about it is that the judge ought not to have made an indeterminate sentence. Grave though the offence was, the appellant had no previous record of violence. To impose an indeterminate sentence on somebody of his age, that is 49, was wrong. The judge in his sentencing remarks said as follows:
"You acted out of revenge and planned to ambush the BMW that day. You sought reprisals for the earlier attempt upon your son's life, which you believed was carried out by Alan Smart and Robert Anderson. You were supported in that belief by the police.
Apart from the act of stabbing and its premeditation, there were other aggravating features to your offending, namely that you committed this offence in a public street in daylight, in complete disregard for the feelings of the citizens of Sunderland, including some children who saw it. You decided to take the law into your own hands and mete out your own punishment. In sentencing you I believe I should reflect what I see is the abhorrence with which good people with decent standards would view your offence.
I have to consider in your case the issue of dangerousness and whether I should pass upon you an indeterminate sentence. The offence of which you were convicted is a serious offence and I must consider whether there exists a significant risk that you may cause serious harm to the public by committing further specified offences. I ask myself inevitably what then is the nature and extent of the risk that you pose? You do not have previous convictions for serious violence, so any assessment of risk must be based upon the circumstances of the offence of which you were convicted. I have already outlined the grave nature of your offending and its dangerous character. During the trial, it was obvious to me that you had bided your time to seek your revenge for the attack on your son. You withheld from the police, until you chose to release to them, the material which may have helped them in their investigation of that earlier offence. I have in mind the CCTV footage, and this shows to me that you wanted to keep complete control of the situation, to deal with Smart and Anderson in your own way and in your own time. In my view, this shows this you are cunning and dangerous.
The Probation Officer assesses you as representing a high risk of serious harm, an assessment with which I agree. I have formed the view that, given the matters to which I have referred, and notwithstanding the absence of a pattern of serious violent offending by you, the circumstances of this offence support the conclusion there exists here a significant risk that you will cause serious harm by further specified offending.
An indeterminate sentence, therefore, is necessary to protect the public and is proportionate".
42.
The argument advanced by Mr Elvidge is not that the judge there took into account any improper matters or failed to take into account proper matters, but that he reached the wrong conclusion. We are unable to accept that the judge who had conducted this trial was wrong in his conclusion that the appellant was indeed cunning and dangerous and that an indeterminate sentence was necessary for the protection of the public.
43.
Accordingly, the appeals against conviction and sentence are dismissed.
(Submissions re the use of special counsel at the appeal stage)
44.
LORD JUSTICE TOULSON:
We would like to make some tentative observations about the use of special counsel in an appeal against conviction where the grounds of appeal relate to a witness anonymity order and special counsel was instructed at the trial. In this case, the full court, in giving leave to appeal, asked for the appointment of special counsel who had appeared at trial, and the Attorney General acceded to the court's request. Without disclosing anything which ought not to be disclosed in an open judgment, we can say that, in this particular case, that has proved valuable. Miss Malcolm played an important role at the trial and, if we may say so, discharged her obligations impeccably. She also played a valuable role on the appeal in ensuring that the court saw all the closed material that it ought to see, which would probably not otherwise have happened, although that observation is not in anyway intended to be an oblique criticism of the prosecution. She has also made submissions on the appeal in the closed section of proceedings. Although we have not accepted those submissions, they were properly advanced. We are grateful to her for the role which she has played.
45.
Because the Act is a new Act, although the process of appointing special counsel pre-dates it, we are prompted to offer these thoughts for the future. We do so bearing in mind that, according to what we have been told by Miss Malcolm, this is the first time that this court has had to consider an appeal based on complaints about anonymity orders under the new Act. We say nothing more about the way in which the proceedings were conducted below because, as we have indicated, we consider that the Act was carried out both to the letter and in accordance with its spirit.
46.
At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material, will be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court may consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons: the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have; the court might want to know whether special counsel, having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or appellant's ordinary counsel. The court might also wish to know whether special counsel would want to raise some other point unknown to the appellant's ordinary counsel relating to what happened in the closed proceedings. Or there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case.
47.
Where special counsel is instructed, their role is essentially the same as would be that of the appellant's ordinary counsel if that counsel had been privy to the same information, although all counsel have a duty to assist the court, and there may be cases in which the court has its own questions of special counsel. Miss Malcolm made the point earlier in proceedings today, quite rightly, that her role was not that of an amicus, but rather of counsel appointed to advance any submissions which might properly be made on behalf of the appellant and which could not be made by his ordinary counsel for want of knowledge of what occurred during closed proceedings.
48.
Where the appointment of special counsel is requested by the court, for any of the reasons mentioned, it might be thought preferable in the first instance for special counsel to be invited to put their observations in writing, confidential to the court and the prosecution. In that way, the issues would be flushed out early and unnecessary expenditure might be saved. Thereafter, the court would be in a position to indicate whether it would wish to hear special counsel on the hearing of the appeal.
49.
Miss Malcolm indicated that special counsel may find himself or herself in a particular difficulty on the hearing of an appeal if some question is raised in the grounds of appeal as to whether special counsel did their job properly at the trial. It has been suggested that it might be appropriate for other special counsel, therefore, to be instructed on the hearing of appeal. While that might be desirable on the facts of a particular case for some particular reason, we cannot believe that this would normally or routinely be the case. It is, of course, right that the role of special counsel is as we have indicated, that is to say to advance the interests of the appellant so far as they properly can. We do understand Miss Malcolm's concern if the notice of appeal seems to call into question the way in which special counsel went about the task in the court below. But it is to be remembered that the appellant, in the nature of things, will not know how that task was performed, and is therefore unlikely to be making allegations of incompetence by counsel in the way that has become not uncommon in appeals generally. The most that the appellant's counsel will be able to do in the grounds of appeal will be to raise questions as to what happened in closed proceedings, and, in effect, to submit that there is a matter which this court ought to consider as meriting further investigation. If the point is not self-evident to the court itself on reading the closed material, and the court requests the appointment of special counsel, normally the person best able to assist on such matters would be special the counsel previously appointed.
50.
All that is further reason why there is much to be said for these points being brought out at an early stage part of the process in writing, when the court can take stock of the situation after reading any confidential written comments of special counsel.
51.
Although
the 2008 Act
, with which we have been directly concerned in this appeal, has now been superseded by the
Coroners and Justice Act 2009
, the relevant provisions are materially in similar terms.
52.
As we have already indicated, these are the tentative observations of this particular panel, based on this single case. We make them because there will continue to be questions about the use of special counsel at the appeal stage, and the court and parties affected can only learn by experience. | [
"LORD JUSTICE TOULSON",
"MRS JUSTICE SHARPE DBE"
] | 2010_02_03-2253.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/258/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/258 | 757 |
87412c8ea148a60cf595b2967247fbc13f03ff4badeb4fdc0f70a45f932bbf26 | [2020] EWCA Crim 650 | EWCA_Crim_650 | 2020-03-05 | crown_court | Neutral Citation No: [2020] EWCA Crim 650 Case No: 201903138/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Sitting at Cardiff Crown Court Law Courts Cathays Park, Cardiff, CF10 3PG Thursday, 5 March 2020 B e f o r e: LADY JUSTICE NICOLA DAVIES DBE MRS JUSTICE JEFFORD DBE MR JUSTICE HILLIARD R E G I N A v CHRISTOPHER STREDWICK 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] | Neutral Citation No:
[2020] EWCA Crim 650
Case No: 201903138/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Sitting at Cardiff Crown Court
Law Courts
Cathays Park, Cardiff, CF10 3PG
Thursday, 5 March 2020
B e f o r e:
LADY JUSTICE NICOLA DAVIES DBE
MRS JUSTICE JEFFORD DBE
MR JUSTICE HILLIARD
R E G I N A
v
CHRISTOPHER STREDWICK
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 J Jones
appeared on behalf of the
Applicant
Miss L McCormick
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
LADY JUSTICE NICOLA DAVIES:
1.
On 14 February 2008 in the Crown Court at Newport, the applicant pleaded guilty to the offence of arson being reckless as to whether life was endangered. On 14 May 2008 he was sentenced by the Recorder of Cardiff to an indeterminate sentence of imprisonment for public protection (“IPP”) pursuant to
section 225
of the
Criminal Justice Act 2003
, with a specified minimum period of three years’ imprisonment less 219 days spent on remand.
Present proceedings
2.
The applicant seeks an extension of time of approximately 11 years in which to apply for leave to appeal against sentence and to adduce fresh evidence pursuant to
section 23(2)
of the
Criminal Appeal Act 1968
(“
the 1968 Act
”). The applications have been referred to the Full Court by the Registrar. We grant leave.
3.
In this appeal the appellant invites the court to quash the sentence of imprisonment for public protection imposed in 2008 and make an order pursuant to
section 37
of the
Mental Health Act 1983
(“
the 1983 Act
”) for his admission or continued detention at Ty Gwyn Hall Hospital, Abergavenny. The appellant also invites the court to make an accompanying Restriction Order without limit of time under
section 41
of
the 1983 Act
.
4.
The Crown does not oppose this appeal, nor the orders sought.
Factual background
5.
On 5 October 2007 emergency services were called to a property at 96 Victoria Street, Cwmbran. The house was divided into two flats, the top flat was occupied by the appellant, the lower flat was vacant. The property was ablaze, a sofa had been placed at the top of the stairs in an upright position intended to prevent access to the appellant’s flat. The appellant was outside the property. His head was in his hands. He was asked if it was his address and he replied: “Yes, it is. I did it. Someone’s after me.”
6.
At the date of the sentencing hearing the appellant had seven previous convictions for offences of theft, burglary, criminal damage and one for the offence of arson endangering life to which he had pleaded guilty. In December 2002 the appellant received a sentence of four years imprisonment for this offence.
7.
The property in the 2002 arson belonged to the appellant’s uncle. The appellant was sharing the property with him at the time. He gave a number of reasons for starting the fire, one of which was that he wanted to get even with the voices that he was hearing.
8.
Before the sentencing court in 2008 was a report from Dr Roger Thomas, consultant forensic psychiatrist. He recounted that when interviewed, the appellant described feeling paranoid, anxious and depressed in the months leading up to the index offence. He told the doctor he had burnt the property because he felt people were threatening his life. His intention was not to harm anyone else but to kill himself. Prior to the offence the appellant said he heard voices telling him to kill himself and he had disturbing thoughts about harming people. At the time he set fire to the house he was aware that he was the only person in it.
9.
Dr Thomas reviewed the appellant’s personal, medical, alcohol and drug history. The appellant’s first contact with the psychiatric services was in July 1998 in respect of a charge of burglary. The assessing psychiatrist was of the opinion that the appellant presented with a serious mental illness which required urgent psychiatrist admission for assessment. In July 1998 the appellant was admitted to Whitchurch Hospital under
section 35
of
the 1983 Act
. However, a report for the court stated that the appellant was probably not suffering from mental illness but with an acute stress reaction which required further assessment or inpatient hospital treatment.
10.
In December 1998 the appellant was admitted to hospital pursuant to
section 2
of
the 1983 Act
. He had held a knife to his throat and threatened to kill himself. The appellant was later discharged but there were subsequent hospital admissions in 1998, 1999, 2001 and 2002.
11.
Following the imposition of the four-year sentence of imprisonment for the offence of arson, the appellant’s condition deteriorated in prison and he was admitted to the Caswell Clinic under
sections 47
/49 of
the 1983 Act
in November 2003. During late 2003 and early 2004 the appellant was stating that he was part of the Matrix and was continuing to hear the voice of his deceased girlfriend. He was discharged from the Caswell Clinic in January 2007. In the following months the appellant was reviewed by a number of psychiatrists and in June 2007 was admitted to hospital pursuant to
section 2
of
the 1983 Act
. A second admission took place in August 2007. On each occasion it was felt that the appellant was not suffering from mental illness.
12.
In September 2007, Dr Lyons, a consultant psychiatrist, noted that the appellant did not have an ongoing mental illness within the meaning of
the 1983 Act
but diagnised a personality disorder with a long history of poly-substance abuse. He had admitted to feigning symptoms in order to be moved to hospital. Dr Lyons noted that the appellant posed a risk to himself and the public, not through mental illness, but because of a combination of his inability to cope, attention-seeking behaviour which was compounded by the disinhibiting effects of alcohol and illicit drugs.
13.
In his report for the court in 2008, Dr Thomas described the appellant’s admission of having set fire to the house with the intention of killing himself as not in the setting of major mental illness but as a de-compensatory response to stress. He concluded that although the appellant was stressed and distressed, there was no real evidence to support a current depressed mood state, nor the presence of real psychosis. His presentation was very similar to presentations in the past where psychosis was believed to be malingering in nature. Dr Thomas did not think that the appellant had a mental illness of a nature or degree which would warrant a medical disposal. In the final paragraph of his report, Dr Thomas stated:
“However, I would add that as Christopher Stredwick’s mental health problems are extremely complex and intermittent, the clinical picture might possibly change in the future, and it may be necessary to re-assess him at some future time, and he therefore should clearly be identified as a very vulnerable person who will require significant therapeutic import and support.”
14.
In sentencing the appellant, then aged 30, the judge considered and relied upon the report of Dr Thomas. He determined that the sentence of IPP was necessary, the offence of reckless arson was serious, extensive damage was caused and the consequences to the fire service
and other residents could have been much worse. The judge noted that an early release was extremely unlikely, but he thought more likely a transfer to a secure mental unit in the future. The judge stated that had it been appropriate to impose a determinate sentence, the term would have been one of nine years following discount for the plea of guilty, that would be reduced to six years, thus the minimum term was half the six years less the days spent on remand.
Application to adduce fresh evidence
15.
The appellant seeks leave to adduce the reports of Dr Gaynor Jones (dated 1 June 2018) and Dr Alan Talabani (dated 10 December 2018). The Crown seeks leave to adduce the report of Dr Owen John Davies (dated 29 January 2020). We are satisfied that the provisions of
section 23(2)
of
the 1968 Act
are met in respect of the three reports.
16.
The report of Dr Jones, consultant forensic psychiatrist at the Caswell Clinic in Bridgend, contains a detailed history of the appellant, which includes his psychiatric history, for which the court is grateful. Following his sentence in 2008, the appellant’s mental state deteriorated. In early 2009 Dr Jones assessed the appellant. She was impressed by the quality and breadth of his descriptions of his voices and psychotic symptoms. Without knowledge of his background history, she thought his was likely to be a psychotic illness.
17.
In June 2015 the appellant was seen by Dr Jane Ewbank, consultant forensic psychiatrist. Dr Ewbank concluded that the appellant’s difficulties could be understood as a personality disorder but raised the possibility of an underlying enduring mental illness. Dr Ewbank recommended the appellant’s transfer from prison to hospital under
sections 47
/49 of
the 1983 Act
. As a result, on 3 May 2016 the appellant was admitted to the Caswell Clinic Medium Secure Unit. Following admission, the appellant was prescribed Clozapine, an anti-psychotic drug. He reported hearing voices, some of which were threatening to kill him. By January 2017 the appellant had applied for a Mental Health Review Tribunal, his motivation being to change the section requiring his detention to
section 37
of
the 1983 Act
as he did not want to be discharged and returned to prison. Community leave was permitted.
18.
In her capacity as the appellant’s responsible clinician, Dr Jones prepared the report dated 1 June 2018. She states that the attempt to find one diagnosis had clouded the medical profession’s understanding of the appellant and his problems. In the opinion of Dr Jones the appellant fulfilled the diagnostic criteria for borderline personality disorder, psychosis/schizophrenia, anxiety, substance misuse and has traits of autistic spectrum disorder which causes him significant impairment. The appellant’s borderline personality disorder may have contributed to his differing accounts, as to his symptomatology and the reasons underpinning his offending. She noted that the appellant has consistently reported psychotic symptoms since July 1998 and had been prescribed anti-psychotic medication. Dr Jones’ states that the appellant was now receiving the correct treatment, but his symptoms of anxiety are likely to remain. He has undertaken substance misuse work. All his drug and alcohol testing has been negative. By June 2018 the appellant had received extensive leave within the community.
19.
Dr Jones concludes that the appellant presents as a vulnerable individual with complex and serious mental health needs on many differing levels. He will not be able to progress without significant support and monitoring of his mental health in the future, not least in the management of the Clozapine medication. He would not progress within the prison environment as he would remain stuck on the IPP. Had Dr Jones prepared a report at the time of sentence in 2008, she would be recommending a Hospital Order pursuant to
section 37
of
the 1983 Act
, with a recommendation to the court to consider a Restriction Order pursuant to
section 41
of
the 1983 Act
.
20.
Dr Jones and the team are of the opinion that it is not in the appellant’s best interest to return to prison, it would not manage his complex mental health needs, nor his risk profile in the short or long term. The appellant is going to need a long-term supportive environment to enable him to live successfully and he will require a discharge to the Mental Health Service. In the foreseeable future he will need a supportive environment in the community for such work.
21.
Dr Jones supports the appellant’s appeal to overturn his indeterminate IPP and to substitute for it a Hospital Order under
section 37
, she also recommends that the court considers a Restriction Order pursuant to
section 41
of
the 1983 Act
.
22.
The second report prepared on behalf of the appellant is by Dr Alan Talabani, consultant psychiatrist at the Ty Gwyn Hall Hospital, Abergavenny. At the time of compiling his report, the appellant was resident at Ty Gwyn Hall Hospital under the care of Dr Talabani. In the report, Dr Talabani states that all the appellant’s behaviours and problems were part of his evolving mental disorder which is now stable and under control. The appellant is progressing with his recovery and is now ready to step down from a locked unit to an open rehabilitation placement. The current
section 47
/49 placement was impacting upon the appellant and impeding his progress. In particular, as a sentenced prisoner the appellant was not entitled to any money or benefits. Access to money is a necessary part of the successful rehabilitation programme. It will allow the appellant to budget, become financially aware and will allow him to learn how to live within his means when in the community.
23.
Dr Talabani reviewed the history of the appellant and concludes that his previous behaviours, prior to the disorder of psychosis, indicate prodromal phases of the mental disorder. When the appellant was commenced on Clozapine his symptoms and the disorders appear to settle. Dr Talabani states that they will never completely disappear but the Clozapine results in changes, making the patient easier to manage, more law-abiding, insightful and accepting of medication. As a result, he can be rehabilitated, working towards step-down living in a community setting.
24.
Dr Talabani agrees with Dr Jones that the appellant’s index offence and other offending related to his disturbed mind due to disorders, which were not recognised at the time as he was going through the prodromal phases. The appellant was not fully responsible for his conduct and behaviour. The appellant now has a formal diagnosis of mental disorder and is responding to treatment. Dr Talabani stated that it would be in the appellant’s best interests and that of the wider society for the appellant to remain under the psychiatric services to ensure a safe and secure environment which is supported by professionals.
25.
Dr Talabani recommends that the current section under which the appellant is in hospital be changed to
section 37
of
the 1983 Act
, with the added restriction of
section 41
to allow the appellant’s current and any future team to treat his illness and manage his risks and behaviours. Dr Talabani states that a return to prison will serve no benefit. It will lead to a relapse in the appellant’s condition, it will increase the risk of him stopping medication and abusing drugs.
26.
Dr Talabani is the responsible clinician for the appellant. He gave evidence to the court for which we are grateful. The appellant is residing in the open rehabilitation unit at Ty Gwyn Hall Hospital, Abergavenny. He is in a four-bedded unit where the residents cook, clean the room and shop for themselves. Dr Talabani says that the appellant is doing “really well”. He describes him as a model patient.
27.
Dr Talabani re-affirmed the diagnosis given in his report, namely that of paranoid schizophrenia, anxiety and ADHD. It has been an evolving illness. The supervision and monitoring of the appellant in hospital has allowed the treating clinicians to better assess his mental state and provide appropriate treatment. He describes the appellant’s response to Clozapine as ‘dramatic’. All drug and alcohol tests continue to be negative.
28.
Dr Talabani told the court that the appellant is almost ready for a conditional discharge from the hospital. A
section 37
/41 order is required in order to permit that discharge to a mental health residential placement where there will be 24-hour staffing and where the appellant will continue to be under psychiatric supervision. If there is any concern as to the appellant’s condition, any possibility of relapse, he can be immediately recalled. A
section 41
order will lessen the risk which the appellant poses to himself and to the public. Dr Talabani describes the appellant as still being very vulnerable to stress, he requires monitoring and support. Dr Talabani reiterated his opinion that a return to prison would lead to a swift deterioration in the appellant’s condition, as he would not receive the support and monitoring which he requires.
29.
The report of Dr Davies, consultant forensic psychiatrist instructed on behalf of the Crown, was before the court. He also noted that since the appellant has been treated with Clozapine, his symptoms and presentation have markedly improved which has enabled him to make significant progress regaining insight and improving his quality of life. Dr Davies that the appellant meets the diagnostic criteria for a depressive disorder and that the appellant would have previously met the diagnostic criteria for alcohol and illicit substance dependence syndrome. He is now abstinent and is in remission.
30.
Dr Davies is of the opinion that the appellant was suffering from severe symptoms of paranoid schizophrenia at the time of the index offence in 2008. These were longstanding but became increasingly distressing and overwhelming, leading him to engage in a desperate set of actions. The appellant’s thought processes would have been significantly altered by his psychotic illness. The appellant’s auditory experiences and delusional belief system would have appeared very real to him and it would have been difficult for him to differentiate reality from otherwise.
31.
Dr Davies does not criticise the previous. It would have been very difficult to foresee the degree to which the appellant’s symptoms had become clearer and, in return, responded to medication. Paranoid schizophrenia is often a developing and evolving illness. The appellant’s significant illicit substance and alcohol misuse were integral in clouding the matter. Nevertheless, the subsequent evidence is overwhelmingly supportive of a diagnosis of paranoid schizophrenia, which is intrinsically linked to the appellant’s actions in the index offence.
32.
Dr Davies considers that the appellant’s mental disorder has vastly improved following treatment. He has made significant rehabilitative progress and his risks are largely managed under the auspices of mental health care and support. As a result, Dr Davies is supportive of the sentence of IPP being quashed and replaced with a Hospital Order pursuant to
section 37
of
the 1983 Act
, in order for the appellant to be treated appropriately in hospital. In addition, Dr Davies recommends that a
section 41
order be considered in view of the severity of the offence and the clear risks which the appellant poses to himself and others. Such an order will provide the appellant with the treatment and support he requires in order to make further progress but will also provide a means for managing his mental health and therefore the risks in the community. This is preferable to the appellant being supervised by the probation service, as the appellant’s risks are almost exclusively linked to his mental health disorder.
33.
In conclusion, Dr Davies considers the appellant’s mental disorder to have been both of the nature and degree to warrant detention in hospital under
the 1983 Act
and it remains so today. It is essential that the appellant receives adequate treatment and rehabilitation in a hospital setting for his own health and safety, but also due to the risk he poses to others.
Discussion and conclusion
34.
It is clear from the evidence before the court that the appellant suffers from a mental disorder and that he did so in 2008 when he committed the index offence. All three psychiatrists conclude that the appropriate disposal of this appeal, to benefit not only the appellant but the wider community, would be a Hospital Order under
section 37
of
the 1983 Act
.
35.
We have considered and followed the guidance in
R v Vowles
[2015] EWCA Crim. 45,
[2015] EWCA Civ. 56
. At [10] the court identified the options available to the sentencing court in respect of an offender suffering from a mental disorder. Relevant to this appeal are two, namely: (1) a Hospital Order under
section 37
with or without restriction under
section 41; (2)
a determinate or indeterminate sentence of imprisonment and direction pursuant to
section 45
A of
the 1983 Act
.
36.
The relevant provisions of
section 37
are as follows:
“37 Powers of courts to order hospital admission or guardianship
(1)
Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in sub
section (2
) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(2)
The conditions referred to in subsection (1) above are that—
(a)
the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either—
(i)
the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii)
in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under
this Act
; and
(b)
the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
37.
Further, the relevant part of
section 41
of
the 1983 Act
is as follows:
“41 Power of higher courts to restrict discharge from hospital
(1)
Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as ‘a restriction order’.”
38.
At [54] of
R v Vowles
(above) it is stated that where the court determines a Hospital Order is required,
section 45
A should firstly be considered. A
section 45
A order allows for an IPP to continue with an accompanying direction for the person subject to the same to be admitted into hospital. It is not open to this court to impose an order under
section 45
A since an order under
section 45
A was not available to the original sentencing court. The appellant was sentenced on 14 May 2008.
Section 45
A came into force (with effect from November 2008) by virtue of
section 11
of the
Mental Health Act 2007
.
39.
Having considered the evidence of the three psychiatrists in their written reports, and the oral evidence of the responsible clinician Dr Talabani, we are satisfied that the appellant is suffering from a mental disorder, namely paranoid schizophrenia, of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him. We note that he is responding well to such medical treatment. We are satisfied that the response of the appellant to the treatment, in particular to the use of Clozapine, has been instrumental in reducing the risk which he poses to himself and others. It follows that we are satisfied that the requirements of
section 37(2)
(a)(i) of
the 1983 Act
are met.
40.
As to the conditions set out in
section 37(2)
(b): the offence of arson is serious, but all three psychiatrists now conclude that at the time of the index offence the appellant was suffering from this mental disorder. In our judgment, there is no realistic alternative method of treating this appellant which would provide him with the treatment and support which he requires for the mental disorder and which will also serve to reduce the risk which he poses to himself and others.
41.
We accept the recommendation of each of the psychiatrists that in addition to the
section 37
order, a
section 41
Restriction Order without limit of time is both necessary and proportionate in order to manage: (i) the mental health of the appellant; (ii) the risks which he poses; and (iii) to protect the public.
42.
Accordingly, we quash the sentence of imprisonment for public protection imposed at Cardiff Crown Court on 14 May 2008 and substitute for it an order made pursuant to
section 37
of the
Mental Health Act 1983
, together with a
section 41
Restriction Order pursuant to
that Act
, without limit of time. To this extent, the appeal is allowed.
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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
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Email: [email protected] | [
"LADY JUSTICE NICOLA DAVIES DBE",
"MRS JUSTICE JEFFORD DBE",
"MR JUSTICE HILLIARD"
] | 2020_03_05-4851.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/650/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/650 | 758 |
2db437330814ad97d55c6ccec4a34eb34da2ee541a47b15f9d6f5a309bc12a05 | [2003] EWCA Crim 1625 | EWCA_Crim_1625 | 2003-05-19 | high_court_division_court | 200101113/W1 Neutral Citation Number: [2003] EWCA Crim 1625 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Royal Courts of Justice Strand London WC2 Monday, 19th May 2003 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE PITCHERS MR JUSTICE SIMON - - - - - - - R E G I N A -v- T. J. F - - - - - - - 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 Wri | 200101113/W1
Neutral Citation Number:
[2003] EWCA Crim 1625
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Monday, 19th May 2003
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE PITCHERS
MR JUSTICE SIMON
- - - - - - -
R E G I N A
-v-
T. J. F
- - - - - - -
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 C ENGLISH
appeared on behalf of the APPLICANT
- - - - - - -
J U D G M E N T
19th May 2003
1.
LORD JUSTICE KENNEDY: At about 3.45 a.m. on 16th September 1998 the front door of the flat of Mr V. was kicked in by a man who then entered the flat. He was abusive to Mr V. and took a number of items of his property. It was and is the prosecution case that the person who behaved in that way towards Mr V. and his property was this applicant. He was pursued by the police and was arrested. He was then sent for trial at Woolwich Crown Court charged with burglary.
2.
The first matter that had to be considered was his fitness to plead. That had to be determined by a jury pursuant to
section 4(5) of the Criminal Procedure (Insanity) Act 1964
. So a jury was empanelled and on 2nd August 1999 medical evidence was called which satisfied that jury that the applicant was indeed unfit to plead. No issue arises at this stage in relation to what happened up to that point.
3.
After his unfitness to plead had been determined, on 5th August 1999 a fresh jury was empanelled pursuant to
section 5A
of
the 1964 Act
to decide if he had done the acts alleged. It found that he had. In those proceedings the applicant was not, perhaps surprisingly, legally represented. An order was made that he be detained in hospital under
section 37 of the Mental Health Act 1983
with a restriction order being made under
section 41
of that Act.
4.
He applied for leave to appeal. That was refused by the single judge and by the Full Court on 14th February 2002. On both occasions it was emphasised, rightly, that there had been no conviction.
5.
On 5th March 2003 the applicant instructed his present solicitors. They took the advice of counsel who appears before us today, Miss Caroline English, and she concluded that the orders made under the Mental Health Act were ultra vires. That was not a point which had previously been taken in the proceedings before this Court, but it arises, first, from a consideration of
section 5 of the Criminal Procedure (Insanity) Act 1964
. That section as amended applies where findings record that an accused is under a disability and that he did the act charged against him. It provides in
section 5(2)
that in those circumstances the court shall make an order that the accused be admitted in accordance with the provisions of
schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
to such hospital as may be specified by the Secretary of State. There are other possible forms of disposal, but for immediate purposes they are not material. Orders under the Mental Health Act are not amongst those other possible forms of disposal.
6.
Secondly, an order under
section 37(1)
of the Mental Health Act can only be made, "where a person is convicted" and this applicant has never been convicted of the relevant offence. An order made under
section 41
of the Mental Health Act can only be made as an adjunct to a legally imposed order under
section 37
. So that is a second reason why the form of disposal which was adopted in the present case was not in fact open to the court. Had the correct order being made, namely, an admission order under
section 5(2)(a)
of
the 1964 Act
, the result in practical terms would have been very much the same, because paragraph 2 of
schedule 1
to
the 1991 Act
provides that:
"A person who is admitted to a hospital in pursuance [to such] an admission order ... shall be treated for the purposes of
the 1983 Act
--
(a) as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and
(b) if the court so directs, as if an order restricting his discharge had been made under
section 41
of that Act, either without limitation of time or during such period as may be specified in the direction."
7.
However, paragraph 4 of
schedule 1
also provides that, where a person is detained pursuant to an admission order made under
section 5
of
the 1964 Act
, if the Secretary of State becomes satisfied that the person can properly be tried he can remit that person for trial. When that is done the admission order ceases to have effect.
8.
In the present case it seems that after the Full Court made its decision in February 2002 the applicant was anxious to persuade the Secretary of State to exercise his powers pursuant to paragraph 4 of
schedule 1
. Thus his case came before a Mental Health Review Tribunal in February 2003 which Tribunal recommended remission, but then the problem emerged as to the order made by the Crown Court. It was by then far too late for the matter to be corrected by the sentencing judge, but is it too late for action to be taken by this Court, either sitting as Court of Appeal Criminal Division, or as a Divisional Court, having regard to the decision made on 14th February 2002 when, sitting as a Court of Appeal Criminal Division, a constitution of this Court refused the applicant leave to appeal against sentence? As to that, we are satisfied that there is a route available.
9.
This Court sitting as a Court of Appeal Criminal Division had in fact no jurisdiction to consider an appeal against sentence because such an appeal can only be brought after a conviction: see
section 9 of the Criminal Appeal Act 1968
. That was something which was obviously overlooked when the matter was before this Court on 14th February 2002, but, as we have noted, the Court did then recognise, and indeed emphasised, that there had been no conviction.
10.
The finding of unfitness brought the trial of this applicant to an immediate end: see
R v Antoine
[1999] 2 Cr App R 225 at 231. There is a statutory right of appeal to the Court of Appeal Criminal Division against the finding that he was under a disability and against the finding that he did the acts alleged -- see
section 15 of the Criminal Appeal Act 1968
as substituted by the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
-- but there is no statutory right of appeal against the order for disposal. That has to be dealt with by means of an appeal to the Divisional Court. As explained in the case of
Grant
such an appeal is not barred by section 28(2) of the Supreme Court Act 1981 since the trial on indictment terminated once the jury held that the appellant was unfit to be tried. Thus hearings under
section 4A
are not trials on indictment and an order made under
section 5
is not a matter relating to a trial on indictment: see also the decision of this Court in
Latif
[2002] EWCA Crim 2115
.
11.
Sitting as a Divisional Court we grant permission for judicial review, dispense with service, and abridge time. We set aside the orders which were in fact made purportedly under
sections 37
and
41
of the
Mental Health Act 1983
and remit the matter to the Crown Court so that appropriate orders may be made under
section 5
of
the 1964 Act
. In doing so it seems to us that the Crown Court may well be disposed to make the order that the applicant be admitted in accordance with the provisions of
schedule 1
of the Criminal (Insanity and Unfitness to Plead) Act 1991 to such hospital as may be specified by the Secretary of State, but Miss English has made it clear in her submissions to us this morning that there may be more doubt about whether at this stage it would be appropriate for a direction to be made under paragraph 2(1)(b) of
schedule 1
that the applicant be treated for the purposes of
the 1983 Act
as if an order restricting his discharge had been made under
section 41
of the Act either without limitation of time, or for some specified period. For that purpose, in order to decide whether such a direction should be made or not, the Crown Court may well be assisted by hearing medical evidence relating to the applicant's present state of mind.
12.
The matter must therefore be remitted to the Crown Court either to be heard by Judge Anwyl, if she still be available, or to be heard by such judge, possibly at Woolwich Crown Court, as may be directed by the presiding judges of the South Eastern Circuit. | [
"LORD JUSTICE KENNEDY",
"MR JUSTICE PITCHERS",
"MR JUSTICE SIMON"
] | 2003_05_19-69.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1625/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1625 | 759 |
91aa48214897e1c2eb109ebc45615461d0ea15f84da94e5cc42e205bfc215709 | [2006] EWCA Crim 2723 | EWCA_Crim_2723 | 2006-10-17 | crown_court | No: 200601453/C1 Neutral Citation Number: [2006] EWCA Crim 2723 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 17th October 2006 B E F O R E: SIR IGOR JUDGE (THE PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE HOLLAND MR JUSTICE GOLDRING - - - - - - - R E G I N A -v- EMMA W - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 | No:
200601453/C1
Neutral Citation Number:
[2006] EWCA Crim 2723
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 17th October 2006
B E F O R E:
SIR IGOR JUDGE
(THE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE HOLLAND
MR JUSTICE GOLDRING
- - - - - - -
R E G I N A
-v-
EMMA W
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR M MEEKE QC
appeared on behalf of the APPELLANT
MR G MERCER QC
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
SIR IGOR JUDGE: This is an appeal by Emma W, who on 30th January 2006, in the Crown Court at Truro before His Honour Judge Rucker and a jury, was convicted of cruelty to a person under 16 years of age. On 29th March she was sentenced to 6 months' imprisonment suspended for 2 years.
2.
Her co-defendant was her husband, Warren W. He was convicted of inflicting grievous bodily harm on the same person, on two counts. They were alternatives to counts alleging that he had caused the same child grievous bodily harm with intent. He was sentenced to a total of 18 months' imprisonment suspended for 2 years. A verdict was not required in his case on a count alleging cruelty to the same child.
3.
The particulars of offence in count 6, which was the count which involved this appellant, were that between 15th December 2003 and 18th February 2004, having attained the age of 16 years and being responsible for A, a child under 16 years of age, she "wilfully assaulted, ill-treated or neglected the said [A] in a manner likely to cause her unnecessary suffering or injury to her health."
4.
Warren W and Emma W were married in March 2003. They lived in a small flat at 2 KE, Bodmin, with the appellant's twin daughters from a previous relationship, who were born in July 2000 and their baby, A, who was born on 15th December 2003.
5.
On 17th February 2004 Warren W telephoned the local hospital and asserted that he had rolled onto A and thought that there was something wrong with her ribs. He was told to bring her to hospital. He did so. Examination of the baby revealed that she had sustained 22 non-accidental fractures to various parts of her body, mainly her ribs, but also to her skull, shoulder, wrist and leg. She had also suffered a bite to her cheek.
6.
The Crown's case was that Warren W was responsible for those injuries which were the result of deliberate assault. There were at least -- and we emphasise that -- two violent distinct episodes during the three to four week period before the baby's admission to hospital for which he was responsible. It was alleged against him that he had caused her grievous bodily harm with intent by fracturing her skull (count 1) and her ribs (count 3). The charges of unlawful infliction of grievous bodily harm in counts 2 and 4 were alternatives.
7.
So far as the appellant was concerned, it was alleged that she had been cruel in particular respects, which spelled out in detail before the jury at the start of the case. The prosecution case summary reads:
"Count 6 is a charge of cruelty against Mrs W put on the basis that, in the absence of evidence that she was the person responsible for assaulting or ill-treating [A], she was guilty of wilful neglect in:
(i) Failing to take steps to protect her over the relevant period when she must have known that she was at risk.
(ii) Failing to obtain medical attention for her earlier when she must have known that she was suffering from her injuries, or may have sustained serious injury."
8.
It is clear from that case and the way the Crown advanced it at trial that the emphasis was on failure to take appropriate steps or obtain medical attention when she, the appellant, knew that the child was at risk.
9.
The defence case on behalf of the male defendant was that there had been an occasion on 30th January when A's head had accidentally bumped on a chair as he was dealing with the two older children, the twins. He told the appellant what had happened, in effect, waking her up while she was asleep in bed. After an initial period of crying A had seemed normal and content. He also said that on 17th February 2004 he had fallen asleep while feeding her and accidentally rolled onto her. The injury to her face was caused by contact with a bottle top. He told the appellant what had happened on this occasion and in due course they took her to the hospital after noticing a crackling sound. He denied that he deliberately assaulted or wilfully neglected A. In effect, there were two incidents in which, by accident, she had sustained some unspecific injury.
10.
So far as the appellant was concerned, taking it in the round for the moment, she denied any wilful neglect of A on the basis that she had no reason to disbelieve her husband's account of events. As far as she was aware, A had shown no discomfort after the incident attributed to the impact between the baby's head and the chair, and they had sought medical opinion after that incident. She was unaware of any damage which her husband might have inflicted which caused the baby's rib fractures and when that occurred, again, they had sought medical advice.
11.
The Crown's case was that in the course of the interviews by both parents and in the course of their evidence they had provided a lying explanation in order to avoid the obvious answer; that the child had been deliberately assaulted and that the appellant had wilfully neglected her.
12.
In this particular case it is necessary to deal with the evidence in some detail. The midwife gave evidence that she had known the family since the appellant had given birth to her twin children. The last occasion when she had seen the appellant and A was just at the turn of the year 2003/04. On that occasion the appellant had shown her a small bruise on A's ear and the midwife explained that she was concerned because the appellant had been unable to provide any explanation of how this injury had occurred. She asked for her opinion about it. There was a discussion about A being left unsupervised with older children and whether this might be causing any problems, and if we may say so, that was a perfectly reasonable and sensible line to take. The midwife's recollection was unclear, but she remembered making attempts to inform a health visitor about this mark, but she recorded that she had no concerns about the way in which the appellant was parenting A and, indeed, no problems were apparent to her in relation to the husband. Both, she thought, interacted very well with the children.
13.
When she was cross-examined she said that she thought the bruise she had been shown was a small injury but a significant one, and she repeated that the appellant was anxious because she was unable to explain it. That was that.
14.
On 30th January 2004 the baby was taken to the general practitioner, a Dr Eddy. The husband was expressing concerns about the shape of A's head. The doctor was unable to detect anything obviously wrong, apart from slightly red swelling on the right-hand side of the head. She thought that A looked well and seemed happy and contented and showed no signs of injury or inflammation. She had no positive recollection of having been told about a blow to A's head and she was certainly not told of any significant blow because she would have sent A to hospital for proper examination and analysis. When she was cross-examined she accepted that she might have been told about a bump or bang; she repeated that the baby showed no signs of discomfort or distress. She added that she had palpated the baby's head when examining her and, in her view, the baby would have shown distress if she had had a fractured skull at this time. She described A as "a bright, cheery little baby". It is significant of course that she believed that distress would have been shown if the baby's skull had been fractured and the head had been palpated.
15.
On 17th February the parents arrived at hospital. The baby was asleep sucking her dummy. The nurse noticed a circular bruise on one cheek and a mark under the opposite eye. The husband was saying that he had rolled onto A while she had a bottle in her mouth. This examination was rather more revealing than the examination by the general practitioner. When the baby was undressed down to her nappy for the purposes of an examination, the nurse described how she became very distressed and cried and screwed up her eyes. This was no ordinary baby crying, it was such that it was not possible for the medical practitioners to listen to the baby's chest. But on examination to the baby's side the nurse heard a crackling sound. She arranged for her attendance at accident and emergency due to concern about possible consequential breathing difficulties. She found no obvious marks on the baby.
16.
Another nurse took the details when the parents brought the baby to the accident and emergency department. They said that they had attended hospital because A's ribs were making a funny noise and that the husband had fallen asleep on her while he was feeding her and had woken up to find her in pain, with a bruise on her face. In addition to bruising on her face, the nurse noted that A had bruising to the rib area and haemorrhages in both eyes. She was in discomfort, very distressed and crying, and her ribs were abnormal to the feel and made a cracking sound when they were felt. This nurse noticed that A would not make eye contact with anyone and she described the child looking "scared." She was a paediatric nurse. During her experience in this profession, she had never seen a child as young as A looking or avoiding looking in this way.
17.
After A's admission to hospital she made a gradual improvement. She was discharged on 2nd March. She was then smiling, making normal eye contact again and had colour in her cheeks. The nurse noted that the strongest analgesic available was prescribed for her, which was extremely unusual given her age.
18.
There was expert evidence from a consultant paediatric radiologist, Dr Thorogood. He examined the baby on 17th or 18th February, at any rate in the period immediately after the baby's admission to hospital. The injuries found were, however one attempts to be moderate in language, highly alarming. First, the skull fracture. There was a wide fracture to the baby's skull. Generally speaking such fractures to a baby's skull are hairline fractures. The force that would have been required to cause the fracture that Dr Thorogood observed would have been substantial. He would have expected to find bruising and swelling. But at the time of his examination there was minimum soft tissue injury and swelling. In his judgment, a considerable ridge of extensive swelling would have occurred within minutes and certainly hours of the injury at the time. He concluded that that fracture had not occurred in the preceding few days and, in his opinion, it had occurred between one and three weeks prior to the examination.
19.
He was made aware, and considered the visit to the general practitioner on 30th January. He noted that the general practitioner may have found a degree of swelling which could have been related to the underlying fracture. In his view the skull fracture was unlikely to have been caused from a fall of a metre or less, and would have needed a powerful, forceful blow or contact against a hard object, such as concrete or a slate stone floor.
20.
He was shown photographs of the chair against which the father had said that A's head had been bumped. Dr Thorogood said that the injury he found could have been caused if A had been swung forcefully against and then struck the metal parts or wicker and metal parts, but in fairly dramatic language he suggested it would have taken a deliberate attempt to crash the child's head against the chair for this skull fracture to have occurred as a result of an impact between the head and the chair itself. He thought the baby might well have been concussed, and even lost consciousness. There would have been swelling for four to five days afterwards. The baby would have been irritable for several days.
21.
Dr Thorogood examined the baby. He found 14 fractures to the ribs in an advanced state of healing. They, in his view, had occurred at least two weeks before the examination. There were three further rib fractures; they were more recent. They had occurred in the previous two to three days but more likely two days. He concluded that there must have been at least two occasions when the injuries had occurred but he also said that there could well have been more than two separate incidents. As we emphasise, at least two occasions.
22.
He gave, as his expert opinion, that it would be extremely unusual for a baby to fracture her ribs by herself when she was immobile. That was the position with A. He suggested that this was a rare occurrence, even in road traffic accidents. A high degree of force would be required to fracture the ribs. He also noted the number and nature of the rib fractures in A and, in his view, they were the result of application of considerable force, probably by squeezing. In his judgment the injuries had been caused by fingers pressing hard into the baby's back. This could not be described as normal handling or parenting. He was unable to accept an explanation that they had resulted when the father had fallen asleep on A. The sort of pressure that that would have created would have caused fractures to the side of the ribs, not to the back of the ribs, as he had found. He added that fractured ribs did not necessarily cause bruising, but could cause a great deal of pain and would be extremely tender for a few days.
23.
He then dealt with the fracture of the baby's shoulder blade. This was as a healing fracture to the outer half of the right shoulder blade. It was extremely unusual to find such a fracture in babies and children. In his opinion, this injury was the result of a wrench or pull with a twisting motion to the baby's right arm. It would have involved quite considerable force. He found it difficult to date this particular injury. He took note of the healing process and thought that the injury was quite recent. He added that any movement of the arm of this baby would have caused significant distress for several days afterwards, and the baby would have been in obvious pain and distress.
24.
The next injury was a fracture of the right wrist. This was a healing greenstick fracture. Dr Thorogood thought that this injury was of a similar age to the older fractures of the rib. It was caused by this bone being twisted or bent, in a similar action to that which was required to break the shoulder blade. The doctor was not saying that the injury to the right shoulder blade and the injury to the right wrist had occurred at the same time. In his view, the fracture to the right wrist occurred about two to four weeks before his examination. It could not have resulted from normal parenting. In his view the baby would have been very distressed for several days after this injury was sustained.
25.
The final fracture injury involved the left leg, where the posterior corner of the tibia was fractured. That in the doctor's judgment would have been caused by non-accidental and deliberate application of force by twisting the baby's leg.
26.
Overall, therefore there was a considerable range of time over which these various injuries could have occurred. There was what was described, and we have emphasised this point already, as an absolute minimum of two separate incidents but there could have been many more. He agreed with the view expressed in a report by Dr Galbraith, a medical practitioner, who said that the rib fractures would have caused A distress at the time when they occurred and she would have cried and screamed for some minutes. They would have remained tender and may have caused further discomfort for up to a week and -- and significantly in this case -- the discomfort and tenderness would have been much worse whenever the baby was bathed or changed.
27.
Dr Thorogood was cross-examined and agreed, in the context of the rib fractures, that "they would have caused [A] distress at the time they occurred. This distress would have lasted some minutes and A would have cried and screamed following the initial injury." He then went on to deal with the discomfort arising when the baby was bathed or changed, and in this context, added:
"If a carer had not witnessed the fracturing occurring, they may have been aware there was something wrong with [A] but not necessarily the reason why. A non perpetrator would not be expected to realise that [A] had rib fractures, they may have mistaken her distress as simple childhood ailments such as colic. These types of fractures are difficult to detect clinically."
This was a passage relied on at trial and indeed before us by Mr Meeke QC, on behalf of the appellant. Plainly, it was critical evidence from the appellant's point of view, and went to the issue whether she knew or must have known that the child was in distress. That was the point of adducing this evidence and then relying on it.
28.
Dr Galbraith examined the baby on the morning of 18th February. She noticed a 3 centimetre area of bruising to the left cheek. This consisted of two separate semi-circular bruises with a spared centred. According to the account given to the doctor by the parents, the bruise had appeared the previous morning. In her view, however, the yellowing of the bruise showed that it was rather older than that, at least two to three days old. Significantly, too, this injury had been caused by a human bite to the cheek. It was unlikely to have been caused by a bottle top, which was the explanation offered by the husband. What is more, the pressure required to cause the mark would been very firm and sustained. If it was a bottle top that had been used, it would have caused a different type of bruise.
29.
Dr Galbraith added that she, too, could not accept that the fracture of the baby's skull had been caused by an accidental impact; it would have required a violent impact with a hard surface. It would have been very unlikely that the baby would not have cried at the time of the injuries. They would all have caused her a great deal of pain. She would have screamed and have been very distressed, particularly whenever she was handled.
30.
She accepted what in truth was no more than a comment in cross-examination, but one which was, again, adduced before the jury, that the medical and health visitor records for this family expressed no concerns.
31.
The appellant was interviewed on 20th February. It is unnecessary to set out the whole details of her interview, but she denied the offence and provided an account which largely, but not entirely, was repeated before the jury. The transcript of her evidence indicates that during the course of the interview there were a number of hesitations:
"...a couple of weeks ago that...the only thing that.....um, Warren caught her head on the chair 'cos um, he come in crying to me one morning saying, 'I've, I've, I caught her head on the chair'. Um, it didn't come up into a lump immediately, um, a lump came up and we took her to see Dr Eddy, our GP, um, who checked the lump and that and said it was fine, there was no bruise on it you see.'"
She went on:
"A lump came up here, [indicating we deduce it the right side of A's head] there was no bruising on it, er, we took her to the doctors."
She said:
"When the swelling had gone down, it was about three days, um, and then a bruise come up which started by the front of her sideburn."
She then explained the rib injuries:
"When I went to pick her up to give her her feed, um, I could just h, I could hear it as well as feel a kind of um....a crunch, um, a kind of um.....I dunno, it makes my stomach turn. You know when people click their fingers, um, Warren [that is her husband] does it with his neck and it makes my skin crawl, it's the kind of noise of cracking bones. Um, and I felt it and I was like, you know, what the hell's this, kind of thing. Um, she got a bit upset then, so it was obviously hurting her. Um, so um, I gave her a feed, when she was sat down and not being moved and, she was fine."
Then she described giving her a bottle.
32.
On 13th July, she was interviewed again. It was now some 5 months or so after the baby had been taken into hospital on 17th February. In this interview according to the note, it is not verbatim, the appellant confirmed that A had been in her and husband's care since she was born and that she had only been alone with her mother, twice, for a total of about three hours. During the day both she and her husband cared for the baby but at night one or other of them did so. She said there were three significant events: when her husband banged A's head on the chair; when husband rolled on top of her; and when the music machine in the cot fell off. As to the first incident, it was put to her that that had happened on 30th January. She said she had not seen it take place. She suggested that this had happened at lunchtime-ish when she was cooking the tea. That was the difference between what she had said a few months earlier. She said she heard A cry. Her husband came in and said that A's head had been caught and a lump came up. He took A to the doctor while the twins ate their dinner. She then said she heard A crying. She went into the living room. She saw her husband looking at the baby trying to calm her down. A had a bottle and was sat in a baby chair. Within about 20 minutes the lump had come up so they telephoned the doctor. After that visit A was okay. After the swelling went down, a bruise appeared. The baby appeared her usual self, but was not really interested in her food and was a little more sleepy.
33.
She was asked about the rattling sound she had described in the earlier interview which was timed, according to that interview which we have quoted in the week before 17th February, when A had a cold. She said that the sound was not necessarily different from the sound she had heard on the 17th, just that it was less loud. She could not really say in relation to the incident with the chair whether it was lunchtime or breakfast, but it was the evening and they were both up.
34.
She was asked about the bruise on the baby's face. In the context of the visit to hospital on the 17th February, she said she had first seen it between 9.00 and 9.30 in the morning of that day, when her husband had woken her up. It was a dark like a fresh kind of bruise, not in a solid circle but misshapen. She commented that the baby bruised easily.
35.
On the 17th February, at about 1 o'clock she picked A out of her chair and noticed that her ribs cracked. She said that A was taken to her parents and she was asked why she had delayed taking the baby to hospital if the noise was horrible. She said that she did not think anything was fully the matter with A, and once A was in her arms she was still again. She then stated that when she picked A up her ribs did not click at that time, only later. If they had done earlier, then she would have acted sooner.
36.
With that evidence it was submitted to the judge that there was no case for either defendant to answer. We, of course, are only concerned with the present appellant.
37.
The judge rejected the submission. The submission is in effect repeated before us. The starting point for the submission is that it would not have been open to jury on the evidence to convict this appellant unless such neglect as may have occurred was also proved to be the result of wilful neglect. The essential elements of the offence required proof that she knew or must have known that the child was at risk of or may have suffered injury.
38.
The learned judge's attention was drawn to the decision of the House of Lords in
R v Sheppard
(1981) 72 Cr App R,
[1981] AC 394
. We need do no more than highlight the passage which the judge saw from the opinion of Lord Keith, which was cited to the judge:
"I turn now to consider the meaning of the adverb 'wilfully' which governs and qualifies 'neglects' and all the other verbs in
section 1(1)[of the Children and Young Persons Act 1933
, as amended]. This is a word which ordinarily carries a pejorative sense. It is used here to describe the mental element, which, in addition to the fact of neglect, must be proved in order to establish an offence under the subsection. The primary meaning of 'wilful' is 'deliberate.' So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equiparated with deliberation. A parent who falls to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence."
Pausing there, this was not a case in which recklessness was in issue at any stage. As the quotation from the Crown's opening indicates, here the allegation was the appellant knew perfectly well what the situation was. Returning to the opinion of Lord Keith, he went on:
"But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty."
39.
The submission before the judge and in effect renewed before us, was that there was no direct evidence that the appellant knew that A had suffered any injury requiring medical attention to a greater extent than her parents actually sought for her. There was, according to this submission, nothing to contradict the appellant's account given in interview of what her husband had told her about what we shall describe as the "accidents", which A had experienced. Reliance was placed, for understandable forensic reasons, on the way in which Dr Thorogood had accepted the observation about how a non- perpetrator might or might not have been alerted to or by the rib fractures.
40.
Taking these points in detail is unnecessary. The judge was invited to consider Dr Thorogood and Dr Galbraith's concerns about the difficulties of identifying the rib fractures; Dr Eddy's examination of the baby's skull; and the absence of any diagnosis by a nurse of fractures, there was therefore no sufficient evidence that, the appellant, could have known or did know of her injuries. The Crown relied on the long catalogue of injuries sustained by the baby, deliberately inflicted, on the Crown's case and eventually by the jury's verdict, by the husband, in at least two serious attacks on the child while his wife was at home in a very small flat. The Crown also relied on the evidence of Dr Thorogood that the child would have shown serious signs of distress and pain beyond anything normal after the various injures were inflicted on the child.
41.
The appellant's accounts in interview, that nothing untoward had happened, that this was in effect a calm, peaceful, trouble free home beyond, of course, the natural and wear of tear of twin children and a small baby, that all these injuries were to be explained as accident, as she was told by her husband, and that there was nothing in the child's condition to alert the mother to what was happening was simply untrue.
42.
The judge dealt with some of these issues in his ruling when he found that there was a case to answer. He acknowledged the submission, made on behalf of the appellant, that there was nothing to contradict, broadly speaking, what his client, that is the appellant, had said in interview. But he pointed out that the prosecution were describing this account as untruthful, "lies like the account, innocent account given by the father". He also took account of the submission based on Dr Thorogood and Dr Galbraith's concession that if you had not seen the infliction of the injuries, you would not necessarily know why a particular baby might be crying because babies do cry for all sorts of entirely innocent reasons. He also took account of the fact that the child was taken to the doctor on 30th January and to hospital on 17th February. He then addressed this question:
"...looking at the evidence overall, these appalling injuries over a short period of time in a very limited space, can the Jury infer from that evidence, being satisfied that she has not told the truth to them either through the interview or through evidence, if she gives [evidence], she must have failed to protect the child from what was happening to it and failed to provided adequate material medical aid in all the circumstances, in the sense that it was either not enough or it was too late."
It is true that in those observations the judge did not reflect the analysis by Lord Keith in the passage in the speech in
Sheppard
to which reference has been made. The question for us, however, is whether he was right to conclude that there was a case to answer.
43.
We have no doubt that there was a case for this appellant to answer. Two adults cared for the baby, on the evidence, over a short period. Taking the matter as generously as possible in favour of the appellant, on at least two occasions the baby was the victim of very serious violence. By 17th February she was damaged, with no less then 22 non-accidental fractures, to the head, the ribs, the shoulder, the wrist and the leg, and what we shall describe as "quite an old", in context grotesque, bitemark to her cheek, which simply must have been apparent. The appellant cared for the baby. She bathed her daily. She carried out all the necessary maternal care, the details of which need no elaboration. Yet, according to the account she gave to the police in interviews, she knew nothing about what was actually going on in her house, in particular, what her baby was suffering. In our judgment, it was open to the jury to conclude that the account that she gave in interview was untrue. They had to examine all the evidence in its overall context and decide where the truth lay. If the case had stopped at that stage, without further evidence, in our judgment, it would undoubtedly have been open to the jury to convict her. In those circumstances, if the judge had withdrawn the case from the jury, he would have been usurping its proper function. Accordingly, the judge was right to leave the case to the jury and this ground of appeal must fail.
44.
Following the rejection of the submissions on behalf of the defendants that there was no case to answer, the father gave evidence. He explained that he wanted to take an equal share in the caring arrangements for the child. A routine developed between him and his wife in which they shared the care on a one night on one night off basis.
45.
So far as 30th January was concerned, he explained that the appellant was asleep. She had been on night duty that day and the twins were having their breakfast. He made a bottle for the baby and began to feed her. One of the twins was too far away from the table, whilst A was in the crook of his arm, he eased the chair in with his left hand and then felt a bump against his arm; it was caused by the baby's head bumping against the top corner of the wicker and metal chair. She became distressed. She began to cry and scream. He said that he burst into tears and tried to comfort the baby. It took something like 20 minutes to half-an-hour to settle her down, but he did not think that he had hurt her massively. Once the baby had recovered she was all right. He woke the appellant up and he then broke down, telling her exactly what happened. His distress was caused because he had hurt his daughter. The appellant checked the baby and told him not to worry. They discussed whether the baby should be taken to the doctor. A went to sleep, but by midday a bump had appeared on her head. As soon as he noticed that he booked a doctor's appointment. He told the general practitioner that he had bumped the baby's head. The baby seemed quite content and perfectly normal. During the day, she had been bathed, fed and changed. All seemed well. He did not know that he had caused a fracture to the baby's skull.
46.
As to 17th February, he was on night duty with the children. A woke up at 5 o'clock. He picked her up. He heard a clicking noise. That was caused by the twins switching on the television. He put them on the couch under a duvet in the sitting room. He put A down, made her a bottle and changed her nappy and then lay on the sofa with her in the crook of his right arm. The bottle top was on the arm of the chair. He fell asleep while feeding her. One of the twins tapped him and said A was crying. When this happened his body was pretty much directly on top of the baby. He picked her up and tried to comfort her. The bottle top was by her face. It had left an imprint and bruise on her cheek. She was crying for 30 to 40 minutes. Eventually she went to sleep in her arms. He placed her in her basket and told the appellant what had happened. Apart from the bruise there seemed nothing wrong with her.
47.
Then, at about 1 o'clock when the bottle was due, he picked A up and he noticed a crackling sound which occurred when she was breathing. He also felt and heard it. As the twins had recently had chest infections, and at that time the baby had had a chesty cough for about three or four days, he and his wife were quite worried. They waited for the appellant's parents to return. They only had a Pay as You Go mobile telephone. There was no credit for it. The baby did not seem distressed; she fed and slept. They went to the appellant's parents. They rang the hospital. In due course they took her hospital. On arrival she was asleep, sucking her dummy. When the baby cried at hospital he thought it was because it was cold. He said that he was telling the truth about events and was not covering for anybody.
48.
The husband is not an appellant. All we need say about that account is that it was, and the jury must have found it to have been, wholly inadequate to explain all the child's injuries and the distress and pain which the child would have suffered and the distress that she would have exhibited.
49.
In evidence, the appellant said that she had believed her husband's account of events. Neither of them had ever done anything to the twins which would cause concern and A was a wanted child; they were very happy. Her husband looked after the baby well. She could not remember the circumstances of 30th January in detail, but she had checked A after her husband told her about the head injury. She had been asleep at the time. She only saw a red mark. It was the husband who was very upset and crying. She had no reason to disbelieve his account of what had happened. They went to see the doctor when a misshapen lump appeared on A's head. After they had seen the doctor, and in the light of the doctor's advice, there was nothing more to worry about. There were no further problems and no sign that A was suffering any discomfort.
50.
Then her evidence went ahead to 17th February. At 9 o'clock that morning, while she was in bed, her husband told her that A had been hurt. He explained what had happened with the bottle lid. He was very upset and, again, she believed him. She checked the baby, who now was sleeping peacefully. There were two half-circles on her cheek. The baby had had a chesty cough that week and indeed for that reason her jabs had been cancelled. The baby woke up at 12.00 to 12.30. All that she noticed then was chestiness and a rattling in the chest. She got the baby ready to take the twins to school. She noticed nothing. She changed the baby's nappy. There was no unusual reaction. The baby was asleep when she went in her pram to the twin's school. When she woke up at about 4 o'clock, however, the noise in her chest was louder and there was much more of a clicking sound. This was very different. It made her stomach turn. So they waited for her parents to arrive. Her father was a psychiatric nurse. He advised them to contact the hospital. That is what they did. She never saw her husband do anything to cause A's injuries. She could provide no further explanation for what had happened. Her evidence conveyed the impression of a calm, peaceful home, quite inconsistent with the evidence of injuries and the consequences of the injuries which, by the jury's verdict, they concluded had resulted from assaults by the baby's father.
51.
She called evidence from her mother. The mother said that the appellant was a very good mother and the father was a lovely father. So far as the appellant's sister was concerned, she could see nothing to cause concern. The husband was ecstatic about being a father. The baby was a normal, happy baby who did not cry a lot. The sister had never seen her in distress and never saw any marks on her. With that the evidence closed.
52.
The prosecution case was unequivocally, at this stage (and unequivocally because of the way in which the evidence had emerged) that the husband was alone with the child when she suffered all these various injuries. The Crown attributed each of them to the husband. He was responsible. They sought a conviction of the appellant on count 6, on the basis that she knew perfectly well that the husband was ill-treating the baby and, in particular, that she was in need, as she perfectly well knew, of medical attention long before any was sought.
53.
The defence case was that on the evidence it would be simply wrong and not open to the jury to convict the appellant on the basis of knowledge. The medical evidence showed that others might well, and reasonably, not have been aware of the injuries. The mother had assisted in taking the child both to the general practitioner and to the hospital. If there was neglect, it was not wilful, in the sense identified by Lord Keith in
Sheppard
.
54.
The first and main ground of appeal arise from what was identified as a failure by the judge, accurately or fully to direct the jury about the ingredients of the offence. In short, that he failed to take account of what Lord Keith had said in
Sheppard
, adapting it to the facts of this case, where recklessness was not the issue and actual knowledge was, directing the jury accordingly.
55.
There is force in the submission that the judge did not expressly direct the jury about the ingredients of the offence. The reality is that he did not give the jury a simple single sentence or two direction that knowledge had to be proved. Given that the case was heard before such an experienced judge, and given in particular that counsel had troubled to draw his attention to
Sheppard
, that was a surprising omission.
56.
The question for us, however, is whether, at the end of this summing-up, there was any risk that the jury might have convicted the appellant, if she lacked or may have lacked the necessary knowledge to be guilty of wilful neglect. It is clear that from start to finish, so far as this appellant was concerned, there was a single issue only. The single issue was whether she failed to take steps to protect her baby over the relevant period when she must have known that her child was at risk of assault or ill- treatment in effect from her father, and whether she failed to obtain medical attention for the child earlier, when she must have known that the child may already have sustained or was suffering from deliberately inflicted injury.
57.
That, indeed, was how the summing-up, notwithstanding the omission of a full direction, presented itself to the jury. The judge reminded the jury, in the context of counts 5 and 6, which were the cruelty counts, exactly what the wording was. In particular, in relation to the counts, he told the jury that literally or mentally, and eventually he confirmed that he asked them "deliberately" to cross out the words "assault, "assaulted" and "ill-treated", so as to leave the words "wilful" and "neglect", and he told the jury to focus on neglect. Neglect, he said of a child could take many, many forms and he then explained Crown's case, in this context:
"The parents failed protect this child from assaults and ill-treatment, it was obviously getting from someone."
He then reminded the jury of the prosecution case that they could conclude -- and we omit some of the words -- "that both of them must have been aware of what was going on but failed to provided adequate medical care". He then asked the jury to eschew emotion, given the circumstances of the case and to consider the issue dispassionately. He pointed out that these were difficult cases because the injured person was a child, too young to give evidence.
58.
He then addressed the prosecution argument, based on the evidence given both in interview and at trial, by the parents. He addressed the way in which counsel for the father had addressed the jury, and then returned to the prosecution case in that context, and then went on:
"They go on to say that Emma W must have been, must have known, how could it be anything else using your common sense ordinary judgment. Despite what everybody has said in this case doctors and relations she was aware, must have been aware of some or all of these injures. Not necessarily the fractured skull or the ribs but she knew and failed to protect [A] by whatever means were available to her and she failed to make sure that [A] got adequate medical aid."
Then, again, addressing a submission on behalf of the father, he returned back to the issue:
"The prosecution say from all the circumstantial evidence you can be sure they both knew by whatever means the baby had been injured and they both failed in their own individual ways to provide protection or adequate medical aid."
He then turned to the defence case. He addressed it in the context of the husband and reminded the jury that there was general evidence that these were good devoted parents, adding:
"If what they have been saying members of the jury, in your judgment is true, or may be true, you must acquit them both right across the board of this indictment."
Pausing there, of course, we have narrated the full details of the appellant's evidence. Plainly, if that was true or might have been true, she denied any knowledge or means of knowledge of anything that may have happened to her baby, and of anything which suggested that she knew that the baby was at risk or injured or possibly injured.
59.
The judge then returned to the father's case that between them, he and the appellant sought medical aid and reminded the jury again that, if they were sure that they were telling the truth, then they should be acquitted, but more important, that if they thought that what the appellant and her husband had said and had been saying all along might be true, then that would mean that the jury could not be sure that they were lying. If they were not sure that they were lying they could not be sure that the prosecution had proved their case. If so, it was their duty to acquit.
60.
The judge then returned to Emma W and said that her story, which could be summarised as: I was aware only what I was told and when I was told what had happened the child got medical aid, was a story according to the Crown's case, tailored to the facts and a straight wall to wall lie.
61.
The judge then turned to the expert evidence and the issue arising from that medical evidence. There is a separate point which arises here but we do not need to deal with in this immediate context. What the judge did here was to summarise all the evidence from the doctors, on which the Crown relied, both of course against the husband and against the appellant, including, for example, the consequence of the fractured ribs; that the child would be in a great deal of pain, extremely tender and so on for a number of days. We shall not repeat all that evidence. But he then, having summarised in some detail, and it was important evidence for the consideration by the jury, returned to the critical point in relation to the appellant's case. Not only was the evidence of what she had said to be taken into account but there was also the important passage, so far as the appellant was concerned, of the expert's report, from Dr Galbraith's report that was put to Dr Thorogood which he then adopted. Again, we have read out those passages, but it is perhaps worth reminding ourselves, at this stage of the judgment that, if the carer had not witnessed the fracturing, then she may have been aware that something would be wrong but not necessarily the reason why and that someone who had not perpetrated the assault would not be expected to realise that the baby had rib fractures. They might mistake the distress in the context of the ribs as simple childhood ailments such as colic, because clinically the fractures would be hard today diagnose.
62.
The judge then came to deal with the appellant's case. It is suggested that he failed properly to put the defence case. It is therefore convenient to deal with that submission in the course of dealing with the absence of a detailed direction on the issue of wilful neglect. The judge reminded the jury of the appellant's case. First, early on in his summing-up, in the context of examining the case for the prosecution, that the defence case was based on "what both defendants said in interview and what they repeated before you in their evidence". Then, in a long detailed passage in his summing-up, beginning at page 26, he summarised the appellant's case:
"She had done nothing to the twins. As far as she was concerned she accepted her husband's account of matters. As far as she was aware, he had done nothing to the twins to cause any concerns. They were very happy about having the baby."
He then reminded the jury of the way in which she had set out she had accepted everything that her husband had told her. She could find no behavioural problems with the child. She could find nothing to such suggest that the child was suffering from any discomfort and so the summing-up continued for some length. At the end of this part of the summing-up, he repeated that the appellant said she had never seen any injury to A, or her husband do anything to cause the injuries. She herself could provide no explanation for A's injuries beyond what she had said. In our judgment, the submission that the defence was not properly put to the jury is without foundation. What, however, is relevant is that this summary of the defence case again underlined the nature of the issue which the jury had to decide.
63.
We are, of course, troubled at the absence of any clear and specific direction based on
Sheppard
. We have made our observations about that omission. The question which we have asked ourselves, however, is: at the end of the summing-up, reading it as a whole in the context of the trial which had taken place before Judge Rucker, is there any possible risk that the jury will have convicted the appellant unless they were sure that she knew that her child needed appropriate medical attention and that she was at risk of injury?
64.
We have considered that closely. We can find no possible risk that the jury may have convicted the appellant on anything other than the basis which we have narrated. On this summing-up, and on the way the case developed, they must have been sure that appellant knew perfectly well that the baby needed medical attention and was at risk. There is no other basis on which this verdict can be understood. In short, therefore, notwithstanding the omission of the direction that should have been given this ground of appeal, does not cause us any doubt about the safety of the this particular conviction, in the particular circumstances, we have outlined at such length.
65.
That leaves two further submissions, which we can deal with shortly. It is argued that the judge gave a flawed direction about lies. The narrative has indicated that the issue before the jury was stark: either what the appellant had said was true, or her account of events at her home was untruthful. In reality no "innocent" explanation was offered. It was difficult to see how, on the evidence, any innocent explanation for lies could be derived from the overall picture. However, having summed-up the appellant's account of these incidents, in the context in which the Crown asserted that she had told lies, the judge in fact gave what is now conventionally called a
Lucas
direction on lies. He reminded the jury that a defendant who was lying might be lying for an innocent reason, "not because they are guilty but for an innocent reason, .... stupidity. In this case perhaps above [and plainly referring to the appellant] trying to protect someone else." It is true the judge did not go on and adopt the course suggested in the judicial Studies Board Specimen directions of identifying any particular individual lie to which the
Lucas
direction might apply. In truth in this case, we doubt whether any direction was required. There was no need to specify any individual lie to which the innocent explanation might have applied. There is nothing in that ground.
66.
The final ground arises from the judge's direction in relation to expert witnesses. Reliance was placed on two decisions of this Court in the context of convictions for murder when the issue to be resolved was diminished responsibility.
R v Bailey
[1978] 66 Cr App R 31
and
Saunders
were drawn to our attention.
67.
The judge summarised the issue. He reminded the jury in the conventional way about the correct approach to expert evidence. There was a body of evidence here which the jury was entitled to use to convict. They were indeed entitled to reach their conclusion, notwithstanding the carefully balanced concessions made by the experts, to which we have now referred twice. The judge dealt with all that material. In our judgment, there is nothing in that criticism either.
68.
In these circumstances, and with apologies for the length of the judgment, this conviction is safe and we shall therefore dismiss the appeal.
69.
SIR IGOR JUDGE: I am asked whether there are any reporting restrictions?
70.
MR MERCER: Our recollection is there is a reporting restriction in relation to A.
71.
SIR IGOR JUDGE: The reporting restriction will remain. A must not be identified. | [
"SIR IGOR JUDGE",
"MR JUSTICE HOLLAND",
"MR JUSTICE GOLDRING"
] | 2006_10_17-939.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2723/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2723 | 760 |
4b6e9adaebd89b98f0e34f2ac70055fb66fb773043e10d7558c0cae3a33a21bd | [2009] EWCA Crim 1876 | EWCA_Crim_1876 | 2009-10-02 | crown_court | Neutral Citation Number: [2009] EWCA Crim 1876 Case No: 200801604 D4 200801607 D4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Kramer QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/10/2009 Before : LORD JUSTICE HUGHES MRS JUSTICE RAFFERTY and MRS JUSTICE SLADE - - - - - - - - - - - - - - - - - - - - - Between : Dean Atkins and Michael Atkins Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2009] EWCA Crim 1876
Case No: 200801604 D4 200801607 D4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Kramer QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
02/10/2009
Before :
LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY
and
MRS JUSTICE SLADE
- - - - - - - - - - - - - - - - - - - - -
Between :
Dean Atkins and Michael Atkins
Appellants
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Stone and Mr P Woodall
(instructed by
Ally Lindsy
) for the
Appellants
Mr J N Donne QC and Mr J Evans
(instructed by
Crown Prosecution Service
) for the
Crown
Hearing date : Thursday 30
th
July 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes :
1.
The issue in these appeals relates to the permissible manner in which an expert in facial photograph comparison (often called ‘facial mapping’) may express his conclusions. The expert gave evidence about the similarities between the face of the offender caught on indistinct CCTV footage and the face of Dean Atkins. There is and was no suggestion by the Crown or the expert that he could positively identify Dean Atkins. There is and was no argument by the defence against the admissibility of the expert’s evidence as to similarities between the face on the camera and that of Dean Atkins. What is contended is that it was impermissible for the expert to say that in his view those similarities lent something between support and strong support to the allegation that the man in the camera shot was Dean Atkins. The expert habitually used, and used on this occasion, what has been described as a sliding scale of propositions running from “lends no support” to “lends powerful support”. It is contended that such an expert should never use any of these expressions but should be confined to identifying the similarities or dissimilarities between the faces compared.
2.
On the night of Sunday 5
th
/Monday 6
th
November 2006 a team of three men committed two armed robberies at the homes of targeted victims in the Uxbridge/Yiewsley area of west London. Both offences had clearly been planned. The first target was a Chinese widow in her sixties who lived alone and might be expected to have at home the takings from the family restaurant. The second was the occupier of a substantial house who might be expected to have valuables in his home. There was ample evidence that the offending team was the same for each, and that it moved more or less immediately from the first house to the second. The Chinese lady had been attacked, dragged around her house bleeding, apparently in search of a safe, and eventually bludgeoned to death. The robbers had then driven about 2 or 3 miles to the second target house. There they forced entry, terrorised the occupier and his two teenage children with an ‘imitation’ pistol, a knuckleduster and a knife, but were, in the end, repulsed. They left, leaving the gun behind. There were accordingly counts for murder, two aggravated burglaries, wounding the second homeowner with intent, and for a firearms offence. The appellants were convicted by the jury on all counts.
3.
By the time of the trial it was common ground that one of the robbers was a man called Carty, who had been arrested but had killed himself whilst on remand. These two appellants, who are brothers, were agreed to have been in Carty’s company not long before the offences. Dean had escaped from prison in Kent on the previous day (Saturday), and had been helped to do so by Michael and Carty. The three had been together in a local public house on the evening of the robberies. They were also found together the following morning at about 11 a.m. at the home of a girlfriend of Carty, who thought that they had slept that night in her house. There was also evidence that about ten days later the three of them had been together in the same public house when Michael Atkins produced a ring answering the description of one specially made for the Chinese family and made a joking reference to it having been made easy for him. But it was the case of both these appellants that they had had nothing to do with the robberies, which had been committed by Carty in the company of others who had never been found. By their defence statements each advanced an alibi for the night in question. Dean contended that he was at the home of his sister and went to the house of Carty’s girlfriend only the next morning. He did not give or call evidence at the trial. Michael contended that he had spent the night in bed with Carty’s girlfriend, and gave evidence to that effect; she and her mother both said that he had not.
4.
At the house of the second robbery there was a CCTV camera outside, covering the front door. The three robbers wore balaclava masks, but the camera showed that at one stage one of them came to the doorway and looked out, not then wearing the mask. It was this footage which was examined by Mr Neave, an expert in facial comparison.
5.
Mr Neave is a medical artist of over 40 years’ experience in service at the University of Manchester. His speciality is in facial features and their relationship to the underlying anatomy. For about 20 years he has specialised also in facial comparison. His report, and in due course his evidence, explained his approach and techniques as follows:
i)
it is well known that a number of persons may share the same proportions of face, and similar features; two people may have faces which appear indistinguishable to his examination; accordingly his comparison cannot make a positive identification, although it may make a definite exclusion because there may be irreconcilable differences in features;
ii)
he uses a computer with high definition to compare images; the CCTV footage is examined stopping every second;
iii)
two faces being studied are (a) compared for their horizontal and vertical proportions, (b) compared by examination and description of the shape and form of their features (this known as morphological examination), and (c) may be measured for both distances and angles between features, using a grid superimposed on the faces. The first and third exercises require comparable camera angles and perspective; the second does not, but any difference in perspective must be allowed for.
iv)
if those tests do not eliminate the suspect, the photographs can also be superimposed one on the other, and part of one face can be substituted for the same part of the other, and juxtaposed with the remainder of the other, both as further checks.
6.
Mr Neave had examined the CCTV shot, which was far from clear to the naked eye. He had compared it with photographs of both appellants, Carty, and approximately 20 other men who were known burglars in the Uxbridge area. That last collection was not of course a comprehensive range of possible culprits but no doubt provided a range of facial features. The exercise had taken two weeks, and some 16 hours had been spent concentrating on the comparison with the photograph of Dean Atkins. He had eliminated Carty and Michael Atkins by the second (morphological) stage, the first easily and the second after more subtle examination. He explained why by reference to comparison prints and to their noses, jaws, earlobes and the like. He also eliminated the other 20 men. In relation to Dean Atkins he said that he could find no difference between the photograph of Dean Atkins and the CCTV image on morphological examination and identified particular similarities in eight different areas, of which the principal were nose, mouth, upper lip and chin. The camera angles from which the photograph and the CCTV image were taken were virtually identical and thus sufficient to enable grid measurements to be made. These were also consistent with the photograph of Dean, and so was the product of the two superimposition or substitution tests.
7.
In evidence before the jury Mr Neave identified nine different factors which could affect the reliability of his exercise. Many related to the quality of the photographs and the various things which could affect that. Another was pixilation, which is or can be image compression when a photograph is transferred to a computer. Two more of his stated risk factors were:
i)
the possibility that two different people may appear indistinguishable; and
ii)
the fact that there exists no database of facial characteristics.
He also dealt with the particular quality of the CCTV photograph of the offender, which was significantly limited by short duration, some element of distortion at one edge, shadow and the sudden change from dark to light when the door was opened and the person appeared with light to one side beyond him.
8.
Having traversed the detail of consistent features and absence of any inconsistencies, and having explained his techniques, Mr Neave expressed his conclusions by reference to a range of expressions. They were set out in his written report in tabular form as follows:
Level
Description
0
Lends no support
1
Lends limited support
2
Lends moderate support
3
Lends support
4
Lends strong support
5
Lends powerful support
Mr Neave told the jury that he used these five different forms of expression. In the present case, he said that in his opinion the similarities which he had identified gave support to the proposition that the man on the camera was Dean Atkins which he put somewhere between “the top of (3) and into (4).” This part of his evidence, as summarised by the judge, was in these terms:
“This comparison therefore offers a level of support for the allegation that Dean Atkins and the offender are one and the same person, between ‘it lends support’ and ‘lends strong support’ to that conclusion. But you should remember this, that, as Mr Neave conceded, there is no database which would enable him to give a statistical analysis and so his scale is based on his own experience and expertise and, he added, in this case on the fact that he was able to exclude a large number of people, including one who was very similar to Dean Atkins, his brother Michael.”
9.
The judge was asked to rule this aspect of Mr Neave’s evidence inadmissible. He was not asked to exclude the remainder of his evidence, making and explaining the comparison between the faces and identifying the similarities. Mr Neave’s expertise in his field was accepted. This case therefore does not raise any question as to the judge’s power at common law to exclude evidence tendered as expert, if it be argued that the expert is insufficiently qualified or that his evidence is insufficiently based upon expertise. We say no more about that than that there can be no doubt that such a power exists. That is because he who asserts admissibility must demonstrate it. Evidence of opinion is not ordinarily admissible. Opinion based upon identifiable expertise outside the experience of the jury is one exception. If objection be taken to admissibility (though not otherwise) it must be determined by the judge. It is for him who tenders such evidence to establish the exception, viz the expertise and that it is the foundation of the opinion. The power to rule on admissibility applies equally to Crown and defence. It does not derive from section 78 Police and Criminal Evidence Act (although that may additionally be relevant in some cases).
10.
The partial objection made in this case to the opinion of Mr Neave was based upon this undoubted jurisdiction in the judge. Mr Stone’s careful submission accepted that the expertise of Mr Neave properly extended to his techniques, to his informed examination and comparison of facial features and to the demonstration of similarities or dissimilarities. Nevertheless, he contends, the absence of any database cataloguing the numbers of person with particular facial features or measurements meant that there was no expertise-based justification for his expression of the level of support which that comparison gave to the allegation that the man in the photograph was Dean Atkins.
11.
That contention was based by Mr Stone upon both principle and authority. As to principle, he submits that the use of the expressions of level of support in the form of an ascending scale carries the risk of bestowing upon evidence which is purely subjective a spurious scientific authority. It may, he says, mislead the jury by suggesting to it that there is an arithmetical scale or statistical basis for the strength of the comparison. Furthermore, he says, although Mr Neave made it clear that he could not, by his techniques, identify Dean Atkins as the man in the photograph, the use of his expression ‘lends some to strong support’ came perilously close to identification, and was likely to be over-valued by the jury.
12.
Mr Stone relied heavily on some observations of Mitting J, giving the judgment of this court in the unreported case of
R v Gray
[2003] EWCA Crim 1001
, at paragraph 16:
“We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided ‘strong support for the identification of the robber as the appellant’. No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as ‘the more unusual and thus individual’ were present in the general population, nor as to the frequency of the occurrence in the general population of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability of occurrence of particular facial characteristics of combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided…..must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with if necessary enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion….but on the state of the evidence in this case, and if this court’s understanding of the current position is correct in other cases too, such evidence should stop there.”
13.
There are several cases in which the general admissibility of photo-comparison or facial comparison/mapping evidence has been ruled admissible by this court without consideration of the limitation now suggested by Mr Stone: they include
Clarke
[1995] 2 Cr App R 425
and
Briddick
[2001] EWCA Crim 984
. Their effect was authoritatively summarised in the judgment of Rose LJ in
Attorney-General’s Reference 2 of 2002
[2003] 1 Cr App R 321
, although in that case the court was concerned with non-expert evidence of recognition from camera footage. This court recognised that a suitably qualified expert with facial mapping skills may properly give opinion evidence of his comparison of images from the scene, enhanced or otherwise, and a reasonably contemporary photograph of the accused. The images should be available for the jury. This last-mentioned case was before the court in
Gray
.
14.
Other decisions bearing on Mr Stone’s submission were, however, clearly not before the court in
Gray
. There is no indication that the court was referred
R v Stockwell
(1993) 97 Cr App R 260
. In
Stockwell
Lord Taylor CJ (with Henry and Blofeld JJ) had confronted the admissibility of evidence of facial comparison (as it happens given by the same Mr Neave whose evidence is in question before us). Two submissions had been made, both of which this court rejected. The first was that Mr Neave was not an expert, having “no scientific qualification, no specific training, no professional body
and no database
.” (see p 264; our emphasis). The second was that in any event he should not have been permitted to give evidence on the very issue before the jury, in the form of the expression: “There is limited information but I think the exhibits reveal that there is support for the view that the robber and the suspect are the same man on count 2, but it is not anything like as strong as the support on count 1.” The rejection of this second submission was chiefly couched, as plainly the argument had been, in terms of what used sometimes to be described as the ‘ultimate issue’ question, viz: is there a rule that the witness cannot give his opinion on the very question the jury must answer ? (There is not: consider for example insanity and see
Cross and Tapper on Evidence, 11
th
ed p 574
). But the submission raised exactly the issue now addressed, and it was rejected in these terms:
“But since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is obvious, the rule can only be….a matter of form rather than substance.
In our view an expert is called to give his opinion and he should be allowed to do so.”
15.
In
Hookway
(unreported 1 February 1998; 9803369/Y3) Rose LJ, giving the judgment of this court, held that a case which depended entirely on evidence of facial mapping was properly left to the jury. The witness (again Mr Neave) had expressed his conclusion by saying that the similarities found did not identify the accused but provided “very powerful support” for the proposition that he was the offender. The argument was not that the evidence was inadmissible but that in the absence of a database it could not by itself give rise to a case to answer. The point now at issue was therefore not taken in the form which Mr Stone now gives it, but the case is a further example of evidence of this kind being explained to the jury by use of an expression of the level of support given. Moreover the absence of a database was at the centre of the appeal, which this court dismissed. Unsurprisingly, since the case is unreported, it cannot have been before the court in
Gray
.
16.
What the court was dealing with in
Gray
was an expert who over-stepped the mark and whose reliability had subsequently appeared seriously questionable. His findings as to the height of the photographed person had been directly refuted at trial by another comparison expert. After the trial in question, his evidence in two other cases had been proved wrong and this court had expressed doubts about his evidence. In consequence, the CPS had advised that he ought no longer to be instructed for the Crown and it was conceded on appeal that he would not have been called if these things had been known at the time of the trial. The actual decision of this court in
Gray
was thus limited to a ruling that the conviction was unsafe given the serious doubt about the witness whose evidence had been relied upon. We entirely understand the proper caution about facial mapping evidence generally, articulated by Mitting J in
Gray
; the absence of a database is in particular a matter which must be explained unequivocally to any jury considering such evidence. But the question whether such an expert can give his opinion in the terms used in this present case did not arise in
Gray
and was not argued. As a result, the cases we have set out were not before the court. If they had been, we doubt that the court would have expressed itself in the terms we have quoted.
17.
In contradistinction to
Gray
, in
R v Gardner
[2004] EWCA Crim 1639
, this court not only affirmed the general admissibility of expert facial comparison evidence, but held (at paragraph 43):
“There is no rule…that in a case such as the present an expert witness cannot go further than saying ‘there are the following similarities’ leaving the ultimate decision to the jury, as opposed to the expert witness actually giving a view as to the degree of probability of the images being the same.”
That was said after consideration of the passage in
Gray
which we have previously quoted. The court said that
Gray
had sounded a ‘note of caution in relation to new techniques relating to identification.’ It emphasised the need for such caution, and for judicial warning. In that case the trial judge, Sir Edwin Jowitt, had expressly warned the jury that it could not test the results of the expert’s examination in the way in which an examiner can test a student’s paper in mathematics and so it should approach the evidence with caution, remembering also that an honest witness can appear very persuasive but may yet be mistaken. But this court upheld the admission of the opinion of the expert in that case that ‘there was a high degree of probability’ that the person in the photographs was the same as in the admitted photographs of the defendant. In doing so it referred to the several decisions of this court establishing the general admissibility of facial comparison evidence, and to the clear law that expert opinion evidence may be given by reference to studies which the expert has done but which a jury does not see.
18.
It follows that as a matter of precedent,
Gardner
is a decision, after argument, precisely on the point now before us.
Gray
is a powerful expression of opinion,
obiter
, without the benefit of argument, and without citation of all relevant authority.
19.
Mr Stone also relied on the judgment of Spigelman CJ in the New South Wales case of
R v Tang
[2006] NSWCCA 167
, where there is a helpful discussion of photographic comparison evidence in the context of one particular expert. The relevant local law was contained in s 79 Evidence Act 1995 (NSW), which provides that expert opinion evidence is admissible if the witness has specialised knowledge based upon training study or experience and the opinion is wholly or substantially based on that knowledge. There is no such statutory provision in English law, but the common law is as we have set out in paragraph 9 above.
20.
In that case the court was considering the evidence of photographic comparison both of facial features and posture. In the course of the judgment, the court described the use of a similar sliding scale of expressions, as employed here by Mr Neave, as having no scientific basis and as being ‘no more than a series of convenient labels, arranged in an ascending hierarchy, that state a conclusion’ (see paragraph 88). Later, in arriving at the court’s conclusion, the Chief Justice said (at paragraph 154) that this was one of three parts of the expert’s evidence which did not go beyond mere
ipse dixit
. The court also cited with approval the passage from
Gray
which we have quoted above. Says Mr Stone, that demonstrates that in
Tang
the court was holding that the use of the sliding scale of expressions is not admissible because not sufficiently based on specialised knowledge.
21.
In fact, however, the court in
Tang
did not have to grapple with the admissibility of the use of a sliding scale of expressions of conclusion about
admissible
evidence of facial comparison. The expert’s evidence of facial comparison methods and of similarities revealed was agreed upon all sides to be admissible. What led to the decision that part of her evidence should have been excluded was that she had unilaterally extended the comparison from facial comparison to body posture, had asserted that the posture alone of the defendant was a ‘unique identifier’ when there was no evidence of any body of knowledge identified to justify such a proposition, and had based herself solely on a ‘protocol’ of her own devising, which she declined to reveal on the grounds that it was unique to herself and she wished to patent it. That last feature of her evidence was described as ‘the critical matter’ (paragraph 154). It followed that this part of her evidence (unlike the facial comparison) failed the statutory test: there was simply no evidence of any body of specialised knowledge. (We observe that by contrast there seems to have been some such evidence in relation to posture comparison in the English case of
Ciantar
[2005] EWCA Crim 3559
, although the decision did not turn upon it.) Moreover, unlike Mr Neave in the present case, she had purported positively to identify the accused from her comparison; that is something which responsible facial comparison experts recognise to be impossible, at least in the absence of some wholly individual feature, such as a birthmark. The court agreed, holding that although the facial comparison (but not body posture comparison) evidence was admissible to show similarities, it could not justify identification. We might add that there were other flaws apparent in her evidence. Her oral evidence was inconsistent with previously expressed opinion in her two written reports, which had spoken respectively of ‘limited support’ and ‘lends support’ (those two themselves also inconsistent with each other). The manner of her expression of opinion in oral evidence was confused to say the least (see paragraph 33). The court also took the view that a challenge could well have been made to her identification of two co-accused who had pleaded guilty, on the grounds that its introduction was unfair as against the third defendant, but such challenge had never been attempted.
22.
The observations about the sliding scale at paragraph 88 were accurate; it does not have a scientific basis, in the sense of an arithmetical or numerical scale; it is simply a convenient means of expressing a conclusion. That does not, however, answer the question whether such a manner of expression is permissible. That it was not permitted in relation to posture analysis in the particular circumstances of
Tang
leaves the question open in relation to facial comparison evidence which is agreed to be admissible. Whether or not in New South Wales photograph comparison experts are currently permitted to use such expressions in relation to evidence agreed to be admissible is not clear; the same witness was confined by the Crown to listing similarities in the trial of
Jung
[2006] NSWSC 658
, but that may have been out of understandable caution.
23.
On principle, we accept the caution with which any expression of conclusion in relation to evidence of this kind (and others) needs to be approached. We agree that the fact that a conclusion is not based upon a statistical database recording the incidence of the features compared as they appear in the population at large needs to be made crystal clear to the jury. But we do not agree that the absence of such a database means that no opinion can be expressed by the witness beyond rehearsing his examination of the photographs. An expert who spends years studying this kind of comparison can properly form a judgment as to the significance of what he has found in any particular case. It is a judgment based on his experience. A jury is entitled to be informed of his assessment. The alternative, of simply leaving the jury to make up its own mind about the similarities and dissimilarities, with no assistance at all about their significance, would be to give the jury raw material with no means of evaluating it. It would be as likely to result in over-valuation of the evidence as under-valuation. It would be more, not less, likely to result in an unsafe conclusion than providing the jury with the expert’s opinion, properly debated through cross-examination and, if not shared by another expert, countered by contrary evidence.
24.
That approach is supported by the decision of this court in
Luttrell
[2004] EWCA Crim 1344
,
[2004] 2 Cr App R 31
in connection with expert evidence of lip-reading. The court rejected the submission that such evidence could not be admissible because it had not been demonstrated to be verifiable in scientific terms. Rose LJ said this (at paragraph 34):
“A skill or expertise can be recognised and respected and thus satisfy the conditions for admissible expert evidence, although the discipline is not susceptible to this sort of scientific discipline.”
25.
If the informed expert opinion of the witness is inadmissible, then it must be inadmissible in the hands of both parties. It would follow that a party affected by evidence of similarities could not adduce from the expert his opinion that the similarities in question did not, to the expert, mean very much: for example that he would express himself no higher than that they ‘lend very limited support’ to the suggestion that the person in the photograph is who he is alleged to be. That would be significantly to diminish the power of a party challenging evidence of this kind to explore and test it. In this case the expert was called by the Crown, and that will probably more often be the case than that a defendant will rely on such evidence. But that is not exclusively so. In the aftermath of a multi-party incident inside or outside a nightclub, for example, it may be in the interests of one defendant to establish that a person caught on camera is not only not him, but has identifiable similarities with another known person, whether a co-defendant or a Crown witness.
26.
That conclusion is consistent with the practice of experts in a number of fields to use this kind of scale of expressions of opinion. Such expressions are commonly encountered, as counsel on both sides confirmed and our own experience suggests, in many other fields of comparison. Some random examples are comparisons of handwriting or fibres, glass fragments or footwear patterns. In some of those there is some, often very incomplete, data about the incidence of general occurrence; in others there is no database.
27.
We accept that there can be proper anxiety about new areas of expertise. Courts need to be scrupulous to ensure that evidence proffered as expert, for any party, is indeed based upon specialised experience, knowledge or study. Mere self-certification, without demonstration of study, method and expertise, is by itself not sufficient. It sometimes happens that such anxieties are reinforced when experts overstate their case, as the experts under consideration in both
Gray
and
Tang
appear to have done. But the remedy is not to prevent all experts, good and bad, from expressing any informed opinion at all as to the import of their findings. The three principal remedies are (i) to have such evidence examined and, if appropriate, criticised by an expert of equal experience and skill, (ii) to subject the evidence to rigorous testing in the witness box and (iii) to ensure careful judicial exposition to the jury of the difference between factual examination/comparison or arithmetical measure on the one hand and, on the other, a subjective, but informed, judgment of the significance of the findings.
28.
Although there are not a great many, there are several experts in the field of photograph comparison, who operate independently of one another. Such were, for example, called to give evidence for the defence in
Clarke
and
Gardner
, whilst in
Hookway
it is clear that the defendant had been advised by such an expert although he elected not to call him. Three different such witnesses gave evidence to the jury in
Ciantar
as well as two in relation to posture.
29.
The absence of a statistical database is something which will undoubtedly be exposed in cross-examination. The witness may expect to be asked to explain how, if no-one know how often ears or noses of the shape relied upon appear in the population at large, it is possible to say anything at all about the significance of the match; his answers may be satisfactory or unsatisfactory but will be there to be evaluated by the jury, which will have been reminded by the judge that any expert’s expression of opinion is that and no more and does not mean that he is necessarily right. Similarly, the expert may be expected to be tested upon the extent to which he has not only looked for similarities, but has actively sought out dissimilarities. Those are but the simplest of the questions which plainly need to be asked of anyone offering evidence of this kind. Cross examination will also be informed by the fullest disclosure of his method, generally, and of his working notes in the particular case being tried.
30.
In the present case, the judge’s treatment of this evidence in summing up to the jury is agreed to have been meticulous and entirely fair if the disputed expression of opinion was admissible. As well as setting out in detail the extent and limitations of the evidence of Mr Neave, he made it wholly clear that it (i) was incapable of constituting positive identification, whilst it could positively exclude, (ii) involved no unique identifying feature in this case, (iii) was not based upon any database which could give any statistical foundation for his expression of opinion and (iv) was therefore, as to opinion of significance, informed by experience but entirely subjective. He also told the jury plainly that the decision whether to accept expert evidence was for it and it alone. Without attempting to ordain a form of summing up which can fit every case, we observe that in some instances it may help the jury for the judge to explain that the forms of expression are labels applied by the witness to his opinion of the significance of his findings and different experts may not attach the same label to the same degree of comparability.
31.
We conclude that where a photographic comparison expert gives evidence, properly based upon study and experience, of similarities and/or dissimilarities between a questioned photograph and a known person (including a defendant) the expert is not disabled either by authority or principle from expressing his conclusion as to the significance of his findings, and that he may do so by use of conventional expressions, arranged in a hierarchy, such as those used by the witness in this case and set out in paragraph 8 above. We think it preferable that the expressions should not be allocated numbers, as they were in the boxes used in the written report in this case, lest that run any small risk of leading the jury to think that they represent an established numerical, that is to say measurable, scale. The expressions ought to remain simply what they are, namely forms of words used. They need to be in an ascending order if they are to mean anything at all, and if a relatively firm opinion is to be contrasted with one which is not so firm. They are, however, expressions of subjective opinion, and this must be made crystal clear to the jury charged with evaluating them.
32.
These conclusions upon the issue of the expression of the expert evidence make it unnecessary to consider the other evidence which implicated these defendants in these offences. We should say only that there was ample other evidence of their guilt.
Sentence
33.
The judge passed upon both defendants a sentence of life imprisonment with a specified minimum term of 35 years. Each seeks leave to appeal against the length of the specified term.
34.
Dean Atkins was 25 at the time of the offences and his brother Michael 24. Both had substantial previous convictions, chiefly for dishonesty and particularly for burglary. Neither had been convicted previously of grave violence, although Dean had a conviction for aggravated burglary. Both had served several custodial sentences. Dean had served sentences of four years and three and a half years. Michael had served a sentence of three years and nine months.
35.
The statutory starting point for the specified term was 30 years; this was a murder committed for gain and carrying a firearm: see
Criminal Justice Act 2003, Schedule 21
paragraph 5(2). The murder of Mrs Chung was aggravated by significant planning of the offence, its commission against a vulnerable victim and a not inconsiderable amount of physical violence inflicted upon her to try to make her divulge the whereabouts of her safe, before the final fatal attack.
36.
We can see no basis for the suggestion that either man ought to have been sentenced on the basis that he may have been outside the house at the time and convicted without proof of intention to kill. Neither had given any evidence of that possibility. All three had been equipped with masks. All three had taken an active violent part in the immediately following attack on the second household. It was a natural inference that they had invaded Mrs Chung’s home in similar manner and numbers. It is rightly conceded that those inside her house had clearly had the intention to kill. Nor, despite the terms of a (disputed) out of court admission by Michael suggesting that Carty had lost control, do we see any basis for saying that the judge was bound to sentence these two defendants on the basis that Carty, had he been alive to be tried, would have received a longer sentence than they.
37.
Comparisons with other sentences imposed since the passing of
the 2003 Act
but in relation to offences committed before 4 April 2005 are not helpful, because such transitional cases are governed by a different statutory regime and starting points significantly lower, under the practice statements of the then Lords Chief Justice. There can be no doubt whatever that the new statutory starting point of 30 years has effected a major uplift in sentencing for the most serious murders.
38.
The reason, however, for the specified period of more than 30 years in this case is that the judge was passing sentence both for murder and for the extremely violent and grave attack on the second household. Since he was passing a life sentence for the murder, he correctly reflected the totality of the defendants’ offences in the specified period: see
O’Brien
[2006] EWCA Crim 1741
. There is and could be no challenge to the judge’s conclusion that the second aggravated burglary, associated with wounding with intent involving multiple knife wounds, would by itself have merited a sentence of imprisonment for public protection based upon a notional determinate sentence of 14 years. In those circumstances there is nothing arguably wrong in principle or manifestly excessive in an overall specified period of 35 years, long as that is.
Conclusion
39.
For the foregoing reasons, the appeals against conviction are dismissed and the applications for leave to appeal against sentence must be refused. | [
"LORD JUSTICE HUGHES",
"MRS JUSTICE RAFFERTY",
"MRS JUSTICE SLADE"
] | 2009_10_02-2088.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1876/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1876 | 761 |
9a4f6bf78ef0c7452be4f96e2f143386690b7c4d0f5440da730c8ad7ab9bfd62 | [2018] EWCA Crim 2153 | EWCA_Crim_2153 | 2018-07-17 | crown_court | Neutral Citation Number: [2018] EWCA (Crim) 2153 Case No. 201705006 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 17 th July 2018 B e f o r e: LORD JUSTICE SIMON MR JUSTICE SWEENEY and THE RECORDER OF PRESTON ( His Honour Judge Brown ) ( Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - R E G I N A - v - MORID KHAN ORIAKHEL - - - - - - - - - - - - - - - - Computer Aided Transcript | Neutral Citation Number:
[2018] EWCA (Crim) 2153
Case No.
201705006 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 17
th
July 2018
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE SWEENEY
and
THE RECORDER OF PRESTON
(
His Honour Judge Brown
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
- - - - - - - - - - - - - - - -
R E G I N A
- v -
MORID KHAN ORIAKHEL
- - - - - - - - - - - - - - - -
Computer Aided Transcript of Epiq Europe Ltd,
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400; Email:
[email protected]
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Miss E Collins
appeared on behalf of the Appellant
Mr R Merz
appeared on behalf of the Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
LORD JUSTICE SIMON:
1. On 13
th
October 2017, following a retrial in the Crown Court at Isleworth before His Honour Judge Ferris and a jury, the appellant was convicted of a single charge of perverting the course of justice. He was sentenced to a term of six months' imprisonment suspended for twelve months.
2. He appeals against that conviction with the leave of the single judge.
3. The background to the offence was a conspiracy to intimidate a witness, Avesta Hashemi. Three men pleaded guilty to that offence: Rafi Majid, Tarek Tufan and Alexander Edusei. Two other men, Zayed Kalantar and Samim Naziri, were tried with the appellant on the conspiracy charge and were acquitted.
4. The origin of the conspiracy was the report by Majid's partner (Avesta Hashemi) that he had assaulted her on 20
th
March 2016. Following contact from the police, Majid recruited Tufan and Edusei to intimidate her by pouring petrol around her house in Southall, London in the hope that she would withdraw the allegation. The conspirators used the appellant's car to travel from Coventry. The extent of his knowledge and intentions in respect of the use of his BMW was a key part of the case against the appellant.
5. Majid, Tufan and Edusei had travelled in the appellant's BMW from Coventry to Southall, on a reconnaissance trip, on the afternoon of 25
th
March 2016. They left at about 4.30pm and arrived at about 6pm, before returning to Coventry. Later that day, at about 9pm, Tufan, Edusei and another unknown man left Coventry and returned to London, again in the appellant's BMW. They poured petrol around the front door of the victim's house, outside the house and over the gate into the garden behind the house. The smell of petrol was strong and the inhabitants came out of the house, disturbing the arsonists. The men fled shortly after midnight on 26
th
March and were seen to get into the appellant's vehicle. No doubt realising that the car had been identified, they abandoned it nearby, called a taxi and made their way to Victoria in Central London. Majid then drove down the M40 to pick up the men who had abandoned the car. His car was intercepted near Beaconsfield and he was arrested. The men who had abandoned the BMW were picked up by others. Police subsequently located the BMW, which had no damage. There was no key in the vehicle. At trial there was no positive evidence that the BMW had not been interfered with by way of hotwiring.
5. In the meantime, at about 56 minutes past midnight on 26
th
March (about eight hours after Majid had driven to London on the first reconnaissance trip and shortly after the BMW had been abandoned) the appellant, who lived in Coventry, reported to the police that his vehicle had been stolen and that he had the key with him.
6. The appellant was arrested on 27
th
March. He had in his possession a key to the BMW and a mobile phone. In interview he provided a prepared statement in which he said that he did not know how his car came to be taken and that he did not know either Majid or Tufan. He had gone to work at his fast food franchise outlet at about 11.30 on the morning of 25
th
March and had parked his car nearby. He had come out of his premises at around midnight to get some fresh air. He went to check on his car and found that it was missing. He then phoned the police to report it missing. That account was set out for the convenience of the jury at paragraph 14 of the Agreed Facts.
7. The prosecution case was that the appellant lent his car to Majid knowing that it would be involved in criminality and had falsely reported the vehicle as stolen, thereby perverting the course of public justice. The prosecution relied on a number of pieces of evidence:
1. A mobile phone taken from Majid had the appellant's telephone number stored in it under the name "Gogo". (The appellant owned a pizza restaurant called Pizza Go-Go.)
2. A call had been made from the appellant's phone to Majid for one and a half minutes at 5.38pm on 25
th
March. This was at a time when cell-site data established that Majid had been in London. The appellant claimed in interview that he did not know Majid; but his phone number also tried to contact Majid at 10.49am on 26
th
March, by which time Majid had been arrested.
3. At 51 minutes past midnight (approximately 40 minutes after the BMW had been abandoned) a call was made from the appellant's mobile phone that connected to Tufan's voicemail (the calls were of three and two seconds duration). Although there was no evidence of the appellant receiving the call and the calls were not completed, the inference was that the appellant had become aware of what had happened in London either in person or via another telephone – hence his report to the police at 12.56 am.
4. The appellant also attempted to call Tufan (whom he claimed in interview he did not know) at 11.56am on 26
th
March and there were calls between their numbers at 1.48pm, 4.35pm and 5.40pm, as well as SMS messages and voicemails.
5. The prosecution also relied on the inferences to be drawn from the appellant's failure to give evidence. The appellant did not give evidence. He did, however, rely on his good character and evidence that supported that.
8. Naziri and Kalantar, who were charged with the conspiracy to intimidate a witness, gave evidence. They said that they had spoken to the appellant on the phone on the evening of 26
th
March about an employee for the appellant's pizza restaurant. They also said that Majid had stopped in Far Gosford Street and had gone to a shop. The prosecution relied on this evidence as providing an opportunity for Majid to have spoken to the appellant whose pizza shop was in Far Gosford Street.
9. It appears that, before he summed up the case to the jury, the judge did not discuss with counsel the legal and factual issues on which the jury should be directed. In our view he should have done so. It would have enabled him in particular to identify what the defence was and it would have avoided the error into which he later fell.
10. The appellant had served a Defence Statement, as required by
section 6
A of the
Criminal Procedure and Investigations Act 1996
(as amended) on 30
th
November 2016, in which he said that a set of his car keys had gone missing two weeks before the incident. However, neither the contents of the Defence Statement, nor what was described as the "stolen keys defence" was mentioned during the trial and it formed no part of the defence which was advanced before the jury.
11. At page 22B of the summing-up, the judge summarised the case against the appellant. He described the charge as "an allegation that he falsely reported his white BMW was stolen because he knew that it had been used in some criminal offence". He pointed out that, although it had been used to go from Coventry to London twice, the car was not broken into nor hotwired. He then continued (at 22D):
No one explained how you would do that, how you would steal the BMW without breaking in until [the appellant] signed off his defence statement about eight months after the night of the petrol pouring. In his defence statement dated November 2016, [the appellant] said that he had lost one set of keys to the BMW two weeks before he says his car went missing.
It is common ground between the prosecution and the defence that the judge was in error in referring to the contents of the Defence Statement. The error should have been immediately apparent and the judge should have been informed of his error.
12. Instead of it being put right promptly, the judge went on to compound the error later in the summing-up. At page 32 he returned to the issue in the context of the appellant's prepared statement. He said:
The telephone number attributed to him is the one on which his BMW car was reported stolen and you have a transcript of that call. It is clear that he now admits that that was him making the call. That same number was listed in Mr Majid's contact section under 'Go-go'. There is no evidence that the BMW was broken into or hotwired.
(Nor was there any evidence to the contrary.)
It was not until his November 2016 defence statement that he said he had a set of keys for the car stolen two weeks before Good Friday. When he was arrested at Pizza Go-Go, he had a BMW with him. This is the stolen keys defence which you know about but which was not confirmed by [the appellant] either to the police at interview or in evidence to you.
You may want to ask yourselves some questions about the stolen keys defence. Why would Mr Majid steal the keys of a motor car owned by a man from his community? His telephone number is on the contact list of his mobile phone and why would he do that before he beats up his girlfriend and before she goes to the police, in other words, before there could be any plan to intimidate a witness living in London and why would Mr Majid take the risk of using a stolen car, a new white BMW, and driving it openly around Coventry, picking up friends, driving it to London and then using it again, giving it to the petrol pourers, so how does the stolen keys defence work, exactly?
13. There are a number of problems with this passage. First, it repeats the error of referring to a defence that was never put before the jury. Second, it points out that the stolen key defence was not mentioned when the appellant reported that his car was missing, thereby undermining the defence that the car had been stolen at some time during the afternoon and evening of 25
th
March, which was his defence before the jury. Third, it contains a direction under
section 34
of the
Criminal Justice and Public Order Act 1994
that the jury were entitled to take into account the appellant's failure to mention to the police a defence that was never put before the jury.
14. Having asked the questions about the stolen keys defence and having made comments which would have cast doubt on the defence if it had been advanced, the judge concluded: "… so how does the stolen keys defence work, exactly?" A little later (at page 34) he said:
[The appellant] has taken his chances in not giving evidence.
In our view, that observation undermined any direction that it was, of course, the appellant's right not to give evidence.
15. After the jury retired at about 1.30pm, Ms Collins pointed out that the stolen keys defence had never been advanced before the jury: "the jury have never heard about it and they have never seen it". This was confirmed by Mr Merz on behalf of the prosecution, who pointed out, accurately, that the judge had referred to the defence a number of times. The judge adjourned to consider whether he should give a further direction in the light of what he had heard from counsel and said he would then hear an application to discharge the jury.
16. At 2.22pm (54 minutes after they had retired), the jury returned to court. The judge referred to the stolen keys defence on which he had understood the appellant relied and which had been advanced in the evidence. He said this:
That was my error. [The appellant] has not relied on that defence at this trial. This case is not about possible defences that [the appellant] might have argued and I was wrong to suggest weaknesses in a defence that he does not rely on. It is right that you should hear about my mistake and that I should correct it swiftly. Remember, the prosecution bring this case and the prosecution must prove it so that you are sure. The [appellant] does not have to prove his own innocence.
17. The jury then retired again and the judge heard the defence application that the jury should be discharged from bringing in a verdict. It is fair to say that the prosecution did not resist that application with great vigour.
18. In any event, the judge rejected the application. He said this (at 53G):
The stolen keys defence I referred to is not now and has never been a part of [the appellant's] defence before the jury. If I had not made that mistake, I would have pointed out with much greater emphasis and comment the absence of any explanation for the new BMW having been stolen and driven away immediately, without any evidence of break-in damage or hotwiring.
That has not been done now as a consequence of my mistake. An objective bystander could well observe that [the appellant's] case now stands in a rather stronger position as a result of my error than it did before.
We note that the judge had in fact already raised with the jury that the car had been taken without evidence of either break-in or hotwiring.
19. On this appeal, Ms Collins submitted that the judge made a number of errors which, either individually or cumulatively, rendered the conviction unsafe. First, he referred to the contents of the Defence Statement (the stolen keys defence), which was not in evidence. Secondly, he made unduly prejudicial comments about the contents of the Defence Statement before unnecessarily and unfairly giving a
section 34
direction without any prior warning. Third, the judge's attempt to rectify his error was insufficient and did not cure the prejudice. Fourth, the errors required the judge to discharge the jury. She adds a further point: that the identified errors amounted to an infraction of the appellant's right to a fair trial under Article 6(2) of the European Convention on Human Rights, which includes the presumption of innocence and the right to silence.
20. Mr Merz, for the prosecution, accepted that the judge improperly referred to the Defence Statement and the stolen keys defence, which was not in evidence, and erred in commenting that the appellant had not mentioned the stolen keys defence in this initial report to the police that his car had been stolen, or in police interviews, and had erred in effectively giving a
section 34
direction, which was not prefigured in any discussion. However, he submitted that this assisted the defence as there was no explanation before the jury as to how the appellant's car had been taken without his permission, there being no evidence of damage or hotwiring. The jury had been directed that the facts were for them to determine and the judge clearly rectified the error he had made – a misunderstanding that the appellant was relying on the stolen keys defence mentioned in the Defence Statement. The jury were appropriately directed on section 35 and the burden and standard of proof, and any prejudice caused was reduced by the judge's correction and fresh direction.
21. Mr Merz drew the court's attention to
R v Tufail
[2006] EWCA Crim 2879
. In that case the judge had inadvertently disclosed matters in the summing-up which had not been adduced during the trial and an application to discharge the jury was refused. In that case, which is cited in Blackstone's Criminal Practice 2018 at D13.65, the court indicated that the factors to be considered in deciding whether to discharge the jury were: (a) the nature of the judge's actions to cure the error; (b) the strength of the case against the defendant; and (c) the degree to which the jury were or may have been influenced by it. He submitted that the judge acted promptly to correct the error and that the jury would not have been unduly influenced by it. In addition, he submitted that the evidence that the appellant was well aware of who had his car when he reported it stolen was overwhelming. He could have told the police that he knew who had taken the car, but that would have implicated Majid and Tufan. He acknowledged that a jury note indicating that they were not sure that the appellant knew everything, but submitted that they were sure he knew enough to make him guilty.
22. It is clear that the judge made a mistake. He then went on to repeat his mistake as to the nature of the defence and to undermine it. His correction was short and acknowledged his mistake, but it did not cure the error that had been made. The appellant was entitled to have his defence placed before the jury. His defence was that the car had been stolen during the afternoon and evening of 25
th
March. It did not cure the harm done to the defence simply for the judge to admit that he had made a mistake and remind them that it was for the prosecution to prove the case.
23. The judgment in
Tufail
indicates factors that may be relevant in particular cases where an error is made before the jury. It may often be sufficient to tell the jury to disregard what had been said before them. But the present case was different – at least to this extent. The jury had been told of a defence that had never been advanced and which was subjected to adverse comment by the judge. The jury had been left for the best part of an hour in retirement before a correction was made, which admitted the error and reminded them of the burden and standard of proof but did not remind them of the appellant's defence as advanced in the prepared statement and at trial.
24. In our judgment, the case should have been withdrawn from the jury. We note that when this possibility was raised, it was not opposed by the prosecution, although Mr Merz very properly said that it was a matter for the judge.
25. We turn to the prosecution argument that the case against the appellant was strong and that for that reason the conviction should not be regarded as unsafe. We accept that the circumstantial case against the appellant was strong, although Ms Collins has addressed us effectively on the basis that it was not as strong as the prosecution has asserted. She points out that the prosecution relied on contact with Kalantar and Naziri and that Kalantar and Naziri were acquitted of the conspiracy charge.
26. In the circumstances we have described, we do not consider that the verdict can be regarded as safe. Accordingly, we quash this conviction.
(
An application by the Crown for a second retrial was refused
) | [
"LORD JUSTICE SIMON",
"MR JUSTICE SWEENEY"
] | 2018_07_17-4355.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2153/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2153 | 762 |
afe93041964005b93cdbb782c47b76e85097064028ec235a5402e1cd80e68f8c | [2007] EWCA Crim 2658 | EWCA_Crim_2658 | 2007-11-09 | supreme_court | Neutral Citation Number: [2007] EWCA Crim 2658 Case No: 200604473 D1 & 200700458 D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE READING CROWN COURT HER HONOUR JUDGE ZOE SMITH T20057266 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/11/2007 Before : LORD JUSTICE TUCKEY MR JUSTICE FOSKETT and HIS HONOUR JUDGE PATIENCE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : R Respon | Neutral Citation Number:
[2007] EWCA Crim 2658
Case No: 200604473 D1 & 200700458 D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE READING CROWN COURT
HER HONOUR JUDGE ZOE SMITH
T20057266
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/11/2007
Before :
LORD JUSTICE TUCKEY
MR JUSTICE FOSKETT
and
HIS HONOUR JUDGE PATIENCE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
PHILLIP RONALD GRAY
Appellant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr David
Matthew
(instructed by the
Serious Fraud Office
) for the Respondent
Miss Neena Crinnion
(instructed by
Irwin Mitchell Solicitors
) for the Appellant
Hearing date : 6/11/07
- - - - - - - - - - - - - - - - - - - - -
Judgement
MR JUSTICE FOSKETT :
1.
On 18 July 2006 the Appellant/Applicant (to whom for convenience we will refer to hereafter as the Appellant) was convicted on an indictment containing two counts, the first being an allegation of conspiracy to corrupt contrary to section (1) of the
Criminal Law Act 1977
, the second being an allegation of conspiracy to defraud contrary to common law.
2.
The trial took place in the Reading Crown Court before Her Honour Judge Zoe Smith and a jury over a period of ten days. So far as the Appellant was concerned, it represented a retrial, the jury at his first trial having failed to agree. That trial, over which Her Honour Judge Smith also presided, lasted some 53 days. At that trial the four alleged co-conspirators were convicted and sentenced to various terms of imprisonment to which we will refer later.
3.
The Appellant was sentenced on 11 August 2006 to three years imprisonment on the first count and four years imprisonment on the second count, those sentences to be concurrent. In other words, the total sentence was one of four years imprisonment.
4.
On 27 October 2006 he lodged an application for permission to appeal against conviction to which we will refer in more detail shortly.
5.
On 13 December 2006, following a two day hearing before Judge Smith that related also to two other defendants convicted after the first trial, the Appellant was made the subject of a Confiscation Order in the sum of £627,170 with twelve months to pay and a sentence of forty five months imprisonment in default. From that sum £350,000 was to be paid by way of compensation to the victim of the fraud.
6.
On 2 February 2007 the Appellant applied for leave to appeal against the Confiscation Order (an application made within time) and an application for leave to appeal against sentence (some four months out of time).
7.
On 11 April 2007 the single judge, Silber J, refused the applications for leave to appeal against conviction and sentence, but granted leave to appeal against the Confiscation Order. He directed that the Prosecution should comment on the grounds of appeal put forward on the Appellant’s behalf in relation to the Confiscation Order.
8.
The matter thus comes before us as an appeal with leave in relation to the Confiscation Order and by way of renewed applications for leave to appeal against conviction and sentence, an extension of time being sought in respect of the application for leave to appeal against sentence.
9.
The other co-accused on the indictment were Barry Simpson, Roger Harper, Anthony Welcher and Georgina Welcher (Mr Welcher’s wife).
10.
The general nature of the Prosecution case can be summarised as follows, the summary being based at least in part on the summary given in this court on the hearing of the appeals of certain other Defendants: see
R –v- Welcher & others
[2007] EWCA Crim 480
.
11.
The victim of the two alleged conspiracies was Mars UK Ltd (hereafter ‘Mars’), the manufacturer of various products including well known confectionary. It operates a number of plants in the United Kingdom, but its UK headquarters for the confectionary division is on the Slough Trading Estate from which it has traded for many years. There is another Mars factory on the same estate. The production lines are in constant use and often demand maintenance, some of it being planned, but other work being required urgently. Such maintenance, certainly at the material time, was provided in part internally and in part by external contractors. One of the external contractors was a company known as Ironfirm Ltd which traded as Excel Engineering (hereafter ‘Excel’), a company whose premises were also on the Slough Trading Estate not far from the main entrance to Mars.
12.
Count 1 alleged that from January 1991 until June 2001 the defendants conspired together that Simpson and Harper should corruptly give, and Gray, Welcher and Mrs Welcher should corruptly accept, or obtain, gifts or consideration, by way of cash, items of value and services, as inducements or rewards for showing favour to Ironfirm Ltd, trading as Excel Engineering (“Excel”), Simpson and Harper in relation to the business of Mars. Count 2 alleged that during the same period the accused conspired together to defraud Mars.
13.
Simpson and Harper were the sole directors of Excel, a limited company which specialised in precision engineering work and had been set up by Harper’s father. It had enjoyed a good reputation in the engineering world. In general terms, Simpson was the engineer and Harper the accountant. Welcher and the Appellant were employed by Mars at its premises in Slough, Welcher since 1974 and the Appellant since 1977. The Appellant joined Mars as a mechanical fitter and progressed to taking charge of the maintenance of at least some Mars buildings with responsibility for commissioning maintenance work to be done by outside companies including Excel. Welcher became an engineering technician with responsibility for running the company’s confectionary lines. Welcher also set up a consultancy business, called GW Designs, which he operated from his home with the help of his wife. This company was merely a vehicle for receiving the corrupt payments.
14.
The two conspiracies overlapped in the identity of the alleged conspirators, the dates and, to a large extent, the conduct alleged. The essential allegation was that the Appellant and Welcher received bribes from Simpson and Harper in return for placing Mars’ works orders with Excel and authorising excessive or bogus payments from Mars to Excel. The fraud was in the issue of purchase orders, excessive payments for work done and payments for work not done. A stage was reached when bribes were marked as extras on the documentation so that Mars were paying for the sums paid to its own employees as bribes.
15.
The Prosecution case was that the bribes paid to some of the corrupt Mars employees were paid in cash. Two former Mars employees (a Mr Soroco and Mr Brench) gave evidence that they had received cash bribes, although they each apparently disputed strongly that the Excel records to which we will refer later recorded accurately what they had received. An Excel employee called Buchanan gave evidence that he had taken cash envelopes to pay Mars employees, although not to the Appellant. There was evidence of frequent long meetings between Simpson and the Appellant as well as some social contact between them (they apparently lived next door to each other for many years), and the Prosecution case was that by inference the Appellant must have been paid directly by Simpson.
16.
The Prosecution case was that evidence of the bribes to the Appellant was to be found in certain records, including certain internal records of Excel, when viewed in the light of other circumstantial evidence. This documentary material raised an important issue in the case against the Appellant to which we will return shortly.
17.
Each accused was convicted on both counts (the Appellant, as already indicated, on a retrial) with the exception of Mrs Welcher who was convicted on Count 1, but acquitted on Count 2.
18.
Simpson, Harper and Mrs Welcher did not seek to challenge their convictions on appeal, but Welcher did. Welcher’s appeal against conviction failed.
The case against the Appellant
19.
We have already referred to the general nature of the prosecution case and the way it was put against the Appellant. There was no direct evidence that he had received any corrupt payments or other inducements to create false documentation. As we have recorded above, the evidence to support the allegation that he did receive bribes was said by the Prosecution to be contained in certain records maintained by Harper and Excel, records that, it was said, were admissible evidence against him for this purpose.
20.
The system by which purchase orders within Mars were created before being transmitted to Excel was briefly as follows. When work was required by Mars a purchase order and number were created by someone within Mars who requisitioned the work. When the work was completed Excel would produce an advice note that was sent to Mars for approval. Once the approval was given within Mars and the work to which it related was thus signed off, Excel would prepare an invoice which would be sent to Mars for payment. If, of course, the work reflected in the work requisition was fictitious or the amount charged and then authorised by an employee of Mars was excessive, Excel would receive an unjustified payment. The Prosecution case was that Welcher and the Appellant received bribes to enable this to be done.
21.
The Prosecution case was that the bribes became so extensive that the outflow of cash from Excel had to be accounted for by Simpson and Harper within the Excel books and, of course, justified to the company’s auditors, albeit in a disguised form. From the early 1990’s certain employees of Mars, including the Appellant, were recorded in the Excel books as being employees of Excel to whom ‘salesmen’s commissions’ were paid. In some records the actual name of the Mars employee appeared, in others merely initials and, at a later stage in 1994, when a Pegasus computer system was introduced at Excel, ledger codes were ascribed to them. The Appellant’s ledger code, as revealed by some handwritten notes found at Harper’s house after his arrest, was 9030.
22.
A further feature to be noted was the introduction within Excel in 1996 of a new series of work order numbers of five digits beginning with 7. This became known as the ‘70,000 series’. It was operated on a separate database from other Excel work and was largely, if not exclusively, under Harper’s control. Harper erased the 70,000 series records from the Excel computer shortly before Excel was sold in June 2001 and so a full picture was never established. However, the evidence suggested that invoices raised within this series related to work apparently carried out for Mars by sub-contractors employed by Excel. In fact those sub-contractors were fictitious and the payments ostensibly recorded as having been paid to them were in fact paid to the corrupt Mars employees.
23.
There was evidence to link the Appellant to purchase orders within the 70,000 series in a large number of cases, including to a fictitious firm called Brepole Engineering. In total his name was associated with 105 work order numbers under the 70,000 series and he did not dispute that his signature appeared on many orders or advice notes relating to work ostensibly carried out by those companies.
24.
The Prosecution also placed reliance on the fact that during 1997 Welcher was stopped by Mars from doing planned or preventative maintenance and as a result Excel’s genuine work from Mars reduced, as indeed it did through works commissioned by the Appellant at or about the same time. However, notwithstanding that, purchase orders through the 70,000 series continued unabated, a good number of which, as already indicated were signed by the Appellant.
The Appellants’s case
25.
We have recorded in summary form the Proscecution case, both generally and against the Appellant. His case was straightforward: he had not received any payments or gifts from Excel. The work he had commissioned Excel to carry out had been genuine and appropriately charged for. Whilst he conceded it was possible that a very small number fictitious jobs could have been slipped past him, the majority of the work must have been done and done appropriately, including such work as was recorded in the 70,000 series that was connected to his areas of responsibility. His case was that a manager supervised him and that a significant proportion of this work was for managers of other departments paid for out of their own departmental budgets, and that it would not have been possible for him to have been instrumental in overcharging or in the placing of fictitious orders. He said that there was no connection at all between him and the ghost company to which Harper and Simpson had attributed payments to him in the records they kept. By their verdict the jury plainly rejected this.
Renewed application for leave to appeal against conviction
26.
Mr Philip Hackett QC submitted at the trial that the personal records kept by Harper and Simpson, which revealed payments against the Appellant’s name, were inadmissible against him, as were the invoices created by the fictitious companies. He also argued that the sales commission book kept by Simpson and the other accounting records of Excel which showed Mars employees as Excel salesmen were likewise inadmissible.
27.
In a ruling given towards the beginning of the trial, the learned Judge said this:
“It is well established that the acts of one conspirator made in furtherance of the common design may be admitted as part of the evidence, not only of the existence of a conspiracy, but also the participation of persons absent when those acts were made and in my view these notes, ledger entries and the drawing of the cheques by Simpson and Harper were acts in furtherance of the common design, namely to get Mars to pay Excel invoices for the costs it has never incurred and are admissible. Similarly, the sales commission book kept by Mr Simpson and the P35s kept in the accounting records of Excel showing Mars employees as Excel salesmen, can provide evidence of the existence of a conspiracy to defraud and the making of the book and the P35s also, in my view, acts in furtherance of a common design, namely for money to pass from Excel to Mars employees.”
28.
The approach to this kind of issue was dealt with fully by this court in
R v Devonport and Pirano
[1996] 1Cr. App. R.221 and
R v Jones
[1997] 2 Cr. App. R119. The issues relating to the admissibility of documentation of this kind in this situation are usefully summarised at pargraph 34–60c of Archbold (2007) edition where, relying on
Devenport and Jones
, the following is stated:
“It is a matter for the trial Judge whether any act or declaration is admissible to prove the participation of another. The Judge must be satisfied that the act or declaration (i) was made by a conspirator, (ii) that is was reasonably open to the interpretation that it was made in furtherance of the alleged agreement, and (iii) that there is some further evidence beyond the document or utterance itself to prove that the other was a party to the agreement ….”
29.
Earlier in the ruling from which we have quoted in paragraph 28 above, the learned Judge referred to the evidence of the Appellant signing ‘a large number of wholly fictitious purchase orders’. That, of course, related to the orders signed within the 70,000 series which he had admitted signing. The act of signing such an order was, of course, independent of the act of creating the invoice itself and the authorisation of payment required the mind of the Appellant to go to whether authorisation was justified.
30.
It seems to us that, therefore, the learned Judge’s ruling was entirely in accordance with the approach summarised in the paragraph of Archbold to which we have referred and was amply justified by the material before her. We can see no basis for criticising this ruling.
31.
The ruling given at that stage was on the basis of the exception to the hearsay rule afforded in appropriate circumstances in conspiracy cases. The Prosecution had indicated in its Case Statement that it would be submitted that the documents would also be admissible under
section 117 of the Criminal Justice Act 2003
. That issue was revisited during submissions made in the absence of the jury during the course of the summing up. Mr Matthews, Counsel for the Prosecution, invited the Judge to rule that the documents were also admissible under
section 117
. Mr Hackett reminded the Judge of two matters that he had put forward on this issue previously, namely, that the documents were not created in the course of a business (as required by sub-section 2(a)) but in the course of a fraud and, in any event, there was an effective discretion under sub-
section 7
to exclude it.
32.
In a short ruling given after argument about whether the jury should be given further assistance about the significance or otherwise they should attach to the documentation, the learned Judge said that she regarded the documentation as admissible ‘as business records’, but felt that the direction she had already given about the records was sufficient.
33.
In terms of the pure issue of admissibility, we see no reason to doubt the Judge’s ruling even though the documentation may well have been produced for fraudulent purposes. We do not see, as a matter of principle, that that precludes recourse to
section 117
. However, at the end of the day, the issue is whether the jury were directed properly about the evidential significance of the documents irrespective of the route by which the documentation came to be admitted.
34.
Drawing on what is now paragraph 34-61 of Archbold, it is argued that the Judge should have reminded the jury that the opportunity to challenge the records by questioning the makers of those records (Simpson and Harper) was not available and that they should not conclude that the Appellant was guilty merely on the effective say so of another.
35.
What the learned Judge had said directly about the documentation is revealed in the following passages of the summing up:
“An examination of Excel’s documents accounts and audit papers, where they existed, provided evidence, say the Crown, that Excel had been defrauding Mars and making corrupt gifts to Mars employees. It has already been stressed, and it is right that I too should stress it, that these are documents relating to the internal workings of Excel. They would not have been seen by employees at Mars, nor would they, the employees of Mars, have been aware of Mr Harper’s accounting systems. It follows that Mr Gray himself would have had no knowledge of them.”
A little later on she said this:
“Members of the jury, you must consider what was the purpose of these accounting records and consider that in the light of all the evidence in the case. If you are sure that the handwritten notes and ledger entries depict a record of payment due to the person whose name or initials appear in the notes or to whom the code applies of at least some of the money attributed on those lists or in the entries in the ledgers, then the notes and the entries made are relevant evidence against Mr Gray. Similarly, members of the jury, consider the P35s and the lists of names under ‘sales commissions due’. If you are sure that the names are included as if they were employees of Excel in order to cover up the fact that they were dishonestly in receipt of sums from Excel then these P35s and sales commissions lists are also relevant evidence against Mr Gray. You must decide what the purpose of the 70,000 series was, and specifically whether they were used to cover orders from Mars in respect of which no-one did any work and on to which add ons could be made to generate payments from Mars which should not have been made.”
Towards the end of her summing up, when dealing with the essential issues under each count the learned Judge said this:
“In deciding these issues do remember when the Crown alleged the Defendant has acted corruptly or that a document has been produced for a fraudulent, dishonest purpose, it is for them to make you sure of that, nothing less than being sure will do. As I have already said you must decide what the P35s, the sales commission, handwritten notes, the accrual notes and the LC codes and ledger codes are actually recording. The Defence submit that the Crown’s case that the ledger codes reflect payments to the persons linked to the codes is undermined by the evidence of Mr Soroko and Mr Brench who say they received only a fraction of what is recorded. There is also the document from Mr Harper’s own computer recording, as you saw, large sums of cash and a [Rosko] bonus coming in. It might, it is submitted, indicate that Mr Harper was seeking to deplete the profits of the company. As regards the 70,000 series of work orders you must decide what the purpose of this series was and specifically whether they were used to cover orders from Mars in respect of which no-one did any work and which would be used to generate payments from Mars which should not have been made. You must decide whether the flow of work from Mr Gray declined to a small number of jobs each year after his conversation with Mr Buchanan, and you must decide whether the purchase orders he place with Excel, 1999-2001, were for genuine work or were they - some of them –fictitious?”
36.
It is correct to say that the learned Judge did not, as she was invited to do by Mr Hackett, direct the Judge not to convict on the records alone. Equally, she said nothing about the lack of opportunity on the Appellant’s behalf to challenge the creators of those documents about their true meaning.
37.
Whilst we think the learned Judge might have been better advised to give these records a more explicit ‘health warning’ than she did in the sense of reminding the jury that they had not had the opportunity of seeing a direct challenge being mounted to the content of these documents by questioning those responsible for making them, it is, of course, the case that every summing up on a matter such as this has to be tailored to the facts of the individual case. Reading the passages in the summing up we have quoted as a whole, particularly in the context of the very detailed appraisal of the totality of the evidence that the learned Judge gave, we have no doubt that the jury were fully aware of the need to consider the true import of the documents against the background of the rest of the evidence. That evidence included, crucially in our view, the acceptance by the Appellant of signing one hundred or so purchase orders in favour of fictitious companies that simply could not have done the work embraced within them. That those orders were placed and maintained consistently during a period when there was otherwise a general diminution in the work carried out by Excel for Mars was also evidence from which the jury could quite properly infer that the Appellant was a party to the general dishonesty being perpetrated.
38.
Even allowing for the marginal criticism of the summing up to which we have referred, we do not think it could possibly be said that the conviction was unsafe. We have considered the other grounds raised and do not consider that they are sustainable. Accordingly, the renewed application for leave to appeal is refused.
Leave to appeal against sentence
39.
We can deal with this very shortly. Simpson and Harper, who were plainly the main perpetrators of the fraudulent activities, each received sentences of 6½ years on Count 2, sentences of 4 years being imposed concurrently on Count 1. The other Mars employee, Welcher, received a sentence of 4½ years on Count 2 and a concurrent 3 year sentence on Count 1.
40.
Welcher did not appeal against his sentence, but Simpson and Harper did. The appeals failed, this court accepting that the learned Judge had correctly referred to the size of the sums obtained, the serious corruption involved, the duration of the fraud and the motivation for it. This court also acknowledged the substantial personal mitigation available to both appellants, but said that the sentences could not be faulted.
41.
In the Appellant’s case the learned Judge said that he was ‘a much trusted employee of Mars and [that the case] was a really serious breach of trust.’ She also referred to the substantial benefit he derived from his conduct over a good many years. In our view, the sentence passed fully reflected those aggravating features and the personal mitigation that also arose also in his case. There is nothing in the point that this was a sentence passed under the old regime which means that the Appellant does not qualify for automatic release after serving half of the sentence. We will grant the extension of time for renewing the application, but the application for leave to appeal against sentence is refused.
Confiscation Order
42.
In giving leave to appeal against the Confiscation Order, Silber J said that he did so because the learned Judge failed to explain why she rejected the Appellant’s case and why the Prosecution case was accepted. He invited the full court to consider whether the Judge’s reasons were adequate.
43.
The confiscation proceedings fall to be dealt with pursuant to the
Criminal Justice Act 1988
.
44.
In accordance with usual practice, the Serious Fraud Office produced a Prosecutor’s Statement pursuant to
section 73
of
the 1988 Act
. It suggested that the benefit obtained by the Appellant was to be assessed by reference to four sources or headings which we will, in the first instance, simply record as they appear in the Statement. We will turn to a fuller explanation in due course. The entries are as follows:
1. £375,776.31
Debits from the Expenses Accrued (PGM)/(Brepole) Account LC 9030 on Excel’s Accounting System (Doc 1009) from October 1994 to December 1999.
2. £88,508.50
Value of Brepole invoices not shown on the Expenses Accrued (PGM)/(Brepole) Account LC 9030 on Excel’s Accounting System (Doc 1009).
3. £75,285.00
Excel employee payments to Philip Gray for tax years 1991 – 1992 and 1992 -1993.
4. £31,872.50
Sales Commission Paid to PGM for Year 1993 – 1994.
£571,442.31
Total
45.
When inflated by the Retail Price Index, the total benefit from these four sources was said to be £727, 651.43. In fact certain deductions were agreed between the parties at the Confiscation Hearing which resulted in that figure being reduced to £679,681.13. However, as we understand it, the agreement as to that figure was, at least from the Appellant’s point of view, without prejudice to some more fundamental objections to the calculations under the four headings to which we have referred. We will turn to those objections shortly, but it is also to be recorded that the Prosecution and Defence agreed the amount of the Appellant’s realisable assets in the sum of £627,170 which, as we recorded in paragraph 5, was the amount of the confiscation order made by the Judge.
46.
The judge held that the benefit to the Appellant from the offences of which he was convicted amounted to £679,681.13, the corrected figure referred to above. Since that exceeded the Appellant’s realisable assets, the maximum amount that could be made the subject of the confiscation order was the amount that might be realised (see
section 71(6)
of
the 1988 Act
) which, as we have indicated, is the amount that the Judge ordered.
47.
We return to the four constituent elements of the benefit alleged by the Prosecution to have been received by the Appellant as set in paragraph 46 above in order to explain the way the Prosecution puts its case:
1.
Although chronologically later than numbers 3 and 4, this reflected the basis upon which the most substantial constituent element put forward was arrived at. As indicated in paragraph 22, there came a time when Excel introduced a computer accounting system called Pegasus. This came on stream from about the middle of 1994 and, until the Millennium Bug struck at midnight on 31 December 1999, it was the system in use. We have already noted that the Appellant had been assigned the ledger code LC9030. An analysis was carried out of that which was recorded on the Pegasus system against that code. It revealed a significant number of entries relating to the Appellant in connection with the fictitious company or firm called Brepole Engineering, virtually all of which were given numbers within the 70,000 series. There is a further aspect to the analysis of the Pegasus system between these dates that is relevant to the confiscation issue, but to which we will return in due course. For present purposes, what needs to be noted is that what the Prosecution was saying in relation to benefit in this context is that the Appellant was being effectively paid what was shown within the Pegasus system as having been paid to Brepole. The manner in which this was done was to draw cash on Excel’s account (which was then paid to the Appellant), the cheque stub, however, recording that the cheque was made out to Brepole. The invitation of the Prosecution to the Judge was to conclude that these sums in aggregate represented the benefit he received during this particular period.
2.
The second feature of the Prosecution analysis of the benefit to the Appellant arises from consideration of what occurred from 1 January 2000 until Excel was sold in June 2001. New accounting software was introduced by Excel for this period, but, we are told, for reasons of economy and resources, the Serious Fraud Office did not carry out an equivalent exercise for this period as it did for the period when the Pegasus system was in operation. Attention was restricted to the surviving Brepole invoices to Excel and the invitation to the Judge was to conclude, on the balance of probabilities, that the Appellant remained the beneficiary of the amounts reflected in these invoices on the basis that the system in operation prior to 31 December 1999 was likely to have continued thereafter.
3.
The third arose from records that appeared to show that the Appellant (along with others) was an employee of Excel in the tax years 1991-1992 and 1992-1993 whereas, of course, he was not. It will be recalled (see paragraph 22 above) that this was one means adopted, the Prosecution allege, to cover up the bribes paid and effectively to account for them in the books of Excel.
4.
The fourth area that afforded evidence, the Prosecution allege, of benefit received by the Appellant is in relation to ‘sales commissions’ for which he was credited in the Excel books in the year 1993-1994. The figure relied upon is the figure recorded by Excel’s auditors as the total sales commissions paid to the Appellant for the year to 30 June 1994. The invitation of the Prosecution is to conclude, on the balance of probabilities, that this was the means by which the Appellant received bribes during this period and that he received the totality of the sums referred to.
48.
There is one common thread throughout the whole period of the fraud, the Prosecution alleged, namely, that whatever bribe was paid to the corrupt Mars employee, the amount was doubled up (in other words, increased by 100%) and transferred to a fund for the benefit of the directors. The overall sum Excel sought to charge Mars would reflect this “doubled-up” sum.
49.
The objections to the foregoing approach were set out in a detailed Response prepared on the Appellant’s behalf and served on the Prosecution on 2 October 2006. Although there was a further exchange submission and counter-submission thereafter, that Response set out the basis of the position taken on the Appellant’s behalf at the Confiscation Hearing.
50.
The objections advanced on behalf of the Appellant to the way that the Prosecution put forward its case in relation to benefit can be summarised as follows:
1.
It was asserted that there was no direct evidence that the cash withdrawn by Simpson and Harper against the cheque stubs made out to Brepole were paid to the Appellant, whether wholly or partly. Attention was drawn to evidence given by the witnesses Brench and Soroko that the amount they received by way of bribes did not come anywhere near the figures shown in their respective Expenses Accrued Accounts Schedules. It was suggested that their account was supported by the evidence of Buchanan who was the main witness in the case against the Appellant, in the sense that he explained in his evidence-in-chief at the second trial that if, for example, Brench wanted £100 he had to put £250 onto the order. The Defence also drew attention to one of the documents recovered from Harper’s personal computer which, it was suggested, demonstrated in relation to the particular cheque stub referred to in connection with that document that Harper had personally received half of the amount attributable to Soroko. Challenge was also made to the assertion that the usual ‘uplift’ on the amount of an invoice (which uplift would go to the Excel directors) was usually 100%. It was suggested that it would be fairer to the Appellant to reduce the sums recorded against him by 40% so as to bring the benefit into line with the evidence that Buchanan had given about Brench.
2.
Again, it was asserted that it would be fairer to reduce the sum claimed by 40% for the reasons given in 1 above.
3.
The submission was that the evidence in support of the figure claimed under this heading was insufficiently reliable to be fairly taken into account and that the whole sum should be excluded for that reason. It was suggested that the lack of evidence of any National Insurance ever being paid for the Appellant undermined the reliability of the figures given.
4.
Again, the reliability of the figure claimed was challenged. Attention was drawn to the evidence of Brench, suggesting that what he actually received was far less than appears to have been recorded by way of ‘Sales Commissions’.
51.
The foregoing indicates how the battle lines were drawn prior to the hearing before Judge Smith in relation to Confiscation. We understand that no oral evidence was given and that the matter proceeded by way of oral submissions based upon the matters set out in paragraphs 47 and 50 above.
52.
In her ruling, the learned Judge started by referring to the evidence given by an accountant who acted as Excel’s auditor, a Mr Stringfellow, at the first trial. He had said that he had been told by Harper that a Sales Commission book was kept by Simpson for each salesman. (The truth, of course, was that the individuals concerned were not salesmen at all, but employees of Mars who were paid by Excel.) Harper told him that for each job upon which they received a commission, it was noted and totalled up at the end of the month and the sum entered into what was known as the accrual account. The accrual was then doubled up by amounts made payable to a fund for the company’s directors, namely, Harper and Simpson. The learned Judge went on to say that that set the scene for the fraud that was operated for over a decade. She concluded that, whilst the methods by which the fraud was managed and covered up varied, throughout the whole period it operated, it did so on the basis of Harper ‘doubling up or adding on to the fictitious sum due to the Mars employee.’
53.
Although for reasons to which we will refer, we have reviewed the evidence and formed our own view of the position, that was an important finding which, in our judgment, was amply justified by the evidence. Mr Matthew has demonstrated to our satisfaction that this procedure of doubling up, which was first noted by Mr Stringfellow in 1993, was continuing throughout the period of the Pegasus system. Since the procedure was so well established, we have no difficulty in concluding that it continued until Excel was sold in 2001.
54.
This finding means that any suggestion that a bribe paid to a Mars employee, for which disguised provision was made in Excel’s accounts, had to be divided in some way to reflect some benefit to Harper and Simpson could not and cannot be maintained. Subject only, therefore, to the question of whether the evidence of Soroko, Brench and Buchanan casts doubt on whether the actual amounts received by those bribed was less than shown in the records, and whether those records do indeed show that bribes were paid, there is no basis for discounting the sums reflected in the records for the reasons put forward on the Appellant’s behalf.
55.
Should the evidence of the witnesses Soroko, Brench and Buchanan have made the impact contended for by the Appellant? The matter was raised before the learned Judge. She dealt with it, albeit obliquely, by simply saying, that unlike Mr Brench, the Appellant was in effect a department of one and that there would not be, as there might have been in Brench’s case, a reason for paying him personally less than the full amount recorded so that other people in the department might obtain a share.
56.
Whilst that may well have been a material consideration, more compelling, in our view, would have been the proposition that since each of these witnesses had himself been guilty of a criminal offence (albeit none were prosecuted for it), there was good reason for each to minimise what each had done and had obtained as a result. At all events, the learned Judge was not persuaded that their evidence impacted on the Appellant’s position and we agree.
57.
The principal issue is whether the learned Judge was right to conclude that the ledger entries in the Pegasus accounts did indeed reflect the payments made by Excel to the Appellant. The reason for stating the issue in this way is that if it was right so to conclude, it would be difficult to see why anything should have been different either before the Pegasus system was introduced or indeed after. There can be no doubt that the period when the Pegasus system was in operation was, at least so far as the documentation available at the trial was concerned, the best documented and it is, therefore, understandable why attention has been focused upon it.
58.
We are quite satisfied that the learned Judge was right to attach significance to this period for the reasons we have given. Indeed we suspect it afforded the jury the most compelling evidence of the Appellant’s involvement in the dishonest system in operation. It demonstrated that the Appellant was linked to many occasions when Excel drew cash in various sums on its own bank account, but pretended to have drawn the cheque in favour of Brepole by so recording on the cheque stub. Give that Brepole was a fictitious entity and the Appellant had effectively ‘nodded through’ work said to have been carried out by Brepole, the inference that the cash was destined for him is strong. It is reinforced by the overwhelming evidence that sums shown on the Pegasus system as having been paid to the company created by the Welchers (but which in reality did nothing) was in fact paid to that company. In other words, the Pegasus accounting system was accurate in relation to what they received. Why should it not be accurate in relation to the Appellant? Miss Crinnion, for whose helpful submissions we express our appreciation, was unable to offer a satisfactory answer to this other than to try to distinguish between cheques drawn in favour a company which was merely a vehicle for the payment of the bribe and cheques drawn as to cash with the pretence that the money went to a company. In this context, the distinction is unreal.
59.
Although the learned Judge did not refer to this argument, it is, in our view, a compelling one. However, the conclusion to be reached is that, certainly during what we will call ‘the Pegasus period’ the evidence is clear and compelling for the reasons given by the learned Judge supplemented by the matters to which we have referred.
60.
As we have observed already, if that is the conclusion to be derived from that period, why should the position have been any different in substance either before or afterwards? The internal accounting systems may have been different, but that is not the issue. Unfortunately, the learned Judge said nothing directly in her ruling about headings 2, 3 and 4 set out in paragraph 45 above. It may well be that she had formed the view that the answer to the question posed in the first sentence of this paragraph was that there was plainly no difference and that it was unnecessary to refer specifically to the way the separate headings had been formulated. The difficulty with not having dealt with them specifically is that it has led the Appellant to argue that he did not understand why his case was rejected, the Prosecution to recognise that fuller reasons would have been helpful, the single judge to express himself in the way that he did and the Full Court being obliged to review the evidence in detail to see if the Appellant’s arguments were sound. The reason for taking the latter course is that the power to remit the case for further reasons or consideration does not exist.
61.
At all events, we agree with the overall conclusion reached by the learned Judge (subject to one minor adjustment, to which we will refer shortly). However, we would express our conclusions in relation to headings 2, 3 and 4 in this way-
a)
The compelling evidence of the Pegasus period is sufficient of itself to lead to the inference that both during the period when ‘Sales Commissions’ and salary were recorded as having been paid to the Appellant and after the Pegasus period ended, the Appellant was receiving in cash the sums mentioned in the records; and
b)
those records were accurate in the sense that they had been verified by the (albeit unsuspecting) Excel auditors; and
c)
there is no rational explanation for Harper and Simpson to have recorded inaccurate information about what was paid.
62.
We might add that we are fortified in concluding that the Appellant was indeed receiving corrupt cash payments since it was not, as we understand it, disputed that between 1993 and 2000 large capital payments totalling a little over £136,000 were made against the mortgage of £145,000 on the Appellant’s home. This would doubtless have represented only part of what he received.
63.
The only adjustment to the learned Judge’s findings which we feel obliged to make, given the way matters were presented before us, is in relation to heading 3. Mr Matthew had to concede that there was a question mark over the amount shown in the Excel records as having been paid to the Appellant in the tax year 1992-1993. The figure in Appendix C to the Prosecutor’s Statement that had been included in heading 3 appears to relate to 1994-1995. That may be a mistake and the figure of £33,295.00 may indeed relate to 1992-1993, but the answer could not be given to us.
64.
In those circumstances, and bearing in mind that the burden of proof is on the Prosecution, we think it right to reduce the amount said to have represented the benefit received by the Appellant by the sum of £33,295.00 as increased by the Retail Prices Index which we understand to be £46,779.47. Reducing the figure found by the learned Judge by that sum yields a total benefit figure of £632,901.66. Since, however, the Appellant’s agreed realisable assets were less than that sum, the Confiscation Order must remain in the sum ordered by the Judge.
65.
Subject to the modest adjustment concerning the amount of the benefit received by the Appellant to which we have referred (and our finding will be available should it ever become relevant), the appeal against the Confiscation Order is dismissed. | [
"LORD JUSTICE TUCKEY",
"HIS HONOUR JUDGE PATIENCE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)"
] | 2007_11_09-1271.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2658/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2658 | 763 |
4bd563bc1d8161db2fa473a463e41c7d2cc6137d5c8e04d7b3c028dee9980782 | [2006] EWCA Crim 3309 | EWCA_Crim_3309 | 2006-12-14 | crown_court | No. 2006/04835/D1 Neutral Citation Number: [2006] EWCA Crim 3309 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 14 December 2006 B e f o r e: LORD JUSTICE HUGHES MRS JUSTICE RAFFERTY DBE and MR JUSTICE McCOMBE - - - - - - - - - - - - - - R E G I N A - v - K N - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 | No.
2006/04835/D1
Neutral Citation Number:
[2006] EWCA Crim 3309
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 14 December 2006
B e f o r e:
LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE McCOMBE
- - - - - - - - - - - - - -
R E G I N A
- v -
K N
- - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
MR D HAROUNOFF
appeared on behalf of
THE APPELLANT
MR J PRICE
appeared on behalf of
THE CROWN
- - - - - - - - - - - - - -
J U D G M E N T
Thursday 14 December 2006
LORD JUSTICE HUGHES:
I will ask Mr Justice McCombe to give the judgment of the court.
MR JUSTICE McCOMBE:
1. On 11 August 2006, in the Crown Court at Reading, before His Honour Judge King and a jury, the appellant was convicted of one offence of indecent assault, contrary to
section 6 of the Sexual Offences Act 1956
, and one offence of sexual activity with a child, contrary to
section 9 of the Sexual Offences Act 2003
. Those offences were alternatives to two charges of rape. The first offence of which the appellant was convicted was under
the 1956 Act
and the second was under the 2003 Act because, on the evidence, the Crown's case, which must have been accepted by the jury in this respect, was that the incidents concerned had occurred (respectively) before and after the coming into force of the
Sexual Offences Act 2003
on 4 May 2004. In each case the activity that was alleged was sexual intercourse with a complainant who was under 16 years of age at the relevant time.
2. On 13 October 2006,the appellant was sentenced to concurrent terms of imprisonment of 18 months on each count, giving rise to a total sentence of 18 months in all. He now appeals against conviction by leave of the single judge. The single ground upon which such leave was granted relates to the admissibility in evidence of an entry in the complainant's diary in which she writes of sexual activity with her uncle (the appellant). An application for leave to appeal on another ground has been referred to the full court by the single judge. That ground is that the trial judge should have acceded to a defence submission at the end of the prosecution case that there was no sufficient case to be left to the jury.
3. The complainant in each case was the appellant's niece whom we shall call "L". She was aged 13 at the date of the alleged offences. She was just 16 when she gave evidence in the Crown Court. In summary the evidence given was as follows. L was 13 years of age in September 2003. She said that her mother had separated from her father and that she lived with her mother in Slough. A time came when her mother agreed to return to live with her father and her mother did so by joining him in Blackpool towards the end of May of that year. L wanted to remain in Slough. She was granted her wish by moving to live with her mother's brother (the appellant) and his wife in that town.
4. In March 2004 L and the appellant's family moved to a new home in Langley. Her aunt worked night shifts and L therefore spent a lot of time alone at home with the appellant. The appellant, she said, came home on many occasions in a drunken state. On one occasion she was in her nightdress and the appellant asked her if she wanted to do him a favour. He then sat on her bed and started to touch her arm. He proceeded to pin her down onto the bed and touched her face, her neck and her breasts. She struggled to get away and she was able to free herself. She told him to go away. She went downstairs. After a period of time she went upstairs to the bedroom which the appellant shared with his wife to get something for her own use. Whilst inside, the appellant came into the room and shut the door. He then pushed her onto the bed and started to touch her thighs. He touched her between her legs and then pulled down his boxer shorts. He was wearing a "protective". She said, "I don't want to do this", but he did not listen and raped her. That was the evidence on count 1. In addition she said that she thought that she was in the wrong because she had not tried to get away from him, but she could not because he was too heavy.
5. The complainant said that on other occasions the appellant had approached her and offered her gifts and inducements, but she had avoided him. There were also occasions on which he had grabbed her and said that he loved her. She said that about two weeks after that first incident the appellant had come into her room again wearing boxer shorts and told her to get onto the bed. This time he was in an angry state and she allowed intercourse to take place. She said that she had tried to hit him with a pillow, but it had missed. She put this incident as occurring about a fortnight before she eventually left the house to go to Blackpool to rejoin her mother on 26 May 2004. On one occasion an argument occurred between L and her aunt about where L had been one night when she had been out late. L rang her mother and had returned to Blackpool.
6. She did not tell anyone about either of the incidents. They only came to light when her mother read an entry that the complainant had made in a private diary. In the diary there were four entries relating to the appellant. The only entry concerning the allegations was one dated 11 November. L conceded that when she was asked about the whereabouts of the diary by the police she had told them that it had been lost or thrown away. She accepted that the diary contained a total of 188 pages of tightly handwritten prose, which contained only four references to the appellant.
7. L's mother gave evidence. She said that she had become worried about her daughter. She had noticed a change in her daughter's personality after she had returned to live with her. She looked at the diary and saw that the entry for 11 November said this:
"I have lost mates and am not even close with my family and you know why, because I've slept with my uncle. Yes, I did. I didn't want to, but he offered me money and I had to do it with that fat bastard."
The mother said that, following a television programme about child abuse, she approached L and asked her whether she would tell her if anything had happened of that nature to her. L had said she would. The mother than asked if she would tell her if it involved her uncle. L then broke down and told her that the appellant had raped her. The police became involved and the proceedings then ensued. The mother asked L to send a text message to the appellant saying that it was about time he told her mother what he (the appellant) had been doing. There was no reply to that text. L then telephoned the appellant with her mobile telephone, using the speaker facility. The appellant said, "Please don't tell your mother". Those words did not appear in her police statement, but she insisted in evidence that the words had been spoken. Accordingly to the police statement the appellant had in fact said, "Can we put all this behind us? I'm coming to Blackpool next month. I'll do anything. I'll give you anything. Let's forgive and forget." The appellant then called the landline and the mother informed him that she had heard everything. The appellant, without comment, put the phone down.
8. In police interviews, following arrest, the appellant denied the allegations absolutely.
9. He gave evidence before the jury. He told them that he had been married for five years and that his wife would have been in the late stages of pregnancy when these offences are alleged to have occurred. They had a child who was born in June 2004. After L had come to stay with them they started to have problems. L tended to stay out late to be with boys who were a lot older than herself and the appellant felt that it was his responsibility to discipline L in appropriate circumstances. At the time he had been working long hours from 7am to 7pm. He was a committed Christian and had not drunk alcohol since 1996. He denied giving L gifts of chocolates or anything to influence or persuade her to bestow sexual favours upon him. The only sum of money that he had given her was £20 towards some clothes as she always complained about not having sufficient of them. He said that he did receive the text message to which we have referred, but did not actually look at it until after the telephone call. He was then asked, "Do you think you are going to live the good life with T [his wife] and a baby whilst I am living here? I am going to tell my mother you used to sleep with me and gave me money". He immediately put the telephone down, he said, or the call was otherwise ended. He rang L's mother and she just said that she did not want to talk to him and put the telephone down. He agreed that the following day L, her mother and father had visited him in Slough. He agreed to repay L's father some money that had been lent. He did not know why he wanted the money back early. He said that there was no truth in the allegations. The only reason he could give was that L must have taken against him because he had had to discipline her on the occasions that we have mentioned.
10. The appellant's evidence was supported by his wife who confirmed her husband's Christian beliefs and his abstinence from alcohol. She said that she had never seen tension between L and her husband. She referred to some problems that they had had with L at their home and her lack of truthfulness.
11. The diary entries to which we have referred initially came before the jury because defence counsel cross-examined L upon certain passages in them. He wished, understandably, to establish two things: first, that L was a fantasist and that the diary entries illustrated that; and secondly, because the diary made four references to the appellant, including the passage to which we have referred and quoted. The defence applied to the judge to have the whole of the diary entries exhibited. The Crown objected to that course because of the quantity of material and because of the danger that the jury might trawl through a volume of entries of no materiality, to which they might attach importance and which had not been the subject of evidence. There was also a concern that some of the material in the diary might amount to unacceptable references to L's previous sexual conduct. In the end the matter was left at that stage that the four references to the appellant would be exhibited, together with the passages upon the complainant had specifically been cross-examined. The defence relied upon the specific reference that we have quoted to show that the account that had there been given made no reference at all to the alleged force used by the appellant or to any struggle or resistance on L's part, ie to demonstrate the thorough inconsistency of the entry with the complainant's allegations.
12. The trial judge summed up the diary entries initially in the following terms:
"It was also put to her that there were a number of occasions in the course of her interview with the police, which lasted 62 minutes, she was making a coherent but nevertheless totally untruthful account, and one particular matter that was specifically dealt with was what is in the page marked 'page 35' and you will want to look at that page, and I invite you to take it and look at it now. It is the third from end page in this bundle. You can see the date of it at the top, 11 November, and it has been read to you on a number of occasions."
The judge then quoted the extract from the diary to which we have earlier referred, together with some additional words, and he continued:
"The defence raised with a witness what you may think is a very important point. Her account, persisted in in the course of interview, was that this was a forcible rape with struggling and resisting, but her account in her diary is that it occurred in circumstances where she had been offered and accepted money. There is no reference to force or duress of that kind at all, and she was asked to account for the difference.
Mr Price [Crown counsel] raised for your consideration that the way she appeared to be understanding it, she was taking considerable umbrage that she had had sexual intercourse with someone for money. Mr Harounoff [defence counsel] submits to you that her problem was that she was totally unable to reconcile the two accounts, and it blows a great hole in the truthfulness or reliability of her account.
You will make your judgment in this matter."
In other words, there was no dispute at that stage that the diary entries had been written by L and that it was a private diary that was meant for her own purposes.
13. Just before the jury was about to retire to consider their verdicts, Mr Price (prosecution counsel) raised a matter of law with the judge, repeating something that had arisen on an earlier occasion on the previous afternoon, of which we have no transcript. The point that counsel wished to raise was that this statement in the diary was admissible pursuant to the hearsay provisions of the
Criminal Justice Act 2003
. Mr Price said:
".... your Honour will recall yesterday afternoon that I referred to section 119 of the Criminal Justice Act, which permits the diary to be evidence of the truth of its contents, and this is the reason why I asked for the jury to retire before mentioning it. I simply raise the question as to whether your Honour would feel it appropriate to tell the jury that they may so treat the relevant diary entry."
There had apparently been a short discussion of the matter before closing speeches and the judge had indicated that he would admit the evidence on that basis and give a suitable direction. When the jury returned to court, the judge directed them in the following terms:
"In relation to the [diary] entry at your page 35, the third from the end, which is 11 November, which is the only entry in relation to alleged sexual conduct made by the complainant before it came to light with her mother, you are entitled to consider that entry and to treat what she said there, if you accept it, as being the truth of what occurred, as well as merely the question as to whether she has or has not been consistent in what she has said. You are entitled to treat it as evidence of the truth that it occurred. Whether you do so find will be a matter for you to determine. The defence submission is that that entry together with a lot of other entries quite plainly are not the truth of what occurred. Those will be matters for you to decide on the evidence."
14. It is out of that final direction that the ground of appeal for which leave has been given arises. It is argued that the diary entry did not come within the terms of section 119 of the 2003 Act because of the provisions of section 115 of the Act. Section 119 is in the following terms:
"(1) If in criminal proceedings a person gives oral evidence and --
(a)
he admits making a previous inconsistent statement, or
(b)
a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the
Criminal Procedure Act 1865
,
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible."
Thus, that provision allows the admission of an inconsistent "statement" as "evidence of any matter stated". As to the expressions "statement" and "matters stated", section 115 of the Act provides as follows:
"(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."
15. The argument adduced by the appellant is straightforward. It is this. The diary was compiled on the basis that no one but L would see it. Therefore, the purpose of the statements were not "to cause another person to believe the matter" contained in it within the meaning of section 115(3)(a) of the Act. On the contrary, its purpose was L's use alone.
16. To our mind it would be a very strange state of the law if a defendant could introduce a diary such as this on the basis that it is an inconsistent statement, but yet it remained outside the provisions made by Chapter 2 of the Act for the regulation of the admission of statements other than those made in court. Nevertheless, if that is the conclusion which the statute compels, we must give effect to it. In our judgement the fallacy in this argument is the underlying assumption that if the diary is not admissible hearsay, it cannot be admissible at all. The rule against hearsay is, was and always has been an exclusionary rule. That is to say, it operates to render inadmissible what would otherwise be relevant and thus admissible. The rationale has always been that assertions out of court may be false either because they are untruthful or because innocently inaccurate, and, unlike sworn testimony, those possibilities cannot be rectified by being tested in examination and cross-examination.
17. Although under the 2003 Act the rule against hearsay is much relaxed in criminal proceedings, and the scope for admitting hearsay evidence is extended, the rule remains in our judgment an exclusionary one. That is the reason, for example, why the tests for admission in section 114 of the same Act are geared to the assessment of reliability.
18. Chapter 2
of the 2003 Act in which these provisions are contained is the product of the Law Commission's report on hearsay evidence in criminal proceedings (Law Commission Paper 245 of 1997). Sections 114 to 126 are closely modelled upon the draft Bill attached to that report, with only marginal alteration or reorganisation. In particular, section 115 is an exact reproduction of clause 2 of the draft Bill and section 119 a reproduction of clause 7.
19. The occasion for the new definition of hearsay contained in section 115 was the debate about the misleadingly labelled concept of "implied assertion". The debate was largely triggered by the decision of the House of Lords in
Kearley
[1992] 2 AC 228
, in which the question was whether a series of telephone calls to a house, made by unidentified callers seeking to buy drugs, was or was not to be excluded as hearsay on the grounds that it amounted to assertions by the callers that the occupants of the house were suppliers of drugs. Although that was the modern trigger for the debate, the issue went back at least as far as
Wright v Doe d Tatham
(1837) 7 Ad & E 313, 112 ER 488, in which Park B expressed the opinion that it was not, for example, permissible to adduce evidence that a sea captain had boarded a particular steam ship to set sail upon her, as evidence that the vessel was seaworthy, because it amounted to hearsay.
20. We adopt the analysis of the Law Commission, as set out in chapter 7 of its report. In short, we summarise it in these terms:
(a) The making of telephone calls to the house in
Kearley
and the hypothetical boarding of the ship mentioned by Park B in the 1837 case are not assertions at all, unless they were acts done with the purpose of making someone else believe that the occupants of the house were dealers or, respectively, the ship seaworthy; otherwise, they were simply facts from which other facts could properly be inferred, although not conclusively.
(b) In the absence of a purpose to induce belief or action in someone else, the particular dangers against which the hearsay rule is designed to guard do not exist. Of course, the inference of fact B from fact A may or may not be justified, but that is true of every instance in which a tribunal of fact is invited to draw a conclusion from indirect evidence.
(c) Therefore the exclusionary hearsay rule should be confined to assertions, properly so-called; other facts, however, from which inferences may, where justified, be drawn, are direct evidence and admissible as such when relevant, not subject to the limitations imposed upon the admissibility of hearsay.
21. With those summarised expressions of opinion we agree. If, as the appellant contends, the diary was never intended to be read by anyone, it was not hearsay because it did not fall within section 115. But that does not mean it is not admissible. On the contrary, if relevant it is admissible. It is real or direct evidence outside the hearsay rule. The statutory restrictions upon the admissibility of hearsay have no occasion to apply to an action by the complainant which never had as its purpose, principal or supplementary, that any other person should believe or act upon it. It is simply a fact from which the jury is entitled, but not bound, to infer that L's uncle had had intercourse with her. It is a fact from which that may, but not necessarily will, be inferred, in exactly the same way as if she had been observed by other people kissing him, for example, passionately or making a booking of a hotel room for an afternoon in his name.
22. Thus, if the diary was intended to be read by anyone else, it fell within section 115 and was admissible under section 119 as evidence of the truth of its contents. If it was not, it was outside the hearsay rule and was admissible providing it was relevant. In our view it clearly was relevant.
23. For those reasons we would reject the primary ground upon which this appeal is brought and for which leave was granted.
24. We turn shortly to the alternative ground for which leave to appeal is sought, that is that there was insufficient evidence to go before the jury. In our view, notwithstanding the obvious progress that defence counsel made with the complainant in cross-examination, there was ample material to allow this case to go to the jury. The complainant had given evidence of sexual intercourse; the diary entry was available. Further, there was also the evidence of the telephone conversation which was capable of acting as supporting evidence for the case that was put on the alternative basis. In our view, therefore, there was ample material for the case to go to the jury and upon which the jury was entitled to act.
25. For those reasons, therefore, we dismiss the appeal on the grounds for which leave was granted and refuse the application for leave to appeal on the additional ground. | [
"LORD JUSTICE HUGHES",
"MRS JUSTICE RAFFERTY DBE",
"MR JUSTICE McCOMBE"
] | 2006_12_14-992.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3309/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3309 | 764 |
bacfdfe0a0d70c22cf84409056cd6c643527c41c5b61c0ee93bd12fd74416d78 | [2009] EWCA Crim 464 | EWCA_Crim_464 | 2009-03-03 | crown_court | No: 2008/4736/D5 Neutral Citation Number: [2009] EWCA Crim 464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 3 March 2009 B e f o r e : THE VICE PRESIDENT (Lord Justice Hughes) MR JUSTICE KING HIS HONOUR JUDGE GORDON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v HASSAN TABBAKH - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Comp | No:
2008/4736/D5
Neutral Citation Number:
[2009] EWCA Crim 464
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 3 March 2009
B e f o r e
:
THE VICE PRESIDENT
(Lord Justice Hughes)
MR JUSTICE KING
HIS HONOUR JUDGE GORDON
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - -
R E G I N A
v
HASSAN TABBAKH
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr R Menon
appeared on behalf of the
Appellant
Mr M Hill QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: The issue raised by this appeal against conviction concerns the judge's ruling that it was open to the jury to draw inferences adverse to him from the fact that he did not give evidence. The appellant contends that the judge should have held that the defendant's physical or mental condition was such as to make it undesirable for him to give evidence. The question which had to be answered by the judge derives from
section 35(1)(b)
of the
Criminal Justice and Public Order Act 1994. Section 35
of course provides that it is ordinarily open to the jury to draw such an inference. Paragraph (b) provides an exception. The exception is expressed in this way:
"... (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence."
2.
This defendant was charged with the preparation of terrorist acts contrary to
section 5(1) of the Terrorism Act 2006
. The Crown's case was that he had compiled a set of bomb-making instructions and had gone some but limited way towards assembling the ingredients. He had not on any view yet succeeded, in part because, first, the ingredients which he had collected, although of the right substances, were of poor grade which would not in fact explode, and secondly, he had yet to make or obtain a detonator. The case advanced by him in police interviews and in due course on his behalf at the trial was that he was intending to make not a bomb but some fireworks by way of small business for use at the Eid Festival coming at the end of Ramadan. The offence is made out only if the defendant does what he does with the intention of committing acts of terrorism or assisting somebody else to do so. The issues in the trial were therefore:
(1) was it a bomb or a firework; and
(2) if the former was it with the necessary intention?
3.
There was no issue but that the defendant had written the instructions which were found. The instructions were for a chemical mix at least consistent with the intention to make explosives, although they could have been ingredients used simply to burn. The instructions included diagrams of something which it was suggested were plainly electric wires and they contained a reference to the words "metal can". Also present in the instructions was the instruction: "Don't use the bottles in which I put the liquid because my fingerprints are on them." The defendant's case as to that was that he had written it because he was conscious that he had no licence to make fireworks. The instructions also contained the prayer that "Allah will keep you safe and grant you success in your work for the sake of Allah." Three bottles were found contained ingredients and there was also evidence of some other findings relied upon by the Crown as support in the form of what were said to be Jihadist songs. The defendant's contention as to those was that they were akin to rap material and the content was not to be taken as representing the views of anybody who happened to listen to them. There was also found a computer memory stick which had in the past contained videos, including one from the Al Qaeda media website showing an attack on a coalition convoy. That was the broad outline of the case on each side.
4.
The defendant indicated, if not from the outset at least from an early stage, that he did not propose to give evidence. In due course Mr Menon on his behalf sought from the judge a ruling that the possibility of adverse inference should not be left to the jury because the question posed by
section 35(1)(b)
should be answered by saying that it was undesirable for the defendant to give evidence. The course the trial took was that the evidence which bore on that question was given not in a voir dire but in front of the jury because it was going to be material in any event. The evidence consisted of two consultant psychiatrists and a social worker who had dealt with the defendant in prison and had made considerable efforts to gain his trust.
5.
The background to the question arising was the defendant's assertion, which was not contradicted, that some years previously in his native country of Syria he had been arrested, it would appear for the possession of anti-government literature, and then tortured both physically and mentally. There was detail of that and it was not a trivial experience at all. Subsequently the defendant had travelled to England where his claim for asylum had been accepted and he had indefinite leave to remain.
6.
The judge correctly summarised the evidence going to the
section 35(1)(b)
question as giving rise to three possible adverse effects upon the defendant were he to give evidence. The first was a risk that the defendant would not do himself justice in the witness box because he might be unable to retain control of himself. The evidence of the psychiatrists included evidence of that risk and of particular incidents which illustrated it, and there had been at least one incident in the course of the police interview on which the defendant relied. Secondly, there was a risk that the defendant might not remember sufficiently parts of his evidence. Thirdly, the defendant had a history of self-harm, not of the most serious kind but distressing, and there was a risk that the stress of giving evidence might give rise to an increase in incidents of such behaviour.
7.
As to those matters the judge effectively rejected (1) and (2), although he had of course to, and plainly did, consider the three elements of the case together. As to (1) he said that whilst it was plain that the defendant suffered from post traumatic stress disorder and there was a possibility of loss of self-control, that was something which a jury could perfectly well understand and allow for in the event that it were to happen. As to loss of memory, the judge reminded himself, correctly, that the principal import of the defendant's evidence would be about what he had been doing with the chemicals found in his possession and what he had meant by the instructions that he had written. The defendant is a graduate who had studied chemistry, although his eventual degree was in maths and physics. In the course of the preparation for the trial he had given comprehensive factual instructions upon the scientific issues to the explosives expert instructed on his behalf, as well as giving an account in the course of the police interviews.
8.
As to the possibility of self-harm, the judge reminded himself of the unchallenged diagnosis of post traumatic stress disorder. There was a history of self-harm and indeed the judge was satisfied that the defendant had been a self-harmer for some time, probably quite a long time, and including during the six days that the trial had lasted. He concluded, plainly correctly on the evidence, that the risk of the nature of the damage was not a severe one, but he accepted that having to deal with questions from somebody perceived to be hostile might in the short term increase the risk of further such episodes. The judge then added this, which forms the basis of Mr Menon's careful contention that his decision was legally flawed. Having reached the conclusions to which we have already adverted, the judge said:
"... in an ideal world, with no other factors to be considered, one would want to avoid a situation arising where anyone was put under stress to self-harm. But his own health and welfare is not the only issue, in my judgment, which I should take into account in reaching a judgment as to whether it is undesirable for him to give evidence... there are cases where a defendant's evidence is marginal, of marginal importance. Indeed there are some cases where it may be of no importance at all... In those circumstances one can conceive of a situation where one might say it was undesirable for him to give evidence. But I think the area in which he can give evidence is one of the facts I am entitled to take into account in determining whether in the overall scheme of things it is undesirable.
And in this case, whilst there would be an increased risk of self-harm, which I add of itself is not the most serious harm, I think the help he could give is so important that I am not prepared to say that the problems that he has make it undesirable for him to give evidence."
Says Mr Menon on his behalf, that was a misdirection. It is, he submits, irrelevant what the significance or importance of the defendant's evidence in any case might be; indeed he submits that the greater its importance the less desirable it is that a defendant with a relevant mental condition should give evidence.
9.
The test posed by
section 35(1)(b)
requires to be answered according to the physical or mental condition of the accused. Its terms make that clear. It does not however follow that in answering the very broad question whether it appears to the court to be undesirable for the defendant to give evidence that all the circumstances of the case do not fall to be taken into account. If one contemplates a defendant with a marginal mental health condition creating a marginal risk of modest or temporary distress or regression if he were to give evidence, one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence.
10.
In the present case reading the judge's ruling as a whole, it is perfectly clear to us that the judge ruled that the risk of self-harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance. That approach was, we are satisfied, one which the judge was quite entitled to take.
11.
We agree with the broad conclusion of Stanley Burnton J (as he then was) in
R (on the application of Director of Public Prosecutions) v Kavanagh
[2005] EWHC 820 Admin.
The question posed by
section 35
is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from
some
(his and our emphasis) physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury. The purpose of
section 35(1)(b)
is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence. In this case the evidence was by no means all one way, even though the factual background abroad was accepted. The judge had ample material on which to reach the conclusion that he did.
12.
Having reached that conclusion, it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant. No one here can know whether the jury did draw such an inference or not. But what is clear is that the judge left the whole history and all the medical evidence to the jury with punctilious care over ten pages of summing-up, as he did the possible contra-indications for which the Crown had argued. In other words the question was properly left to the jury. There is not and could not be any criticism of the terms of the summing-up. The question which matters in this appeal, as Mr Menon has helpfully put it, depends upon whether the judge's original ruling was flawed. It was not, we are satisfied, and in those circumstances the appeal against conviction must be dismissed.
13.
MR MENON: My Lord, I have an application under section 33 for the certification of a point of public importance. I think I have some time to do that. It maybe I need to reflect on the judgment.
14.
THE VICE PRESIDENT: You certainly cannot do it without submitting a question.
15.
MR MENON: I have done a draft of a question but clearly that needs to be considered in the light of my Lord's ruling.
16.
THE VICE PRESIDENT: Yes. You can, if you like, make that. You need to submit a question in any event so if you have not got it now.
17.
MR MENON: There is a draft I have written but I am not entirely sure--
18.
THE VICE PRESIDENT: We will deal with it now if you are satisfied that you have formulated the question.
19.
MR MENON: This is the question I formulated: "Is a judge entitled to take into account matters unconnected with a defendant's physical or mental condition when deciding whether or not it was undesirable for him to give evidence pursuant to
section 35(1)(b)
of
the 1994 Act
?"
20.
THE VICE PRESIDENT: That is a rather wider than the issue in the case. All right. Mental or physical condition when deciding?
21.
MR MENON: Whether or not it was undesirable for the defendant to give evidence pursuant to
section 35(1)(b)
.
22.
THE VICE PRESIDENT: We will think about that. Do you want to go on to deal with the application against sentence?
23.
MR MENON: Yes, please.
(There followed an application for leave against sentence)
24.
THE VICE PRESIDENT: The judge passed a sentence of seven years having said that he reduced it from eight years for the mental condition of the appellant consequent upon his Syrian experience - in particular those were experiences likely to mean that imprisonment would bite more severely upon this appellant than might be true of people generally.
25.
The defendant was born in 1969 and was just short of 39 when he was sentenced. He had no previous conviction.
26.
Mr Menon's admirably constructed submission is that a sentence of eight years is outside the bracket available to the judge. He has drawn our attention, with appropriate diffidence, to three cases. Two at first instance,
Khan
and
Roddis
, and one, an Attorney General's reference in this case,
Qureshi
[2008] EWCA Crim. 1054
. The facts however of these various cases were all different.
Khan
was a case of the purchasing of equipment for sending out to insurgents in Afghanistan;
Roddis
was a case of the acquisition of materials which could have been made into a bomb by a rather inadequate 23-year-old who had subsequently planted a hoax bomb; and
Qureshi
, whilst a decision of this court, has two things that need to be said about it. The first is that there was no explosive material involved, although the defendant was arrested in the course of embarkation at Heathrow with general military-style equipment with a view to fighting abroad somewhere. Secondly,
Qureshi
is a case in which this court said no more than that a sentence of six years was a lenient one, although not so lenient that the court felt compelled to intervene.
27.
In effect the question is this: If a defendant is doing his best to make a bomb in this country with a view to terrorist acts but has as yet neither a detonator nor the right sort of grade of ingredients and therefore as yet the bomb is not a viable one, is a sentence of eight years outside the range available to the judge? The maximum of course is life imprisonment. None of the cases to which we have been referred purport to lay down any general range, nor on an application for leave to appeal against sentence are we prepared to do so. We confine ourselves to saying that eight years is not either manifestly excessive or outside the range and the application for leave to appeal against sentence must accordingly be refused.
28.
Lastly, Mr Menon, we are not disposed to certify any question. On the basis on which we have decided this case no question of law of general public importance arises. | [
"MR JUSTICE KING",
"HIS HONOUR JUDGE GORDON"
] | 2009_03_03-1848.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/464/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/464 | 765 |
1391fec0b032bd0dc03ae011142c864cb538c027ef8b734f58232d4456f2cf54 | [2015] EWCA Crim 1249 | EWCA_Crim_1249 | 2015-07-17 | crown_court | Case No: 201400170 A7 Neutral Citation Number: [2015] EWCA Crim 1249 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2015 Before : THE RIGHT HONOURABLE LADY JUSTICE MACUR DBE THE HONOURABLE MR JUSTICE BLAKE and THE RECORDER OF LONDON - - - - - - - - - - - - - - - - - - - - - Between : JENNIFER TURNER Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Claire Wade (for | Case No:
201400170 A7
Neutral Citation Number:
[2015] EWCA Crim 1249
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
17/07/2015
Before :
THE RIGHT HONOURABLE LADY JUSTICE MACUR DBE
THE HONOURABLE MR JUSTICE BLAKE
and
THE RECORDER OF LONDON
- - - - - - - - - - - - - - - - - - - - -
Between :
JENNIFER TURNER
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Claire Wade
(for the
Appellant
Mr Iain Wicks
(for the
Respondent
Hearing dates : 19 June, 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Honourable Mr Justice Blake:
1.
On 1 February 2007 at the Crown Court at Stoke this applicant pleaded guilty to two counts of attempted robbery and one count of attempted theft.
2.
On 19 March 2007 at the same court she was sentenced by HHJ Styler on the two counts of attempted robbery to a term of imprisonment for public protection with a minimum term of 18 months. The judge probably intended that 88 days spent in custody should count towards the minimum term but in error failed to spell that out. There was no separate penalty imposed on the count of attempted theft.
3.
Since October 2008 she has been serving her sentence in a psychiatric hospital to which she was transferred under s.47 Mental Health Act 1983 (MHA).
4.
She now applies for leave to appeal out of time against sentence and contends that she should have been sentenced to a hospital order under pursuant to s.37 MHA. Her application has been referred to this court by the Registrar who has made a representation order. For reasons set out below we grant leave.
5.
The case has been listed following the decision of this court
in R v Vowles and other
[2015] EWCA Crim 45
, EWCA Civ 56; 5 February 2015 that considered the difficult issues that arise when leave to appeal out of time is sought on the basis of fresh psychiatric evidence and it is sought to argue that an indeterminate sentence should be quashed in favour of a hospital order.
6.
In
Vowles
the court said at [51] that it is important for the sentencing judge to consider all the evidence in the case and decide first whether the section 37 (2)(a) conditions of the MHA 2003 are met and second what is the appropriate disposal. The fact that the conditions are met does not mandate a hospital order, but if the conditions are not met no such order can be considered. Where the conditions are met the judge must consider:-
i)
the extent to which the offender needs treatment for the mental disorder from which she suffers;
ii)
the extent to which the offending is attributable to the mental disorder;
iii)
the extent to which punishment is required;
iv)
the protection of the public including the regime for deciding release and the regime after release.
The offences
7.
The circumstances of the offences were as follows. Around 1.15 pm on Wednesday 13 December 2006 the applicant entered a branch of Tesco Express in Hartshill, Stoke on Trent, approached the female shop assistant and said in a soft almost mumbled voice “I have got a knife in my pocket. I mean it. I want the money out of the till.”
8.
The appellant repeated the threat. The shop assistant could not see a knife but was fearful. A male shop assistant was also behind the counter and did not believe that the applicant had a knife. He twice refused to give her any money.
9.
The appellant then wandered down the aisle picked up a bottle of wine and started to walk out of the store with it. Two of the store employees followed her and stopped her. She replied “I need a drink”. She was brought inside the shop tried to leave again with a bottle of cider and said “You don’t understand I need a drink”. She then said “I will break this” (referring to the bottle) and “have you”. The store manager tried to talk to her and she explained she was unhappy with her life and was having problems at home. The police were called and as the manager was making the call, the applicant took a vegetable peeler out of a drawer and went towards her arms with it, but she was disarmed when the manager grabbed her wrist. She was arrested and interviewed and made no comment and released on police bail.
10.
Six days later on Tuesday 19 December the appellant entered a family run corner shop in Stoke. Mr Khokar was serving at the counter. She said “give me the money” in a demanding way but quietly. Mr Khokar thought she was smelt of alcohol and was possibly under the influence of drugs and did not seem “all there.” She repeated “give me the money” and added “or I’ll stab you”. Mr Khokhar said no. She repeated the threat and her arm came over the counter and Mr Khokhar noted that a knife appeared in her palm from up her sleeve. It was a 14 inch pointed bread or kitchen knife. The appellant lunged at him with the knife; it made contact with his clothing but did not penetrate the clothing. She repeated her threat and swung again but this time was off balance and Mr Khokhar grabbed her wrist and disarmed her. She attempted to get free but was not strong enough. When a regular customer came into the shop Mr Khokhar was able to lock the door and call the police.
11.
She was again interviewed and made no comment and was remanded in custody until her appearance in court.
The information before the sentencing judge
12.
At the time of the sentencing hearing the judge had a report from a consultant forensic psychiatrist Dr. Stewart Vaggers, dated 1 February 2007. This was based on an interview with the appellant in prison on 10 January 2007, a telephone conversation with her treating psychiatrist Dr Lovett and other data obtained in the course of January 2007. Dr Lovett indicated her view that the appellant suffers from a personality disorder which was complicated by substance abuse social anxiety and episodes of depression. The family history identified a history of mental health problems. The appellant’s father had suffered from long term problems including depression and social anxiety and her second elder sister (Clare) suffered from depression.
13.
The appellant disclosed episodes of self harm by drug overdose and cutting herself from around the age of 16 to 17 (1999 to 2000). In 2003 she was assessed and diagnosed with depressive episode accompanied by social anxiety disorder. She was detained under the MHA for 23 days in June 2003 when her care was transferred to Dr Lovett.
14.
In January 2006, the appellant contacted NHS Direct while intoxicated to report that she was suicidal and had a knife. The police attended her home and had to use CS spray to disarm her and this resulted in a court appearance on 11 August 2006 where she admitted affray and was given a community order with a supervision requirement for 2 years.
15.
On 27 October 2006 she was admitted to hospital and detained under the MHA for three weeks; this admission was occasioned by her cutting her wrists and feeling low and a failure. She was discharged in mid November 2006 and returned to live with her boyfriend but he became concerned by her behaviour as she was hearing voices telling her to assault people.
16.
She was informally admitted to the same mental hospital on 1 December 2006 where she was detained for a few days under the MHA before she was discharged because of her aggressive behaviour. She failed to attend on her probation supervisor on 8 and 15 December.
17.
On 13 December the appellant took an overdose of her tranquilising medication, attended an Accident and Emergency Department but decided to leave hospital in order to obtain some alcohol. It was in these circumstances that she committed the first attempted robbery noted above.
18.
18.
Dr. Vaggers records her as saying:
“I needed a drink because drink takes away the agitation. I went to a garage and told them I had a knife (although I didn’t) and asked for money. They refused so I walked out with a bottle of wine…I didn’t feel like I was in reality ..,it was like I was in a dream”.
19.
Having been bailed by the police on 13 December, she returned to mental hospital on 16 December and on release on 19 December she committed the second offence of attempted robbery, about which she told Dr Vaggers:
“I completely regret having a knife on me. If I had been sober there’s no way I would have done it”
She added that she drank alcohol because she was agitated.
20.
Dr Vaggers obtained the following information from the applicant’s partner:
i.
There have been occasions when she has threatened him with a knife when intoxicated.
ii.
She sometimes drinks alcohol to help her deal with her emotional problems but it tends only to exacerbate them
iii.
During her current period of remand she has become more settled and grown in confidence.
21.
Dr Vaggers’ report reached the following conclusions:
i.
The appellant was not suffering from any delusions or hallucinations and therefore was not suffering from a psychotic illness.
ii.
The provisions of the Mental Health Act 1983 have no current relevance.
iii.
There is a positive history of mental health problems within Ms. Turner’s close family indicating a predisposition to develop mental illness.
iv.
Dr Lovett has diagnosed her as suffering from social anxiety disorder and harmful use of alcohol in the context of personality problems of an impulsive and emotionally unstable nature which amount to borderline personality disorder.
v.
This formulation of her mental disorder was agreed.
vi.
At the time of the index offences her maladaptive behaviours were influenced by dis-inhibition caused on one occasion by benzodiazepine medication Diazepam and on the other occasion by alcohol.
vii.
There is a significant risk of harm to the public and/or to herself should she continue to misuse alcohol as she has done in the past.
viii.
Her mental disorders and substance misuse are treatable. A condition of psychiatric treatment attached to a community based sentence would enhance the opportunity to safely manage her risks in the community.
ix.
Should she receive a custodial sentence she would remain a vulnerable inmate but she appears to have adjusted to a degree to the routine of her current location and is responding to the support of the prison mental health services
x.
Her risk of suicide would be raised in the immediate context of receiving a custodial sentence that would need to be brought to the attention of the relevant establishment.
22.
A pre-sentence report dated 9 March 2007 gave a full account of the appellant’s social and medical history. It noted that she had previously been assessed as suffering from emotionally unstable personality disorder with a marked tendency to act impulsively, a significant history of mental health treatment due to repeated acts of self ham. She has a history of binge drinking when her mental health deteriorates and her disorder impacts on her cognitive abilities leading to impulsive behaviour. She was assessed as presenting a high risk of harm to members of the public by reason of her impulsive behaviour and her conduct in the course of the index offences. It was also assessed that her mental health problems and distorted problem solving skills contributed to her offending behaviour.
23.
It was noted that she had struggled to cope with the prison environment over the previous three months due to mental health issues, and this had resulted in her attempting suicide on a number of occasions. A recommendation was made for a suspended sentence coupled with probation supervision to address alcohol abuse and mental health issues.
24.
The judge faced a difficult sentencing exercise. By reason of her conviction for affray in August 2006, the appellant had a previous conviction for a specified violent offence. She was an adult aged 22 at the time of the sentencing hearing. He was satisfied from all the information before him that she represented a significant risk of causing serious harm to members of the public.
25.
In the light of Dr Vaggers’ conclusions that the provisions of the MHA had no current relevance, the statutory requisite for a hospital order pursuant to s.37 was absent and not further considered. As the law then stood, a sentence of imprisonment for public protection was mandatory, (see s.225 Criminal Justice Act 2003), once the qualifying conditions were met subject to the court’s power to make a hospital order.
26.
At the time of Dr Vaggers’ report and the date of sentence, the provisions of the Mental Health Act 1983 had not been amended by the Mental Health Act 2007, so pursuant to s.37 (2)(a) and (b) MHA, the court would need to have been satisfied on the evidence of two registered medical practitioners that the offender is suffering from a
“mental illness, psychopathic disorder or mental impairment”
and that either
“the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”
or
“the court is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to other available methods of dealing with him, that the most suitable means of disposing of the case is by means of an order under this section.”
27.
A personality disorder can be a mental illness or impairment if sufficiently severe in nature. However, as the Court noted in
Vowles
at [50] (v) summarising expert evidence it received in that that case :
“Treatment in hospital for those with personality disorders under a hospital and restriction order under s.37/41 of the MHA should generally only be considered for those who also have a mental illness or brain damage. There are two major considerations. First if an order is made under s.37/41 of the MHA, then if the disorder is in the result untreatable, there is a risk that the offender will remain in hospital for an indefinite period, as the FTT cannot release him if the risk to the public continues. Psychiatrists are therefore concerned to ensure that they are not "stuck" with such an offender. This is a serious risk which psychiatrists are anxious to avoid. Second a range of treatment of those with personality disorders is available in a range of specialist prisons.”
28.
Following the sentencing hearing in this case, the amendments of the MHA 2007 came into force. It is now sufficient to make a hospital order pursuant to s.37 if
“The offender is suffering from a mental disorder of such a nature and degree as to make it appropriate for (her) to be detained in a hospital for medical treatment and appropriate treatment is available”..
Fresh Evidence
29.
The present application is based on fresh psychiatric evidence detailing the medical history of the appellant subsequent to sentence. In summary in October 2008 after repeated self-harm attempts in prison, the appellant was transferred to the Ardenleigh Medium Secure Psychiatric Unit, Birmingham, following a report written by another forensic psychiatrist Dr Bloye. The transfer was effected by direction of the Secretary of State under s. 47(1) MHA, because at least two registered medical practitioners were of the opinion that
“the mental disorder from which the person is suffering is of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment”.
30.
It is pertinent to note that in November 2010 the appellant’s sister Claire whose propensity to depression was noted in 2007 committed suicide by taking an overdose. This affected the applicant badly as her sister had been a regular visitor to her in hospital and had some insight into her mental health problems. The hospital was unable to authorise her release to attend the funeral because of her disruptive behaviour at the time, but she has subsequently been able to visit her sister’s grave.
31.
There is before us a psychiatric report of a third forensic psychiatrist Dr Maganty dated 20 August 2013 that provides details of the troubled history of self- harming and other violent and disruptive behaviour throughout her time in prison and mental hospital. In substance Dr Maganty concludes that the scale and persistence of the appellant’s mental health problems means that she meets the criteria for a hospital order under s.37 MHA and that in addition a restriction order under s.41 MHA should be made to protect the public from significant harm resulting from the significant risk of the applicant’s impulsive acts of aggression associated with her mental disorder and exacerbated by her substance abuse.
32.
Dr Scally, another forensic psychiatrist, is of similar opinion for reasons set out in a report dated 21 November 2013 that states:
i)
The appellant suffers from a personality disorder that is a mental disorder within the MHA as amended.
ii)
The nature of the disorder, her clear history of prolonged self-injurious behaviour, her tendency to act impulsively and current presentation where she continues to self harm indicates that her disorder is of a degree to necessitate inpatient treatment for her own safety as well as the safety of others.
iii)
Treatment for emotionally unstable personality disorder is primarily psychological with the greatest evidence supporting dialectical behavioural therapy; interventions are aimed at supporting the individual to develop skills to tolerate and manage distress and urges to self harm. Pharmacological treatments are also used to help alleviate distress; special nursing and occupational therapy are also integral.
iv)
Since admission to Ardenleigh she has been making slow but steady progress with significantly fewer acts of self harm. She is abstinent from alcohol within a controlled environment.
v)
It is not envisaged that the applicant would be psychologically robust enough to return to prison yet and there are concerns about her ability to maintain her own safety in a custodial setting
33.
Her assessment differs from Dr Vaggers’ 2007 assessment. She accepted that that assessment might have been reasonable on the limited information as to how the applicant was responding in prison but a different perspective arises by reason of the subsequent events.
34.
Both Dr Scally and Dr Maganty observe that Dr Vagger’s 2007 report was written after the applicant had spent only six weeks on remand, and indeed the interview with her was conducted after only three weeks. They both state that with the benefit of hindsight it can be seen that the mental disorders with which she was first diagnosed in 2003 have proven to be deeper and more long lasting than might have been anticipated.
35.
It is common ground between all the medical practitioners who have had responsibility for the applicant that a mental hospital is the appropriate place for her to be treated and has been since at least 2008.
36.
The difficulty with the applicant’s predicament is that if treatment is successful in mental hospital she will have to return to prison where eventually an assessment of prospects of release on licence will have to be made by the Parole Board. However, the prospects of return to prison adversely affect the prospects of successful response to medical treatment, and the experience of prison by someone with these vulnerabilities may well lead to a relapse in medical condition before any decision on release could be taken.
37.
By contrast, if a hospital order were now to be substituted for the IPP imposed in 2007, she would remain in hospital until a panel of the FTT experienced in the assessment of mental patients and restriction orders decided that her mental health no longer posed a risk to the safety of the public.
38.
The new evidence is credible and indeed undisputed and not challenged in cross examination. It would if admitted provide a ground for allowing this appeal by setting aside the sentence of IPP and substituting a hospital order with a restriction order. The evidence was not reasonably available at trial; it is based on a longer term assessment of the applicant than was possible for Dr Vaggers to undertake, and in any event there is a significant public interest in receiving it given the predicament in which the applicant finds herself and the fact that she has been treated in mental hospital since 2008.
Oral evidence of Dr Scally
39.
Dr Scally expanded on her report in oral evidence given to us. She has been the applicant’s treating physician since August 2013. Since her transfer to Ardenleigh in October 2008 the applicant has received constant treatment. Which she describes as follows:
“She receives a multi disciplinary variety of treatments. She receives several medications, including antidepressant, mood stabilising, anti psychotic and sedative medications. These are aimed to help her with her distressing thoughts and with times that she hears voices. She also receives psychological therapy. This is aimed to help with difficult emotions, learn better problem solving skills and to manage her anxiety in a more helpful way. This is reinforced by intensive specialist nursing intervention of the ward level on a day to day basis. She also benefits from occupational therapy to develop her interests, her sense of self and the sense of her aims and ambitions for the future.”
40.
She expressed the opinion that the appellant’s substance misuse should be linked as a factor of her personality disorder. She told us
“In my view her substance misuse, both alcohol and cannabis, can be understood within the features of her emotional unstable personality disorder. She struggles with difficult emotions and struggles to manage difficult emotions in a helpful, adaptive way and alcohol and substances appears to be a way she used to manage difficult emotions and often patients do describe quite defective ways of managing emotions in the short term. It also can be seen as another way, another example of self destructive behaviour and acting in ways that longer term are self destructive ..In my view, the substance misuse can be understood for being the context of her personality disorder.”
And later in evidence she added
“I think it would be extremely unlikely that the offending would have occurred if there was no mental disorder. Ms Turner has shown no anti social tendencies, no pro criminal tendencies.”
41.
She was of the opinion that a s.37 order coupled with a s.41 restriction order would provide greater protection for the public than a return to her sentence of imprisonment for public protection. As her treatment progressed she would have her case reviewed by the First-tier Tribunal and if suitable would be subject to conditional release in the community with an ability to recall her is she broke the conditions of her release, such as abstinence from drink and drugs.
42.
She was asked whether the appellant would be robust enough to return to prison and seek release through the Parole Board process:
“I think it would take a very, very long time for Ms Turner to have the resilience to be able to return to prison. It would be much more foreseeable that she would be have the resilience to return to conditions of lesser security and greater dependence, for example supported community living. As I say the threshold will be much higher for return to prison and that will take many, many months if not years.”
43.
Commenting on the differences between her assessment and that of Dr Vaggers, she said she would have regarded the appellant’s disorder in 2007 as of sufficient severity to be a mental illness for the purpose of the MHA prior to its amendment in 2007. She told us:
“Social anxiety would be counted as a mental illness in of itself probably great enough of an age or degree to have necessitated in-patient treatment…. Social anxiety would have been a mental illness….there would also be the consideration of the emotional unstable personality disorder which would have fallen under the criteria of a psychopathic disorder under the old Act.”
She added that the subsequent medical history can now be seen to indicate the severity of the disorders from which she was suffering at the time of sentence:
“I think the underlying diagnosis having remained the same. I think what emerged was how resistant to treatment it was and how challenging she would find the prison environment.”
Conclusions
44.
We have been assisted by detailed written submissions from Ms Wade for the applicant in the grounds of appeal and by Mr Wicks for the CPS in the respondent’s notice. It is common ground that the judge was never able to consider a hospital order in 2007 and the fresh evidence is not simply a fresh attempt to revisit an issue decided at trial and not subsequently challenged by an in time appeal.
45.
In the case of
R v O
[2011] Crim 376, the court observed
“Any case involving as it does reliance on evidence of mental condition not adduced at the time of the original court appearances must require the most careful scrutiny. That we have sought to give it, though our conclusions can be stated almost summarily. We are satisfied that the appellant met the section 37 criteria at the time of sentencing. Moreover, a sentence can be varied if satisfaction of those criteria only becomes apparent after sentencing: see R v De Silva (1994) 15 Cr App R(S) 296.”
46.
We have given more detailed consideration to the issue to ensure that the fresh evidence goes to the condition and the legal regime applicable at the time of sentence. We are satisfied it does. We now consider each of the
Vowles
questions as follows.
The extent to which the offender needs treatment for the mental disorder from which she suffers;
47.
It is clear that the appellant has been receiving treatment and continues to need that treatment. Her condition is treatable and she has been making slow progress but some progress in addressing her disorder. The combination of treatment she receives would not appear to be available in a custodial setting. We are satisfied that she needs the treatment that she has been and continues to receive.
The extent to which the offending is attributable to the mental disorder
48.
We have been concerned to investigate the extent to which her offending is attributable to the mental disorder as opposed to alcohol abuse. Dr Scally was of the view that her substance abuse was an aspect of her personality disorder. It was not simply a case that alcohol dis-inhibited her but she resorted to alcohol as a result of her problems. There is some support for that view in what the appellant told Dr Vaggers and the assessment of the PSR. She has been alcohol free for some years yet her disorder has continued since December 2006 when she has not any access to alcohol.
49.
We therefore conclude that her offending is substantially related to her mental disorder and associated compulsive acts. There is a close proximity between her release from hospital and her attendance at grocery stores to obtain either alcohol or cash with which to buy alcohol. The appellant’s offending since August 2006 all coincided with periods of mental disorder.
The extent to which punishment is required
50.
The offences of attempted robbery were assessed by the judge to have merited a determinate term of 3 years imprisonment. The second offence had the alarming feature that the appellant had pre equipped herself with a knife, but the threatened use did not deter Mr Khokar from disarming her. In the first offence it is significant that the intended use of the fruit knife seems to have been to harm her arms.
51.
She has never previously served a custodial sentence and has now served over eight years in detention in addition to the 88 days spent on remand; equivalent to a 17 year determinate term. Any future assessment by the Parole Board will probably be hampered by her anticipated moves between hospital and prison.
The protection of the public including the regime for deciding release and the regime after release
.
52.
In our judgment the safety of the public is adequately protected by a restriction order and the experience of a panel of the First-tier Tribunal in assessing risks by restricted patients. We conclude this provides a clear route to future release if her response to treatment makes this appropriate.
53.
We note that the scheme of the IPP made exemption for this mandatory sentence in the event of a hospital order being appropriate. We consider it highly likely that if the option of a hospital order had been available it would have been considered the appropriate sentence had the degree of the disorder been identified at that stage.
54.
We accordingly propose to allow this appeal. We quash the sentence of IPP and substitute for it a hospital order with a restriction order pursuant to s.37 and s 41 MHA. | [
"THE HONOURABLE MR JUSTICE BLAKE"
] | 2015_07_17-3640.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1249/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1249 | 766 |
e6a2768f3a29d154beedc35e106ff0002904772ddad89f6f1423dc1fe91a0a7a | [2022] EWCA Crim 1577 | EWCA_Crim_1577 | 2022-10-13 | 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.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202202882/A4
NCN:
[2022] EWCA Crim 1577
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 13 October 2022
Before:
LADY JUSTICE WHIPPLE DBE
MR JUSTICE HILLIARD
MRS JUSTICE ELLENBOGEN DBE
REX
V
ROOPA KUMAR
__________
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 B SINGH
appeared on behalf of the Appellant
_________
J U D G M E N T
LADY JUSTICE WHIPPLE:
1.
The appellant was sentenced at Wolverhampton Crown Court by His Honour Judge Berlin on 27 June 2022 for a single offence of causing serious injury by dangerous driving on 6 March 2021. The judge imposed a sentence of 18 months' immediate imprisonment and disqualified the appellant from driving for 28 months with an extension period of nine months.
2.
The appellant now appeals her sentence of imprisonment. She has permission to appeal on the ground that the sentence should have been suspended. She renews her application for permission to appeal on other grounds, which we shall shortly come to, but which in broad terms go to the length of the sentence imposed.
3.
The facts of the offence are these. At approximately 6.15 pm on 6 March 2021 the complainant, Jiri Dort, was walking to an Aldi supermarket. He crossed Newton Road, a three-lane road, by the Scott Arms. The traffic lights with pedestrian crossing were around 40 metres away. The road conditions at the time were good. It was dark but it was also dry.
4.
Mr Dort was struck by a Mercedes car driven by the appellant. He was thrown forward several metres in front of the appellant's car. Police and ambulance services attended the scene. The complainant was taken to hospital immediately. He was found to have a number of injuries. He had a depressed skull fracture, a left shoulder injury, a 2cm laceration to his foreskin, a significant bleed in his abdomen, multiple complex facial fractures extending to his orbits and fractures of his clavicle, left arm and ribs. He underwent extensive care. He had long term care in the intensive care unit with breathing aids and organ supports, cranial pressure management and cranial surgery for the fractures, therapeutic circumcision for his penile injuries and a tracheotomy for a long term airway management. He was described as having a long term prognosis of mild disability and referred to ongoing physical therapy.
5.
A forensic investigation report stated that the appellant had been travelling at 64 mph as she approached the traffic lights. The speed limit for that section of road is 30 mph. The appellant's vehicle was seized for inspection and no faults were found.
6.
The appellant was voluntarily interviewed on 28 April 2021. She said she had been on her way to a night shift at the hospital where she worked as a nurse. She said she had braked as soon as she had become aware of someone crossing the road. She said that she had not looked at her speedometer and did not know whether or not she had been speeding. She could not remember if she had sped up as she had approached the traffic lights.
7.
She pleaded guilty on 18 May 2022 at a pretrial review having originally pleaded not guilty in November 2021. The trial date was fixed for November 2022, some six months afterwards. An interim disqualification was imposed on her at the pretrial review on 18 May 2022.
8.
At the sentencing hearing the judge heard mitigation advanced by Mr Martin, who was then counsel for the appellant. The judge had before him not just Mr Martin's submissions but also a pre-sentence report and a number of other pieces of evidence submitted on behalf of the defence. In passing sentence the judge noted that the appellant was 42 years old. She had for 19 years worked as a nurse in the NHS. On the evening in question she was driving to her place of work to start a night shift at 7 o'clock that evening. The judge held that there was no chance of her getting to her shift on time given that she was passing the Scott Arms at 6.50 pm. In his judgment she was rushing to work. She was doing 64 mph which was more than twice the speed limit in that busy built-up and densely-populated residential and business area. The judge quoted from an expert report provided by a defence expert, Mr Loat whose view was that the appellant had slowed down prior to the collision and when she saw the complainant she had reacted quickly so that the speed of impact was around 35 mph. He accepted that that was the speed at the point of impact. The judge found she was travelling at 64 mph in order to jump the traffic lights at the busy junction ahead. He said she should have taken the approach cautiously and not at high speed and she should have kept an eye out for pedestrians. He recited the injuries of the complainant, which were very serious, and noted that the complainant could have died. The judge referred to the two victim impact statements which noted the ongoing and permanent problems which had resulted for the complainant.
9.
The judge referred to the guidelines on causing death by dangerous driving and concluded this would have been a Level 2 offence under those guidelines because the appellant's driving created a substantial risk of danger. This was not just because of the excessive speed; it was also because of the nature of the area and the timing, taking all of these factors in combination. If death had resulted the starting point would have been five years. The judge noted the aggravating factors: that the injuries were multiple and life-threatening, some were permanent and they were psychological as well as physical in nature. The judge noted that the mitigation advanced on behalf of the defendant was substantial. She had no previous convictions. She had been a nurse for 19 years and had worked through Covid to assist her patients. He noted that there was remorse. She had braked hard when she saw the complainant. He referred to the character references which showed her to be honest, hardworking and committed to charity work which she had done in the past. He referred to the guidance in the case of
Manning
and to the effect of Covid on the prison population. He noted the appellant's domestic circumstances: she had two children then aged 15 and 17, both of whom had already experienced educational difficulties during the pandemic and as they approached exams. He referred to
R v Petherick
[2013] 1 WLR 1102 in relation to mitigation of sentence to reflect the effect of custody on children and other family members. He said that he was "doing the very best I can for this awful case". He decided that the notional sentence after trial was one of 22 months' imprisonment. He allowed 18 per cent for the guilty plea. The resulting sentence was 18 months' imprisonment.
10.
He considered whether he could suspend the sentence and referred to the guideline on community and custodial sentences. He noted the contents of the pre-sentence report which predicted a medium risk of harm to the public capable of reduction to lower levels with intervention. That risk was predicated on poor prediction of consequences and risks and a willingness to ignore legal obligations. He concluded that:
"With great regret ... appropriate punishment in my judgment can only be achieved by immediate custody."
11.
He imposed the sentence of 18 months' immediate imprisonment, together with the driving ban.
12.
In written grounds of appeal drafted by Mr Tutt of counsel dated 23 September 2022 a number of grounds were advanced. Of those the appellant has permission to argue one, namely that the sentence should have been suspended. By email received in the Court of Appeal Office on 5 October 2022, Mr Tutt confirmed that he would seek to renew his argument about the length of the custodial sentence, whether suspended or not, and his argument in relation to the starting point being too high but that otherwise he abandoned his other various grounds.
13.
On the court's prompt by email to the court yesterday Mr Singh (now counsel for the appellant) confirmed that the appeal would be narrowed in the way suggested in Mr Tutt's earlier email. In oral submissions before us this morning Mr Singh has helpfully focused on his two key points. The first of those is that the categorisation of this offence was wrong. This was significant but not substantial culpability, and it followed that the judge started with a sentence that was too high and manifestly excessive. His second point is that the sentence should in any event have been suspended.
14.
Before coming to our conclusions, we record the further material that is before the court today. First, we have a prison report obtained in advance of the hearing which confirms that the appellant has done well while in prison. She has one negative comment for stealing food but is otherwise reported to contribute proactively, to be employed as a healthcare champion and to be engaging with education in order to complete a maths course. Second, we have a note from the prison dated yesterday, 12 October 2022 confirming her work as a healthcare champion and her enthusiastic engagement with that work. Third, we have also been informed that she is currently the subject of disciplinary proceedings before the Nursing and Midwifery Council which have not yet concluded. We understand that she is currently subject to interim suspension on fitness to practice grounds and that this will be reviewed in due course.
15.
Turning then to the substance of this appeal, we have watched the CCTV recordings of the collision. Like the judge we see an area busy with vehicles in the darkness of early evening. The junction is congested with quite a lot of traffic around. The junction is at an Aldi supermarket where people are stopping to do their shopping. The appellant was driving at 64 mph along this road in an area where the limit is 30 mph. That is an excessive speed by a considerable margin. Although the appellant braked when she saw the complainant and reduced her speed to 35 mph at the point of collision, that final speed even after braking remains in excess of the maximum speed for that road. The judge found based on the pre-sentence report that the reason for the appellant's speed was that she was racing as she approached the lights, hoping to go through the lights as they remained on green. Any driver knows or should know that that is a risky thing to do, the more so in a built-up area where the unexpected is to be expected.
16.
By reference to the guideline on death by dangerous driving, which is of some assistance in this case, we agree with the judge's assessment that this is a Level 2 offence because it created a substantial risk of danger. We reject Mr Singh's submission that it is merely within the significant category. We consider the culpability to have been relatively high.
17.
Undoubtedly, the harm too is high. The injuries sustained by the complainant have been life-changing. We have had regard to his two impact statements which were before the judge dated 15 November 2021 and 27 June 2021. He is a man of 36 years old. He now has ongoing and significant physical difficulties, including compromised eyesight and mobility. He was struggling with the mental effects of his injuries too. This was a very serious incident which could have resulted in death and it has had lasting and significant impact on the complainant.
18.
The judge identified the complainant's multiple injuries as an aggravating factor and he was justified in doing so. The judge also recognised there was substantial mitigation available to the appellant.
19.
The question raised by Mr Singh this morning and in the grounds of appeal is whether the sentence of 18 months was itself manifestly excessive or took too high a start point. The judge did not express his starting point in terms but it must have been in excess of 22 months before reduction on account of mitigation. In a case such as this we would anticipate a starting point of between two and two-and-a-half years' custody for an offence of this seriousness. We do not consider that the notional sentence after trial of 22 months to be open to criticism and we are not persuaded that the judge left anything out of account or failed to give sufficient weight to any aspect of the case in arriving at his sentence. There is no challenge to the 18 per cent reduction in the guilty plea and we therefore conclude that there is no merit in the grounds that the sentence of 18 months was either manifestly excessive or took the wrong starting point. We agree with the single judge that permission on those grounds must be refused.
20.
We come to the central issue in this appeal which is whether the sentence of 18 months ought to have been suspended. That is the issue for which the appellant has leave.
21.
The judge considered the guideline, as we have done. In its table it lists the factors which indicate whether it "may" be appropriate to suspend. Whether to suspend is in the end a matter of judgment based on the relative weight of all the factors present in the particular case. Looking first at the factors indicating that it may be appropriate to suspend a custodial sentence, this appellant has a reasonable prospect of rehabilitation. Her risk of re-offending is low, as was recorded in the pre-sentence report. This appellant has strong personal mitigation. We have recorded already what that mitigation comprises, but we do take account specifically of her work as a nurse over a very long career helping others, we take account of the particular pressures that were on her at this time working in the health care sector during a pandemic, we note that she is of good character and she has extensive testimonial report to that effect. She has an unblemished driving record through 12 years of driving. We note that she is very sorry about her actions and their consequences. Plainly any period of custody would impact on her family members. She has a husband and two teenage children. This is not a case where the children are very young or where the defendant is a sole carer, but still the impact on others would be substantial. These were all points recognised by the judge. They are all points tending to suggest the sentence may be suspended under the guideline.
22.
We turn then to look at the other side of the table, factors indicating that it would not be appropriate to suspend a custodial sentence. There were factors under that heading. The judge alighted on one aspect of the pre-sentence report which suggested that the appellant did pose a risk to the public because the offending showed her to have certain risk factors of poor prediction of consequences and risks and a certain willingness to ignore legal obligations. In that sense it could be said that she did present a risk of some degree to the public, albeit one that could be mitigated by interventions. He was entitled to take that point into account when considering suspension.
23.
As Mr Singh submits, and we accept, the judge's central reason for imposing an immediate term of custody was to achieve appropriate punishment. That is the second reason listed in the guidance and it was his judgment that on the facts of this case that factor outweighed the other factors that were in the mix.
24.
We have considered very carefully the points advanced by Mr Singh this morning and all the features of this case. We are unable to fault the conclusion to which the judge came.
25.
This is a difficult and unusual case. There is much to say in the appellant's favour. We commend her for her conduct and good behaviour while in prison and her willingness to look forward and learn, but the judge was entitled to conclude that the offence she committed was so serious that only a period of immediate custody could achieve appropriate punishment. We therefore dismiss this appeal.
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
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"LADY JUSTICE WHIPPLE DBE",
"MR JUSTICE HILLIARD",
"MRS JUSTICE ELLENBOGEN DBE"
] | 2022_10_13-5464.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1577/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1577 | 767 |
80f251eb8db19f84b5e929ae8059186030e67207d466c7d9ec998c7daaabe840 | [2022] EWCA Crim 134 | EWCA_Crim_134 | 2023-02-08 | 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: 2021 01654 B5
Royal Courts of Justice
Strand
London
WC2A 2LL
[2022] EWCA Crim 134
8
th
February 2022
Before:
THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
LORD JUSTICE FULFORD
MRS JUSTICE JEFFORD
MR JUSTICE LAVENDER
REGINA
v
ANDREW CLAYDON
__________
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 DAVID TEMKIN QC
appeared on behalf of the Appellant
MR GORDAN COLE QC
appeared on behalf of the Crown
_________
J U D G M E N T
1.
THE VICE PRESIDENT: On 27 April 2021, in the Crown Court at Preston, the appellant pleaded guilty to manslaughter (count 2) which was an alternative to count 1, murder. On 5 May 2021, in the same court, before Judge Medland QC and a jury, the appellant (then aged 45) was convicted by a majority of 10 to 2 of murder (count 1). On 21 May 2021, again before the same court, the appellant was sentenced to imprisonment for life and the period of 14 years was specified as the minimum term under
section 322
of the
Sentencing Act 2020
, less 323 days spent on remand. Before this court he appeals against conviction with the leave of the single judge.
2.
On 18 July 2020 at around 6.45 pm the deceased, Matthew Pearson, left his flat and walked across the road towards the nearby shops. The appellant lived nearby and was known to Matthew Pearson. It is common ground that he approached the victim and punched him to the face, before forcefully pulling him/slamming him to the ground. His head hit the kerb stone. This was summarised by the judge as follows during the course of the summing-up:
"As you have seen on the rather blurry CCTV, the defendant as it has been described punched or swiped or sidewinded Matthew Pearson, then ran into the road a few steps towards him, pulled him back to the pavement, forcefully threw him to the ground and then stamped on him. Andrew Claydon admits doing these things."
Thereafter, as the prosecution alleged, the appellant violently and forcefully stamped on Matthew Pearson's head whilst he was on the floor. The appellant's case was that he stamped on the victim's arm which was in a plaster cast.
3.
Matthew Pearson was rendered unconscious for about 2 minutes as a result of the attack, before he regained consciousness and staggered home. An ambulance was called and he was taken to Blackpool Victoria Hospital. He was subsequently transferred to the Royal Preston Hospital, by which stage he was again unconscious. He was operated on to relieve the pressure which had developed in his skull, but his condition never improved. On 2 August 2020 he died as a result of the injuries he had sustained on 18 July 2020. He was 42 years old.
4.
The medical description of the cause of death was traumatic brain injury arising from blunt force trauma to the head. He had suffered a basal skull fracture with bleeding on to his brain. The Crown relied on the evidence of Dr Alison Armour and Dr Daniel du Plessis in this regard. The former opined that the skull fracture could have been the result of the side of the victim's head hitting the pavement or a stamp to the head, or a combination of the two. Dr Armour testified that the injuries sustained by Matthew Pearson in the assault on him was a very serious and severe head injury which was ultimately responsible for his death.
5.
On 21 July 2020 the appellant was interviewed by the police. He made no comment to all questions asked.
6.
Against that briefly described background the prosecution case was that the appellant murdered the deceased. The prosecution accepted that the appellant did not intend to kill the deceased and the case was put on the basis that at the time of the assault the appellant intended instead to cause the deceased really serious injury. It was suggested that the short assault, which lasted around 4 or 5 seconds, was one continuing outburst in which the appellant completely lost his temper. His violent actions, which included the stamp to the deceased's head whilst he lay defenceless on the ground, demonstrated his intent to cause the deceased really serious injury. The prosecution argued in the alternative that if the jury could not be sure that the appellant stamped on the deceased's head but accepted that he stamped on his already broken arm which was in a plaster cast then this sufficiently demonstrated his intention to cause really serious injury.
7.
The building blocks of the Crown's case can be described as follows.
•
First, they relied on the agreed expert evidence as to the cause of death, namely that the deceased died as a result of the injuries he sustained during the assault.
•
Second, it was argued that the appellant's guilty plea to manslaughter unequivocally demonstrated that he unlawfully caused the death of the deceased.
•
Third, CCTV footage showed the appellant's stamp on the deceased's head.
•
Fourth, a witness called David Fleming saw the appellant stamp on the deceased's head and simultaneously heard a crack.
•
Fifth, other witnesses heard the appellant shouting aggressively at the deceased at the time of the assault.
•
Sixth, the expert evidence was to the effect that a considerable degree of force would have been required to cause the hinge fracture to the skull. This was said to demonstrate the appellant's intent.
•
Finally, the prosecution relied on the adverse inferences to be drawn from the appellant's failure to mention facts in his police interview on which he relied at trial.
8.
The appellant agreed that he had been angry about the theft of some vodka and money. He denied he had been shouting aggressively at the deceased at the time of the assault. He accepted wanting to cause the deceased "some pain", but he denied any intention to cause really serious harm. A central element of his defence was that he denied stamping on the deceased's head; instead he suggested he had aimed for the deceased's broken arm. He accepted lying to the police out of panic.
9.
The central issue in the trial, therefore, related to the defence contention that whilst the appellant was responsible for the death of Matthew Pearson, he had not intended to cause him really serious injury. In summary in this regard the appellant denied that he stamped on the deceased's head, and he suggested that the skull fracture which caused the fatal bleed could have been caused by Mr Pearson falling/being slammed to the ground. He accepted stamping on the deceased's arm which was in a plaster cast.
10.
He relied on the evidence we have already rehearsed from Dr Armour that the skull fracture could have been caused by the forceful throw to the ground. There was additionally an absence of any bruising to the deceased's face consistent with a stamp to the head. The appellant suggested that Dennis Fleming was an unreliable witness, having given inconsistent accounts. The CCTV was of poor quality, in that it was "blurry" and did not clearly show a stamping motion to the head.
11.
The judge summed this up to the jury as follows:
"The defence argue that you cannot and should not be sure on the evidence in this trial that the allegation of murder is proved. They argue that Andrew Claydon’s precise actions and movements in the moments when he used unlawful violence against Matthew Pearson are really open to question on the blurry CCTV.
Mr Temkin QC relies on the agreement of Dr Armour that the basal skull fracture is equally consistent with the forceful pull to the ground as a stamp on the skull. Thus Mr Temkin puts to you that if you agree with Dr Armour’s conclusion, the skull fracture could have been caused by the forceful throw to the ground and he asks rhetorically, is a throw to the ground, even a forceful one, consistent with an intention to cause really serious injury?
Mr Temkin argues that as to the direct evidence of a stamp to the head, this essentially comes from Dennis Fleming. Mr Temkin asserts that Dennis Fleming is an unwholly satisfactory witness in any case let alone one as serious as this. Fleming is, they argue imprecise, variable as to detail and frankly shifty. Even if he is trying to tell the truth, the defence argue, his evidence is so flawed and moveable as to be unimpressive and fundamentally unreliable.
Although Mr Temkin put it more elegantly than this, he was really arguing to you that you should not rely on Dennis Fleming to tell you what day of the week it is let alone to give what might be critical evidence in a murder trial."
12.
We emphasise, therefore, that the central – in reality, the sole question in the case – was whether the appellant intended to inflict really serious harm when he assaulted the victim. In this regard there was the important difference, which we have already outlined, between the prosecution and the defence as to whether there had been a stamp to the head of the victim, which was potentially an important issue when considering the appellant's intention.
13.
The relevant directions to the jury were first before counsels' speeches:
"The defendant is indicted on two counts in this trial – murder of Matthew Pearson on 2nd August 2020 and the alternative count of manslaughter. The defendant has pleaded guilty to manslaughter. The assault which caused Matthew Pearson’s death was on 18th July but he although gravely ill from that moment and never improving in health did not die until 2nd August and so that is why the offences of murder and manslaughter are stated to be on that date and not 18th July.
For murder, each of the following legal elements must be proved so that you are sure before you could find the defendant guilty of murder. That Andrew Claydon unlawfully assaulted Matthew Pearson, that the unlawful assault was a substantial cause of Matthew Pearson’s death and that when he unlawfully assaulted Matthew Pearson, Andrew Claydon either intended to kill Matthew Pearson or intended to cause Matthew Pearson really serious harm.
I have then sought to provide some working definitions of some of the phrases that have cropped up in those points.
Unlawfully assaulted – this means that you must be sure that Andrew Claydon deliberately used unlawful force against Matthew Pearson. Andrew Claydon has pleaded guilty to manslaughter and does not dispute that the force he used against Matthew Pearson was unlawful and therefore element A above is proved already. The unlawful assault must be a substantial cause of death. There is no dispute in this case that the totality of the violence in this case was a substantial cause of the death of Matthew Pearson. Andrew Claydon admits as much by his plea of guilty to manslaughter though he denies kicking or stamping on Matthew Pearson’s head. Then an intention to kill or intention to cause really serious harm. You will decide whether the defendant intended to cause really serious harm or intended to kill by considering all the evidence in the case including what the defendant did, what he said, what mood he was in, how he was behaving and so on. From all this evidence you can infer what his intention was.
The process must be that you decide first what you are sure happened and then from those sure conclusions of fact decide what you are sure the defendant’s intention was an intention to do something is not necessarily the same as pre-meditation. An intention may be formed and held for hours, days, weeks or years or it may be formed in an instant and note the offence of murder is proved as to the intention of the defendant if you are sure he either intended to kill or that he intended to cause really serious injury. The prosecution in this case accepts that Andrew Claydon did not intend to kill. They allege that he intended to cause really serious injury.
Then that phrase really serious harm. That simply means really serious injury. Please give the words their natural meaning as ordinary English words. The really serious injury which was intended does not have to be life-threatening harm.
So from all of that I crystallise the principal issue in this case for you and that is whether you are sure the defendant intended to cause at least really serious injury when he unlawfully assaulted Matthew Pearson.
I then endeavour very briefly to summarise the principal arguments of the prosecution and the defence.
The prosecution argue that this is a clear case of murder, not manslaughter. They argue that the evidence shows that the assault was done in a matter of four or five seconds, that it was really one continuing outburst in which gross violence was used including a stamp they say to Matthew Pearson’s head whilst he was defenceless on the ground.
The prosecution accept that Andrew Claydon did not intend to kill Matthew Pearson but they argue that Claydon completely lost his temper and must have intended to cause really serious injury as shown by the CCTV when combined with the other evidence of what was said and done by him.
The prosecution argues that his violent actions at the scene are the clearest proof that he must have intended really serious injury. The defence argue that you cannot be sure that Andrew Claydon intended really serious injury. They argue that his plea of guilty to manslaughter is a realistic acceptance of what he did at the time – violence but with no intention of causing really serious injury.
They argue that you cannot be sure he stamped on Matthew Pearson’s head and that the fractured skull which caused the fatal bleed on the brain may have resulted not from a stamp to the head but from a forceful pull by Andrew Claydon thus causing Pearson to lose his footing and go to the ground which is not consistent with an intention to cause really serious injury. The defence argue that the stamp was not directed to Matthew Pearson’s head but rather to his arm which was in a plaster cast."
Then, following speeches:
"[The prosecution] argue that even if you accept Claydon’s account that he stamped not on Pearson’s head but deliberately on his already broken arm and its plaster cast then this too must be clear proof of an intention to cause really serious injury and thus proves that Andrew Claydon is guilty of murder and not manslaughter."
And a little later:
"If you are sure that when Andrew Claydon assaulted Matthew Pearson, whether that included a stamp to the head or a stamp to the arm, he intended at least to cause Matthew Pearson really serious injury, if you are sure of that then the oaths and affirmations you all took to return the true verdict on the evidence would lead you to return a verdict of guilty of murder."
14.
Against that background it is submitted that the judge erred in directing the jury that if they found that the appellant stamped on the deceased's arm intending to cause really serious harm, they could convict him of murder. It is emphasised that the injury to the deceased's arm was not a substantial cause of death; instead the sole cause of death was the traumatic brain injury arising from blunt force head trauma. Therefore the legal directions permitted the jury to convict the appellant of murder on the basis that he stamped on the deceased's arm when "this was the only act carried out with the requisite intent". Mr Temkin QC frankly accepts that he did not raise this issue with the judge at the time and that it was only on reflection after the jury's verdicts that the point occurred to him.
15.
The respondent submits that the judge's observations as to the stamp on the victim's arm needs to be viewed in the context of the summing-up as a whole. It is suggested that the directions to the jury on the offence of murder were clear and accurate. It is emphasised that it was uncontested that the deceased died from the injury to his head and there was no suggestion that an injury to his arm contributed to his death.
16.
We can deal with these arguments shortly. With respect to Mr Temkin, for whose concise and focused submissions we are grateful, he has inappropriately elided the separate considerations that are relevant to the
actus reus
of this offence, on the one hand, and the
mens rea,
on the other. There was no dispute at trial as to the
actus reus
, in that it was accepted that by whichever of the two alternative mechanisms the victim's death was caused (
viz.
being thrown forcefully to the ground or being stamped on the head) the appellant was responsible for this unlawful killing. Put otherwise, it was uncontested that his assault on the victim had been a substantial cause of the victim's death. We repeat in this context the judge's direction in this regard:
"The unlawful assault must be a substantial cause of death. There is no dispute in this case that the totality of the violence in this case was a substantial cause of the death of Matthew Pearson. Andrew Claydon admits as much by his plea of guilty to manslaughter though he denies kicking or stamping on Matthew Pearson’s head."
Therefore there was no suggestion that the
actus reus
of the offence would not have been established if the jury were unsure of the stamp to the victim's head. Instead the dispute in the trial, as we have already extensively rehearsed, concerned the appellant's
mens rea
- the appellant's intention. The judge made this clear throughout his directions to the jury.
17.
In this context it was undoubtedly relevant for them to consider the manner in which the appellant stamped on the victim's body whilst lying on the ground during an altercation which lasted a few seconds only. It is to be highlighted, therefore, that the judge's direction to the jury concerning the suggested stamp to the plaster cast was solely in the context of the appellant's
mens rea
. As the judge reminded the jury, one of the appellant's arguments was that "
the stamp was not directed to Matthew Pearson's head but rather to his arm which was in a plaster cast
"; whilst the respondent's case was that if the appellant "
deliberately stamped on his already broken arm and its plaster cast then this too must be clear proof of an intention to cause really serious injury
".
18.
In conclusion, therefore, given the appellant accepted at trial that his assault on the victim had been a substantial cause of the latter's death, the jury were correctly directed as to the competing arguments concerning the stamp to the victim's prone body, particularly since the directions were focused solely on the issue of the appellant's intention. Notwithstanding the appellant's plea to manslaughter, Mr Temkin has based his submissions before us on an issue that was uncontested at trial, namely whether the appellant was responsible for the assault that was a substantial cause of death. We repeat, the appellant accepted that the sole cause of the victim's demise was the traumatic brain injury arising from blunt force head trauma
which he had inflicted
. There was, therefore, no risk of the jury reaching an impermissible conclusion as to the (agreed)
actus reus
of the offence based on the judge's directions as to the stamp, particularly given those directions were delivered solely in the context of the appellant's intention. This verdict therefore is safe and the appeal is dismissed.
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ef8e6affa19e448fa5981c95a60dc8c55814a7432a82eb91c05aeb3922b7d8f4 | [2014] EWCA Crim 1029 | EWCA_Crim_1029 | 2014-05-22 | martial_court | Neutral Citation Number: [2014] EWCA Crim 1029 Case No: 2014/00049/B5 IN THE COURTS MARTIAL APPEAL COURT ON APPEAL FROM A COURT MARTIAL AT BULFORD Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/05/2014 Before: LORD CHIEF JUSTICE OF ENGLAND AND WALES PRESIDENT OF THE QUEEN’S BENCH DIVISION and VICE-PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Alexander Wayne Blackman Appellant -and- Secretary of State for | Neutral Citation Number:
[2014] EWCA Crim 1029
Case No:
2014/00049/B5
IN THE COURTS MARTIAL APPEAL COURT
ON APPEAL FROM A COURT MARTIAL AT BULFORD
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22/05/2014
Before:
LORD CHIEF JUSTICE OF ENGLAND AND WALES
PRESIDENT OF THE QUEEN’S BENCH DIVISION
and
VICE-PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Alexander Wayne Blackman
Appellant
-and-
Secretary of State for Defence
Intervener
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Anthony C Berry QC and Peter Glenser
for the
Appellant Lt Col David Phillips
for the
Respondent
Philip Havers QC
for the
Intervener
Hearing date: 10 April 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ: Background
The events of 15 September 2011
1.
In 2001 HM Armed Forces were deployed, as part of the International Security Assistance Force, to Afghanistan. During that deployment they became engaged in operation Herrick - combating the insurgency in Helmand Province in southern Afghanistan. The main British base was at Camp Bastion, near the provincial capital, Lashkar Gah. HM Forces established a Forward Operating or Patrol Base at Shazad in South Western Helmand. Under the control of that base there were other posts including one at Command Post (CP) Taalanda and CP Omar. A watch was kept for insurgents over this area by a camera on a balloon above the base at Shazad which was referred to as a “persistent ground surveillance system” (PGSS).
2.
On 15 September 2011 insurgents attacked CP Taalanda using small arms fire. The operations room at Shazad observed through the PGSS two persons believed to be armed insurgents in the region of CP Taalanda. An Apache helicopter from Camp Bastion was called in; one of the insurgents was located in an open field. The helicopter opened fire and fired a total of 139 30mm rounds at that insurgent. Those watching the operation, including the pilot and those at Shazad, thought that he could not have survived.
3.
The unit at CP Omar was a patrol of Royal Marines under the command of the appellant who then held the rank of Acting Colour Sergeant; he had been deployed to Afghanistan in March 2011. Under him were a patrol of marines, including Corporal Watson (referred to as Marine B at the Court Martial) and Marine Hammond (referred to as Marine C). They were ordered on the afternoon of 15 September 2011 to undertake what was called a battle damage assessment, that is to say to see what the effect of the helicopter’s attack had been and to report what they had found.
4.
The patrol located the insurgent. It recovered his AK 47, two magazines and a hand grenade. It was assumed at Shazad that the insurgent had died of injuries inflicted by the gunfire from the helicopter.
5.
In October 2011 the appellant completed his duty in Afghanistan.
The discovery in September 2012 of a recording of the events
6.
In September 2012, during an investigation into an unrelated matter, the military police found on a computer a video recording of the incident that had taken place on 15 September 2011. Investigations showed this had been taken by a camera mounted on the helmet of Corporal Watson.
7.
As a result, on 13 October 2012 the appellant, Corporal Watson and Marine Hammond and two other marines known as Marine D and Marine E were charged by the Service Prosecution Authority with murder, contrary to
s.42
of the
Armed Forces Act 2006
. That section makes it an offence if a person in the armed forces does an act that is punishable by the law of England and Wales or, if done in England and Wales, would be so punishable. The offence of murder or manslaughter committed by a British citizen is punishable by the law of England and Wales wherever committed: see R v Page
[1954] 1 QB 170
.
The Court Martial
8.
The appellant and the four other marines were then brought before a Court Martial. Prior to arraignment the proceedings were discontinued against Marines D and E. The trial commenced at Bulford on 23 October 2013. The President was a Lieutenant Colonel in the Royal Marines, the Judge Advocate was the Judge Advocate General and the six other members comprised two other marine officers, three Royal Naval officers and a Royal Naval Warrant Officer.
9.
On 8 November 2013 the Court Martial found the appellant guilty of murder but acquitted Corporal Watson and Marine Hammond. On 6 December 2013 the Court Martial sentenced the appellant to life imprisonment with a minimum term of 10 years less time in custody, a reduction to the ranks and dismissal with disgrace from the Armed Forces.
10.
On 17 December 2013 this court and a Divisional Court of the Queen’s Bench Division heard an appeal and judicial review in respect of the orders for anonymity made by the Judge Advocate General: see
[2013] EWCA Crim 2367
. In this appeal, the appellant appeals against his conviction and sentence.
THE APPEAL AGAINST CONVICTION
The features of the Court Martial System
11.
As we have set out, the crime of murder by a British citizen is an offence against the law of England and Wales wherever committed. The appellant could therefore have been tried in a civilian court (as has happened in at least one case arising from the operations of HM Armed Forces in Iraq). However the decision was made that the appellant and the other marines should be prosecuted under the Court Martial system.
12.
In recent years the system of justice for criminal offences administered by the Courts Martial has been brought closer to the system of justice for criminal offences administered by the courts; Rule 26 of the Armed Forces (Court Martial) Rules 2009 (the Rules) gives added force to this. There are two differences material to this appeal: first the way in which the Court Martial reaches its decision on guilt and innocence and second the composition of the body that decides on sentence.
13.
The two material differences between the system of justice administered in the courts and the system of justice administered by the Courts Martial are set out in s.155 and
s.160
of the
Armed Forces Act 2006
and the Rules.
i)
Under s.155 a Court Martial comprises a Judge Advocate and between at least three but no more than seven other persons known as lay members.
The Act
proscribes the qualification for those other members who are officers or warrant officers. The Rules make detailed provision as to the number that is required in certain proceedings.
ii)
Under
s.160
,
“(1) Subject to the following provisions of this section, the finding of the Court Martial on a charge, and any sentence passed by it, must be determined by a majority of the votes of the members of the court.
(2) The Judge Advocate is not entitled to vote on the finding.
(3) In the case of inequality of votes on the finding the court must acquit the defendant.
(4) In the case of inequality of votes on sentence, the Judge Advocate has a casting vote.”
14.
In the courts there are mandatory provisions as to the majority required for conviction. If there are not less than 11 jurors at the time of verdict, the majority for conviction must be 10. If there are 10 jurors at the time of verdict, 9 of them must be agreed upon it. (See
Section 17
of the
Juries Act 1974
). The judge alone decides on sentence.
15.
It is important, however, to note that the standard directions given by a Judge Advocate to the members of the Court Martial who will decide on guilt or innocence is that they must strive to be unanimous.
The contentions of the parties
16.
It was the appellant’s contention that it is a fundamental feature of the system of criminal justice in England and Wales, emblematic of a democracy, that those facing serious criminal charges are entitled to be tried before 12 members of the public and can only be convicted by a majority of at least 10 of the 12, (or a reduced number in the circumstances to which we have referred in the preceding paragraph).
i)
This was a right that could be traced back to at least 1168; unanimity was required from at least 1367 (see
Devlin: Trial by Jury
, 1956, page 48). For a period during World War II, the
Administration of Justice (Emergency Provisions) Act 1939
authorised trials with only seven jurors for criminal cases other than murder or treason, for which twelve jurors were still required. Verdicts had to be unanimous.
ii)
A change was made only in 1967 where by
s.13
of the
Criminal Justice Act 1967
majority verdicts were allowed. Where there was a finding of guilt, the vote had to be stated in open court. By the Practice Directions, CPD Trial 39K and CPD Trial 39 Q 1 - Q9, strict requirements are set out as to the procedure to be followed in relation to verdicts by juries.
iii)
Although in the Magistrates’ Courts conviction can be by simple majority of the lay magistrates, the offences are less serious and, unlike the lay members of a Court Martial, Magistrates receive training in law.
iv)
A simple majority conviction is said to be inherently unsafe because it demonstrates sufficient doubt to defeat the criminal standard of proof. Reliance was placed on a passage in Trial by Jury by Sir Patrick Devlin at page 56:
“The criminal verdict is premised upon the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict.”
v)
Reliance was also placed upon a passage in the third edition of
Rant on the Court Martial and Service Law
(edited by the present Judge Advocate General) at paragraph 5.126:
“An undisclosed simple majority decision in a serious case where the defendant is at risk of a significant custodial sentence might be perceived as being inherently unsafe, since the outcome rests on a knife edge. … This provision is a legacy from the past, which represents a significant weakness in the Service justice system and a striking contrast with the much more secure arrangements in the Crown Court. When there is legislative opportunity the law should be changed to require either a unanimous verdict, as, for example, is the case in the Court Martial system in other Commonwealth countries such as New Zealand or at least a significant and disclosed majority.”
vi)
Furthermore Rule 109(3) of the Armed Forces (Court Martial) Rules 2009 requires the lay members who are serving officers to give their votes on the finding in ascending order of rank and seniority. This is apparently to preclude the influence of seniority within the discussion.
vii)
It therefore followed that the position of a citizen subject to the Court Martial system was afforded much less protection than a citizen before the courts and, although it did not violate Article 6 of the Convention on Human Rights
per se
, it violated Article 14 of the Convention.
The court should therefore declare
s.160(1)
of the
Armed Forces Act 2006
incompatible with the Convention rights under s.4 of the Human Rights Act 1968.
17.
The Ministry of Defence who were given leave to intervene on this issue had a short answer to these submissions. This court was bound by
R v Twaite
[2010] EWCA Crim 2973
. Moreover the decision of the Strasbourg Court in
Engel and Others v The Netherlands
(Application No. 5100/71, decision 8 June 1976) demonstrated that
s.160(1)
was entirely compatible with the appellant’s human rights.
Our conclusion
18.
In R v Twaite the Judge Advocate General had referred to this court the question as to whether a finding of guilt by simple majority for a serious offence deprived a defendant of his right to a fair trial under Article 6 and whether, in the circumstances,
s.160(1)
of the
Armed Forces Act 2006
was incompatible with the Convention. In the judgment, given by Lord Judge CJ, this court set out the case law which had subjected the Court Martial system in England and Wales to rigorous scrutiny. The court concluded at paragraphs 24 to 29 that the provision for a majority verdict set out in
s.160(1)
of
the 2006 Act
was entirely compatible with the Convention.
19.
The court went on to hold at the request of counsel for the Secretary of State for Defence, Mr Philip Havers QC, that it was inappropriate for the Judge Advocate in a Court Martial to ask the question as to whether the verdict was unanimous or by majority. The court held that, consistent with the system in the courts, no question should be asked as to whether the acquittal had been by majority or not. At paragraph 33 of its decision it concluded, in reliance on the decision in
Cooper v UK
[2004] 30 EHRR 2 (paragraphs 121 and 39) and the terms of
s.160
of
the 2006 Act
, that it was neither necessary nor appropriate to seek to discover whether a conviction was by a majority or was unanimous. The court therefore held at paragraph 34 that there were no circumstances in which the way the individual members of the court had voted should be revealed.
20.
Although no argument under Article 14 was put forward before the court in
Twaite
, we are bound by that decision. The argument under Article 14 makes no difference for three reasons.
21.
First, it is well recognised that under the changes that have been made to the Court Martial system in the United Kingdom, that system now ensures a trial that is fair and compatible with Article 6.
22.
Second, when the Strasbourg Court reviewed the system of military discipline in
Engel
, it concluded at paragraph 92, with regard to Article 14, that the distinctions between the courts and Courts Martial were justified by the differences between the conditions of military and civil life. They could not be taken as amounting to discrimination against members of the armed forces. The great advantage of reaching a decision by majority is that it avoids “a hung jury”. There are good reasons why, in a system of military justice, it is necessary to avoid “a hung jury” for the ordinary run of offences.
23.
Third, as is evident from an article by Professor Leib entitled
A Comparison of Criminal Jury Decision Rules in Democratic Countries,
[2008] Ohio State Journal of Criminal Law 629, requirements differ widely between legal systems as to whether unanimity is required and, if it is not, what the majority should be. In
Taxquet v Belgium
(Application No. 926/05) the court recognised the diversity of the different systems of jury trial at paragraphs 83 to 92 of its judgment. It cannot be said that there is anything objectionable about a system that decides guilt or innocence by simple majority.
24.
We therefore conclude that even if Article 14 is engaged, there was no discrimination.
Observations
25.
It may be helpful to add three concluding observations.
26.
First, it will always be open to Parliament to change the requirements of
s.160
, as the Judge Advocate General himself has suggested, to bring the position into line with the position in the courts, either for all offences or more serious offences. That is a matter for Parliament.
27.
Second, the issue as to whether the court should announce the majority, if a conviction is by majority, is a matter that could probably be dealt with under the Court Martial Rules made under
s.13
of
the Act
. That is a matter for the Secretary of State for Defence.
28.
Third, it appears on the information provided to us that no question was raised at the outset of these proceedings as to whether it was appropriate for the appellant to be tried by Court Martial or by a court. As we have observed at paragraph 6, a British citizen can be tried in a court in England and Wales for a murder, wherever committed. The question as to whether proceedings should be before a court or a Court Martial is governed by a protocol between the Director of Service Prosecutions, the Director of Public Prosecutions and the Ministry of Defence made in September and October 2011. The principles set out in the protocol were approved by the Attorney General for England and Wales and by the Ministry of Justice.
29.
The protocol makes it clear that where there are overlapping jurisdictions between the Court Martial system of justice and the system of justice in the courts, it is for the Director of Pubic Prosecutions to decide whether a person should be subject to military justice or be subject to trial in the courts. Paragraphs 2.1 to 2.4 set out the considerations that are to be applied.
30.
In the case of prosecutions for murder committed overseas by members of HM Armed Forces, careful consideration should be given to the question of which is the more appropriate system, bearing in mind the requirement in the court for a specified majority and any relevance in such a case of the experience of the members of the board that comprises the Court Martial as compared with the court system which gives the responsibility for sentence to the judge alone.
THE APPEAL AGAINST SENTENCE
The circumstances of the murder of the insurgent
31.
It is necessary to set out the circumstances in which the unknown insurgent was killed. These are clear both from the findings made by the Court Martial when sentencing the appellant and from the video recording made by Corporal Watson.
32.
The Court Martial made, as set out in its reasons for its decision on sentence, a number of grave findings against the appellant as to the deliberate nature of the murder:
“[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [the appellant] found him he was no longer a threat. Having removed his AK47, magazines and a grenade [the appellant] caused him to be moved to a place where [the appellant] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [the appellant] said, “PGSS can’t see what we are doing to him”. He was handled in a robust manner by those under [the appellant’s]command clearly causing him additional pain and [the appellant] did nothing to stop them from treating him in that way. When out of view of the PGSS [the appellant] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.
When [the appellant was] sure the Apache helicopter was out of sight, [the appellant] calmly discharged a 9 millimetre round into his chest from close range. [The appellant’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.
Although the insurgent may have died from his wounds sustained in the engagement by the Apache [the appellant] gave him no chance of survival. [The appellant] intended to kill him and that shot certainly hastened his death.
[The appellant] then told [his] patrol they were not to say anything about what had just happened and [the appellant] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”
33.
Those grave findings were made by the Court Martial having heard the evidence. There is sufficient support from the video (which we have seen) and the transcript of the video that preclude us in any way from going behind those findings.
The career and character of the appellant
34.
The appellant had joined the Royal Marines five years after leaving school. By 2013 he had spent 15 years in the Royal Marines. Lieutenant Colonel Chapman, his commanding officer, set out in a letter written to the Court Martial after conviction and prior to sentence, that the appellant had risen to the rank of Sergeant by dint of his exceptional qualities. He had completed six operational tours of duty in Northern Ireland, Iraq and Afghanistan. He had won a reputation as a talented and capable soldier and senior Non-Commissioned Officer in the Marines. The service records written after his return from Afghanistan and before September 2012, indicate that he had been regarded as having been an outstanding commander of his post.
35.
As a consequence, he was recommended for promotion to Colour Sergeant, having been an acting Colour Sergeant. Lieutenant Colonel Chapman was confident he would have been promoted to become a Company Sergeant Major and might have obtained further promotion. Although in the period between the charge and the Court Martial the appellant had faced very considerable difficulties, he had carried out training of the highest standard for the next generation of Royal Marines, particularly in the use of heavy weapons.
The medical evidence and the effect of stress
36.
The appellant’s defence had been that he considered the insurgent was dead when he discharged the 9 millimetre round. No psychiatric evidence was before the Court Martial during that part of the proceedings which led to the appellant’s conviction.
37.
However, Dr Michael Orr, an experienced consultant psychiatrist, provided a report for the purpose of sentence. His examination of the appellant was on 22 November 2013, more than two years after the incident. He concluded, despite that time interval, that there was evidence of accumulated frustration with some aspects of his past and recent military experience. Secondly there was the likelihood that his resilience had been compromised, first, by a reactivation of his bereavement reaction following his father’s death and, secondly, by the emergence of some symptoms of a combat stress disorder characterised by paranoid interpretations of combat situations whilst on patrol and the increasing intensity with which the appellant had taken this as a personal matter. The appellant had told Dr Orr that whereas patrols sent out by him under the command of corporals had got off lightly, the patrols he led were involved in contact and he was shot at. He had become a “little paranoid” that the insurgents were “gunning specifically” for him.
38.
Dr Orr pointed out that combat stress disorder could result in misconduct stress behaviour. Such behaviour was not the sole province of poorly trained or undisciplined soldiers, but could be committed by good or heroic soldiers under significant combat stress.
39.
At our specific request, enquiries were made about steps that were taken by those commanding HM Armed Forces to address the obvious problems of stress in combatting an insurgency of the kind for which HM Armed Forces had been deployed to Afghanistan and in particular in relation to operation Herrick. It is apparent from the information supplied to us that the appellant received training in how to deal with stress during his pre-deployment training; this included a Trauma Risk Identification and Management briefing. We were told that he would not have received any further training in the 5½ months in which he was deployed to CP Omar. It was his commander’s responsibility to check on his mental welfare. However, given the remote and austere nature of the terrain with which HM Armed Forces had to contend in that part of Helmand Province and the dangers inherent in moving around the area, contact with his commander was limited.
40.
This was, in our view, a very unfortunate circumstance. It was not possible two years after the killing of the insurgent to diagnose whether the appellant was in fact suffering from combat stress disorder, but the circumstances to which we have referred may have meant that any combat stress disorder was undetected.
The aggravating factors found by the Court Martial
41.
The Court Martial found four aggravating factors.
42.
First, although there was not a significant degree of planning or pre-meditation, it was clear from what was recorded on the video that the appellant decided, shortly after he had disarmed the insurgent, that he was going to do something to him which he did not want to be seen by his superiors in headquarters. Secondly, the insurgent was seriously wounded and therefore particularly vulnerable.
43.
Third, the appellant’s actions put at risk the lives of other British service personnel because his actions would be used to radicalise others and encourage them both to fight the British forces and to act more brutally towards them in retribution or reprisal. Fourth, he was in charge of the patrol and it was incumbent upon him to set the standards. He had abused his position of trust by involving the other members of the patrol in covering up what had been done and lying on his behalf.
Mitigating factors
44.
The Court Martial found three mitigating factors.
45.
First, there was provocation. The cumulative effect of lethal military activity had had an obvious effect. The appellant was also affected by stories that the Taliban had hung a British serviceman’s severed limb in a tree. The appellant was in no doubt that the victim of the murder was an insurgent who had been firing at CP Taalanda moments before he was wounded.
46.
Second, the appellant was subject to the stress of operations: this was his sixth operational tour and his second to Afghanistan in under 14 years of service. The constant pressure was enhanced by the reduction of available men in his command, so he had often to undertake more patrols and place his men in danger more often. The Court Martial also accepted the psychiatric evidence (to which we have referred) that it was likely that he was suffering to some degree from combat stress disorder. However, it noted that thousands of other service personnel had experienced the same or similar stresses, yet they had exercised self discipline and had acted both properly and humanely. The appellant had not.
47.
Thirdly, there was personal mitigation, particularly his previous good character, his excellent record of service and the effect upon him of the death of his father.
The sentence imposed by the Court Martial
48.
The sentence of imprisonment for life was an inevitable consequence of the conviction for murder. When approaching the question of the minimum term that the appellant must serve before being eligible to be considered for parole, after an analysis of Schedule 21 of the
Criminal Justice Act 2003
(
CJA 2003
), the Court Martial took a starting point of 15 years. It then took into account the aggravating and mitigating factors which we have set out. It stated its view that there must be a message of deterrence; war crimes, murder or crimes against humanity whilst on operations had to be dealt with severely; the international community needed to be reassured that allegations of serious crime would be dealt with transparently and appropriately.
49.
It considered, however, that looking at the unique circumstances of the case, the minimum term should be 10 years.
The contentions of the appellant
50.
Three principal points were advanced.
51.
First, the Court Martial was wrong in its judgment as to the second aggravating factor
- the insurgent’s vulnerability. The insurgent’s vulnerability was not the sort of vulnerability envisaged by paragraph 10 (b) of Schedule 21 to the
CJA 2003
which referred expressly to the victims’ particular vulnerability “because of age or disability”. The insurgent’s vulnerability was not related to his age, disability or any similar characteristic. His vulnerability should have been considered within the full context of the situation where he had attacked the appellant’s colleagues. It should not have constituted further aggravation.
52.
Second, the Court Martial was wrong in finding that the appellant and those under his command were not under any immediate threat. Steps had to be taken to mitigate the threat by disarming and moving the insurgent. The patrol remained in hostile territory and knew further insurgents were in the immediate vicinity.
53.
Third, there were further substantial mitigating factors to which the Court Martial had not paid sufficient regard, particularly that the appellant perceived that the war had turned personal and that he felt particularly targeted by local insurgents and therefore additionally responsible for the safety of those under his command. He was displaying the symptoms of combat stress disorder and his general resilience may have been compromised by the death of his father immediately before his deployment to Afghanistan.
54.
It was also submitted that the financial effect upon the appellant had not been given sufficient weight. Although he would receive a preserved pension payable at the age of 60, the financial loss to him by not being able to continue his career was significant. It had been calculated by the military authorities that, if he had served for the further six years which he was entitled to serve, he would have received total pay of £232,000 and his pension and lump sum would have been enhanced by a further
£175,000.
55.
The Court Martial had not given sufficient weight to these factors and the minimum term ought to have been significantly less.
Comparable cases
56.
Despite extensive enquiries that have been made, there were no really comparable authorities from our own or any other jurisdiction.
57.
The sentences imposed on members of the British Armed Forces who had been convicted of murder whilst serving in Northern Ireland were of little assistance; the circumstances were very different.
58.
There were three cases of assault arising out of the operations of HM Armed Forces in Iraq and Afghanistan:
i)
In February 2005 three non-commissioned officers pleaded guilty to or were convicted of offences against Iraqis who had looted a food distribution camp in May 2003 after the Coalition occupation of Iraq. The offences included assaults contrary to
s.39
of
the Offences Against the Person Act 1861
(
the 1861 Act
) (including tying an Iraqi to a fork lift truck) and the taking of trophy photographs in relation to the assaults, some of which included sexual indignities. Each was sentenced to imprisonment; the most senior was sentenced to 18 months imprisonment and dismissed; the one who had tied the looter to a fork lift truck to amuse himself as a calculated act of cruelty was sentenced to two years imprisonment and dismissed. There was an earlier related case to which it is not necessary to refer.
ii)
In April 2007 a non-commissioned officer was sentenced after an earlier plea of guilty to the offence of inhuman treatment in relation to the death of Baha Mousa in Iraq in May 2003. He was acquitted of manslaughter. The other defendants were acquitted of the charges against them. He was sentenced to 12 months imprisonment.
iii)
In March 2009 an officer and non-commissioned officer were sentenced for a deliberate assault causing actual bodily harm contrary to
s.47
of
the 1861 Act
on an Afghan suspected of planting an improvised explosive device. The court took what it recognised was the exceptional course of not sentencing them to imprisonment, but dismissing them; it did so in part because the officer had admitted his guilt and expressed remorse and in part because the financial effect of dismissal was severe to both.
59.
We were referred to two decisions in Canada.
i)
In
R v Brown (Elvin Kyle)
the defendant had been convicted on a count of manslaughter arising out of operations of the Canadian armed forces in Somalia in 1993. A 16 year old Somali male had been captured while attempting to infiltrate one of the Canadian compounds. He was placed in the custody of the section in which the defendant served. Over the course of the ensuing two and a half to three hours the prisoner was severely and brutally beaten. By midnight he was dead. The case against the appellant was that he had been present when his immediate superior, a corporal, had beaten the detained Somali and he had at an early stage punched the deceased and kicked him twice in the leg. The corporal had attempted suicide and was unfit to stand trial. The defendant was convicted and sentenced to 5 years imprisonment. The defendant’s appeal against conviction was rejected by the Court Martial Appeal Court of Canada on 6 January 1995. The Crown also sought leave to appeal against sentence on the basis that the sentence of five years imposed by the Court Martial was too low, given the objective gravity of the offence of manslaughter and the offence of torture. The Court Martial Appeal Court concluded that although at first blush it considered that the sentence of five years was “inordinately low”, it would dismiss the Crown’s appeal.
“Under military law it is the Court Martial itself composed of lay officers which pronounces the sentence. The sentence, like the finding of guilt which preceded it, is known to the world only by its result. The members of the court are not asked for and may not give any reasons to support the sentence which they impose.”
As the Court Martial had given no reasons, the Court Martial Appeal Court concluded that it was possible to see that the sentence could be supported on the basis that the Court Martial had found him guilty only of hitting the prisoner and kicking him at an early stage of the ordeal and had rejected any theory of guilt based on the accused being an accomplice of his superior. As that was a view open to the Court Martial and it may have sentenced on that basis, the Crown’s appeal could not succeed.
ii)
In
R v Captain Semrau
(2010), the defendant, when assigned to mentor the commander of an Afghan army patrol in 2008, had come upon a wounded and unarmed insurgent and had shot him. He was acquitted by the panel of second degree murder and attempted murder at a Court Martial, but found guilty of behaving in a disgraceful manner. The findings of fact were:
“The situation on the ground at the time seemed relatively calm although the potential for danger is omnipresent in such combat operations. After a brief examination of the insurgent, the [Afghan National Army] commander moved to the position of the dead insurgent in the next cornfield. You also went to the location of the second insurgent and then you returned to the location of the first insurgent so that your fire team partner could photograph the insurgent for intelligence purposes. Once the photographs had been taken, you shot the insurgent.
It was evident that the insurgent was unarmed … The nature and extent of the insurgent’s wounds were described by numerous witnesses during the trial. Four witnesses testified he was alive when they observed him…..
You explained to members of your team you felt that you had to shoot the insurgent because of his condition. You told [the Afghan Commander] that you wanted to help the Afghan insurgent. Your actions might have been motivated by an honest belief that you were doing the right thing; nonetheless you committed a serious breach of discipline.”
The judge concluded that the panel must have concluded the insurgent was alive when he was shot by the officer and that the officer deliberately shot him, but that there was no premeditation. The judge referred to two US Court Martials (to which we refer below) and found that in relation to Captain Maynulet, the circumstances bore a certain degree of similarity and the decision was of some use. The judge concluded that the defendant had been convicted only on the charge of disgraceful conduct in shooting the insurgent; he had been acquitted of murder and had therefore to be sentenced on the basis of the much less serious offence. The judge also took into account the fact that the defendant had acted out of character. The defendant was sentenced to dismissal from the army with disgrace.
60.
The two US cases were:
i)
US v Capt Maynulet (appeal against conviction to the US Court of Appeal for the Armed Forces, transcript 3 March 2010). In Iraq, the officer shot a driver of a suspected “High Value Target” who had been severely wounded. There was medical evidence he would not survive. The officer, on his account, shot him to “put him out of his misery”. He was convicted in 2005 of assault with intent to commit voluntary manslaughter and sentenced to be dismissed from the US armed forces.
ii)
US v Staff Sgt Horne.
He shot a severely wounded 16 year old Iraqi. In 2004 he pleaded guilty to unpremeditated murder on the basis that he had shot the Iraqi to “put him out of his misery”. He was sentenced to 3 years imprisonment and a dishonourable discharge. His sentence was reduced to one year by a senior officer.
61.
The only other case drawn to our attention was a Court Martial during the Boer War where officers were accused of murdering a wounded Boer prisoner. The reports of the trial and the antiquity of the decision make it of no assistance.
Our conclusion
62.
We must proceed on the basis that the appellant was convicted of murder. His case is quite different from the Canadian case (Semrau) and US cases to which we have referred at paragraphs 59.ii) and 60 respectively. A court must proceed to sentence only on the basis of the crime of which the defendant has been convicted.
63.
We consider that the Court Martial was correct to use Schedule 21 to the
CJA 2003
as providing a degree of guidance on sentencing for a murder occurring in circumstances which Parliament had not contemplated when enacting the Schedule. It was therefore right to base the starting point for the minimum term on a period of 15 years; this was the lowest of the starting points for which Parliament has provided for murder by an adult. It was then necessary to consider the aggravating and mitigating features for which the schedule provided a more limited degree of assistance.
The aggravating features
64.
First of the aggravating features were the circumstances of the shooting as found proved by the Court Martial. These included four deliberate acts. These were, first, the appellant’s decision to stop first aid; second, the appellant’s order to move the insurgent to a place where what he intended to do would not be seen; third, the discharge of the round into the insurgent’s chest; and fourth, the instruction to the patrol to say nothing about what had happened. We do not view the insurgent’s vulnerability as adding anything material to these four acts.
65.
We cannot accept the submission, in connection with the circumstances of the shooting, that the fact that the patrol was under threat from others has any real bearing on the finding of the Court Martial that there was no threat from the wounded Afghan insurgent. We accept, of course, that the patrol was certainly at risk from other insurgents and that if the Afghan insurgent had attempted to shoot or in any way injure the appellant or those under his command, he would have been lawfully entitled under the rules of engagement to return the fire with equal force. However, that was not the position. It is evident from the findings of the Court Martial and from the video that there was no threat from the wounded Afghan insurgent. He was plainly very seriously injured and had been disarmed. True it may be that there may have been other insurgents in the vicinity, but that played no causative effect in the appellant’s decision to fire at the wounded insurgent and kill him.
66.
The second aggravating feature was the deliberate involvement by the appellant of soldiers who looked to him for leadership in a dishonest cover up of what had happened and the construction of the account that the insurgent was already dead. This is to be contrasted with the appellant’s statement on the video that he had broken the Geneva Convention.
67.
Third was the appellant’s failure to follow, both personally as a soldier and, furthermore, as the person in command of the patrol, the standards of conduct which represented the values for which HM Forces had been sent to Afghanistan. This aggravating feature encompassed the use which the insurgency might make of the killing of one of the insurgents in breach of the values proclaimed by the International Security Assistance Force and HM Armed Forces.
The mitigating factors:
68.
The first mitigating factor was that the appellant had an outstanding service record.
69.
Second were the effects on him from the nature of the conflict in Afghanistan and the command he exercised. Most serious was the effect of stress upon the appellant.
70.
It is, in our view, self-evident that armed forces sent to a foreign and hostile land to combat an insurgency will be placed under much greater stress than armed forces sent to fight a regular army. There is the obvious difficulty that it is often not possible in a population that may be largely hostile or intimidated by the insurgents to detect the identity of the insurgents who shoot at regular troops of HM Armed Forces, plant improvised explosive devices or commit other clandestine actions.
71.
In addition there was the clear perception amongst HM Armed Forces that the insurgents in Afghanistan committed severe atrocities upon British soldiers; it matters not that some may contend that that was not the case. It was the perception that was material. The effect of this on the appellant can be viewed as either an additional stress factor or (as the Court Martial found) a cause of provocation.
72.
In addition to the considerable stress of dealing with an insurgency in such conditions, it is very clear that significant further stress must have been placed upon the appellant because the remote location of his command post to which we have referred in paragraph 39 above meant that he was not seen regularly by those more senior to him. He had therefore little face to face contact with those commanding him and they could not assess the effect of these conditions upon him. Although training is important, it is difficult to see how such training can be sufficient in the absence of regular visits by a senior commanding officer to talk face to face and to observe the effects on those exercising command under him.
73.
We turn next to the argument that the financial losses that will be suffered by the appellant can provide any further mitigation. As we have set out at paragraph 54, the appellant will receive his accrued pension. True it is that he will not receive the pay or pensions he may have earned if he had continued in the service, but in that respect he is in no different position from any other person who loses his employment as a result of conviction for a serious offence. Little further mitigation is provided by this factor.
Conclusion
74.
As we have stated, the Court Martial was correct in its view that the starting point for the minimum term to be served by the appellant was 15 years because he had been convicted of murder. The Court Martial was also correct in its decision that a very substantial reduction was required from that starting point. As is apparent from what we have set out, we consider, taking into account the operational experience of members of the Court Martial, that the analysis of the aggravating and mitigating factors was in most respects substantially in accord with the analysis we have carried out, save in two significant respects.
75.
On all the evidence before us it is clear that in the events surrounding the murder of the insurgent the appellant acted entirely out of character and was suffering from combat stress disorder. It is very unfortunate that the only medical evidence before the Court Martial and before us was obtained over 2 years after the murder. We have accorded particular attention to the view of the Court Martial that thousands of other service personnel experienced the same or similar stresses and still acted properly and humanely. However, in assessing the evidence of stress and its effect on the appellant, we attach particular importance to the evidence in relation to the remoteness of the command post at which the appellant had been stationed for 5½ months and the limited contact with those commanding him. His mental welfare had not been assessed in the way in which it would ordinarily be assessed by a commanding officer and there is evidence that he was becoming somewhat paranoiac about the Taliban’s “gunning” for him. Taking into account the whole of the evidence, we conclude that combat stress arising from the nature of the insurgency in Afghanistan and the particular matters we have identified as affecting him ought to have been accorded greater weight as a mitigating factor.
76.
Moreover, the particular circumstances did not require an additional term by way of deterrence to the sentence as the Court Martial found. The open and very public way in which the proceedings were conducted overall, the worldwide publicity given to the appellant’s conviction, the life sentence imposed on him and the significant minimum term he must in any event serve before any consideration of parole will be sufficient deterrence.
77.
On that basis we have therefore concluded that although he remains subject to a sentence of imprisonment for life, the minimum term which he must serve before being considered for parole should be reduced to 8 years. His release will then depend on the Parole Board and, even thereafter, he will remain subject to the terms of the conditions of his licence. To that extent and to that extent only is this appeal allowed. | [
"LORD CHIEF JUSTICE OF ENGLAND AND WALES"
] | 2014_05_22-3424.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1029/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1029 | 769 |
b289a4ea468ebbac529890f0ed74efbca1bf4c24a079d54a90be4209a4bdb208 | [2017] EWCA Crim 848 | EWCA_Crim_848 | 2017-06-07 | crown_court | Case No: 2017/0541/A2 Neutral Citation Number: [2017] EWCA 848 (Crim) IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 June 2017 B e f o r e : LORD JUSTICE HICKINBOTTOM MR JUSTICE HOLROYDE THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A MARK BURKE - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave Inte | Case No:
2017/0541/A2
Neutral Citation Number:
[2017] EWCA 848 (Crim)
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday 7 June 2017
B e f o r e
:
LORD JUSTICE HICKINBOTTOM
MR JUSTICE HOLROYDE
THE RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE INMAN QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
MARK BURKE
- - - - - - - - - - - - - - - - - - - - -
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 R KatZ (Solicitor Advocate)
appeared on behalf of the
Applicant
Mr D Bush
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE HOLROYDE: On 17th November 2016 the Central London Magistrates' Court committed this applicant, Mark Burke, to the Crown Court at Southwark for sentence for a total of 16 offences set out in five separate memoranda of committal: 13 offences of thefts from shops, two offences of breach of a Criminal Behaviour Order and one offence of failing to surrender to bail.
2.
On 12th January 2017 in the Crown Court at Southwark, the applicant was sentenced to concurrent terms of 30 months' imprisonment for each of the offences of theft, with no separate penalty being imposed for any of the other three offences. Thus his total sentence was 30 months' imprisonment. He seeks to appeal against that total sentence on the grounds that it is manifestly excessive.
3.
The Registrar of Criminal Appeals noted that a number of the individual sentences imposed in the Crown Court appeared to be in excess of the court's powers. He therefore referred the application for leave to appeal against sentence to the full court.
4.
We are grateful to counsel Mr Katz on behalf of the applicant and Mr Bush on behalf of the respondent for the assistance they have given to the court. In particular we are grateful to Mr Bush for his help in untangling the confusing picture presented by the paperwork, a topic to which we shall return shortly, and to Mr Katz for his sensible focus on the substantial issue in the case.
5.
The relevant facts can be summarised very briefly. As will be seen, what should have been a straightforward application for leave to appeal has regrettably become unnecessarily complicated as a result of deficiencies in the memoranda drafted at the Magistrates' Court.
6.
The applicant is now 45 years old. For more than 20 years he has been misusing controlled drugs and has funded his drug taking by stealing from shops. He has a dreadful record of offending. Prior to these offences he had been sentenced on 80 separate occasions for a total of 165 offences. 136 of those were offences of dishonesty (almost all of them being thefts from shops) and many of the other offences involved failures to surrender to bail or failures to comply with court orders. The applicant has been made subject to a variety of forms of sentence, none of which have successfully deterred him from further offending.
7.
It is sufficient for present purposes to summarise the most recent appearances before these latest offences. In November 2015, for a number of offences of theft from shops, the applicant was made subject to suspended sentences of imprisonment together with a supervision order and a drug rehabilitation requirement. He did not comply with the requirements of the suspended sentence order and soon committed further similar offences. As a result, at a series of court appearances in March, May and June 2016 the suspended sentences were brought into effect and further consecutive terms of imprisonment were imposed. The exact date of the applicant's release from those sentences is not known, but it can only have been a very short time before he committed the present offences.
8.
The present offences, all of which the applicant admitted at the first opportunity, include one of theft on 18th March 2016 which pre-dated his last prison sentence. The other 12 offences of theft were committed later in 2016: on 27th July, 31st July, 2nd August, 18th August, 19th August, 21st August, 24th August, 3rd September, 8th September and 13th October. All of the offences were committed in a wholly unsophisticated manner. The applicant repeatedly walked into shops in the West End of London, took goods which were on display (usually clothing or accessories) and walked out. The aggregate value of the property stolen in the 13 offences was around £3,000.
9.
It is unnecessary to go into the details of the individual offences but it is necessary to highlight certain features of the chronology of the offending. First, the applicant must have been on licence from his last prison sentence when he committed these offences. Secondly, on 8th August 2016 he appeared before a Magistrates' Court for two of the present offences and admitted his guilt. The court deferred sentence for three months to see if he could keep out of trouble, comply with the requirements of the probation service and seek voluntary help to address his drug misuse. The applicant committed his next offence of theft only 10 days into that three month period of deferment.
10.
Then on 28th September the applicant again appeared before a Magistrates' Court in relation to some of the offences. Proceedings were adjourned until 19th October with a view to obtaining a drug rehabilitation assessment. The court on that occasion warned the applicant that he would face a long prison sentence if he continued to offend.
11.
Also on 28th September the Magistrates' Court made a Criminal Behaviour Order, the effect of which was to exclude the applicant from a specified area of the West End of London. The obvious purpose of that order was to keep him away from the shops in which he habitually stole. Within little more than a fortnight the applicant twice breached that order by entering the designated area. He then committed the last three of the present offences of theft. He failed to surrender to his bail on 19th October. He also failed to attend an appointment with the probation service which had been arranged in order to prepare a pre-sentence report.
12.
On 17th November 2016, as we have said, the applicant was committed to the Crown Court for sentence. The various memoranda record some of the committals as having been made pursuant to
section 3 of the Powers of Criminal Courts (Sentencing) Act 2000
and others as having been made pursuant to
section 6
of that Act. Where an offender is committed for sentence pursuant to
section 3
, the Crown Court has the power to sentence him as if he had been convicted on indictment. Committal under
section 6
however limits the Crown Court to the powers which would have been available to the Magistrates' Court.
13.
It should be noted that the memorandum of committal 20160286, which relates to the latest offences in time, recorded the following reasons for committing the applicant for sentence:
"Insufficient powers. Horrendous record; offended on bail, on licence. You are a one man crime wave. Time has come to send you to the Crown Court."
14.
It is therefore clear that the Magistrates' Court regarded the offending as calling for punishment in excess of its own powers. We consider later in this judgment whether the memoranda of committal correctly recorded the manner in which the magistrates gave effect to that intention.
15.
When the applicant appeared before the Crown Court, the learned judge was assisted by a pre-sentence report and a drug rehabilitation assessment. In summary, those documents showed that there was some indication that the applicant was showing an interest in receiving help to address his drug misuse, but that the risk of his re-offending in a similar fashion remained high. Submissions were made on the applicant's behalf to the effect that the court should deal with the offences by a form of penalty other than immediate imprisonment, with provision for the applicant to receive drug treatment. Those submissions were rejected by the learned judge on the grounds that the applicant had already been given many chances in the past, none of which had prevented his further offending. The judge referred to him as a prolific offender. Giving credit for the guilty pleas and taking account of totality, the judge imposed concurrent sentences of 30 months' imprisonment for each offence of theft and imposed no separate penalty either for the breaches of the Criminal Behaviour Order or for the failure to surrender to bail.
16.
In his written grounds of appeal, Mr Katz contended that the total sentence was manifestly excessive in length for offences which involved neither planning or preparation, nor the use of any device intended to evade detection. In the written grounds it was suggested that the judge had wrongly failed to give sufficient weight to the arguments in favour of a suspended sentence. But realistically Mr Katz has not pursued that point in his oral submissions to us today. It is clearly not possible to criticise the judge for concluding, against the background which we have summarised, that this course of yet further offending was so serious that nothing other than immediate imprisonment would suffice.
17.
As to the length of the prison sentence, Mr Katz placed reliance on certain observations of Rose LJ giving the judgment of this court in
Page
[2004] EWCA Crim. 3358
. No point was raised in the written grounds of appeal as to the terms of the various memoranda of committal.
18.
Notwithstanding the reasons for committal which we have quoted above, the various memoranda record only four offences in respect of which the court is said to have committed pursuant to
section 3
of
the 2000 Act
: offences of theft on 18th March and 8th September 2016 and the two offences of breach of the Criminal Behaviour Order. On behalf of the prosecution, Mr Bush submits that most if not all of the other offences of theft should also have been committed pursuant to
section 3
and that the committals recorded in the memoranda as being pursuant to
section 6
of
the 2000 Act
should not have been made pursuant to that section.
19.
Theft is an either-way offence. However, by
section 22A(1) of the Magistrates' Courts Act 1980
"low-value shoplifting is triable only summarily". In order to ascertain the meaning of “low-value shoplifting”, it is necessary to look to subsections (3) and (4) of
section 22A
which are in the following terms:
"(3) 'Low-value shoplifting' means an offence under
section 1 of the Theft Act 1968
in circumstances where-
(a)
the value of the stolen goods does not exceed £200
(b)
the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business, and
(c) at the time of the offence, the person accused of low-value
shoplifting was, or was purporting to be, a customer or potential
customer of the person offering the goods for sale.
(4) For the purposes of subsection 3(a)-
(a)
the value of the stolen goods is the price at which they were being offered for sale at the time of the offence, and
(b)
where the accused is charged on the same occasion with two or more offences of low-value shoplifting, the reference to the value involved has effect as if it were a reference to the aggregate of the values involved."
20.
It should be noted that the three criteria stated in section 22A(3) are cumulative. An offence is only an offence of low-value shoplifting if all three of those criteria are satisfied.
21.
In relation to the first of the three criteria, the value of the stolen goods, it is necessary in the circumstances of this case to have regard to
section 22A(4)(b)
. That provision plainly applies to several of the committals for sentence in this case. For example, committal S20160281 relates to six offences of theft, all of which were charged on the same occasion. Four of the charges state values in excess of £200. The remaining two state values of £200 and £130 respectively. Yet the memorandum shows all six offences as having been committed pursuant to
section 6
. Similarly, the memorandum of committal S20160311 lists two offences of theft: one relating to goods valued at £126 is said to have been committed pursuant to
section 3
, whilst the other, relating to goods valued at £251, is said to have been committed pursuant to
section 6
. The latter offence plainly should have been shown as being a committal under
section 3
.
22.
Given the statement of reasons for committal which we have quoted, we are satisfied that it cannot be the case that the Magistrates' Court acted in complete error as to its powers. Rather, it is in our view clear that the memoranda of committal are in a number of respects defective and fail accurately to record the power actually exercised by the court.
23.
The defects in the memoranda have regrettably made the task of the courts far more complicated than it should have been. It is to be hoped that if nothing else this case serves to underline the importance in circumstances such as these of
section 22A(4)(b)
. For offences charged on the same occasion to have been recorded (as was the case here) in separate memoranda of committal is positively unhelpful. We fully recognise the pressure of work on the Magistrates' Court, but we note that the confusion engendered by setting out charges laid on the same date in a separate memoranda of committal may well have contributed to the clerical errors in recording the statutory powers which were exercised may well have been contributed to by the confusion engendered by setting out charges laid on the same date in separate memoranda of committal.
24.
Be that as it may, the question we have to consider is whether clerical errors and defects prevent the sentencing court from acting in accordance with the obvious intention of the committing court. The decision of this court in
Ayham
[2012] 1 Cr.App.R 27
show that they do not. In that case a constitution of this court, headed by Lord Judge, CJ, considered previous decisions as to the validity of committals for sentence and concluded that "the essential question is not what power a memorandum of conviction records the Justices to have used, but the power they actually used." The court went on at paragraph 18 of the judgment to affirm earlier decisions to the effect that the correct approach is "... to examine the question whether the magistrates' court was vested with the necessary jurisdiction to commit to the Crown Court. If it was then an omission from or an inaccuracy in the memorandum of conviction about the statutory powers which were exercised or which were available to be exercised did not affect the validity of the committal."
25.
Applying those principles to the present case, we are satisfied that only three of the offences of theft could properly have been committed to the Crown Court pursuant to
section 6
of
the 2000 Act
. These were S20160282 charge 2, which was not "charged on the same occasion" as any other offence; and S20160283 charges 1 and 2, where no value at all was stated for the goods stolen and it does not seem to us to be possible on the evidence before the court to draw any sure conclusion as to their value. In relation to each of those three offences the sentencing power of the Crown Court was limited to a maximum of six months' imprisonment. It follows that the concurrent sentences of 30 months' imprisonment for those three offences were unlawful and must be quashed.
26.
In relation to the other 10 offences of theft however, we are satisfied, having regard to
section 22A(4)(b)
of
the 1980 Act
, that the Magistrates' Court had no power to treat any of them as a summary-only offence and did not purport to do so, and that the memoranda of committal are deficient in wrongly recording those committals as being made pursuant to
section 6
rather than
section 3
of
the 2000 Act
.
27.
We can now turn to the merits of Mr Katz's core submission that the total sentence was manifestly excessive in length.
28.
Courts must now follow the Sentencing Council's definitive guideline on sentencing in theft cases, which have been in effect since February 2016. Mr Katz therefore cannot derive any assistance as to the level of sentence from the earlier case of
Page
. Nor, as it seems to us, is he assisted by another case on which he relied in his written grounds
Anderson
[2014] EWCA Crim. 797
.
29.
We have considered the sentencing guideline. We have also considered the recent decision of a constitution of this court in
Chamberlain
[2017] 1 Cr.App.R (S) 46
which confirmed that a significant custodial sentence may sometimes be appropriate, even for relatively minor offences, if committed by a persistent offender in respect of whom other forms of sentence have been exhausted, but which also emphasised that the sentence imposed must nonetheless be proportionate to the offending.
30.
We take the view that the majority of the offences of theft come within culpability Category B. The offences committed on 13th October 2016 come within culpability Category A because by that date the applicant was subject in effect to a banning order from the shops concerned. The harm category of the individual offences would be either Category 2 or Category 3, according to the value involved. It is however important to bear in mind that the sentencing guideline specifically refers to the possibility that consecutive sentences may be appropriate. In principle that is the case here. The guideline also makes specific reference to the aggravating feature of relevant previous convictions which may justify a court imposing a sentence above the category range. That too is plainly a relevant consideration in the present case. There are here also the further aggravating features of offending on bail and offending on licence.
31.
Although the applicant was plainly entitled to full credit for his prompt admissions of guilt, it seems to us that no personal mitigation is available to him. It does not appear that he had taken any real steps to address his long-term drug problem.
32.
In all the circumstances the learned judge was entirely justified in taking a serious view of this further course of offending by a prolific thief. A substantial total sentence was plainly required and was consistent with the proper application of the sentencing guidelines. However,
section 153(2) of the Criminal Justice Act 2003
requires that any custodial sentence must be for the shortest term commensurate with the seriousness of the offending concerned. Serious though these offences were, particularly having regard to the applicant's dreadful record, they were unsophisticated thefts, not accompanied by any form of deception and not accompanied by any form of violent, threatening or disorderly behaviour.
33.
The total sentence of 30 months' imprisonment implies a total sentence after trial of 45 months. In our judgment that was manifestly excessive. We take the view that the appropriate total sentence after a trial would have been one of three years' imprisonment. It follows that in our judgment the appropriate sentence, giving credit for the guilty pleas, is one of two years' imprisonment.
34.
For those reasons we grant leave to appeal and we grant the appeal to the extent of reducing the total term of imprisonment to one of two years. We achieve that result in the following way. On each of the six offences under committal S20160281, we quash the sentences of 30 months and substitute concurrent sentences of two years. On committal S20160282, we quash the sentences of 30 months' imprisonment imposed below. On charge 1 we substitute a sentence of two years' imprisonment and on charge 2 we substitute a sentence of four months' imprisonment. As before there will be no separate penalty on charge 3. On committal S20160283, we quash the sentences of 30 months' imprisonment and impose on each of charges 1 and 2 concurrent sentences of four months' imprisonment. On committal S20160286, we quash the sentence of 30 months' imprisonment imposed below on charge 1 and substitute a sentence of two years' imprisonment. As before, there will be no separate penalty on charges 2 and 3. Finally, on committal S20160311 we quash the sentence of 30 months' imprisonment imposed below and on each of charges 1 and 2 we substitute concurrent sentences of two years' imprisonment. All of these sentences will run concurrently, making the total of two years' imprisonment to which we have referred.
35.
LORD JUSTICE KICKINBOTTOM: Mr Burke, as you have heard the consequence of that is that your aggregate sentence will be reduced from 30 months to two years. | [
"LORD JUSTICE HICKINBOTTOM",
"MR JUSTICE HOLROYDE"
] | 2017_06_07-3985.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/848/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/848 | 770 |
67d6ab7f3601c29a0c2c358ed16d09aa8ab04e1c3c3f57053d51dea7106b6728 | [2024] EWCA Crim 159 | EWCA_Crim_159 | 2024-02-07 | 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.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202301214/B1
Neutral Citation No.: [2024] EWCA Crim 159
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 7 February 2024
Before:
LADY JUSTICE ANDREWS
MRS JUSTICE CHEEMA-GRUBB
THE RECORDER OF REDBRIDGE
(HER HONOUR JUDGE ROSA DEAN)
(Sitting as a Judge of the CACD)
REX
V
JORDAN THOMAS CAMPBELL
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
NON-COUNSEL APPLICATION
_________
J U D G M E N T
1.
MRS JUSTICE CHEEMA-GRUBB: This is a renewed application for permission to appeal against convictions for strangulation and rape, following refusal by the single judge.
2.
The applicant was convicted, after trial in February 2023, and on 4 May 2023, he was sentenced to an extended sentence of 15 years, comprising a custodial term of 9 years and an extended licence of 6 years for rape, with 2 years’ imprisonment concurrent for strangulation. A restraining order of indefinite duration was imposed.
3.
The basis of the application is fresh evidence by way of an email from the complainant, sent after the trial, which the applicant believes exculpates him. In addition, the applicant criticises the legislation which prevents cross-examination of a complainant on her previous sexual history except with leave of the judge.
4.
The applicant requires an extension of time of 40 days in which to renew his application for an extension of 8 days for leave to appeal against conviction.
5.
The background can be stated shortly, as it is set out fully in the Criminal Appeal Office summary which the applicant has. The complainant has life-long anonymity. We do not intend to identify her in this judgment but the provisions of the Sexual Offences (Amendment) Act 1992 apply, and no matter relating to her can be included in any publication, during her lifetime, if it is likely to lead members of the public to identify her as a victim of these offences.
6.
The applicant and his ex-partner met up at the applicant’s address on 17 September 2022, a few days after they had broken up. There was an argument and he attacked her. He strangled her and told her they were going to have sex. She was too frightened to say “no”. She left in the morning and told witnesses what had happened, albeit her entire account came out in stages.
7.
The applicant’s contrary account was that she had wanted to have makeup sex and they argued. Although she was distressed, there was no deliberate strangulation, and they went on to have consensual sexual intercourse.
8.
It is clear that the jury had to determine whether they could be sure that the complainant’s account was reliable and honest.
9.
The applicant relies in these applications on an email he has produced dated 5 April 2023 which he says he received “out of the blue” from his ex-partner after his conviction. The email includes the following:
i.
“Now it’s over and I heard your defence it’s had my brain boggled. I didn’t realise I couldn’t remember so much of the night, especially the walk home, and that scared me. You said you asked me for makeup sex in court, but I didn’t remember that. I mean, I didn’t think you had at all but now I’m doubting myself and I believe you did, and I said yes, even if I didn’t want to so you wouldn’t have known.”
10.
She also refers to the respectful way in which the applicant had treated her in the past, and her desire that he be a father still to their child.
11.
Following receipt of the email, the prosecution obtained a further statement from the complainant. That statement is dated 2 May 2023, and the applicant’s ex-partner confirms therein that everything she said in her evidence at the trial was truthful. She explains that the email she sent to the applicant post-trial was a result of her being manipulated by him, including through his friends, at a time when she was vulnerable, he having been sent to prison. Her statement concludes:
i.
“I still stand by what I said in the trial. I do not remember the walk home. However, I remember what happened in the room. I remember he strangled me, hit me and then after he had sex with me when I did not want to. I was crying and I was just lying there. He would have known I was not consenting. I did lie in the email, but I did this because I was stupid, calm and mentally not in the right place and vulnerable. I believed he had changed. I thought things would be different next time and I wanted my son to have a dad.”
12.
Nevertheless, the applicant seeks to argue his conviction is unsafe. We accept that this proposed ground of appeal could not have arisen within the 28 days permitted for an application for leave to appeal to be lodged. Had there been any merit in the application, we would have granted all the necessary extensions.
13.
Under section 23(2) of the Criminal Appeal Act 1968, this Court may, if it is necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies. Under that provision, the Court needs to have regard in particular to whether the evidence appears to be capable of belief, whether it appears to the Court that the evidence may afford a ground for allowing the appeal, whether the evidence is admissible, or would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal and whether there is a reasonable explanation for the failure to adduce the evidence in the proceedings.
14.
We bear in mind that in formulating his grounds of appeal the applicant has not had the benefit of legal advice. The original application for permission to appeal has been refused by the single judge. Although we are satisfied that the applicant has provided a reasonable explanation for the failure to adduce the evidence at the trial, we are not satisfied, having regard to the circumstances in which the email that the applicant relies on was sent to him and the subsequent statement obtained by the police, that the evidence arguably may afford grounds for allowing an appeal. The ultimate question at the trial was whether the jury could be sure the complainant was correct in her account or whether, as the applicant said at trial, she had not described or recollected the events accurately. Even taking the 5 April email at face value, the complainant does not therein withdraw her evidence or agree that she had misled the court; she simply states on reflection that she cannot, at that time, exclude the possibility that the applicant had asked her for makeup sex and she had agreed. She does not say anything about the strangulation which the applicant had also denied.
15.
We are unable to find any reason to disregard the more recent statement the complainant has made to the police. It is of note that the statement itself was preceded by an email from the witness herself to the police on 17 April in which she said:
i.
“I need to speak to you pretty urgently. I’ve messed up big time and allowed Jordan to get in my head again. So much I’ve written him a letter stating I remember him asking me for sex that night and I said yes. I don’t remember this, and Jordan had asked me to write it so he could apply for a retrial or appeal.”
16.
The applicant also draws our attention, albeit not as a freestanding proposed ground of appeal, to another issue raised at the trial, which was his account that he and his ex-partner
had had makeup sex in the past. An application to adduce evidence of text messages in this regard was made, we are told, pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999, but the trial judge ruled that the introduction of evidence about previous instances of makeup sex were excluded by the legislation.
17.
In this regard the applicant does no more than invite us to consider that position as part of context in which to assess his intended appeal. We have done so. We have read the judge’s summing-up in which the cases for the prosecution and defence are set out, including a summary of the applicant’s evidence. It appears that the applicant had given evidence in respect of the strangulation, that the complainant had introduced him to “this kind of thing” and also that they had done it when they had been drinking or having makeup sex. It follows that what the applicant wanted the jury to know about in respect of there having been previous occasions of makeup sex and strangulation was indeed adduced during his own evidence.
18.
Accordingly, having considered the matter independently and for ourselves, we agree with the single judge that there is no arguable ground of appeal, and the applications sought must therefore be refused.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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Email: [email protected] | [
"LADY JUSTICE ANDREWS",
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] | 2024_02_07-6040.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/159/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/159 | 771 |
91cdbef11efb8e1e2931355f5b0493ed2b8cf94e519d623baedb360b06d3bc2a | [2010] EWCA Crim 351 | EWCA_Crim_351 | 2010-02-10 | crown_court | Case No. 2009/67050/A5 Neutral Citation Number: [2010] EWCA Crim 351 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Wednesday 10 February 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE PENRY-DAVEY and MR JUSTICE IRWIN _______________ ATTORNEY GENERAL'S REFERENCE No. 112 of 2009 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - DARRYL BRADLEY AARON CHURCH __________________ | Case No.
2009/67050/A5
Neutral Citation Number:
[2010] EWCA Crim 351
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Date:
Wednesday 10 February 2010
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE IRWIN
_______________
ATTORNEY GENERAL'S REFERENCE No. 112 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
DARRYL BRADLEY AARON CHURCH
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________
Mr S Denison QC
appeared on behalf of the Attorney General
Mr M Steen
appeared on behalf of the Offender
__________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an application by Her Majesty's Attorney General under
section 36 of the Criminal Justice Act 1988
for leave to refer to this court a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Darryl Church. He is aged 18, having been born on 26 May 1991. On 19 November 2009, at Bristol Crown Court, having earlier pleaded guilty on arraignment to manslaughter, he was sentenced by Burnett J to 20 months' detention. There was no written basis of plea. The offender had a significant previous conviction. Sentence was adjourned pending the preparation of a pre-sentence report.
3. In summary, in the early hours of 9 May 2009 the offender was one of a group of five young men standing about on a pavement in Gloucester. Although he had been drinking, this is not a case of drunken violence.
4. The victim was 23 year old William McNaught. He, too, had been drinking, but the drink he had taken played no part in what happened to him. He approached the group of five men, of whom the offender was one. He was neither threatening nor aggressive. For no reason, and without warning, the offender delivered a very heavy punch hard to the side of his head. The blow ruptured an artery at the base of the brain stem. The victim was immediately rendered unconscious and death followed, not from any impact with the ground or anything on the ground but as a direct result of the blow administered by the offender. The incident was captured on CCTV footage and we have seen the recording.
5. The offender's previous conviction was for assault occasioning actual bodily harm. The offence was committed in December 2007. Although he had been drinking on that occasion, drink played no part in the violence. On this occasion the victim was punched to the head. The blow was so hard that the victim was knocked out and his jaw was broken in two place.
6. The facts in a little more detail are these. The victim, William McNaught, was 24 years old, having been born in October 1985. He was a member of a large and close family. On the evening of 8 May he went out with his girlfriend and a friend who was the boyfriend of the victim's sister. There was a little trouble between the victim and his girlfriend, but that has no relevance to what happened later.
7. Eventually the victim decided to go home. He got into a car. At about 1am, the car passed the group of five young men which included the offender. The victim noticed that in the group was a man known as "Pinky". The victim had recently made an allegation of minor assault against Pinky. Indeed on that very day Pinky had answered bail in respect of the alleged minor assault. The victim asked the driver of the car to stop because he wanted a word with Pinky. The victim got out of the car and walked towards the group. He was somewhat unsteady on his feet. He approached the group, calling out to Pinky. As the CCTV footage shows, his arms were by his sides and his palms were open. He was neither threatening nor aggressive. The only person to whom he wished to speak in the group was Pinky.
8. As the victim approached the group, he was pushed away by one of its members. The group then huddled together. Pinky walked towards the victim, but then stopped and turned away. The offender went between them and, without pause or warning, he delivered the punch with his right fist to the left of the deceased's head. It was a hard punch in which the full body weight was used. The victim fell immediately unconscious into the road.
9. Pinky went to help the deceased. He said to the offender, "What have you done?" The offender said nothing but ran away. The friends of the deceased immediately ran to offer what help they could. The victim was moved out of the road and onto the pavement. An ambulance was called. A passing police car was flagged down. Although when the police officers first examined the victim he was breathing and they found a pulse, he very quickly went into cardiac arrest. He did not regain consciousness. Despite the best efforts of the doctors and nurses at the Gloucester Royal Hospital, he died shortly after 1.10am that day.
10. The cause of death was a direct result of the blow administered by the offender. It resulted in bleeding from around the base of the brain stem from a rupture within a small arterial blood vessel that runs over the surface of the brain stem. Such injuries are associated with rotation and extension of the head on the neck. They occur in particular as a result of blows to the side of the face.
11. The offender ran from the scene immediately after delivering the punch. He was soon followed by Pinky and another member of the group. They asked the offender why he had behaved as he had. He replied that he thought that the deceased was "going to start".
12. A police helicopter passed nearby. The offender changed his appearance by removing the light-coloured jacket he was wearing and he went off on his own.
13. At 9pm he was arrested on suspicion of murder at his home address. He made no reply after he had been cautioned. In his first interview he admitted that he had been present at the time when the deceased was punched, but denied that he had been responsible for the blow. He was told that others in the group had said it was he who had been responsible. He continued to deny it, swearing that he had not punched anyone. However, by the second interview he faced up to the realities. He said that he had lied because he was scared and "in shock". He admitted that he had punched the deceased and that he had done so because he thought that the deceased was about to attack Pinky. He admitted that he had drunk some whisky that night. His account of how much he had drunk varied. However much alcohol he had consumed, on the Crown's case it was not a significant factor.
14. In due course, in accordance with his admissions, he pleaded guilty to manslaughter.
15. The previous conviction occurred when the offender was 16 years old, in December 2007. On this occasion he and others had been drinking. There was an argument between again Pinky and another man. Again the offender involved himself for no good reason. He delivered a blow to the other man's head. The blow rendered the man unconscious and fractured his jaw in two places. When this matter was investigated, the offender claimed that he had delivered the punch because he thought that he was about to be assaulted.
16. In April 2008 he pleaded guilty to assault occasioning actual bodily harm. It was a very serious offence of assault occasioning actual bodily harm, but the offender was very young and at that stage of good character. He was sentenced to a 12 month Referral Order and ordered to pay compensation.
17. The offender lived with his parents and younger sister in the Gloucester area. He had completed some prospect training but he had been unable to obtain employment. Character references from school, from work training and from social friends were provided to the court.
18. The pre-sentence report examined the facts known about him and assessed that the offender presented a high risk of serious harm to the public, particularly young adult males. That conclusion inevitably followed from the two offences of violence of which the offender had by then been convicted.
19. The Attorney General acknowledges the following mitigating factors. The offender had pleaded guilty on arraignment, at the first reasonable opportunity, for which he was entitled to a full discount from the sentence that would otherwise have been appropriate. There is evidence of his remorse, and he is still only 18 years old.
20. On the other hand, this is yet another tragic death resulting from yobbery in the street. We have read the victim impact statement. Words cannot do justice to the grief that has been caused to the family of the deceased. Nothing the deceased did that evening justified any violence being shown to him. He did nothing which amounted to provocation; nor was he looking for trouble. It is true that his death resulted from a single punch delivered on the basis of the plea accepted by the Crown, without the intention required for murder. However, it was a very heavy blow, delivered with full force. It was enough on its own to produce the fatal injury. The subsequent death had nothing to do with any post-impact collision by the deceased's head on the ground or with some object, or as the result of some other factor.
21. Although the offender was still young, he knew the damage that can be caused by a full-force blow to the head. The earlier incident should have been a dramatic lesson to him. So, although he was young, this was not the first time that he had committed a crime of violence. He should have appreciated, and we have no doubt he must have appreciated, the injuries that may be caused by a single, heavy punch to the head.
22. The sentencing judge reflected on the existing guidance without the advantage of this court's recent analysis of very, very many of the sentencing decisions in this class of case which is compendiously described as a "one punch manslaughter case", although such a description fails to do justice to the many different circumstances in which a single blow can cause death.
23. We have re-examined this sentence in the light of the decision of this court in
Attorney General's Reference Nos. 60, 62 and 63 of 2009
(
R v Appleby and Others
)
[2009] EWCA Crim 2693
. We acknowledge the mitigating features correctly taken into account by the judge. None was wrongly taken into account. The discount for the guilty plea plainly had to be allowed, and some small allowance had to be made for the fact that, notwithstanding the first conviction, the offender is still young. It is accepted on behalf of the offender that the sentence was a lenient one in all the circumstances, but the contention is that, looking at previous cases and looking at the matter in the round, it would be wrong to treat the sentence as unduly lenient.
24. We disagree with the submission made on behalf of the offender. In our judgment this was an unduly lenient sentence. It must be increased to one of three-and-a-half years' detention.
_______________________________ | [
"MR JUSTICE PENRY",
"MR JUSTICE IRWIN",
"THE CRIMINAL JUSTICE ACT 1988"
] | 2010_02_10-2266.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/351/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/351 | 772 |
42d16fa7dba86371d12407d69a53aa3b3e6817eef37115ce5bc6ac7aaa0af0d3 | [2006] EWCA Crim 1518 | EWCA_Crim_1518 | 2006-05-15 | crown_court | No. 2006/01055/B3 Neutral Citation Number: [2006] EWCA Crim 1518 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 15 May 2006 B e f o r e: LORD JUSTICE AULD MR JUSTICE GIBBS and SIR MICHAEL WRIGHT __________________ R E G I N A - v - HEATHER SHIRLEY NICHOLSON __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ M | No.
2006/01055/B3
Neutral Citation Number:
[2006] EWCA Crim 1518
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday 15 May 2006
B e f o r e:
LORD JUSTICE AULD
MR JUSTICE GIBBS
and
SIR MICHAEL WRIGHT
__________________
R E G I N A
- v -
HEATHER SHIRLEY NICHOLSON
__________________
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
__________________
MISS DANIELLE COOPER
appeared on behalf of
THE APPELLANT
MR RICHARD STILLWELL
appeared on behalf of
THE CROWN
____________________
J U D G M E N T
Monday 15 May 2006
LORD JUSTICE AULD:
1. On 2 February 2006, in the Crown Court at Oxford, before His Honour Judge Corrie, the appellant, Heather Shirley Nicholson, following a ruling by the judge, pleaded guilty to a charge of having breached an Anti-Social Behaviour Order. The judge sentenced her to four months' imprisonment and ordered that 29 days spent on remand should count towards that sentence. Miss Nicholson appeals against conviction on her plea of guilty by leave of the single judge.
2. The facts giving rise to the charge and her plea of guilty may be stated shortly. She was and is a committed animal rights campaigner, having been involved in campaigns against Huntingdon Life Sciences and companies connected with its work.
3. On 17 January 2005, the Peterborough Magistrates made her the subject of an Anti-Social Behaviour Order, prohibiting her for a period of not less than two years or until further order from going within 500 metres of a number of premises (five) scheduled to the order. One of them was the premises of a proposed primate testing laboratory at Oxford University -- a project that had no links to or association with Huntingdon Life Sciences. The premises were known, and so named in the schedule to the order, as Halifax House, South Parks Road, Oxford.
4. On 19 May 2005, Miss Nicholson was present at a demonstration sanctioned by an order of the High Court within 500 metres of Halifax House, thereby breaching the order unless she had "a reasonable excuse" as provided by
section 1(10) of the Crime and Disorder Act 1998
. It had been Miss Nicholson's intention to plead not guilty. She did plead not guilty at a plea and directions hearing. By the time the matter came before Judge Corrie for trial she had served a defence statement repeating what she had said in a police interview. In that interview she had admitted that she had attended the demonstration and that it had taken place within 500 metres of Halifax House. She admitted, too, that she had not carefully checked the terms of the order, in particular the scheduled inclusion in it of premises named Halifax House. However, she maintained that she had a reasonable excuse for breaching the terms of the order within the statutory provision because she had no recollection of ever having heard before, or at the demonstration, of any reference to Halifax House as the address of the proposed laboratory, and she had mistakenly believed that she was entitled to attend the demonstration as she did.
5. When the matter came before the judge, counsel for the Crown, Mr Richard Stillwell, sought a preliminary ruling as to whether the proposed defence of Miss Nicholson was capable of being a defence in law to the charged breach of the order, that is capable of constituting, in the words of the statute, a "reasonable excuse".
6. After hearing submissions from Mr Stillwell and from Miss Danielle Cooper for the defence, and after considering authorities to which we shall come, the judge ruled that it was an offence of "strict liability" and that the qualification of "without reasonable excuse" should be narrowly construed so as to exclude ignorance or forgetfulness and, seemingly, misunderstanding of its clear terms. By implication he indicated that that was how he would direct the jury if Miss Nicholson were to persist with that defence. In the light of that ruling, which if correct left her with no legal escape from a verdict of guilty even if the jury accepted her account, she changed her plea to guilty and the judge sentenced her as we have indicated. Miss Nicholson now seeks to unseat that conviction, notwithstanding her plea of guilty.
7. Miss Cooper, who appears for Miss Nicholson on the appeal, has ably and succinctly submitted that the judge wrongly ruled that ignorance or forgetfulness, or misunderstanding by the subject of an Anti-Social Behaviour Order of its clear terms is not capable of amounting to a reasonable excuse within
section 1(10)
. She submitted that, whether or not on Miss Nicholson's account she had a reasonable excuse was a matter for a jury, and that it should have been left to them. In her submissions to the court, Miss Cooper has accepted that, subject to the "without reasonable excuse" defence, Miss Nicholson was in breach of the Anti-Social Behaviour Order, and that she had not, before attending the demonstration, properly apprised herself of its terms. However, Miss Cooper submitted that, on the facts that she would have advanced in her defence, if not discouraged by the judge's ruling, a jury could have found that she had a reasonable excuse. In short, she submitted that the words "without reasonable excuse" in this context should be given their ordinary meaning, and that the judge should have left it to the jury to determine whether on the evidence there was such excuse. In so submitting, Miss Cooper commented that the effect of the judge's reasoning was that ignorance or forgetfulness or misunderstanding of the terms of an Anti-Social Behaviour Order could never amount to a reasonable excuse. That proposition, she argued, must be wrong.
8. Mr Stillwell, who appears again for the Crown on the appeal, in equally succinct and helpful arguments to the court, submitted, as he did to the judge, that the offence is one of "strict liability", that it is for the subject of such an order to familiarise himself with its terms and effect, and that if he fails to do so, giving rise to a breach of it, his ignorance of
the law
is no excuse. He referred to ignorance of the law rather than ignorance of the material facts because he characterised an Anti-Social Behaviour Order as one that extends the law in respect of the individual covered by it. Put another way, his submission was that the order in barring Miss Nicholson from entering areas in the vicinity of Halifax House in Oxford, and of other premises, created legal prohibitions particular to her.
9. There is clear authority, as Mance LJ (as he then was) recently noted in
R v Quayle
[2006] 1 All ER 988
, at 1000E-H, that if an issue is suggested based on proposed evidence that cannot possibly constitute any defence in law, a trial judge is entitled to rule that he will not leave that issue to the jury. If, however, on the facts advanced or to be advanced by the defence, a jury could find them to support an evidential issue raised by the defence, particularly one involving a value judgment such as that of reasonable excuse, then he should leave it to the jury. If such a proposition requires cited authority, it is to be found in the principle enunciated by the House of Lords in
R v Wang
[2005] 1 WLR 661
, in which their Lordships considered in a wholly different statutory context a statutory defence defined by reference to the defendant's state of mind. Their Lordships held that where the defence raise such an issue, the judge is only entitled to withdraw it from the jury if there is no evidence going to that issue. If there is some evidence, however tenuous or nebulous, the question should be left to the jury, and on no account should there be a direction to convict. The fact that the House of Lords so ruled in a case where the judge gave the ruling in question after the jury had been empanelled does not confine the effect of the ruling to such a circumstance so as to render it inapplicable to a ruling given before empanelment of a jury. So much Mr Stillwell concedes on behalf of the Crown.
10. However, there are particular dangers for a judge in drawing the line, in ruling on such an issue as to what a jury might or might not accept as a reasonable excuse in advance of the issue being deployed by the defence at trial in evidence.
11. The court is not aware of any reported authority on the meaning of "without reasonable excuse" in the context of breach of an Anti-Social Behaviour Order. There is authority in the context of having an offensive weapon in a public place, contrary to
section 1 of the Prevention of Crime Act 1953
and in the cognate context of possession without "good reason" of having a bladed article in a public place, that forgetfulness could, depending on the circumstances,
contribute
to a defence of reasonable excuse or a "good reason": see, for example,
R v Glidewell
(CA)
[1999] 163 JP 557
;
R v Jolie
(CA)
[2003] EWCA Crim 1543
, and
R v Bird
[2004] EWCA Crim 64
.
12. The reason why the court held back in those cases from holding that forgetfulness of possession of the offending article could
on its own
amount to a reasonable excuse or a good reason, can only have been because before having to consider that defence, a court in the context of these offences must be sure that a defendant is
knowingly
in possession. Forgetfulness, when it supervenes, and for its duration, is absence of knowledge -- ignorance -- and it is an all too easy assertion for a defendant to make in an attempt to avoid conviction, particularly where his or her knowledge has to be proved as part of the prosecution case: see
R v Cugullere
(CCA)
45 Cr App R 108
,
R v McCella
(CA)
(1988) 87 Cr App R 373
, and
R v Felix Densu
[1998] 1 Cr App R 400, at 404G, to which we shall return.
13. Closer to the context of this case is an authority to which Miss Cooper referred the court, a decision of the Court of Appeal in
R v Evans
(6 December 2004, 2004/03662/B3). It concerned a breach of a restraining order contrary to section 5(5) of the Harassment Act 1997, if -- as that provision provides -- done without "reasonable excuse". In the course of the judgment of the court given by Dyson LJ, he made these remarks at paragraph 21, which are as relevant to the issue here as there:
"It is of some significance that a defendant who is alleged to have acted in breach of a restraining order contrary to section 5(5) of the 1997 Act has the protection that the prosecution must prove that he or she has acted 'without reasonable excuse'. Thus, for example, there may be cases where there is room for legitimate differences of view as to the meaning of a restraining order. If in such a case the defendant raises the issue that he or she believed that the conduct of which complaint is made was permitted by the order, the prosecution will have to prove that he or she did not have reasonable excuse for the prohibited conduct. Acting under a reasonable misapprehension as to the scope or meaning of the order is capable of being a reasonable excuse for acting in a manner which is prohibited by the order."
14. The fact that the prosecution, in the Anti-Social Behaviour Order context, do not as part of their case have to prove knowing breach of such order means that there is not the same tension between proof by the prosecution of its case triggering consideration of an evidential issue of reasonable excuse (if it is raised) and acceptance of forgetfulness or misunderstanding as such an excuse. If a jury were to accept forgetfulness or misunderstanding in the circumstances as genuine and reasonable, say, because of chronic absent-mindedness or pressing distractions, we do not consider that it is necessary to combine it with another reason or to look for another one "in which forgetfulness plays its part" in the terminology of the court in the different statutory context in
Jolie
at paragraph 17 and
Bird
at paragraph 17 respectively.
15. There is on the other hand no material distinction between the two statutory contexts to be derived from Mr Stillwell's characterisation of Miss Nicholson's claimed ignorance or misunderstanding of the order as an impermissible plea of ignorance of the law. It seems to us artificial to characterise a claim of reasonable excuse based on ignorance, whether by reason of forgetfulness or misunderstanding of the terms of an Anti-Social Behaviour Order, as an impermissible reliance on an error of law because the order imposes particular legal restrictions on its subject. It is the fact of such ignorance, whether because of forgetfulness or misunderstanding as to the application of the particular terms of the order, combined with appreciation or lack of it as to where the subject was at the material time, and also a value judgment as to its reasonableness in the circumstances, which are in play, not the subject's knowledge or memory at the material time of the law. Such matters, depending on the reasons advanced in support of a defence of reasonable excuse,
may
be capable of constituting such a defence. Where that is so, the issue of fact, if any, and the value judgment as to reasonableness of the excuse, are ones for a jury, not for the judge.
16. In our view (and without expressing any view as to the proper outcome), the circumstances here were such, coupled with the fact that the defence had not been articulated with precision in evidence, that the judge should have left the matter to a jury -- certainly at that stage. He should not have deprived Miss Nicholson of her entitlement to present her defence of ignorance by reason of forgetfulness or misunderstanding of the terms of the order.
17. In so concluding we have not disregarded Mr Stillwell's important reminder to the court of the policy consideration touched on by the court in
Densu
as to the ease with which defendants claiming ignorance or forgetfulness might seek to frustrate the effective application and enforcement of the law as to Anti-Social Behaviour Orders. But the fact is, as the court indicated in
Quayle
, in
Wang
and also in
Evans
, there is a line to be drawn in the particular circumstances of any case. The issue raised is often likely to be highly fact-sensitive -- one which it is eminently desirable should be resolved by a jury where it is the fact-finder. Of course there may be cases which are so clear, where, whether before or in the course of trial, the judge can so rule. But, as we have indicated, we do not consider this to be one of them.
18. Accordingly, we allow the appeal and we quash the conviction.
19. Before parting with the case, we take the opportunity to say that we do not consider it helpful to an analysis of the sort of problem raised by this appeal to characterise an offence as one of "an offence of strict liability" where the prosecution does not have to prove any sort of mens rea, but where there is a statutory provision for a defence or an evidential issue to be raised based on the presence or absence of some state of mind on the part of the defendant. Whether or not it is an appropriate description of such an offence, it is of no help, it seems to us, in considering whether and how much defence may be deployed in individual cases, as the rationale of the House of Lords' treatment in
Wang
clearly indicates.
20. We are very grateful to you, Miss Cooper, and you, Mr Stillwell, for your able assistance in this matter.
21. Mr Stillwell, I think you indicated that the Crown would wish time to consider whether to seek a retrial.
22.
MR STILLWELL:
My Lord, I would ask for seven days.
23.
LORD JUSTICE AULD:
In the meantime, what is to happen to Miss Nicholson?
24.
MISS COOPER:
She is currently remanded in custody in relation to another matter at Kingston Crown Court. I make no application.
25.
LORD JUSTICE AULD:
Thank you. You will have to come back to the court, Mr Stillwell, if you are to seek a retrial, as you know.
26.
MR STILLWELL:
Yes, my Lord.
27.
LORD JUSTICE AULD:
It would be good if that could be done sooner rather than later because this constitution will change if not at the end of this week, certainly by the end of next week.
28.
MR STILLWELL:
My Lord, I will try and take instructions this afternoon.
29.
LORD JUSTICE AULD:
Thank you.
_________________________ | [
"LORD JUSTICE AULD",
"MR JUSTICE GIBBS"
] | 2006_05_15-806.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1518/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1518 | 773 |
307ad70b5e7d79739de780c915f7143a3a394c75bc2813b943b1ae44b1b613bc | [2015] EWCA Crim 307 | EWCA_Crim_307 | 2015-03-05 | crown_court | Case No: C0/201200173 C1 AND CO/201200221 C1 Neutral Citation Number: [2015] EWCA Crim 307 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Kingston-Upon-Thames Crown Court HHJ Campbell T20097817 and T20107446 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/03/2015 Before : THE RIGHT HONOURABLE LORD JUSTICE FULFORD THE HONOURABLE MR JUSTICE HAMBLEN and HIS HONOUR JUDGE WAIT - - - - - - - - - - - - - - - - - - - - - Between : The Crown - and - Alexander McGuffie -and- Adrian We | Case No: C0/201200173 C1 AND CO/201200221 C1
Neutral Citation Number:
[2015] EWCA Crim 307
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Kingston-Upon-Thames Crown Court
HHJ Campbell
T20097817 and T20107446
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/03/2015
Before :
THE RIGHT HONOURABLE LORD JUSTICE FULFORD
THE HONOURABLE MR JUSTICE HAMBLEN
and
HIS HONOUR JUDGE WAIT
- - - - - - - - - - - - - - - - - - - - -
Between :
The Crown
- and -
Alexander McGuffie
-and-
Adrian Weekes
1
st
Applicant
2
nd
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 Joel Bennathan QC
(instructed by
Faradays Solicitors
) for the
1
st
Applicant
Mr Andrew Munday QC and Mr Dean George
(instructed by
Mackesys Solicitors
) for the
2
nd
Applicant
Mr. William Hughes QC and Ms Clare Huntley
(instructed by the CPS Appeals Unit) for the
Crown
Hearing dates : 27th November 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
Introduction
1.
On 2 December 2011 in the Kingston-upon-Thames Crown Court before HHJ Campbell and a jury, the applicants Alexander McGuffie and Adrian Weekes were convicted unanimously on a retrial of one count of conspiring fraudulently to evade the prohibition on the importation of cocaine (a class A drug).
2.
They were sentenced 9 December 2011 and, following successful appeals to this court against sentence on 28 January 2013, their final sentences are 12 years’ imprisonment for McGuffie and 10 years’ imprisonment for Weekes.
3.
They both renew applications for leave to appeal against conviction following refusal by the single judge.
4.
The disposal of the cases of their co-accused can be summarised as follows:
i)
Jennifer Weekes pleaded guilty to a conspiracy to contravene section 170 Customs and Excise Management Act (“
CEMA
”) 1979 and conspiracy to supply drugs. She was sentenced 7 years’ imprisonment.
ii)
John Charles pleaded guilty to conspiracy to contravene section 170 CEMA1979 and conspiracy to supply drugs. His sentence, following a successful appeal, was 6 years’ imprisonment.
iii)
Jagjit Rayit was convicted on the same offence as the applicants. Her sentence, following a successful appeal, was 7 years’ imprisonment.
The Facts
5.
In April 2009 a couple called Jagjit Rayit and Adrian Weekes (of 120 Sandhurst Road, London, with a mobile telephone contact number 07985455055) stayed at the Coconut Court Hotel in Barbados. Contained within the documentation created by the hotel was a contact number for “
Jazz Rayit
” of 831 6731 (see trial admission number 95). Adrian Weekes and Jagjit Rayit were partners.
6.
On 23 July 2009 Adrian Weekes travelled again to Barbados. At 13.32 UK time (08.32 Barbados time) there was an outgoing call from 001246 83116731 (“
6731
”) to the mobile telephone of Emmanuel Ugenyi, a taxi driver. On 1 August 2009 at 07.57 there were 25 telephone contacts or attempted contacts between the telephones of Jagjit Rayit and Ugenyi. Adrian Weekes left Barbados on 2 August 2009.
7.
Adrian Weekes arrived in the United Kingdom from Barbados on 3 August 2009. At 07.13 his UK mobile number ending 3600 dialled a number in Barbados (2462499099) which was recorded in the memory of a handset that was later seized from Adrian Weekes’s home under the name “
Dan.man
”. It was the prosecution’s case that this latter individual was involved in the conspiracy.
8.
Thereafter Adrian Weekes used the 3600 number between 3 August 2009 and 10 September 2009, whilst he was in the UK. The SIM card packaging for the 3600 number was recovered during a search of his home address on 14 October 2009. Although during this period the 6731 number was not contacted by any of those involved in the conspiracy, the 3600 number was in touch with 07951728169, a telephone that the prosecution contended was used by McGuffie. This number was recorded in one of John Charles’s mobile handsets under “A”. 3600 was in contact with two numbers (0012462389702 and 0012468316990) in Barbados which were variously ascribed to a man called Wesley Mayers (who on two occasions contacted Duane Mayers, one of the airport workers who were responsible for placing the drugs at Barbados airport), “
Bar
”, “
Danny
” and “
Chubbs
”. The former of these numbers (9702) had sent text messages to the handset of Dwayne Clarke, the second Barbados airport worker responsible for hiding the cocaine which was ultimately imported by Weekes’s aunt, Jennifer Weekes. It was the Crown’s case that individuals who were involved in this criminal enterprise used these telephone numbers. 3600 was in contact with Ugenyi and 24259647 (“
Nine.bar
”), a number also allegedly utilised during this criminal enterprise.
9.
Adrian Weekes arrived in Barbados on or around 10 September 2009, and thereafter his use of the 3600 number dramatically tailed off. At 21.25 Rayit made an unsuccessful call to the 6731 number and she sent text messages to that number the following morning. The clear inference suggested by the prosecution was that she was contacting her partner on a number he was using in Barbados.
10.
On 12 September 2009, Wesley Mayer’s 702 number unsuccessfully tried to contact Weekes’s 3600 number.
11.
On 13 September 2009 at 21.43 Rayit’s mobile telephone sent a text message to the 6731 number and another text at 23.05 on 14 September 2009.
12.
On 17 September 2009 Rayit sent a text to 6731 at 18.26.
13.
On 20 September 2009 at around 06.20 Jennifer Weekes, together with her son Richard, walked through the arrivals hall at Gatwick airport having flown in from Barbados. In Ms Weekes’s luggage was 2.47 kilograms of powder containing cocaine within the range of 42-44% purity and a street value of up to £200,000. She had collected the drugs from an “
airside
” public toilet at Barbados airport shortly before boarding the aeroplane, the drugs having been placed there by two airport workers, Jeremy Blackman and Duane Clarke. A number of officers from a unit of the Serious Organised Crime Agency, the Middle Market Drugs Partnership (“
MMDP”
), were on plain-clothes duty at Gatwick. Two of those Officers, Daryl Jones and Daniel Cleaves, gave evidence at trial as to suggested contact between McGuffie – who had been at the airport since 05.42 (as revealed by CCTV footage from the arrivals area) – and Weekes from the moment she reached the public area of the airport.
14.
The Crown relied on particular pieces of CCTV footage relating to these events. In summary, on 24 September 2009 CCTV footage of poor quality from Gatwick South Terminal was viewed by DC Lawn and Graham Monk (the latter was a police neighbourhood support officer working at Gatwick Airport). Under the direction of DC Lawn, PC Monk located and retrieved certain footage covering a period close to 07.00 that related to Jennifer Weekes and McGuffie. This came from the hard disk drive on the servers for the airport. It was saved in a format called “
visio wave
”. This material was then transferred onto a DVD, which PC Monk exhibited at trial.
15.
Further material was viewed by DC Lawn in company with PC Monk on 20 October 2009, and selected passages between 05.00 and 07.00 were retrieved. These were also put onto a DVD and exhibited at trial.
16.
The entirety of the original footage on the hard disk from Gatwick Airport was erased after 30 days. The destruction of this material has been the subject of some criticism on behalf of the applicant McGuffie. It is suggested the defence was denied the opportunity to establish where the officers were positioned and whether they were able to see the relevant events. They were also unable to investigate if there were occasions when McGuffie was not using a telephone at the time when the records revealed that a relevant telephone was in use.
17.
DC Jones claimed to have seen McGuffie and Ms Weekes look at each other. The contemporaneous section of the log recorded that McGuffie met Ms Weekes. However, in an untimed addendum it was suggested that McGuffie “
did not greet (
Ms Weekes)
, he shadowed
(her)
then walked off away from
(Ms Weekes)
towards the car park
”. In cross-examination DC Jones claimed that he communicated his observation by radio but the person compiling the log must have failed to record it. He testified that the entry in the original log in which it was suggested Miss Weekes was
met
by McGuffie needed to be changed because this did not occur.
18.
DC Cleaves said he saw Jennifer Weekes look at McGuffie. She raised her left arm with her fist clenched and then lowered it while maintaining eye contact with McGuffie who smiled. His observation was not recorded in the contemporaneous part of the log but instead it featured in an untimed addendum (made about 12 hours later during a debriefing session). DC Cleaves was accused of lying about this suggested observation. There was a basis for suggesting that an entry that had read “
subject 7 acknowledges subject 56 by smiling”
had been changed to
“subject 7 appears to acknowledges subject 56 by smiling”.
It was contended that McGuffie was speaking on a mobile telephone during these events.
19.
DC Breen spoke of McGuffie as being “
close to Jennifer Weekes and Richard Weekes and watches them closely but does not in fact associate with them
”. He made a witness statement on 30 September 2009, 10 days after the creation of the observation log, which did not contain any reference to McGuffie. In a further witness statement, also dated 30 September 2009, he added this comment about McGuffie. He explained in evidence on 11 January 2011 that he had completed two witness statements in order to ensure that the version served on Miss Weekes did not mention McGuffie because the police wanted to arrest him. He made it clear that there was no form of gesture as far as he could see between McGuffie and Miss Weekes.
20.
The officer compiling the log, DC Parry, gave evidence that she may have failed to record the observations recounted by Jones and Cleaves.
21.
The judge set out the detail of the observation evidence with care, and he highlighted the importance of this testimony as part of the prosecution’s case against the defendants.
22.
Returning to the remainder of the narrative, prior to Jennifer Weekes’s arrival McGuffie was seen using a mobile telephone on a regular basis which, according to the prosecution, was the telephone with a number ending with 4534. It was a pre-pay, unregistered mobile telephone. Once Ms Weekes had arrived in the public area at Gatwick airport, the CCTV film footage reveals McGuffie walking parallel to Jennifer Weekes and her son, separated only by a metal railing. Jagjit Rayit had arrived at the airport at approximately 05.53 with a friend called Gloria Smythe. There is CCTV footage of Rayit and Smythe waiting near a coffee shop in the arrivals area, albeit they had no direct contact with McGuffie. There was regular telephone contact throughout the morning between Rayit’s mobile telephone and the telephone number ending 4534 which, as just indicated, was said by the prosecution to be in McGuffie’s possession. The majority of these calls were made when Rayit and McGuffie were very close to each other at the airport.
23.
The taxi driver, Emmanuel Ugenyi, met Jennifer
Weekes. He was well known by her family. At 07.29 Ugenyi drove out of the airport car park and he delivered Jennifer Weekes to her home address, 56B Childebert Road, Balham, London. McGuffie
and Rayit left the airport separately, although neither of them had collected anyone. At 07.21 the telephone with the number ending 4534 made a call to a mobile telephone with a number ending 4937. This latter telephone was in John Charles’s possession when he was arrested. Also found on Charles were two mobile phone top up receipts for the number 4534. Ugenyi received a call from Adrian Weekes (on 3600) at 07.47. At 08.52 Charles arrived at Jennifer Weekes’s home address. He left a few minutes later carrying a light coloured plastic bag. His car was stopped shortly afterwards by officers from the Middle Market Drug Partnership. A green plastic bag containing three packages wrapped in birthday wrapping paper was seized. One of the packages was slightly torn and inside was a clear-wrapped hard white substance: cocaine. In the passenger foot well there was a large bag containing a cutting agent called benzocaine. An insurance policy in McGuffie’s name was also seized. At trial McGuffie claimed he had sold the car to Charles.
24.
Cell site evidence revealed that the 4534 number was activated on the mobile network on 7 August 2009 and connected to the pre-pay service on 12 August 2009. It was first utilised about 2 ½ hours after McGuffie had flown into the UK from Malta, at 19.34 hours on 19 September 2009, and it was used for the last time at 09.29 hours on 20 September 2009, shortly after Charles’s arrest. Someone in possession of this number called various people who the applicant McGuffie admitted knowing, including John Charles who, as already noted, was found with top up vouchers which had been used to add credit to this number. During this period it was in contact with various Barbadian numbers. One of these numbers related to Wesley Mayers who (as set out above) on two occasions contacted Duane Mayers, one of the airport workers responsible for placing the drugs at Barbados airport. There were 19 attempted or successful calls between this number and Rayit’s mobile whilst both McGuffie and Rayit were at Gatwick (see [22] above). There were 36 attempted or successful calls to Rayit after both McGuffie and Rayit had left Gatwick at approximately 07.30 going through to just before 09.30 hours. 4534 was used to make calls to the mobile telephones of Anthony Lee (a co-accused), Simon Ludlow (the brother of the former partner of McGuffie), Anthony Mayer and Paul Wynter, all friends of long standing of McGuffie. This number was within the South Terminal at Gatwick airport at the same time and in the same location as McGuffie. When McGuffie left Gatwick, the cell site route for 4534 coincided exactly with McGuffie’s journey back to his home South London. This was supported by an ANPR photograph of his vehicle taken at 07.30 hours on the A217 when the cell site evidence placed the 4534 phone in exactly the same location.
25.
Although this was strong evidence against McGuffie, there were a number of points that he was able to advance as regards the telephone evidence. First, there was a basis for suggesting that McGuffie was inside the terminal at 06.56 when the 4534 telephone was probably used outside the building to make a call. Second, the CCTV footage showed the applicant leaving the car park at a time when the 4534 telephone was being used; therefore, if the timer on the CCTV was accurate, McGuffie did not make that call. However, we interpolate to observe there was an issue over the reliability of the timer on the CCTV cameras. Moreover, on most, if not all, occasions when McGuffie is shown on the CCTV footage apparently making calls on a mobile phone, the 4534 telephone was, according to the billing and cell site records, being used within the South terminal. McGuffie stressed that the relevant prosecution expert witness expressed the view that the person using 4534 was also the user of another telephone, 6985. However, that latter telephone had been used when the applicant was outside the United Kingdom. Finally, it was suggested on McGuffie’s behalf that cell site analysis is an inexact science.
26.
It is necessary, separately, to focus on the telephone number ending 6731. On the 19 and 20 September 2009 calls were made between the numbers 4534 and 6731; as set out above, the prosecution attributed the latter number to Adrian Weekes, who (as set out above) had travelled to Barbados on 10 September 2009, returning to the United Kingdom on 24 September 2009. He had been accompanied by his father.
27.
Furthermore, as already observed, on 16 April 2009 Rayit booked a room at the Coconut Hotel, Barbados. She provided contact details entered onto the booking record that included the telephone number ending 6731. Rayit suggested that Adrian Weekes and their two children would be staying.
28.
On 20 September 2009 at 06.02 the number 6731 contacted 4534 in a call lasting 1 minute 26 seconds at a time when McGuffie was at Gatwick airport. Once that telephone call concluded, the 4534 number called Jayit. At 07.11 the number 6731 called 4534. At 7.18 the 6731 number called the taxi driver, Ugenyi for 1 minute 6 seconds. 4534 called 6731 before calling John Charles at 07.21. In addition, generally during the time Adrian Weekes was in Barbados Rayit called the 6731 telephone number. However, it is to be stressed that there was no direct evidence (as opposed to inferences based on the evidence) that the 6731 telephone was in Barbados at the relevant time.
29.
Of particular importance, at 08.51 20 September 2009 the telephone number 3600 (which Adrian Weekes did not dispute was in his possession) contacted 4534 (the number attributed to McGuffie) for 2 minutes 17 seconds.
30.
McGuffie was arrested on 28 November 2009 and interviewed. He gave a prepared statement denying all involvement in importing drugs and money laundering. He said he might have been at the airport meeting friends but he was unable to give any specific details. He knew Charles and had done so for a number of years. He said he could trust Charles to “
pay rent or place bets for me
”. Jayit and Adrian Weekes were also interviewed; both declined to answer questions.
The Prosecution’s Case
31.
The prosecution case was that the applicants knowingly and intentionally agreed to smuggle cocaine into the United Kingdom; it was suggested McGuffie was the organiser and the person in possession and control of the 4534 phone. It was said Adrian Weekes played an important organisational role in Barbados and the UK. Although Adrian Weekes had family in Barbados, it was suggested it was a reasonable inference that the main purpose of his being in Barbados was as part of the criminal enterprise which culminated in the importation on 20 September 2009.
The Applicants’ Cases
32.
In evidence McGuffie denied not only that the 4534 number belonged to him but also that he and Jennifer Weekes had acknowledged each other at the airport. He said he did not know her, Rayit or Adrian Weekes. He accepted that he had a friendship with John Charles. He said they helped each other out and he had sold Charles the car in which he was arrested. He indicated he was at the airport to meet a friend called Frank Carson. They were Chelsea Football Club supporters and Carson had at told him that he had tickets to a game against Tottenham Hotspur Football Club. When Carson’s father informed him that his son was flying in from Spain on 20 September 2009, he decided to meet him. He used his telephone to contact Carson as well as his (McGuffie’s) partner, Sonia Scott. In the event, they did not meet up at the airport. There was evidence that Carson arrived at Gatwick later that morning having purchased 4 tickets for this particular football match.
33.
Adrian Weekes did not give evidence. Apart from the fact that Rayit gave the number 6731 as her contact in April 2009 at the Coconut Hotel, Barbados he maintained there was no evidence from which it could safely be inferred that there was relevant use by him of that telephone. However, it is immediately to be noted that the only contact between Rayit’s mobile telephone and the 6731 number was when Adrian Weekes was in Barbados. He denied any involvement in this criminality.
Grounds of Appeal
Alexander McGuffie
34.
The original grounds of appeal, on which leave was refused, have been superseded by new grounds of appeal filed by counsel, Mr Bennathan Q.C., who was instructed after the single judge refused leave to appeal against conviction. It is to be emphasised that the original grounds of appeal are no longer pursued.
35.
In summary, the applicant suggests his conviction is unsafe because the reliability of the observation evidence has been fundamentally undermined by material that was unavailable to the applicant at the time of this trial. It is submitted that if it had been deployed as part of his case it may have led to a different outcome.
The CCTV
36.
Trial admission 96 (d) was in the following terms:
The original full hard disk material from Gatwick Airport was erased after 30 days and is no longer available for any camera angle in this case. Any material not retained is erased after this 30 day period.
37.
At trial the following exchange occurred during DC Lawn’s evidence:
Q: You effectively selected what you felt was important?
A: That is correct, yes.
Q: And the rest of it was simply erased, was it not?
A: We took the footage that was downloaded that had the suspects, defendants on camera. That is what was taken”.
[…]
A: Everything else that didn’t have the defendants on was not kept.
38.
Mr Bennathan in his written Grounds of Appeal queries whether the footage was destroyed as claimed.
39.
However, in preparation for this appeal, the position has been clarified. On 29 January 2014 a statement was taken from Anthony Gilbert, a Security Regulation and Police Liaison official at Gatwick Airport. His evidence is that in September and October 2009, as now, CCTV recordings at Gatwick Airport were retained for only 30 or 31 days, and then they were erased because the system had only limited storage capacity. There was no backup store or archive and the “
data is gone”
.
The Log
40.
Counsel suggests that there is a credible basis to suggest that the addendum to the log (see [18] above) was altered in the sense that an original entry “
subject 7 acknowledges subject 56 by smiling
” and was changed to “
subject 7 appears to acknowledges subject 56 by smiling
”. Therefore, it is contended the two words – “
appears to
” – were a later addition. This suggested addendum to the log was not signed by the supervising officer and it is undated. The ESDA (“
electrostatic detection device
”) expert, Mr Robert Radley, has set out in his report that all of the entries were entered sequentially save for the words “
appears to
”. As regards that entry he suggests there is “
weight
” in the proposition that these words were written shortly after the text to which they were added. He puts the matter thus:
There is no considerable difference in the burr striation patterns that would suggest that these words have been written at a considerably later point in time or under significantly different circumstances.
In summary, whilst the evidence on this point is not strong, it does favour the proposition that the addition to this Addendum has been made shortly after the time of the main writing of the same and there is no significant evidence to support the proposition that these words were written at a significantly different point in time.
41.
It is right to note in this context that the observation evidence from DCs Breen and Jones was not criticised by counsel then acting on behalf of the applicant. Indeed, he relied on their accounts to undermine the observation evidence of DC Cleaves which included the suggestion – as set out above – that Miss Weekes raised her left clenched fist whilst maintaining eye contact with the applicant.
R v Green and others
42.
The applicant relies on evidence given in the case of
R v Green
and others
. We note this constitution of the Court of Appeal Criminal Division has heard a renewed application by one of the defendants in that case, Edward Henry Austin, for leave to appeal at the same time as the present case. In the
Green
investigation, officers from the Middle Market Drug Partnership were engaged in observations on the Isle of Wight. The present trial and the trial of Green and others overlapped. As set out above, the observations in this case took place on 20 September 2009, whilst in Green the officers were on surveillance duty in May 2010. McGuffie’s first trial was in January 2011 at Kingston Crown Court but the jury were discharged and a retrial was ordered. The first trial relating to the Isle of Wight investigation was in June 2011 at Kingston Crown Court. McGuffie’s second trial was in November and December 2011, again at Kingston Crown Court. The second Isle of Wight trial took place in October 2012 at Kingston.
43.
It is suggested that by the end of the first Isle of Wight trial the following factors arising out of the case of
Green and others
was known to some of those intimately involved in the prosecution of the applicant:
i)
Two of the relevant officers, Paul Jeans and Andrew Dunne, had been posted to make observations on the coast of the Isle of Wight. The contemporaneous observation log recorded that at 18.53 on 30 May, they saw a lobster boat captained by the defendant, Jamie Green, “
throw 6 or 7 items overboard at intervals
”.
ii)
By the time of the first trial, Jeans and Dunne had made witness statements in which they claimed they had seen items that were “[…]
dark in colour and were approximately the size of a large holdall. They were tied together on a line and were dispatched from the boat one after another, totalling 10 to 12. The last item was a red floating buoy
”. This description matched very closely the appearance of the drugs when they were recovered. In evidence, they maintained they had telephoned this account to a senior officer and a member of the Serious Organised Crime Agency (“
SOCA
”). We observe that a potential problem with that suggestion, which was of some importance in the case, is that until the following morning neither SOCA nor the local police had any idea as to where the drugs were to be found.
iii)
The same evening the police searched the boat and arrested those found on it. Because the officers from SOCA were unaware as to where the drugs had been put, and they ransacked and part dismantled the fishing boat in an attempt to locate them.
iv)
The next morning a fisherman found holdalls full of cocaine secured together in the sea in the area where officers Jeans and Dunne had been watching. He called the police.
v)
The SOCA officers from the Middle Market Drug Partnership held a debriefing. These included DCs Parry, Lawn, and Breen (who were all involved in McGuffie’s trial). As set out above, by this stage the drugs had been found by the fisherman.
vi)
After the debriefing, DC Breen summoned Jeans and Dunne to meet him in a car park. They made addendum entries to the observation log whilst sitting in the back of his car, in which they set out they had seen the holdalls thrown from the lobster boat. At trial they could not account for the absence of this account from the contemporaneous log given they claimed that they had radioed in the details of these observations as the events were unfolding.
vii)
In the course of the cross examination of DC Parry (the officer compiling the log in both the instant case and in
Greene and others
) the Association of Chief Police Officers [“
ACPO
”] Guidelines were put to her, in particular that she was under a duty to put a line through unused pages (i.e. to cross though unused pages to stop later additions); she replied she had not been trained in that way.
viii)
DC Parry was also asked how she had heard sufficient to record “
throwing six to seven items
” overboard but not that the items were in fact 10 to 12 holdalls tied together with a buoy at one end. Her explanation was that she may have misheard what was said because off a poor radio connection.
ix)
During the trial, the existence of a Surveillance Management Record [“
SMR
”] was revealed. That document had been completed in a manner that misleadingly suggested officers Jeans and Dunne were at the main debriefing.
x)
It also emerged that the way in which the addendum entries of officers Jeans and Dunne were added was in breach of the ACPO directions on maintaining the records of surveillance and the debriefing procedures for those observations.
xi)
When asked to explain why officers Jeans and Dunne were not called to the SOCA debriefing, the two local officers said they did not know, and DC Breen, the supervising SOCA officer, said he had thought it might have been due to tiredness.
xii)
DC Breen was asked to explain why he had not signed the log at the end and he suggested this may have been on account of his own tiredness.
xiii)
DC Breen agreed that it had been his responsibility to fill in the starting time, the finishing time, and the location of the debriefing in the SMR but he had not done so.
xiv)
In his summing up, His Honour Judge Dodgson commented that the claims of the officers Jeans and Dunne to the effect that they had seen the holdalls dropped into the water and passed that information on, given the police had no idea where the drugs were to be found, were “
extraordinary
”.
xv)
After the trial complaints were made about the observation evidence and the handling of the relevant logs, in light of the matters set out above. The resulting investigation was underway at the time of the Applicant’s trial.
44.
Against that background, it is suggested there has been a major failure in disclosure. McGuffie was unaware during his trial that two of the police officers who he suggested had played a part in creating false and manufactured observations had been criticised in a recent case by another judge for breaching various guidelines in their handling of observation records and were the subject of an investigation for misconduct.
It is emphasised that McGuffie’s evidence at trial involved a clear denial of any involvement with those arriving from Barbados and that if this material had been known to trial counsel, he may have presented the case differently, particularly as regards officers Breen and Jones.
45.
The trials of McGuffie, on the one hand, and
Green and others
, on the other, were prosecuted by and presided over by different members of the bar and different judges.
46.
Following the complaints, officers Jeans, Dunne and Green were investigated by the Independent Police Complaints Commission (“
IPCC
”). The investigation was concluded on 8 April 2013. Whilst noting inconsistencies, it was decided there was no evidence to demonstrate that the officers had fabricated their accounts or that there had been an agreement to manufacture evidence or to commit perjury. It was accepted that there had been failings as regards the administration of the logs (
e.g.
times and dates had not been properly recorded; the absence of certain officers from the debriefing exercise had not been noted, resulting in a misleading impression; procedures relating to a debriefing were not followed; a “
Z line
” was not put through blank pages). It was concluded that there was no case to answer as regards misconduct and no further action was taken. As a result, there are no disciplinary or misconduct findings against any of the officers concerned.
47.
Undaunted by those limited criticisms, Mr Bennathan emphasises that this is a case in which the same team of observation officers have been the subject of a “
series
” of complaints, and that these complaints were outstanding at the time of the instant trial. It had been alleged that the members of the squad had lied and created false entries and it is suggested that the existence of these complaints should have been disclosed, regardless of the IPCC’s later findings. It is argued, following the decision in
Regina v Z
[2000] 2 AC 483
, that an acquittal does not act as a bar to the introduction of relevant facts in a later trial (see the speech of Lord Hutton at page 505 A – D).
48.
Mr Bennathan submits that the prosecution’s responsibilities on disclosure are clear. He reminds the court that in
R v H and others
[2004] UKHL 3
;
[2004] 2 AC 134
:
14. Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.
49.
Mr Bennathan has helpfully taken us to the relevant statutory provisions and guidance as regards disclosure. First, the
Criminal Procedure and Investigations Act 1996
includes the following provisions:
2. General interpretation.
[…]
(3) References to the prosecutor are to any person acting as prosecutor, whether an individual or a body.
(4) References to material are to material of all kinds, and in particular include references to—
(a) information, and
(b) objects of all descriptions.
[…]
3. Initial duty of prosecutor to disclose
(1) The prosecutor must—
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused , or
[…]
50.
The Code of Practice made under the
Criminal Procedure and Investigations Act 1996
sets out,
inter alia
:
7.3.
[…] the disclosure officer must give the prosecutor a copy of any material which falls into the following categories (unless such material has already been given to the prosecutor as part of the file containing the material for the prosecution case)
[…]
any material casting doubt on the reliability of a prosecution witness;
[…]
51.
The Attorney General’s Guidelines on Disclosure in its present iteration (3 December 2013) contains the following:
Disclosure: general principles
4.
Disclosure refers to providing the defence with copies of, or access to, any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed (
section 3 CPIA)
.
5.
Prosecutors will only be expected to anticipate what material might undermine their case or strengthen the defence in the light of information available at the time of the disclosure decision, and they may take into account information revealed during questioning.
6.
In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:
a)
the use that might be made of it in cross-examination;
b)
its capacity to support submissions that could lead to:
(i)
the exclusion of evidence;
(ii)
a stay of proceedings, where the material is required to allow a proper application to be made;
[…]
c)
its capacity to suggest an explanation or partial explanation of the accused’s actions;
[…]
7.
It should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.
Investigators and Disclosure Officers
26. Disclosure officers must specifically draw material to the attention of the prosecutor for consideration where they have any doubt as to whether it might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.
52.
By
section 100 Criminal Justice Act 2003
bad character of a witness can be introduced if:
100 Non-defendant's bad character
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
[…]
(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
[…]
(3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—
[…]
(c) where—
(i) the evidence is evidence of a person's misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
[…]
53.
It is submitted that evidence of the kind in issue in the present case (
viz
. the criticisms that can be made of the observation evidence in Green and others) is admissible in criminal proceedings under
section 100
for the reasons given by Lord Phillips in
O’Brien v Chief Constable of South Wales Police
[2005] UKHL 26
;
[2005] 2 AC 534
when he observed:
41.
[…]
Evidence which indicates that a police officer has fabricated admissions in a previous case is not evidence "as to credit alone", if it is alleged that the same officer has fabricated evidence in a subsequent case. The position is now governed by
section 100
of
the 2003 Act
which renders admissible, with the leave of the court, evidence of the bad character of a person other than the defendant if, and only if, it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole.
54.
In summary, it is argued that for evidence to be admissible it must be cogent, and in the present context there should be a sufficient link established by the similarities between the alleged misconduct in the two investigations or cases, such as to give it probative value.
55.
Finally, although the judgment only dealt with the issue of credibility (the “
trustworthiness
” of one of the principal officers and his colleagues), we are reminded that in
R v Maxine Edwards
[1996] 2 Cr App R 345
, this court allowed an appeal on the basis that the applicant’s conviction was rendered unsafe because the jury might have taken a different view of the case if they had known that some of the officers in the case had allegedly fabricated similar confession evidence and the Crown had decided that as a result the convictions in those other cases could not be considered reliable. In the course of giving the judgment of the court Beldam LJ said at page 350:
[…]
the fact remains that in 1993 the degree of suspicion of the trustworthiness of the evidence of Constable Carroll, and those with whom he was working from day-to-day was such that the Crown considered convictions based upon that evidence could not safely be supported.
Once the suspicion of perjury starts to infect the evidence and permeate cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed.
It is impossible to be confident that had the jury which convicted this appellant known the facts and circumstances in the other cases in which Constable Carroll had been involved, that they would have been bound to convict this appellant. In our view, that is the appropriate test.
Adrian Weekes
56.
It is alleged that the summing-up was materially flawed in two key respects, in that the judge:
i)
Incorrectly summed-up the crucial telephone evidence insofar as it related to the applicant; and
ii)
Invited the jury to conclude that the telephone 6731 was in his possession at a material time on an impermissible basis.
57.
The case against Adrian Weekes depended centrally on the telephone contact between him and others and in this regard the applicant suggests that the following points are properly to be made:
i)
There was no evidence of any connection between the applicant and the two airport workers who placed the drugs in the airside lavatory at Grantley airport or that the applicant went to the airport at the same time as Jennifer Weekes.
ii)
There are no scientific links (
e.g.
DNA or fingerprints) to link the applicant with the drugs.
iii)
There is no subscriber or billing data for the 6731 telephone number.
iv)
The contact between the 6731 telephone number and Jagjit Rayit and McGuffie’s telephones was dependent on the billing data for those telephones.
v)
There was no basis for suggesting that the applicant and McGuffie knew each other.
58.
Mr Munday Q.C. on behalf of Adrian Weekes argues that the only basis for the assertion that the applicant had used the 6731 number at any material time was that Ms Rayit had given this number to an hotelier as a means of contact for herself when in Barbados in April 2009 (albeit the reservation was made for the applicant and Ms Rayit) and that her telephone (07533794901) had been in contact with the 6731 number in September 2009.
59.
At one stage during the first day of the summing up on 1 December 2011 the judge said:
And you will find calls on the 19
th
and 20
th
September to and from the 6731 number, and of course that number is in Barbados. So who was at the other end of the phone? Well, it was not Ms Rayit, was it, because we know that she was in the UK at the time. And it is a matter for you, but you may think that that suggests that it must have been Mr Weekes. Because he was in Barbados, and as I say, and I will come on to it later, the number is attributed to him and Ms Rayit.
[…]
So far as Mr Weekes is concerned, and again I will be coming on to the case involving him later, but you may remember Mr Munday telling you that the attribution of phone numbers to Adrian Weekes was not accepted by his defence.
[…]
But if the prosecution are right in attributing phone numbers to him, then it may be worth having a look at call number 1927. That is a call from the 6731 number, and I will just remind you briefly that that is attributed to Ms Rayit and Mr Weekes, because it is the number given on a hotel booking form which we will look at later. But that phone call from the 6731 number in Barbados, at a time remember when Ms Rayit is in the UK, at 6.03 in the morning. If it is Mr Weekes making that call, firstly what is he doing making it at that time in the morning ,and secondly what is he doing making it to the 4534 number?
60.
During the discussions that followed in the absence of the jury at the time of the midday adjournment, it was accepted that there was no evidence that the telephone had been in Barbados at the relevant time. The judge indicated that he intended to correct any mistake on his part, albeit he wanted time to reflect on the matter overnight.
61.
The judge returned to this subject the following day, as follows:
Now, let me turn to the case against and for Adrian Weekes. Mr Weekes, as you know from admission 54 onwards, was in Barbados from the 10
th
September, returning overnight on the 23
rd
and 24
th
September. That trip, flights and accommodation, was paid for by his father, Mr McConnie. Now, the case against Mr Weekes depends on telephone contact that the prosecution allege that he had. And as you know the prosecution have attributed to Mr Weekes a number of phones, or phone numbers. First of all, there is the phone number ending in 3600. Now, the reason the prosecution attribute that number to Adrian Weekes is to be found in your jury bundle at page 167, and that shows the packaging for the SIM card. It is a SIM card which has that number ending in 3600 on it. And that was found during the search of the address that Mr Weekes at that stage shared with Ms Rayit. Not only does the number come from there, but it is also to be found at page 10 of your jury bundle in Jennifer Weekes’ phone, the data recovered from her phone, and in her phonebook it appears under the name Adrian. So two reasons why the prosecution say the 3600 number is his.
The next number is the one ending 3620. That is attributed to Adrian Weekes’ mother, Joan, and also attributed by the prosecution to Mr Weekes himself. Again, if you look at page 10 in the jury bundle you will see that number recorded in Jennifer Weekes’ phone book under the name Joan. You may think, however, that you should be extremely cautious before attributing any use of that phone to Adrian Weekes as opposed to attributing it to his mother.
Now, the third number – and it is an important one in the context of the case against Mr Weekes – is the number ending in 6731. Now, you will have noticed that that number is attributed not only to Adrian Weekes but also to Ms Rayit. And you will remember where the evidence for that number comes from.
[…]
And it is that booking form for the Coconut Court beach resort. And you will remember that it is a booking apparently made by Ms Rayit, but it is made for her and for Adrian Weekes. And that is the number that Ms Rayit gives as a contact number, the one ending 6731. I should point out, before we go any further, as Mr Dodd has asked me to, that there has been no suggestion by the Crown that that 6731 number was used by Ms Rayit. But the Crown contention is that it was being used at various times by Adrian Weekes.
Now, as you know, because you heard Mr Munday tell you, none of those attributions are accepted by the defence for Adrian Weekes. Before any of those numbers can have any significance when you are considering the case against Mr Weekes, or obviously before any of those numbers could have any significance, you would have to be sure that it was Adrian Weekes who was using that number. Because clearly if you are not sure of that then it cannot be evidence in the case against him.
It may be helpful for you to bear in mind that it appears that in September of 2009 Adrian Weekes and Ms Rayit were partners. We have not heard any details about that, we do not know what sort of state the relationship was in, but the evidence appears to be that they were partners. And you may think
[…]
there are many many occasions when phones attributed to one of them are contacting phones attributed to the other. And you may think that is consistent with them being partners. But for instance, when you are considering whether the prosecution have proved that the 3600 number was being used by Adrian Weekes, you may find it helpful just to look at the number of times that Ms Rayit’s phone contacts that number. It is entirely a matter for you, but it may be evidence from which you can infer that it was Adrian Weekes using the 3600 number. And you can do the same exercise to a very much more limited extent with the 6731 number.
If you are sure in the case of any particular number attributed to Mr Weekes that he was actually using that number, if, and only if, you are sure of that, well then you must go on, must you not, to look at the contacts between that number and other numbers in this case.
[…]
in summary, you will find that the 3600 number had contact with the 8169A number. It had contact with the Wesley Mayers number. It had contact with the Jennifer Weekes number. Again, you may well take the view, “Well, so what? She was his aunt, there’s nothing sinister about that.” But the fact is there is contact between the 3600 number and Jennifer Weekes’ number. You will also find contact between the 3600 number and Mr Eugenie.
Now, as you know, from the 10
th
September Mr Weekes was in Barbados. And there are calls when he is in Barbados between Ms Rayit’s 4901 number and the 3620 number attributed to Adrian Weekes’ mother and to Adrian Weekes. And again, you will find examples of that. And you will also find – and this may be more significant – calls between Ms Rayit’s number and the 6731 number. Now, as we will see in a moment, the 6731 number is important because of other contacts that that phone has later on. And you will find examples of calls between Ms Rayit’s number and the 6731 number, for instance on page 61/109, page 64/109. And there are others.
Now, I said yesterday that the calls to the 6731 phone were made when that phone, the 6731 phone, was in Barbados. And in your absence Mr Munday has pointed out that I should not have said that because in fact there is no direct evidence that the 6731 phone was in Barbados. It may be that by looking at the pattern of phone calls, and in particular phone calls from Ms Rayit, you will come to the conclusion that it was, but that is entirely a matter for you, and as I say there is no direct evidence that that phone was in Barbados as opposed to being in the UK.
But you are entitled to take in to account that that 6731 number is phoned by Ms Rayit on a number of occasions when we know that Mr Weekes was in Barbados. The 6731 phone, I remind you, the contact number that Ms Rayit gave on that Coconut Beach resort reservation. Well, clearly if it is Ms Rayit using the 4901 number she is not phoning herself. And you must decide whether there is proper evidence on which you can come to the conclusion that the 6731 number was indeed the number of Mr Weekes. But you must be very careful, as I have said, before attributing the 6731 number to Mr Weekes. Bear in mind that the only evidence as to its attribution, only direct evidence, comes from that booking form and it is not a booking form, apparently, that he even filled in.
Now, reverting to the contacts that you will find as you go through the schedule. At your page 81/109 you will see Mr Eugenie, the taxi driver, trying to contact the 3600 number. At pages 84 and 85 there is a large number of text messages, it covers most of two pages of text messages sent by Ms Rayit’s 4901 number to the 6731 number. And by now we are up to the 19
th
September, which of course was the date before the importation. I do not know, and no one I think has explained, whether all of those text messages were individual text messages that were received, or whether it was a lot of attempts to send one text message. But the fact is that at the very least there are a lot of attempts to send texts, or a text to the 6731 number. And you are entitled to ask yourselves, “Well, was that Ms Rayit texting her partner?” The reason that is important, the reason it is important for you to decide are you sure that the 6731 number was being used by Mr Weekes, as I said, is because of other contact. And in particular, contact with the 4534 number. For instance, contact number 1863 which is at page 88/109. You will see from event 1863 that the 6731 number contacts 4534. Whether that is significant depends obviously on the conclusion you have come to about the 4534 number. But if you have come to the conclusion, or if you do come to the conclusion, that the 4534 number was being used by someone who was involved in the organisation of this importation, well then obviously it may be significant that the 6731 number contacts that number. And if you look, immediately after contacting that number then contacts Ms Rayit’s number.
On the 20
th
September at three minutes past six in the morning the 6731 number again contacts 4534, and there is a conversation for one minute and 26 seconds. Now, leaving aside whether that is a phone call made from Barbados or from the UK, the fact is that 6731 is ringing 4534 just after six o’clock in the morning. And as we know, about an hour before Jennifer Weekes comes through in to the arrivals part of Gatwick airport. And if you follow it through, at 6.20 the same number, 6731, attempts contact with Ms Rayit and does so again at 6.58. At 7.11 the 6731 number does contact 4534, that is on your page 95. At 7.17 the other number attributed to Mr Weekes, the 3600 number, sends a text to Jennifer Weekes and still at 7.17 tries to contact Jennifer Weekes. And then at 7.18, so one minute later, phone 6731 phones Mr Eugenie, the taxi driver, and speaks to him for one minute and six seconds.
Now again you may want to think about that. That is only of significance in Mr Weekes’ case if you are sure that Mr Weekes was using the 6731 number. But if he was, the fact that he contacts or attempts to contact Mr Eugenie does suggest, does it not, that he knew of the arrangement that Mr Eugenie should pick up Jennifer Weekes?
At 7.19 in the morning, so shortly after Jennifer Weekes has emerged from Gatwick airport, there is phone contact again between 4534 and 6731. At 7.47 Mr Eugenie is phoned again, but this time not by the 6731 number but by the 3600 number. And I have already been through the reasons why the prosecution attribute that to Mr Weekes. And the same comment applies, does it not? If you are sure that it was Mr Weekes using that 3600 number, then again the fact that he is ringing Mr Eugenie suggests that he knew that arrangements had been made for Eugenie to take Jennifer Weekes from Gatwick airport.
Later that day, at 23 minutes past one in the afternoon, the 9286 number – and you will remember what the prosecution say, and the evidence about that, that the 9286 number is the successor to the 4534 number – at 13.23 that afternoon, on your page 106, the 9286 number phones the 3600 number. And that on your schedule is events 2142, 2143 and 2144. And then later there are further calls to Mr Eugenie’s number from both 6731 and 3600.
And so as I say, the case against Mr Weekes depends really entirely on the phone contact that the prosecution allege. And so you are going to have to go through a two stage process. One, decide whether you are sure that Adrian Weekes was using some or all of the numbers attributed to him. Two, if you are sure in the case of any of those numbers that Adrian Weekes was using that number, then you must ask yourselves is the pattern of contact with other phones, and the timing of contact with other phones such that you are sure that there could be no innocent explanation? Obviously if you are not sure of that, verdict not guilty. Only if you are sure that he was using a particular phone or phones, and from the pattern of contact and the time of contact that there could be no innocent explanation, only in those circumstances would you find him guilty.
62.
Against that background it is emphasised that Adrian Weekes had not admitted that the 6731 telephone number had been correctly attributed to him or that it was in Barbados on 19 and 20 September. It is submitted that he was not obliged to challenge prosecution assertions that were not founded on evidence or on sustainable inferences based on the evidence. Mr Munday argues that he first raised this issue “
at a suitable time
”. It is said that the judge failed to rectify the error he made as to the location of the telephone using the 6731 number timeously or adequately, and the applicant contends that there was no sustainable basis for the jury to conclude that the telephone using this number was in Barbados at the relevant time. It is contented that the timing and the pattern of the telephone calls did not properly admit of the conclusion that Rayit was calling Adrian Weekes in Barbados.
63.
Mr Munday argues that the judge should not have analysed the pattern of the telephone calls during the summing up in the manner we have set out above, and it is suggested that the jury should have been directed not to undertake this exercise. In the alternative, it is argued that Mr Munday should have been permitted to make a second closing speech.
The Respondent’s Submissions
Alexander McGuffie
64.
As regards the CCTV evidence, it is submitted by Mr Hughes Q.C. that the uncontested evidence is that this material was erased 30 or 31 days after the relevant events. Accordingly, it is argued that this ground of appeal is without foundation.
65.
It is observed that McGuffie’s counsel at trial did not challenge the greater part of the entries on the log and it is emphasised that the evidence of DCs Jones and Breen was used to undermine the evidence of DC Cleaves. Moreover, Jones and Breen are said to have given some evidence that assisted the applicant. It is emphasised that only some of the complaints generated in the case of
Green and others
were upheld as regards DCs Breen and Parry. Those findings did not result in disciplinary proceedings for misconduct. It is argued that it is unlikely that this material would have been deployed by counsel acting for McGuffie at trial, if he had been aware of it, and that the judge might well have refused to permit cross-examination on this issue if an application had been made. Prosecuting counsel were unaware of the complaints or the investigations arising out of the Isle of Wight case. It is submitted there has been no failure in disclosure in those circumstances.
Adrian Weekes
66.
It is unnecessary to rehearse the respondent’s submissions as regards this applicant because they broadly coincide with the conclusions we have reached as regards the merits of his grounds of appeal.
Discussion
Alexander McGuffie
67.
During the trial there was considerable focus by counsel on behalf of McGuffie on the contents of the log and its reliability. In order to demonstrate the extent to which this was of concern to this applicant, we have summarised the main references to this document by the judge during the summing up.
68.
DC Jones initially went to the wrong terminal (the North Terminal). An entry on the log for 6.28 set out: “
White male, ginger hair, blue Ralph Lauren polo shirt, blue jeans, trainers. Waits in main arrivals hall at Gatwick airport reading The Sun.
” In an addendum, entered at the debriefing round about 18.00, it was added that “
This male was seen at 05.40 initially. He later met a female and left Gatwick airport
.” DC Jones in evidence said he reported this to Officer Parry at 5.40. However, until Jones gave evidence during the first trial there was nothing to indicate that this related to events at the North Terminal. The judge observed that this may
“show at the very least a rather cavalier attitude on the part of Mr Jones. And you may think that at the debriefing he should have made it absolutely clear that at the time that he saw that man he was in the North Terminal rather than the South Terminal”.
The judge added that this evidence
“may just cause you to think about other evidence that Mr Jones has given”.
69.
The entry at 7.07 states that Jennifer and Richard Weekes were met by a white male. A later addendum puts the position very differently. It describes McGuffie looking at Jennifer and Richard Weekes and walking alongside Jennifer Weekes, before walking towards the car park. DC Jones said that he could not remember if he actually used the word
“meet”
on the radio system to Ms Parry. He said that Jennifer Weekes and McGuffie did not walk up to each other, but he acknowledged her arrival when they looked at each other
.
There is no reference, however, in the addendum of this mutual acknowledgement.
70.
DC Cleves testified that at 7.07 Jennifer Weekes pushed her baggage trolley through arrivals. She walked along the railings parallel to Mr McGuffie, who was on her left hand side. They were looking at each other and DC Cleves suggested
“I saw Jennifer Weekes look at Mr McGuffie. She raised her left arm with her fist clenched and then lowered it, while maintaining eye contact with Mr McGuffie.”He said that McGuffie’s reaction to her gesture was to smile.
71.
There was no mention of that event in the 7.07 entry on the log. Instead, it was added later. During cross-examination, DC Cleves agreed that this observation was critical, and he said he passed this information to DC Parry (who was keeping the log) as soon as possible, to the best of his memory. He was, in reality, suggesting that she was responsible for not recording this information. However, when questioned during the first trial he said
“I believe I did tell someone that day, I can’t recall who. Probably on the journey from Gatwick.”
He was accused by defence counsel of lying
.
He agreed that part of the discussion at the debriefing was to the effect that McGuffie had not met Jennifer Weekes and was not part of the convoy going back to London.
72.
The accuracy of the log was clearly relevant to the issue of whether the officers who contributed to the observation evidence in the present trial – including DC Breen and DC Parry (who were involved in the observations in both cases) – may have created a false account at to what occurred at Gatwick Airport. Indeed, those events were at the centre of the case against McGuffie. To a significant extent, the prosecution’s allegations depended on the accuracy of the account by the officers as to what they saw shortly after the arrival of Jennifer and Richard Weekes at Gatwick airport. The log, including the later addenda, was a key component of this material. Critically, DC Parry compiled the log in the present case and in
Green and others
. The allegations against McGuffie would have been seriously undermined if the jury had decided that the log was potentially unreliable, in the sense that false information had deliberately been included or added to it. This raised the issues of whether i) the observing officers reported the events reliably to DC Parry who was making the log, ii) DC Parry faithfully recorded the information on the log as it was passed to her and iii) misleading addenda were entered onto the log during the debriefing session or at some other time.
73.
As the judge observed to the jury, there were a number of anomalies as regards the observation evidence in the present case: the alterations to the log were extensive; the evidence of the officers was inconsistent; and notable detail, relied on by the officers in evidence, was lacking in the original section of the log. In our judgment, it would have been open to a jury to conclude that the events rehearsed above as regards the essentially contemporaneous case of
Green and others
tended to indicate that two key officers in the instant case (DCs Breen and Parry) were prepared to break the rules as regards compiling observation logs. Furthermore, there is a sustainable basis for a court to conclude that DC Breen had taken steps to persuade two local officers to give false observation evidence that linked the fishing boat with the holdalls that were later discovered. Although not all of the officers in the present case had been involved in
Green and others
, the history to the observations in that case may have undermined, in a general sense, the reliability of the evidence as regards what occurred at Gatwick in the present trial.
74.
Evidence which tends to indicate that police officers have fabricated observations in an overlapping case is not evidence simply going to credibility if a sustainable line of defence for an accused is that the same officers (or some of them) fabricated evidence of a similar nature to that relied on in the current proceedings. As set out above, under
section 100 Criminal Justice Act 2003
, evidence of the bad character of a person other than the defendant is admissible, with the leave of the court if, and only if, it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole. The fact that a complaint had been made in
Green and others
was, of itself, of little value, but it should have acted as a trigger to alert the officers that there was material that was relevant in the present trial as bad character evidence as to whether the officers (or some of them) had provided unreliable observation evidence.
75.
The introduction of evidence of the bad character of a witness is not necessarily dependent on formal adjudications having been made against that individual (see
R v Miller
[2010] EWCA Crim 1153
;
[2010] 2 Cr App R 19
, at paragraphs 20 and 21). Instead, it will usually be necessary for there to be “
sound material
” (as opposed to “
kite flying and innuendo
”) that establishes the alleged bad character. In the present circumstances, it is a question of whether there was sufficient connection between the evidence in the two cases such as to mean that the observation evidence in the case of
Green and others
had
substantial probative value in relation to a matter which was a matter in issue in the proceedings, and was of substantial importance in the context of the case as a whole (see
section 100 Criminal Justice Act 2003)
.
76.
As set out above, during this case counsel for McGuffie focussed significantly on the detail of the observations and the entries in the log, and the criticisms of the evidence in the first Isle of Wight trial would potentially have thrown light on whether there had been similar failings in the instant case. This went to one of the issues in the case, namely whether the observation evidence was accurate and whether the jury ought properly to rely on it. Counsel acting for McGuffie would, in all likelihood, have adopted different tactics if he had realised that DC Breen’s reliability and honesty as regards observation evidence was open to doubt following the events in
Green and others
. Mr Scobie QC, then appearing for the applicant, exploited the differences between DC Jones and Breen, on the one hand, and DC Cleaves, on the other, as regards the latter’s evidence that Jennifer Weekes’s raised a clenched fist and had eye contact with McGuffie, and whether he smiled. Armed with the material from
Green and others
, it is likely he would have adopted a more forthright attack on the evidence of the three detective constables, Parry, Breen and Jones.
77.
This was a strong case against McGuffie, but we are unable to conclude that the jury would inevitably have convicted the applicant if the observation evidence in
Green and others
had been properly explored. We stress that a criminal trial should be focused on the central issue or issues in the case and it should not be diverted by subsidiary or collateral matters which only have indirect or marginal bearing on the allegations the accused faces. That said, it is impossible to be confident that the jury would have convicted this applicant if they had known about the facts and the circumstances of the observations in the Isle of Wight trial, given it was proximate in time and there were close similarities in circumstances.
78.
For these reasons, we grant leave and quash McGuffie’s conviction. We will hear submissions as regards a retrial.
79.
Before departing from McGuffie’s case, we observe that since the uncontradicted evidence presented to this court is that the original CCTV footage was destroyed 30 or 31 days after these events, there is no merit in that discrete ground of appeal.
Adrian Weekes
80.
The prosecution opened and thereafter prosecuted the case against Adrian Weekes on the assumption that it was uncontested that the 6731 number was in Barbados at the relevant time (19 and 20 September 2009). It is of note that the extensive telephone schedule set out the 6731 number along with the names “
Adrian/Jagjit Rayit
”. By way of contrast, at least one other number was left unattributed because defence counsel had indicated that the alleged link with a particular defendant was in dispute. The “
blue
” telephone number 4534 (as it appeared on the telephone schedule) was said to have been used by McGuffie, but it was left “
unnamed”
: McGuffie’s name was not linked to it on the schedule because his counsel at trial had informed the prosecution that this was a live issue in the case, given he did not accept it had been in his possession. In contrast, Mr Munday failed to reveal that the same contention was going to be advanced for the 6731 number in Weekes’s case. The prosecution’s opening written note dated 7 November 2011 was littered with instances of the assertion that the telephone using the 6731 number was in Barbados at the relevant time. No attempt was made to correct this misunderstanding. In Weekes’s Defence Statement he merely set out that only some of the telephone numbers were correctly attributed to Weekes. No further particulars were provided. Until Mr Munday made his closing speech, he had not asserted any positive case. He did not ask any questions of witnesses. He did not make a submission of no case to answer, and he did not call the applicant to give evidence.
81.
That the judge in those circumstances misunderstood the case being presented by Weekes was entirely unsurprising. The Criminal Procedure Rules stipulate at Rule 3.2 that active case management by the court is necessary in order to further the overriding objective. One aspect of this requirement concerns the early identification of the real issues. The parties are obliged actively to assist the court in fulfilling this duty, with or without a court order (Rule 3.3). Those defending Mr Weekes failed to comply with the letter or the spirit of that important requirement. We stress that this duty, which rests equally on the prosecution and the defence, does not breach an accused’s protection against self-incrimination. The applicant was under a statutory obligation pursuant to
section 6A Criminal Procedure and Investigations Act 1996
to indicate the matters of fact on which he took issue with the prosecution and to set out, in the case of each such matter, why he took issue with the prosecution. As Hughes LJ (VP) explained in
R v Rochford
[2011] 1 Cr App R 11
:
21. […] Do legal professional privilege and the defendant’s privilege against self-incrimination survive s.6A ? The answer to that is “Yes”. What the defendant is required to disclose by s.6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial. Nor is he obliged to incriminate himself if he does not want to. Those are fundamental rights and they have certainly not been taken away by s.6A —see the reasoning in the slightly different context of the Criminal Procedure Rules in R. (Kelly) v Warley Magistrates’ Court
[2007] EWHC 1836 (Admin)
;
[2008] 1 Cr. App. R. 14
(p.195).
[…]
24.
[…]
What
(the defendant)
is not entitled to do is to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it.
[…]
82.
Having laboured under a misapprehension about the 6731 number until corrected by Mr Munday, and having taken some time carefully to reflect on the issue, the judge gave the jury directions (set out above) which in our judgment put the matter on an entirely fair footing.
83.
It was an inevitable consequence of having failed to alert the prosecution, the judge or the jury until the last moment as to one of the critical issues on which Weekes relied – namely it was unproven that the 6731 number was in his possession at the material time – that the first significant concentration in the case on whether the 6731 telephone was used by Weekes whilst the drugs were being imported into the UK only occurred after Mr Munday had made his closing speech. Given this issue did not emerge until after prosecuting counsel had addressed the jury, it was left to the judge during the summing up to highlight the main parts of the evidence (most particularly the relevant entries on the telephone schedule) that were potentially relevant to this issue in order to help the jury decide whether the pattern of use of the 6731 and 3600 numbers supported the prosecution’s contentions. Mr Munday argues that the judge should either have allowed him to make another speech or he should have directed the jury not to undertake any analysis of the evidence that was in their possession, in the sense of forbidding them to compare the use that had been made of the two telephones. We unhesitatingly reject both contentions. Mr Munday conceded during the course of his submissions that he deliberately abandoned the opportunity of making a submission of no case to answer, at least in part, because he wanted “
to keep his powder dry”
in order to delay revealing this aspect of Weekes’s defence until after the prosecution’s closing speech. It would have been wholly apparent to Mr Munday that once he disclosed that he did not accept the assumptions as regards the 6731 telephone on which the prosecution and the judge had been proceeding, the judge would thereafter need to direct the jury as to the evidence in the case that was relevant to that issue. Therefore, if Mr Munday wished to address the jury on the basis that the evidence did not support the proposition that the telephone was in Weekes’s possession, he should have undertaken that analysis during his closing address. There is no merit in the submission that he should have been allowed to make a second speech in order, for example, to compare the use of the 6731 and 3600 telephone numbers or that the judge should have ordered the jury not to consider whether the evidence of the use of the two telephones supported the prosecution’s case that the 6731 telephone was in Weekes’s possession at the relevant time.
84.
Mr Munday suggested that a useful analogy is to be found in the direction that judges routinely give to juries not to act as experts, for instance by attempting to resolve disputed handwriting by conducting their own analysis and comparison. In our view, that is a wholly inapposite comparator: the rationale behind the direction in those circumstances is that the jury will not have the skills to enable them to perform the role of an expert, whereas in the present situation they were well placed to decide what inferences, if any, could properly be drawn from the various strands of evidence that related to the use of particular telephones. There was no reason for the judge to direct the jury that they should simply accept Mr Munday’s submission that the prosecution had failed to establish that the 6731 telephone had been correctly attributed to Weekes.
85.
In any event, the prosecution’s case had always depended to a significant extent on the pattern of telephone calls, and it was inevitable that the jury would need to consider with care whether sustainable conclusions could properly be drawn from the use that was made of the various numbers. The case was opened to the jury on this basis. Given there is no suggestion that Mr Hughes Q.C. departed from his full written Note when opening the case to the jury on behalf of the prosecution, we quote the material passage in full:
63. Given the pattern of telephone calls, in particular the regular contact with
[Jagjit Rayit]
, the prosecution assert that it is
[Weekes]
who is using the Bajan telephone, 012468316731, at all material times, as well as his own UK mobile telephone 07533313600.
86.
In conclusion, having failed to reveal what could be said to be the real issue in his lay client’s case until the very last moment in the trial, we consider that it is wholly unmeritorious for Mr Munday to criticise the judge for highlighting for the jury some of the central features of the evidence in order to help them resolve whether the 6731 telephone was used by Adrian Weekes on 19 and 20 September 2009, given this had not previously been revealed as something that was in contention. On the evidence the judge summarised for the jury during the summing up, there was a proper basis on which they could conclude that the pattern of telephone calls demonstrated that this applicant was using the 6731 telephone on 19 and 20 September 2009 (
e.g.
the timing and the extent of the contact between this number and numbers associated with Jagjit Rayit, as well as the contact with the taxi driver). Essentially, given the links between Jagjit Rayit, Adrian Weekes, the taxi driver and the 6731 number (including the booking at the Coconut Court hotel); the utilisation of the 6731 number during the central events; and an element of change in the use of the 3600 and 6731 numbers depending on whether Adrian Weekes was in the UK or Barbados (albeit there was contact with the 3600 number after 7.00 on 20 September 2009), the jury were entitled to conclude he was in possession of the 6731 number whilst in Barbados at about the time Jennifer and Richard Weekes arrived at Gatwick airport. Mr Munday accepted that it was open to the jury to conclude that whoever was in possession of the 6731 number at this stage was a part of this conspiracy, and the jury clearly resolved that this was Adrian Weekes. They additionally concluded – in our view wholly sustainably – that this revealed his involvement in the conspiracy.
87.
We therefore refuse Weekes’s renewed application for leave to appeal against conviction. | [
"THE RIGHT HONOURABLE LORD JUSTICE FULFORD",
"THE HONOURABLE MR JUSTICE HAMBLEN",
"HIS HONOUR JUDGE WAIT"
] | 2015_03_05-3565.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/307/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/307 | 774 |
128557af3cfe9c2624afbe5d2f29abe492e9f98bebff751c57d1a4f22a8948d4 | [2011] EWCA Crim 792 | EWCA_Crim_792 | 2011-03-10 | crown_court | Neutral Citation Number: [2011] EWCA Crim 792 Case No: 201003194/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 10th March 2011 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE TREACY HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SORAYA FRA MARRON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of QWordWave International Lim | Neutral Citation Number:
[2011] EWCA Crim 792
Case No:
201003194/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 10th March 2011
B e f o r e
:
LORD JUSTICE PITCHFORD
MR JUSTICE TREACY
HIS HONOUR JUDGE KRAMER QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
SORAYA FRA MARRON
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
QWordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A Morris
appeared on behalf of the
Applicant
Mr M Bashir
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE PITCHFORD: This is an application for leave to appeal conviction and sentence referred to the Full Court by the Registrar.
2.
At Harrow Crown Court before Her Honour Judge Dangor the applicant faced an indictment containing two counts. In the first she was charged with being knowingly concerned in an attempt fraudulently to evade the prohibition on the importation of a Class A drug (cocaine), contrary to section 170(2) of the Customs & Excise Management Act 1979. In the second she was charged with conspiracy to supply a controlled drug of Class A (cocaine). The basis for count 1 was that the applicant believed the substance she was importing was cocaine when in fact it was the drug Phenacetin.
3.
On 10th May 2010 the judge withdrew count 1 from the jury but permitted count 2 to proceed. The factual basis for count 2 was that the applicant knew that she was delivering a cutting agent to a destination in the United Kingdom, intending it to be used for the purpose of supplying cocaine.
4.
As Mr Morris, who represented the applicant at her trial and has appeared before the court today, submitted there was evidence in the prosecution case which the prosecution suggested might enable the jury to reach a conclusion to convict either upon count 1 or count 2 but not both.
5.
On 11th May 2010 the applicant was convicted by the jury. The applicant did not give evidence in her own defence. The sole ground for the appeal is that the judge should have withdrawn the case from the jury at the close of the evidence for the prosecution.
6.
Mr Morris has advanced a secondary argument to the effect that having withdrawn count 1, the judge should have explained why she had done so in order that the jury could understand how they should approach count 2. It is therefore necessary for us to consider the state of the evidence, as it was at the close of the prosecution case. In doing so we intend to make reference only to the principal features of that evidence.
7.
The applicant is Spanish. She was born on 7th May 1977 and has two teenage children. On 7th December 2009 she arrived at Luton airport from Madrid with two large trolley-type suitcases. When her luggage was searched at Customs it was found to contain a fine white powder. The applicant said it was African flour. She dipped her finger in the substance and placed her finger in her mouth.
8.
Subsequently the powder was found to be Phenacetin, used in some parts of the world as a painkiller, but in the United Kingdom as a cutting agent by drug dealers for cocaine. The applicant said that she was going with the flour to meet a man called "John" at an African restaurant next to the Etap Hotel in Birmingham. The applicant's shoes and clothing were swabbed. Traces of cocaine were found.
9.
While she was detained at the airport the applicant answered her mobile phone. She said it was "Max" who was calling - Max being a friend of the man, John. Whilst sitting with an interpreter the applicant telephoned a man in Spain called Johnny. He told her to tell the Customs officer that the substance she was carrying was laundry chemical. It transpired that the applicant had made previous similar trips. She had stayed at the Etap Hotel in Birmingham for one night on 7th September 2009 and paid in cash; she stayed on 6th October 2009 also for one night and paid in cash.
10.
The prosecution looked for restaurants in the area of the Etap Hotel and investigators identified two African restaurants. The manager of the Savannah restaurant in Bristol Street, Birmingham, said there was no one called John associated with the restaurant although mail had been received at the restaurant addressed to a John and had been returned. The manager had never heard of this applicant. The owner of the Somaga restaurant, also in Bristol Street, gave evidence that she knew no one called John who was connected with the restaurant and she did not know the applicant.
11.
The prosecution invited the inference that the applicant knew perfectly well that she was not carrying flour. Had the story been true it would have been confirmed by one of the restaurants in Birmingham. It followed, according to the prosecution case, that she was giving a false account to Customs because she knew the true nature of the substance which she was carrying. There was only one reason why the applicant would have been importing 44 kilos of Phenacetin and that was to make supplies to drug dealers for cutting purposes.
12.
The applicant's own association with cocaine was established by the analysis of swabs taken from her clothing.
13.
The question for the judge was whether upon the evidence the jury could safely conclude either that the applicant believed she was importing the cocaine (count 1), or that she knew that she was carrying a cutting agent with the intent to which we have referred (count 2).
14.
The judge came to the conclusion that count 1 could not be left to the jury because there was simply no evidence upon which the required inference could be drawn. There was however sufficient evidence to enable the jury to consider the count 2 inference, which the prosecution invited. In our view, the judge was right to conclude that count 2 could properly be left to the jury.
15.
Secondly, Mr Morris submits to us that the jury required an explanation from the judge as to why it was that she had withdrawn count 1 from them. However, when the court posed the question: why was it that the jury should have received such information, and how would its absence have affected the jury's deliberations, Mr Morris has difficulty in explaining. Once count 1 had been removed from the indictment for consideration by the jury, the jury had to concentrate upon one scenario only, namely, that if they were to convict at all, it could only be on the basis that they were sure, first, that the applicant knew what was the substance she was carrying, namely Phenacetin, and secondly, that she was carrying it intentionally for the purposes of conspiracy to supply controlled drugs of Class A.
16.
In our view, the absence of any explanation from the judge as to count 1, far from complicating their task concentrated their minds upon the issues which they had to resolve. If they were less than sure of the ingredients of count 2, to which we have referred, then they were bound to find the applicant not guilty.
17.
We have considered the summing-up. The judge was explicit in her directions to the jury, as to the participation of the applicant and her knowledge, which the prosecution was required to prove before guilt could be established. We have no reason to doubt the safety of the jury's verdict and accordingly leave to appeal against conviction is refused.
18.
As to sentence, the judge was informed that if all 44 kilos of Phenacetin was used for cutting cocaine, the resulting street value of the cocaine would have been between £2.4 million and £3.1 million. The judge referred to the appeal of
R v Wolin
[2005] EWCA Crim 3066
. In that case, the appellant had imported 3.85 kilograms of Lignocaine, believing it to be cocaine. The court on that occasion, (Rafferty J and Mackay J) approved a sentence of 5 years for the attempted importation. The judge thought that was on the basis of a guilty plea, in fact there had been a trial and the sentence originally imposed, after trial, was 8 years' imprisonment. The judge sentenced this applicant to 9 years' imprisonment on the basis that the applicant was a courier, far down the rungs of the conspiracy. She took account of the fact that the applicant came from an abusive relationship and would be required to serve her sentence a long way from home.
19.
It seems to this court that if the applicant was fully conversant with the details of the conspiracy to which she had lent herself, particularly if it was anything like that proposed in the expert evidence given to the judge, then a sentence in double figures would have been appropriate. the quantity of the cutting agent imported was very substantial. In this case, on the other hand, the court had no information as to the destination of the powder, nor the extent of the conspiracy, nor the quantity of cocaine actually sold, nor the extent of the applicant's knowledge of the enterprise. In our judgment, the judge was right to treat the applicant as a minor figure in the operation, whatever the scale of the enterprise really was.
20.
Having regard to these important uncertainties, we consider that a sentence of 9 years was excessive even after a trial. Giving due weight to the applicant's personal mitigation, we think that the appropriate sentence is seven-and-a-half years' imprisonment. We shall therefore grant leave to appeal against sentence, we shall allow the appeal and substitute a sentence of seven-and-a-half years. Time spent on remand will continue to count. | [
"LORD JUSTICE PITCHFORD",
"MR JUSTICE TREACY",
"HIS HONOUR JUDGE KRAMER QC"
] | 2011_03_10-2658.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/792/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/792 | 775 |
3fffcf69f6a47f384cc63675bba69ce82d759aff165e0a99c56c8be0b1ed9d47 | [2023] EWCA Crim 1559 | EWCA_Crim_1559 | 2023-11-30 | 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 No: 2023/00337/A3 [2023] EWCA Crim 1559 Royal Courts of Justice The Strand London WC2A 2LL Thursday 30 th November 2023 B e f o r e: VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE BRYAN MRS JUSTICE HIL | This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/00337/A3
[2023] EWCA Crim 1559
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 30
th
November 2023
B e f o r e:
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MR JUSTICE BRYAN
MRS JUSTICE HILL DBE
____________________
R E X
- v -
NYAL JORDAN HUSKINSON
____________________
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 C Daly
appeared on behalf of the Appellant
Mr J Janes
appeared on behalf of the Crown
____________________
A P P R O V E D J U D G M E N T
____________________
MR JUSTICE BRYAN :
1.
The parties appear before the court on an application for leave to appeal against a hospital order imposed upon the applicant in August 2019.
2.
The facts that gave rise to the hospital order and the backdrop to the application is a very serious attack upon his father, Kevin Repton ("the complainant") by the applicant, whereby the applicant slashed his father across the face with a knife. Prior to the attack he told his father: "They've told me to kill you. I've got to kill you. I'm going to kill you now." It was the opinion of the psychiatrists that the applicant was floridly psychotic at the time that the offence was committed and that he suffered from paranoid schizophrenia.
3.
3. On 2
nd
August 2019, in the Crown Court at Stafford, before His Honour Judge Gosling, the court determined that the applicant (then aged 27) was under a disability, pursuant to section 4(5) of the Criminal Procedure (Insanity) Act 1963 ("CP(I)A 1964").
4.
4. The court appointed Miss Ahya as independent counsel for the applicant, pursuant to section 4 of CP(I)A in the context of the finding of fact hearing. On 11
th
July 2019, before His Honour Judge Challinor, a jury found that the applicant had done the act of wounding with intent (count 2), pursuant to section 4A(3) of the CP(I)A.
5.
On 8
th
August 2019, the matter came before His Honour Judge Gosling for sentence. In his sentencing remarks, Judge Gosling concluded that the applicant suffered from paranoid schizophrenia which was of a nature and degree to warrant detention in hospital for medical treatment. Dr Bennett and Dr Taylor considered it appropriate to impose a section 41 restriction order as the applicant had relapsed in the past. If he were released into the community under a clinical management scheme he might relapse again if he failed to take the appropriate medication. Consideration was given to other disposals in the case, but the court was satisfied that a hospital order with a restriction order was appropriate. Accordingly, a hospital order with a restriction order was made, pursuant to section 5(2) of the CP(I)A. Count 1 (attempted murder) was ordered to lie on the file against the applicant on the usual terms.
6.
A long and complicated procedural history then followed, which it is necessary to set out to put the current application in context.
7.
On 29
th
March 2022, the Ministry of Justice/HM Prison and Probation Service wrote to the applicant in these terms:
“On 8
th
August 2019 you appeared at Stafford Crown Court and were found under a disability and unfit to plead on a charge of wounding with intent.
The Secretary of State has been advised that you are now fit to plead to these charges and has decided that you should be remitted to court so that the prosecution against you may resume.
You will remain in hospital until you appear in court. Once you appear in court the hospital order and restriction order, to which you are subject, will lapse. You will discuss with your care team or legal representative what this will mean for you in practice.”
8.
The same day, the Ministry of Justice/HM Prison and Probation Service wrote to Stafford Crown Court Listing in these terms:
“On 8
th
August 2019 at Stafford Crown Court Mr Huskinson was found under a disability and unfit to plead on a charge of wounding with intent and was admitted to Arnold Lodge. The responsible clinician has now reported that Mr Huskinson can properly be tried for the alleged offence.
After consultation with CPS Midlands and with Mr Huskinson’s responsible clinician, Dr Leo McSweeney, the Secretary of State has decided that Mr Huskinson should be remitted to court but will remain in Arnold Lodge pending a court appearance. I should like to know when a date has been set for the court appearance.
The section 37/41 order ceases to have effect on the patient's arrival at court (section 5A(4) of the Criminal Procedure (Insanity) Act 1964). Therefore, the patient’s responsible clinician will be made aware of this so that procedures for detention under the civil provisions of the Mental Health Act can be considered and commenced if the patient is still sufficiently ill as to require compulsory treatment in hospital.
A copy of this letter has been sent to the Chief Crown Prosecutor for CPS Midlands area, and Mr Huskinson’s responsible clinician.”
9.
Following receipt of that letter by Stafford Crown Court, the case was referred to His Honour Judge Gosling on 5
th
April 2022. The Learned Judge directed as follows:
“Please forward the attached letter to the CPS and list the case for mention. Defendant to attend. Would you please check with the author of the letter that they will be responsible for producing him at court or arranging a live link?”
10.
Section 5A(4) of the Criminal Procedure (Insanity) Act 1964 provides as follows:
“(4)
Where —
(a)
person is detained in pursuance of a hospital order which the court had power to make by virtue of section 5(1)(b) above, and
(b)
the court also made a restriction order, and that order has not ceased to have effect, the Secretary of State, if satisfied after consultation with the responsible clinician that the person can properly be tried, may remit the person for trial, either to the court of trial or to a prison.
On the person’s arrival at the court or prison, the hospital order and the restriction order shall cease to have effect.”
11.
In this context Criminal Procedure Rule 25.10 states as follows:
“…
(4)
Paragraphs (5) and (6) of this rule apply where —
(a)
the jury decides that the defendant did the act or made the omission charged as an offence;
(b)
the court makes a hospital order and a restriction order;
(c)
while the restriction order remains in effect the Secretary of State receives medical advice that the defendant can properly be tried and decides to remit the defendant to the Crown Court for trial; and
(d)
the Secretary of State so notifies the court officer.
(5)
The prosecutor must serve on the court officer the medical report or reports by reference to which the defendant has been assessed as properly to be tried.
(6)
The court must give directions —
(a)
for the return of the defendant to the court, which initial directions may be given —
(i)
without a hearing, or
(ii)
at a hearing, which must take place in the defendant’s absence; and then
(b)
for the future conduct of the case, which further directions must be given —
(i)
at a hearing, and
(ii)
in the defendant’s presence
.
(7)
Directions under paragraph (6)(a) —
(a)
may include directions under rule 3.10 (Directions for commissioning medical reports, other than for sentencing purposes) for the commissioning of any further report required by the court;
(b)
may set a timetable providing for the date by which representations about the future conduct of the case must be served; and
(c)
must set a date for a hearing under paragraph (6)(b).
(8)
At the hearing under paragraph (6)(b)—
(a)
rule 3.21 (Pre-trial hearings in the Crown Court: general rules) applies even if a plea and trial preparation hearing has been conducted in the case before; and
(b)
among other things, the court must decide whether to grant or withhold bail.”
(emphasis added)
12.
The matter was initially listed for 9
th
May 2022. The listing officer emailed, amongst others, the hospital as follows:
“This mention hearing will be in court 2 on Monday 9
th
May, time to be confirmed. The link is below for Mr Huskinson to join the hearing in a private, suitable room.”
However, there were difficulties with counsel attending. The court was subsequently informed by the hospital that the applicant was not fit to participate.
13.
On 27
th
May 2022, the case was listed as a mention hearing before His Honour Judge Gosling. Counsel for the prosecution, who also appears before us, Mr Janes, and defence counsel, Miss Ahya, attended. The applicant was not present. We have the benefit of a transcript of that hearing. At that hearing the case was adjourned for material from the applicant's treating clinician to be obtained. No further hearing date was set.
14.
The CPS sent an email to the Crown Court requesting the applicant to be "excused from any hearings in order to preserve his current mental health regime". At this time the Crown were reviewing the public interest in prosecuting the case. In the meantime, the case was awaiting psychiatric reports.
15.
On 27
th
October 2022, His Honour Judge Gosling made the following widely shared direction on the Digital Case System:
“This case has a very protracted history. Ultimately [the applicant] was found unfit to plead and a jury found he did the act. On 8
th
August 2019 His Honour Judge Challinor made a hospital order with a section 41 restriction. The case was relisted on 27
th
May 2022 because [the applicant] had become fit to plead. The prosecution asked that the case be set down for trial on count 2 (section 18) only. The case is awaiting a trial date. The CTLs are not running – [the applicant] is detained under the hospital order, which will continue until his production at court (see M/6, page M/82). I required counsel on each side (Mr Janes and Miss Ahya) to let the court know their availability. Nothing has happened. The case needs to be set down for trial as a matter of urgency, given its age. There is a further complication. [The applicant] has written to the court directly, asking for the trial to be listed and asking for a transfer of his representation order to CLP Solicitors in London. I have uploaded the letter to U.5, page U23. With those currently representing him, please take instructions on this development. I shall send a copy of the letter to CLP Solicitors to make a transfer application, or not, as they decide. I shall not set a trial date yet. I shall have the case mentioned in the week commencing 14
th
November 2022 to see what developments there have been and to make further directions. Would Mr Janes and Miss Ahya please liaise and agree a date that they can manage that week – CVP is fine; or if necessary, the following week. There is no point in the [applicant] attending either remotely or in person.”
16.
Listings in November and December 2022 were adjourned.
17.
A final hearing then took place before Her Honour Judge Montgomery KC on 13
th
January 2023. It was listed as a mention hearing to decide if the Crown would offer no evidence, or if the matter would be fixed for trial, following the Crown's review of the case. Counsel for the prosecution (Mr Janes) and for the defence (Miss Ahya) attended. The applicant was not present.
18.
Mr Janes, on behalf of the Crown, indicated that:
“I had a conference with those instructing me at a senior level within the Crown Prosecution Service and our settled position is that we do not seek to try Mr Huskinson for any count on the indictment. That has been taken following consultation with the officers in the case and involving the input of the complainant … Mr Huskinson's father.”
19.
Counsel for the Crown then stated as follows:
“We have also, because there are very much interest and wider public concerns, liaised with Dr Sweeney, who is Mr Huskinson's treating physician, and considered what the result of that decision would be in terms of any ongoing protection for the public through the provision of treatment of Mr Huskinson.
The position is this: fortunately, there is a lacuna or loophole within the legislation … and it’s this. Were Mr Huskinson to have been physically present at court, your Honour, and the Crown had taken the decision either to proceed to trial or formally offer no evidence, as I will subsequently do, then the existing section 37 and 41 hospital order would lapse.
And, absence any application or use of the civil powers for the Mental Health Act 1983, the hospital would have to release Mr Huskinson into the community. Nobody is advocating that as a way forward. Because Mr Huskinson has been previously arraigned on count 1 (attempted murder) and count 2 … on 11th July 2019, it is not necessary for Mr Huskinson to be present if I subsequently offer no evidence. The only matter that your Honour would need (inaudible) direction and order is for your Honour to allow count 1 to come off the file, as it were – that was the order of His Honour Judge Gosling on 8th August 2019 – so that I can then offer evidence. That is my application to your Honour.”
20.
At this point Her Honour Judge Montgomery KC interjected and stated as follows:
“… I am afraid I cannot disappear count 1 in the way that you suggest I can. It is not possible to remove from the indictment a count on which a defendant has been arraigned in that way. Nor am I particularly reassured by the phrase 'lacuna', which is going to permit the court to take what is conclusive action on this indictment, allowing for the defendant's order and for the finding of the jury to persist.
It seems to me a much better course, although it may not have the air of finality about it, but in ordinary circumstances defendants would prefer that to lie these matters on the file, not to be proceeded with without the leave of the court or the Court of Appeal Criminal Division, both overcomes any concerns about the operation of the lacuna and indeed the inability of the court to take off an indictment a count to which a defendant has already pleaded not guilty.”
21.
Counsel for the Crown then agreed to this course. He stated that leaving the matter to lie on the file with the disposal that he had indicated for the public record and for the court record meant that the Crown's decision not to proceed was there for anyone to see subsequently, and Miss Ahya, on behalf of the applicant, replied: “I think that is a sensible course, your Honour, and I agree.”
22.
Her Honour Judge Montgomery KC then ordered, in relation to the count of attempted murder and the count of wounding with intent on the indictment, uploaded to the DCS on 10
th
July 2019, that those counts lie on the file, not to be proceeded with without the leave of the court or the Court of Appeal Criminal Division, and stated that: “The case is considered, as is accepted by the prosecution, to have reached its final destination.”
23.
Pursuant to section 16A of the Criminal Appeal Act 1968, the applicant applies for an extension of time (over three years) in which to apply for leave to appeal against the hospital order.
24.
The applicant was initially unrepresented. On 17th March 2023, given the applicant's vulnerabilities, the Registrar granted a representation order for solicitors (CLP Solicitors) to advise him on his appeal and to instruct counsel to lodge grounds of appeal, if appropriate. On 26th June 2023, the Registrar granted a representation order for junior counsel to settle grounds of appeal. This was further extended by the Registrar to 16th August 2023, when the applicant's application was referred to the full court for counsel to appear before the full court.
25.
In referring the application to the full court, the Registrar gave the following reasons:
“I refer this application to the full court. The history of the applicant's proceedings is unusual, and the result overall is that, despite the remittal by the Secretary of State, the applicant is currently still subject to an indeterminate sentence. The grounds of appeal submitted merit the consideration of the court.”
26.
For appeals against orders made in cases of unfitness to plead, section 16A of the Criminal Appeal Act 1968 provides as follows:
“(1)
A person in whose case the Crown Court —
(a)
makes a hospital order or interim hospital order by virtue of section 5 or 5A of the Criminal Procedure (Insanity) Act 1964, or
(b)
makes a supervision order under section 5 of that Act,
may appeal to the Court of Appeal against the order.
(2)
An appeal under this section lies only —
(a)
with the leave of the Court of Appeal; or
(b)
if the judge of the court of trial grants a certificate that the case is fit for appeal.”
27.
Section 16B(1) sets out the powers of the court:
“(1)
If on an appeal under section 16A of this Act the Court of Appeal consider that the appellant should be dealt with differently from the way in which the court below dealt with him —
(a)
they may quash any order which is the subject of the appeal; and
(b)
they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.”
28.
Although the hospital order was imposed in 2019, it is said that no grounds of appeal arise until after the final hearing in January 2023, when the applicant was not produced, meaning that section 5A(4) of the CP(I)A was not triggered.
29.
In the grounds of appeal it is submitted on behalf of the applicant that if the applicant had been produced at the Crown Court the effect of section 5A(4) of the CP(I)A would have been triggered and the section 37/41 hospital order would have been discharged.
30.
The prosecution, for their part, contends that there are no grounds to find that the hospital order itself was wrong in law and/or contrary to the medical evidence provided to the court. In any event, the application does not submit that the hospital order was wrong, but rather that the applicant should have been produced before the Crown Court during the remittal proceedings, such that the order would have lapsed. Therefore, there was no basis upon which this court could properly adopt its powers pursuant to section 16B(1).
Discussion
31.
If there were any grounds of appeal in relation to the hospital order that was made on 8th August 2019 (whether on the basis that there was an error of law and/or on the basis that it was contrary to the medical evidence), leave could be sought under section 16A of the Criminal Appeal Act 1968, and the court would have jurisdiction to grant leave if it considered that the grounds of appeal were arguable; and thereafter could hear the appeal, and if the appeal was successful, make any of the orders set out in section 16B(1) of the Criminal Appeal Act 1968.
32.
However, on the evidence before us we are satisfied that the Learned Judge did not arguably err in principle in making a hospital order, and that the hospital order was justified on the medical evidence before him.
33.
If (as occurred), whilst the applicant was subject to the hospital order, the Secretary of State was satisfied, after consultation with the responsible clinician, that the applicant could properly be tried, then he could (as he did) remit the person for trial to the Crown Court under section 5A(4) of the Criminal Procedure (Insanity) Act 1964 for trial, or to a prison, and on the applicant's arrival at the court, the hospital order and the restriction order would cease to have effect.
34.
Following the letter of 29th March 2022 from the Ministry of Justice/HM Prison and Probation Service on behalf of the Secretary of State, the court should have followed the procedure under Criminal Procedure Rule 25.10, and, pursuant to rule 25.10(6), given directions for the return of the defendant to court, with directions for the further conduct of the case, which further directions must be given at a hearing
and in the defendant's presence
.
35.
It was not appropriate for matters to be contrived such that the defendant did not attend at court (with the consequences that would follow under section 5A(4) of the CP(I)A 1964). In circumstances where the Secretary of State had concluded on the evidence that he should remit the matter for trial. To the extent that there were concerns about the defendant's mental health in the context of what would occur when he appeared, then steps could have been put in place in advance under section 3 of the Mental Health Act that would have prevented his release, had such steps been justified.
36.
We consider, therefore, that directions should have been given for the return of the defendant to court at which hearing directions could be sought and made, as appropriate, as to the future conduct of the case. This would have allowed the Crown to indicate its position (that it wished to offer no evidence), and the defendant (through his representatives) to make submissions that he wished there to be a trial.
37.
What was not appropriate was to contrive for the defendant not to be produced and for the court to order that the counts lie on the file and not to be proceeded with without the leave of the court or the Court of Appeal Criminal Division, treating the case as having reached "its final destination", the effect of which was to leave the defendant subject to an indeterminate sentence in the form of a hospital order.
38.
In such circumstances we consider that the appropriate course is as follows:
1.
The application for an extension of time is refused, and we refuse the application for leave to appeal against sentence.
2.
Within seven days the applicant should lodge a Notice of Application to the Court of Appeal Criminal Division to restore the charges which have been ordered to lie on the file. We dispense with any requirement for notice and treat this hearing as the hearing of the application. We accede to that application.
39.
Accordingly, we lift the stay and remit the matter back to Stafford Crown Court for a judge of that Crown Court to give initial directions within 28 days, pursuant to CPR 25.10(6)(a) in relation to the section 5A(4) CP(I)A remittal proceedings, which
must
include a direction that the defendant attend a subsequent hearing (for which appropriate arrangements should be made by the hospital at which he is residing to ensure such attendance) under CPR 25.10(6)(b). It will then be for the attending clinicians to take such steps as they consider appropriate before the hearing at which the defendant must attend, and for the Crown to make its application to offer no evidence (if that remains its position) and for the defendant's representatives to make such submissions as they think fit as to whether there should be a trial.
40.
In relation to costs, we revoke the representation order previously made by the Registrar and make an order that the reasonable costs of defence counsel's preparation and presentation of this hearing be paid from central funds. | [
"MR JUSTICE BRYAN",
"MRS JUSTICE HILL DBE"
] | 2023_11_30-5925.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1559/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1559 | 776 |
23b8034624b243a72c12c218b999c381866992e4c8f26914b4b63693f40861fa | [2005] EWCA Crim 280 | EWCA_Crim_280 | 2005-02-03 | crown_court | No: 200406844/A1 Neutral Citation Number: [2005] EWCA Crim 280 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 3rd February 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) LADY JUSTICE SMITH MR JUSTICE OWEN - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOS 144 & 145 OF 2004 (GEORGE JOHNSTON & JASON MCSHEFFERTY) - - - - - - - Computer Aided Transcript of the Stenograph Notes | No:
200406844/A1
Neutral Citation Number:
[2005] EWCA Crim 280
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 3rd February 2005
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
LADY JUSTICE SMITH
MR JUSTICE OWEN
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 144 & 145 OF 2004
(GEORGE JOHNSTON & JASON MCSHEFFERTY)
- - - - - - -
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 WHITEHOUSE
appeared on behalf of the ATTORNEY GENERAL
MR M ELLIS
appeared on behalf of the OFFENDER JOHNSTON
MR S EVANS
appeared on behalf of the OFFENDER MCSHEFFERTY
- - - - - - -
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, McShefferty, was born in August 1977 and is now 27. The offender, Johnston, was born in August 1995 and is now 19. They both pleaded guilty on 18th June 2004, at Northampton Crown Court, to two offences of robbery. On 4th November 2004, they were sentenced there by Miss Recorder Gargan to 30 months' imprisonment in relation to McShefferty, on each count of robbery concurrently, and in the case of Johnston, to 30 months custody in a young offender institution on each count concurrently. But, in addition so far as John was concerned, he was ordered to serve a sentence of 15 months' imprisonment in respect of five other offences in relation to which he had been committed to the Crown Court for sentence. They were offences of burglary, common assault, taking a vehicle without consent and theft. He asked for 66 other offences, which he had admitted, to be taken into consideration. He had previously been the subject of a community punishment and rehabilitation order, in relation to a further offence of theft.
3.
So far as the first count in the indictment is concerned, and that is the count to which the present application relates, the two offenders tricked their way into the house of their female victim and robbed her of her car keys, purse and house keys. In doing so, they claimed they had a gun. They drove the victim's car away and used it in connection with the commission of the offence giving rise to the second count in the indictment, which was the robbery of a victim of his cash machine card as he sat in his car, claiming at the time they had a knife. No present application relates to that second offence.
4.
In a little more detail, the first robbery took place at about 7.45 in the morning of Sunday 25th April 2004. Mrs Douglas, whose age is not known, but it is known that her husband was above retirement age, was watching television in the lounge of her home. She saw Johnston walk past the window and she went to the front door to see what he was doing. He was at the door. The offender, McShefferty, was some three or four feet away, and there was a third person standing by the gate. Johnston told Mrs Douglas that he was looking for his friends, whom he claimed were in her back garden and he said his ball was in her garden. She agreed to go and find the ball and went inside the house, closing the door behind her but not locking it. The two offenders came into the house and pushed her into the lounge. McShefferty put his hand over her mouth and said: "Don't scream." Johnston said they had a gun and, to add verisimilitude, he placed his hand in his trouser pocket. Mrs Douglas shouted to her husband, who was in the bathroom, to stay where he was. Johnston repeated that he had a gun.
5.
McShefferty rummaged through Mrs Douglas' bag and took out her purse and credit cards and Johnston asked her for her PIN number. She gave them a false number. The two of them fled in her car, taking, as we have said, her house keys, car keys and purse, and saying, as they went, that they knew where she lived and they would be back.
6.
In interview, McShefferty admitted both the offences and expressed remorse. He denied having threatened, as Mrs Douglas claimed, to kill her. He denied that the offences were planned. Johnston, in his interviews, made no comment. Both offenders pleaded guilty at the plea and directions hearing on 18th June 2004. Both had indicated guilty pleas at the preliminary hearing and, so far as McShefferty is concerned, he had indicated a plea of guilty even before that.
7.
At the time of the commission of the offence, Johnston was on bail in respect of other matters. He had been sentenced to a 2 year community rehabilitation order and 100 hours' community punishment order, to which, in summary, we earlier referred, but that order had been made only two days before the commission of these offences of robbery.
8.
On behalf of the Attorney-General, Miss Whitehouse draws attention to what she submits, rightly, are a number of aggravating features. First, the victim was in her home. Secondly, she was a vulnerable woman. Thirdly the offenders claimed they had a gun. Fourthly, Johnston was on bail at the time. Fifthly, the value of the goods stolen, particularly the motorcar, was high.
9.
Miss Whitehouse draws attention to the mitigation to be found in McShefferty's admissions in interview and his expressions of remorse, at that stage, and in the pleas of guilty entered by both of the offenders at an early stage. Furthermore, so far as Johnston is concerned, he, as we have said, was only 18 years of age at the time of the offence.
10.
Miss Whitehouse drew attention to two authorities, In
Attorney-General's Reference No 48 of 2000
[2001] 1 Cr App R(S) 423, in the course of giving the judgment of the Court, Roch LJ said, at page 427, that the authorities indicated that, where there was a single offence of this kind, and the offender has pleaded guilty, the appropriate sentencing range is between 4 and 7 years' imprisonment. Miss Whitehouse, secondly, drew attention to
Attorney-General's Reference No 1 of 1999
[1999] 2 Cr App R(S) 398. In the course of giving the judgment in that case, at page 399, Beldam LJ emphasised what the courts have said on many occasions, that attacks on elderly people, in their own home, deserve severe punishment because of the vulnerability and weakness of such victims and their feeling of isolation from help.
11.
On behalf of the offender, Johnston, Mr Ellis concedes that the sentence of two-and-a-half years was a merciful one, but he draws attention to the observations made by the learned Recorder in passing sentence, which not only included a reference to Johnston as "a crime wave", but also referred to the possibility of a 5 year sentence in his case. Mr Ellis submits that, there is personal mitigation so far as Johnston is concerned. The preparer of the report upon him has known the family for many years and the report indicates that it is a family in which the children appear to be responsible for their parents, rather than vice versa. Mr Ellis submits that the learned Recorder was entitled, bearing in mind, in particular, the 15 month sentence imposed in relation the other offences, to pass a sentence of two-and-a-half years in relation to this robbery.
12.
It is to be pointed out that, so far as Johnston is concerned, he has a very considerable record of offences of dishonesty. They include, in addition, an offence of assault occasioning actual bodily harm, in 2001, when a detention and training order was made for 4 months and an offence of robbery, in July 2002, when a detention and training order was made for 2 years. Furthermore, a detention and training order for 8 months concurrently with that sentence was also imposed for having a sharply pointed article in a public place. Mr Ellis' essential submission is that, although the sentence on Johnston was a lenient one, it was not unduly lenient.
13.
A similar submission is made by Mr Evans, on behalf of the offender, McShefferty. He stresses the remorse shown by this offender in the course of his interviews with the police, as well as his very early plea of guilty. He, like the offender, Johnston, had become addicted to heroin, by reason, in part at least, of the violence within his domestic environment. Mr Evans stresses that the offence was comparatively unsophisticated and not planned. He draws attention to references, which come not only from McShefferty's mother, but also from the prison where he is serving his sentence, which speak of him making good use of his time. His date of release, at present, is August 2005. Mr Evans relies also on the principle of double jeopardy, that is to say, that the offender is being sentenced a second time by this Court.
14.
We take all of these matters into account. In our judgment, a sentence of two-and-a-half years, in relation to an offence of robbery, committed in the circumstances which we have described, was quite plainly unduly lenient. We would have expected, in the court below, a sentence of 5 years' imprisonment, or in relation to Johnston, 5 years' detention in a young offender institution. Taking into account double jeopardy, in substitution for the two-and-a-half year terms imposed by the learned Recorder, we impose in relation to each offender a term of 4 years: that will be imprisonment so far as McShefferty is concerned, and detention in a young offender institution so far as Johnston is concerned. Bearing in mind the length of that sentence, we order that the 15 month sentence, imposed on Johnston in relation to the other matters, will run not consecutively but concurrently with that 4 year term. | [
"(LORD JUSTICE ROSE)",
"LADY JUSTICE SMITH",
"MR JUSTICE OWEN"
] | 2005_02_03-439.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/280/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/280 | 777 |
34b95433afb35429020814003c429d3abe325c4e9edfb74bfea4a4cd0c045fda | [2023] EWCA Crim 676 | EWCA_Crim_676 | 2023-06-07 | 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.
Neutral Citation No.
[2023] EWCA Crim 676
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO: 2023 00602 A2
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 7 June 2023
Before:
LORD JUSTICE DINGEMANS
MR JUSTICE SWEETING
HER HONOUR JUDGE ROSA DEAN
REX
v
BEN BUTLER
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
Non-counsel application
_________
J U D G M E N T
LORD JUSTICE DINGEMANS:
Introduction
1.
This is the renewed hearing of an application for permission to appeal against sentence. It appears that the applicant is on home detention curfew, but he has not appeared or applied to appear and there is no representation before us.
2.
On 30 July 2020 in the Crown Court at Wood Green the applicant (who was then aged 30) pleaded guilty to a charge of simple possession of cannabis and not guilty to possession of cannabis with intent to supply and a count of money laundering. The applicant had six convictions for six offences which had been committed between 2010 and 2018. This included a conviction for possession of a Class B controlled drug. He had served one custodial sentence of 3 months' imprisonment in 2010.
3.
After a trial on 19 December 2022 he was convicted of possession with intent to supply cannabis and money laundering, and on 27 January 2023 (when he was then aged 33) he was sentenced to 2-and-a-half years for possession with intent to supply the cannabis and 12 months concurrent for the money laundering. The proposed ground of appeal is that the sentence was manifestly excessive.
4.
The brief circumstances are that on 27 March 2020 the applicant was seen in his motorcar by police officers. He was making contact with the driver of another vehicle in order to sell cannabis to the driver of that vehicle. The significance of 27 March 2020 is that this was shortly after the National Lockdown for the Covid 19 pandemic.
5.
The applicant's car was searched and he was arrested. His home address was later searched. In the car was found 26.8 gms of skunk cannabis, a clear sealed bag and a knotted bag containing 3.8 gms of cannabis, and five clear bags containing a total of 7.22 gms of cannabis, and four packages containing 11 gms of skunk cannabis and a hand-rolled cigarette. The total value of the drugs was estimated to be somewhere between £2,500 and £5,800. At his house there was 37.5 gms of skunk cannabis, and elsewhere there was found to be 82.3 gms of skunk cannabis, another 9 gms of skunk cannabis and in other locations another 182 gms of skunk cannabis. The total weight of the drugs found was therefore just under half a kilo of cannabis. A number of high value goods, including a Rolex watch and ten pairs of trainers thought to be worth thousands of pounds, were found together with £24,500 in cash. The sum of £24,500 formed the basis of the money laundering charge because that represented the proceeds of earlier criminal drug dealing. The applicant's defence was that the drugs were for personal use and that the monies had been obtained from other sources, namely gambling, personal savings and the sale of another Rolex watch.
6.
A short form pre-sentence report was obtained. That showed that the applicant continued to claim that he was not guilty, but he had showed remorse and he had turned his life around and was now working in a shop and restaurant. References showed that the applicant had suffered back and knee injuries playing sport which had affected him, but he had before that time volunteered and assisted youngsters.
7.
The judge when sentencing considered that this was a high-level category 3/significant role offence. That gave a starting point of 1 year but a range of 6 months to 3 years. The judge found that this offending was at the top of the range. The money laundering was a category 5B offence for the offence specific guideline, with an 18-month starting point and another range of 6 months to 3 years. The judge took into account the aggravating factors of the previous convictions, but also the mitigation of delay, injuries and their effect, and current work. The judge sentenced all of the criminality on the possession with intent to supply cannabis count, saying that the least he could give, balancing aggravating and mitigating features effectively, was 2-and-a-half years. As noted above, the money laundering sentence was 12 months concurrent.
8.
We do not consider that it is arguable that this sentence was manifestly excessive. This is because the judge rightly used the drugs offence as the lead offence and was entitled to decide that the applicant's sentence, even taking into account mitigation, was towards the top of the guideline range for category 3/significant role offending. The judge was also entitled to make that finding in the light of all the criminality shown by the dealing on the day and what was found in the applicant's home.
The Other Penalty
9.
We should record that the Registrar has in a helpful note drawn the court's attention to
Archbold 2023 at 5A-169c
, which provides:
"Where a defendant is charged with alternative offences, and in circumstances where they plead guilty to the lesser offence but are subsequently convicted of the more serious offence, the proper approach appears to be for the court to order the lesser offence to lie on the file, rather than to impose no separate penalty on the offence."
This is because in
R v Cole
[1965] 2 QB 388
, it was held that a guilty plea does not amount to a conviction unless and until a sentence is passed, and when a defendant pleads guilty to the lesser offence and the more serious alternative proceeds to trial, the correct practice is to record the guilty plea. If the defendant is acquitted of the more serious offence, he can then be sentenced on the count to which he had pleaded guilty, which ranks as a conviction from then on; but if convicted of the more serious offence, he will be sentenced on that matter and the court should consider that the alternative offence should lie on the file. That practice avoids a defendant being convicted of two alternative offences for the same criminal conduct.
10.
In these circumstances, we do consider that the judge was wrong to order no separate penalty on the count for possession, which the applicant had, as already indicated, pleaded guilty to on 30 July 2020. The judge had ordered no separate penalty when it was drawn to his attention that he had omitted to sentence or deal with that offence, and that was dealt with on the papers; although, again, that should have been announced in open court.
11.
In these circumstances, we grant permission to appeal against sentence, quash the sentence of no separate penalty on the original count 2 (namely simple possession) and direct that the original count 2 shall be ordered to lie on the file. This has the effect of meaning that, notwithstanding the guilty plea, the applicant has not been convicted of simple possession. This is because he has been convicted of the more serious offence of possession with intent to supply and been sentenced for that. In all other respects the appeal is dismissed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400 Email: [email protected] | [
"LORD JUSTICE DINGEMANS",
"MR JUSTICE SWEETING"
] | 2023_06_07-5696.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/676/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/676 | 778 |
fd73a4e212c3b8824523659ff4d5639d67ecce664ee0735fa9d4ab24585c6b23 | [2004] EWCA Crim 1717 | EWCA_Crim_1717 | 2004-06-24 | crown_court | No. 2004/01740/A6, 2004/02452/A9, 2004/02068/A3 2004/03055/A4, 2004/02497/A2, 2004/02498/A2 Neutral Citation Number: [2004] EWCA Crim 1717 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Thursday 24 June 2004 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE FORBES and MR JUSTICE BELL _______________ ATTORNEY GENERAL'S REFERENCE Nos. 31, 45, 43, 42, 50 & 51 of 2003 UNDER SECTION 36 OF THE CRIMIN | No. 2004/01740/A6, 2004/02452/A9, 2004/02068/A3
2004/03055/A4, 2004/02497/A2, 2004/02498/A2
Neutral Citation Number:
[2004] EWCA Crim 1717
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Thursday 24 June 2004
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
The Lord Woolf of Barnes
)
MR JUSTICE FORBES
and
MR JUSTICE BELL
_______________
ATTORNEY GENERAL'S REFERENCE Nos. 31, 45, 43, 42, 50 & 51 of 2003
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
_______________
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
__________________
MR RICHARD HORWELL and MR MARK HEYWOOD
appeared on behalf of the
ATTORNEY GENERAL
MISS MARY ASPINALL MILES
appeared on behalf of
THE OFFENDER THOMAS M
MR A J DOWNE
appeared on behalf of
THE OFFENDER ADELE McLEAN
MR M BENSON
appeared on behalf of
THE OFFENDER DANIEL BURGESS
MR J HOLT
appeared on behalf of
THE OFFENDER ANTHONY COTTRILL
MISS A BYRNES
appeared on behalf of
THE OFFENDER SURINDER LEHAL
MR J O'HIGGINS
appeared on behalf of
THE OFFENDER BHUPINDER LEHAL
__________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1.
With regard to Thomas M, we do not propose to interfere with the sentence that was imposed in that case.
2.
Likewise in the case of McLean, we will not interfere.
3.
In the case of Burgess, the sentence will be interfered with; there will be a sentence of two-and-a-half years' imprisonment. We will have to hear about when he is required to surrender in relation to that sentence.
4.
In the case of Cottrill, we propose to increase the sentence to a total sentence of four years, of which two years will be the custodial period and the other two years will be the extended period.
5.
We have to work out from what date the sentences are to run, and we have to take into account any period while they have been in custody before they were sentenced. The appropriate calculation will be made to take account of that.
6.
In the cases of the Lehals, we are not going to alter the sentences. | [
"MR JUSTICE FORBES",
"MR JUSTICE BELL",
"THE CRIMINAL JUSTICE ACT 1988"
] | 2004_06_24-265.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1717/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1717 | 779 |
9ac97687d308f0fb843a987098bc4dfce630165e1f2e43c6b11554eadf155809 | [2008] EWCA Crim 50 | EWCA_Crim_50 | 2008-02-01 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 50 Case No: CAP 2007/03279C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) IN THE MATTER OF AN APPEAL UNDER SECTION 159 CRIMINAL JUSTICE ACT 1988 FROM CROYDON CROWN COURT H.H. JUDGE WARWICK MCKINNON T2006/0697 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/02/2008 Before: THE RIGHT HON SIR IGOR JUDGE, PRESIDENT OF THE QUEEN'S BENCH DIVISION THE RIGHT HON SIR MARK POTTER, PRESIDENT OF THE FAMILY DIVISION LORD JUSTICE WI | Neutral Citation Number:
[2008] EWCA Crim 50
Case No: CAP 2007/03279C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
IN THE MATTER OF AN APPEAL UNDER SECTION 159 CRIMINAL JUSTICE ACT 1988
FROM CROYDON CROWN COURT
H.H. JUDGE WARWICK MCKINNON T2006/0697
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/02/2008
Before:
THE RIGHT HON SIR IGOR JUDGE, PRESIDENT OF THE QUEEN'S BENCH
DIVISION
THE RIGHT HON SIR MARK POTTER, PRESIDENT OF THE FAMILY
DIVISION
LORD JUSTICE WILSON
LADY JUSTICE HALLETT
and
MR JUSTICE DAVID CLARKE
- - - - - - - - - -
REGINA
v
CROYDON CROWN COURT
Ex Parte TRINITY MIRROR plc,
TIMES NEWSPAPERS LTD,
NEWS GROUP NEWSPAPERS LTD
AND
NEWSQUEST LTD
Appellants
And
A and B
(MINORS, acting by the OFFICIAL SOLICITOR TO THE SUPREME COURT)
Interveners
- - - - - - - - - -
- - - - - - - - - -
Mr Gavin Millar QC and Mr Anthony Hudson
(instructed by
Charles Collier-Wright
) appeared on behalf of the Appellants.
Mr Hugh Tomlinson QC and Miss Kate Blumgart
(instructed by
The Crown Prosecution Service)
appeared on behalf of the
Crown.
Mr Andrew Nicol QC
(instructed by
the Official Solicitor to the Supreme Court)
appeared on behalf of A
and B, Minors.
Hearing date: 28 November 2007
- - - - - - - - - -
Judgment
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:
This is the judgment of the Court.
1. This is an appeal by Trinity Mirror and three other media companies pursuant to
s. 159
of the
Criminal Justice Act 1988
against an order made by H.H. Judge Warwick McKinnon at Croydon Crown Court on 11 April 2007, and varied by him on 7 June 2007. The order on 11 April was made shortly after the end of proceedings against Raymond Cortis (the defendant). Its effect was to restrain the media from identifying him and his convictions, on the basis that were he to be identified, his children, who were neither witnesses in the proceedings against him nor victims of his offences, would be likely to suffer significant harm. The question raised in this appeal is whether the judge had power to make this order, and if he did, whether he was right to make it. Two conflicting principles are engaged, first, the protection and well being of children, and second, open justice in courts exercising criminal jurisdiction.
2. On 15 December 2006, the defendant pleaded guilty to 20 counts of making or possessing indecent images of children. He downloaded them from the internet. A pre-sentence report was ordered, and following an application on his behalf, HH Judge MacRae made an order in the interests of his children restraining his identification. On 2 April 2007, when passing sentence, Judge McKinnon refused an application by a court reporter to discharge the order made on 15 December 2006. On 11 April having received written submissions on behalf of three of the four appellants, Judge McKinnon substituted for the order dated 15 December 2006, an order in different terms but to similar effect. On 19 April the appellants, represented by counsel, argued that the injunction should be discharged. The hearing was adjourned so that if possible the children should be represented. In the result a firm of solicitors, willing in principle to represent them, failed to secure public funding. At the adjourned hearing on 7 June Judge McKinnon delivered a careful judgment refusing to discharge the order made on 11 April. The terms were varied in a way which did not alter its practical effect.
3. On 9 October 2007 this court granted the appellants leave to appeal against the order dated 11 April 2007, as varied ("the order") and invited the Official Solicitor to represent the children. We are grateful to the Official Solicitor for consenting to act, and to Mr Andrew Nicol QC who, on his instructions, appeared on behalf of the children. His written and oral arguments gave us valuable assistance.
4. The appeal was heard on 28 November 2007. Mr Gavin Millar QC, on behalf of the appellants, submitted that the judge had no power to make the order and, alternatively, that, if he had power, he was wrong to exercise it. Mr Nicol submitted that the jurisdiction existed, although its source was different from the one identified by the judge; and that he was right to exercise it.
5. At the hearings in the Crown Court, the prosecution had not supported the reporter's application for the discharge of the 15 December 2006 injunction, and in her initial written submissions in relation to the application for leave to appeal, Miss Blumgart suggested that it was at least arguable that the judge was entitled to make the order. However, at the hearing of this appeal, Mr Hugh Tomlinson QC on behalf of the Crown supported Mr Millar's contention that the judge lacked the necessary jurisdiction.
6. At the conclusion of the hearing we announced that the appeal would be allowed on the date when this judgment would be handed down. The reasons for this unusual order will become apparent later in the judgment. The result is that the judge's order remained in force until now. Today it is discharged.
7. The history of proceedings in Croydon Crown Court must be explained in greater detail.
History
8. At the hearing on 15 December 2006 no attempt, whether in the published court list or in the court itself, was made to withhold the defendant's name. After the pleas of guilty were taken at the invitation of both counsel, HH Judge MacRae adjourned for a pre-sentence report. At the same time the defendant's counsel asked him to make an order to prohibit any reporting of the case in the media which might identify the defendant's children. She informed the judge that:
(a) the defendant had two young children;
(b) they were both at school;
(c) the social services department of the local authority had become involved with the family;
(d) the two children were on the Child Protection Register; and
(e) he was living separately from the children and their mother.
Counsel submitted that, given the nature of the offences, identification of the defendant's children in the press might cause difficulty for them, particularly at school. The judge agreed, and ordered that nothing should be published which would enable the defendant, and therefore his children, to be identified. The order would remain in force until further order, and could be reviewed by the sentencing judge. When counsel for the prosecution pointed out that the children were not complainants, the judge reiterated the facility for review at the date of sentence.
9. In the discussions no attempt was made to identify any statutory power under which the order might be made. However when the order was drawn up, it was headed as "ORDER UNDER SECTION 4(2) OF THE CONTEMPT OF COURT ACT 1981" and provided:
"An Order has been made under the above mentioned Act in relation to the above mentioned case to restrict the publication thereof.
REPORTING RESTRICTION
THERE IS TO BE NO
REPORTING OF THIS CASE
WHICH WOULD ENABLE
THE DEFENDANTS IDENTITY
AND THEREFORE HIS
CHILDRENS IDENTITY TO
BE KNOWN
This order applies until Further Order."
10.
Section 4
of the
Contempt of Court Act 1981
provides:
"(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, ... order that the publication of any report of the proceedings ... be postponed for such period as the court thinks necessary for that purpose."
Although the validity of the order dated 15
th
December 2006 is not directly in question in this appeal, in our judgment the order was not "necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings". Accordingly the invocation of
s.4(2)
of the
Contempt of Court Act 1981
(
the 1981 Act
) was inapt. Mr Nicol did not suggest otherwise.
11. At the hearing on 2 April 2007, the defendant's name was again published in the court list, and referred to in open court. Passing sentence, Judge McKinnon concluded that the defendant did not pose a significant risk of serious sexual harm to members of the public and, in the light of his previous good character, his guilty plea, and the fact that none of the indecent material had been distributed, a community order for three years with requirements for supervision by a probation officer and attendance at a Sex Offender Group Work Programme would be appropriate. A reporter then present asked the judge to discharge the order dated 15 December 2006, of which, until then, he had been unaware. Counsel for the defendant explained that the order had been made for the protection of his two daughters, aged eight and six years, who lived locally and attended local schools. She submitted that, if it became known that the defendant had been convicted of offences relating to child pornography, the unusual surname which he and they shared would lead to their identification as his children, and to their exposure to bullying and unpleasantness at school. On behalf of the Crown, Miss Blumgart did not support the discharge of the injunction. The reporter, perceptively, responded to the effect that the arguments in favour of the order in this case would apply in almost every such case. However the judge was unpersuaded. He declined to discharge the order so as to protect the children from the sins of their father; and he noted with approval that the injunction had been made under
s.4(2)
of
the 1981 Act
.
12. On 11
th
April three of the four appellants argued that
s.4(2)
did not confer the necessary jurisdiction on the Crown Court, which was vested exclusively in the High Court. Although Judge McKinnon accepted the argument that
s.4(2)
did not provide appropriate jurisdiction, he considered that the order could properly be made in the Crown Court under
s.11
of
the 1981 Act
.
Section 11
is headed "Publication of matters exempted from disclosure in court", and provides:
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
13. Judge McKinnon announced a revised order in the following terms:
"IN THE CROYDON CROWN COURT
CASE NUMBER T2006/0697
THE QUEEN
V
******* ******
ORDER UNDER SECTION 11
OF THE CONTEMPT OF COURT ACT 1981
Whereas this defendant, having pleaded guilty to charges involving the viewing of indecent child images on the internet, and the retention of those images on his computer and other storage media, and whereas the said defendant, having been sentenced to a community order for a period of three years with requirements of supervision and to attend an accredited programme for the rehabilitation of Sex Offenders, as well as to be subject to the monitoring and registration requirements of the
Sexual Offences Act 2003
for a period of five years, and whilst it is recognised that there is a legitimate and important interest in the freedom of the press to report court proceedings in full, and whilst it is recognised also the general public revulsion, anxiety, and intensity of feelings over offences involving any element of paedophilia and the abuse and ill treatment of children in whatever form, the court upon the application of the defendant and unopposed by the Crown, and taking into account certain oral representations made by a member of the freelance press and written representations from Time Mirror PLC, Newsgroup Newspapers Ltd and the Press Association, and considering in particular the relevant principles under the Human Rights Act and issues of proportionality, makes the following order under
Section 11
of the
Contempt of Court Act 1981
:
For the protection of the two young daughters of the defendant who are under the age of 18 years from abuse and ill treatment, and being vulnerable, of school age and liable to the risk of social exclusion by their peers, teasing and taunting, harassment, intimidation, bullying and violence, and for their continued privacy, welfare and wellbeing which is necessary taking into account the particular circumstances of the case, and given that hitherto they have been protected from identification by an order made under
Section 4(2)
of the
Contempt of Court Act 1981
by His Honour Judge MacRae on the 15th December 2006:
1. No newspaper or other media report of the proceedings shall reveal the names, addresses or schools of the two children as aforesaid, or include any particulars calculated to lead to their identification.
2. For the avoidance of doubt 'any particulars calculated to lead to their identification' includes the identification of the defendant himself by his name and/or address, and any particulars which are themselves calculated to lead to his identification.
3. This order shall last until further order.
4. Any application to vary or lift this order (normally because of a change of circumstance) is reserved to the Resident Judge at the Crown Court sitting at Croydon.
5. This order replaces the order originally made by HH Judge Kenneth MacRae which is hereby discharged ..."
14. The present appellants swiftly intimated their objection to this fresh injunction. Judge McKinnon agreed to re-examine it. This hearing began on 19 April, but was then was adjourned so that the children could be made parties, and their interests represented. Their mother approached Bindman and Partners, who at once applied for L.S.C. funding. They were unsuccessful, and therefore unable to appear for the children at the adjourned hearing. In the interim however,
pro bono,
they wrote a well-reasoned letter to the court in which, supported by a letter from the children's headteacher, which they enclosed, they asserted that public identification of the defendant would be likely to damage the children and contended that, whether or not the judge had power to make an order under
s.11
of
the 1981 Act
, it was provided by
s45(4)
of the
Supreme Court Act 1981
.
15. On 7 June at the conclusion of the adjourned hearing, Judge McKinnon gave a full judgment, which appears to have been written and handed down. He decided not to discharge the order dated 11 April but to vary it by omitting paragraph 2 of the order, but, in lieu, to add a footnote to para. 1 in the following terms:
"For the avoidance of doubt the Press are advised that any newspaper or other media report which identifies the defendant or publishes any particulars calculated to lead to his identification will amount to a breach of this order and those responsible will be liable to a fine and imprisonment for contempt of court."
This variation had no practical effect.
16. In his judgment the judge accepted that, as the court had not allowed - indeed had not been asked to allow - the name of the defendant to be withheld from the public in the proceedings,
s.11
of
the 1981 Act
did not enable him to make an express direction prohibiting its publication. He held, however, that, as the names of the children were not mentioned in the proceedings, s.l 1 provided jurisdiction to prohibit publication of any facts leading to their identification. Since in the particular circumstances the identification of the defendant would be likely to lead to identification of the children, his identification should be prohibited. The judge accepted that, in considering whether to exercise its discretion under
s.11
, a court was required to conduct a careful balance of the rights of the press and public to freedom of expression under Article 10 of the European Convention on Human Rights 1950 and of the children to respect for their private and family life under Article 8 of it. After referring in particular to the decisions of the House of Lords in
In Re S (A Child) (Identification: Restrictions on Publication)
[2005] 1 AC 593
and of Sir Mark Potter, President of the Family Division, in
A Local Authority v. W and others
[2006] 1 FLR 1
, and after considering the letter from the children's headteacher and a letter to the court from their mother, the judge held that the balance lay in favour of continuation of the order "at least for the time being". This, he considered, was consonant with the limit of his jurisdiction.
17. At the hearing of the appeal the Official Solicitor was permitted to adduce further evidence:
(a) a statement from the children's mother. She says that she decided to separate permanently from the defendant and will seek a divorce; that he lives close to her home; that he has frequent contact with the children; that she trusts him not to harm them; that, on advice, she has told them only that he has done something wrong; that, because of their unusual surname, public identification of him would lead parents at their school and others to realise that he is their father; and that she is concerned that in any event they would be teased and bullied by other children.
(b) a statement from the social worker allocated to the family by the local authority. He says that the children have been removed from the Child Protection Register; that, were the defendant publicly identified, the children would in effect need to be given sexually explicit information which they are not old enough to receive without emotional distress; and that the knowledge of their father's offences on the part of their peers would prejudice their social integration.
(c) two further letters from the children's headteacher. She says that public identification of the defendant would immediately put the children at risk of teasing or bullying and might do serious psychological damage to them; that, unless conducted carefully over time, an explanation of his offences would be traumatic for them and that, if the court were to allow the appeal, it should at least delay publicity until they have had access to psychological services in helping them both to cope with the likely reactions of others and to find appropriate ways of expressing their distress.
(d) a report from a consultant child psychiatrist. She says that explanation to the children of the offences committed by the defendant needs to be given gradually and in accordance with professional planning and that, in the event of his public identification, the children would instead learn of them in an unplanned, haphazard manner which would be likely to make them angry, unhappy and isolated.
Discussion
18. The starting-point in Mr Millar's submission was that the jurisdiction which the judge was purporting to exercise under
s.11
of
the 1981 Act
was unavailable. On this point Mr Nicol sensibly accepted that he could not defend the judge's reasoning.
19. The power conferred by
s.11
arises "where a court ... allows a name or other matter to be withheld from the public in proceedings before the court". Any such withholding has to be "for [a] purpose" and the heading of the section itself underlines its application to matters "exempted from disclosure in court". The judge accepted that the court had not allowed the defendant's name to be "withheld", or indeed "exempted" it from disclosure. Nevertheless he seems to have approached the problem as if permission had been given for the names, address and school of the children to be withheld. However the stark reality was that these facts were quite irrelevant to the proceedings, and no attempt was made, or indeed could properly be made, to refer to them. Accordingly the question of withholding them from the public never arose for consideration. Unless the court deliberately exercises its power to allow a name or other matter to be withheld,
s.11
of
the 1981 Act
is not engaged.
20. Reference was made to a decision of McKinnon J, as Judge Advocate, sitting in a General Court Martial, in
R v. Payne and others
on 19 September 2006, OJAG No 2005920. He held that the addresses of defendants charged with violent offences when serving in HM Forces in Iraq which, apparently without prior discussion, had simply not been given, even to the court, and which were irrelevant to any issue before it, had been "withheld" for the purposes of s.l 1. We cannot discern any basis for concluding that
s.11
was engaged, and this decision should be confined to its own unusual circumstances. It cannot be treated as authority for the proposition that
s.11
had any application to the present case.
21. In any event, notwithstanding the judge's understandable concern for the welfare of the children, it was inappropriate to seek to achieve by a footnote what could not otherwise be achieved in the main body of the order. Even on the hypothesis that the names, address and school of the children had indeed been allowed to be withheld, his power extended only to prohibit publication of
their
names address and school. Although Mr Tomlinson may be right that the express prohibiting power may be undermined unless the section is construed so as to include a power to make any necessary ancillary provisions, that question did not arise here.
22. Mr Nicol begins his substantive argument with two concessions. First, at common law a criminal court has no power to forbid third parties from publishing evidence given publicly:
Independent Publishing Co. Ltd v. Attorney General of Trinidad and Tobago
[2005] 1 AC 190
. When it arises, this power depends on legislation. Second, the Crown Court is a creature of statute (the
Supreme Court Act 1981
) and therefore lacks "inherent" jurisdiction:
In re S (A Child) (Identification: Restrictions on Publication).
Mr Nicol then contends that the High Court was vested with power to forbid third parties from publishing evidence given publicly to a criminal court. This contention was not in controversy. On this basis the essential question would not be the existence of the power, but the very limited and exceptional circumstances in which it may be appropriate for it to be exercised. For present purposes we are inclined to agree with Mr Nicol that the foundation of the High Court's jurisdiction is found in
s.6
of the
Human Rights Act 1998
(See
In re S
read in conjunction with
s 37
of the
Supreme Court Act 1981
). This is headed "Powers of High Court with respect to injunctions..." and , by subsection (1) provides:
"The High Court may by order (whether interlocutory or final) grant an injunction...in all cases in which it appears to be just and convenient to do so"
Finally Mr Nicol advances the submission that these powers of the High Court were extended to the Crown Court by
s.45(4)
of the
Supreme Court Act 1981
.
23.
Section 45
of the
Supreme Court Act 1981
is headed "General jurisdiction of Crown Court", and sub
section (4
) provides:
"Subject to
section 8
of the
Criminal Procedure (Attendance of Witnesses) Act 1965
(substitution in criminal cases of procedure in
that Act
for procedure by way of subpoena) and to any provision contained in or having effect under
this Act
, the Crown Court shall, in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court."
24. Mr Nicol submits that the proposed identification of the defendant in the media as the person convicted in the Crown Court is a matter "incidental to its jurisdiction", in that it flows directly from his trial in that court. If, therefore, the proposed identification would infringe the rights of the children under Article 8 of the European Convention on Human Rights,
s.45(4)
confers upon the Crown Court "the like powers ... as the High Court" "in relation to" the proposed identification, in particular the power -indeed presumably by virtue of
s.6
of the Human Rights Act, the duty - to restrain it by injunction. Mr Millar, supported by Mr Tomlinson, denies that the proposed identification of the defendant in the media can possibly be described for the purposes of
s45(4)
as a matter "incidental to [the] jurisdiction" of the Crown Court.
25. As a prelude to their submissions, both Mr Nicol and Mr Millar draw attention to
s.39
(l)
Children and Young Persons Act 1933
, which, until the coming into force of a replacement provision in different terms in
s.45(3)
of the
Youth Justice and Criminal Evidence Act 1999
, continues to apply to criminal proceedings.
Section 39
is headed
"Power to prohibit publication of certain matters in newspapers" and subsection (1) provides:-
"In relation to any proceedings in any court ... the court may direct that -
(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
(b)...
except..."
Section 39(1)
has no direct application to this case: for the defendant's children were neither complainants "by ... whom", nor defendants "against ... whom", nor victims "in respect of whom", the proceedings were taken, nor witnesses in them. Mr Nicol nevertheless argues that in such cases the Crown Court is well accustomed to exercise a discretion which now requires not only reference to the welfare of children but a balancing of competing Convention rights; that the power under
s.39
(l) is inevitably but significantly described as "in relation to [the] proceedings in [the] court"; and that it is but a small step to discern in the Crown Court an analogous statutory power available for exercise in favour of children who, though not "concerned in the proceedings" in any of the respects specified by the subsection, may be just as likely to suffer significant harm if they are identified. Mr Millar, by contrast, but with considerable force, reminds us that Lord Steyn in
In Re S (a child),
observed:
"... in regard to children not concerned in a criminal trial, there has been a legislative choice not to extend the right to restrain publicity to them. This is a factor which cannot be ignored."
26. On the construction of
s.45(4)
Mr Millar raises two arguments. Mr Tomlinson associates himself only with the second. Mr Millar's first argument represents a play on the words "jurisdiction" and "powers" in the subsection. He stresses that, where the Crown Court has "jurisdiction", then, in relation either to all or to certain matters "incidental to" it (such being the territory of the second argument), the subsection confers upon it the "powers" of the High Court. He then submits that the judge's injunction was made in the purported exercise not of a "power" but of a "jurisdiction" and so cannot find its authority within the subsection. Where is the dividing line between a "jurisdiction" and a "power", and is it clear that the injunction made by the judge is of a type which requires him to have had the "jurisdiction" rather than merely the "power" to make it? With a view to answering these questions, Mr Millar conducted a detailed examination of the
Supreme Court Act 1981
, in particular Part II, headed "Jurisdiction". The primary difficulty is that in the interpretation section of
the Act
itself, namely
s.151 (1)
"jurisdiction" includes powers, thus blurring any significant distinctions. The authority to issue an injunction in at least the somewhat analogous circumstances identified in
s.39
(l) of
the Act
of 1933 is definitely a "power", as the heading of that section makes clear. Moreover it is by no means obvious that the order made by Judge Mackinnon represented a purported exercise of "jurisdiction" rather than a power. The decision
In Re S
undermined the submission that the judge was purporting to exercise the inherent "jurisdiction" of the High Court; on the contrary if the proper analysis is that the High Court's authority to make such an injunction stems from the conjunction of
s.6
of
the Act
of 1998 with
s.37
(l) of the
Supreme Court Act 1981
, then, in the light of the heading of
s.37
, and indeed of the terms of other of its subsections, for example
s.37(3)
, it must clearly be classified as a power. In our judgment this argument did not avail Mr Millar.
27. Mr Millar's second argument is that the children's claim, that their rights under Article 8 would be infringed by the defendant's identification, is not a matter "incidental to" the jurisdiction of the Crown Court for the purposes of
section 45(4)
. The key to Parliament's intention lies in a careful study of the context in which the phrase appears in subs (4) itself:
"..., in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, ..."
First, as Mr Nicol concedes, the use of the word "other" demonstrates that the matters previously specified, that is relating to witnesses, contempt of court and enforcement, are themselves "matters incidental to its jurisdiction". Second, so Mr Millar and Mr Tomlinson in effect submit, a golden thread runs through all three matters and illuminates the meaning to be ascribed to the words "incidental to": they are areas in which the powers may be needed in order to achieve the proper despatch of the proceedings before the court. This requires that the witnesses should attend and be examined, that contempts of court should be punished and that orders should be enforced. They concede that the powers conferred by
s.45(4)
may be exercised after the end of the proceedings: a contempt of court may, for example, have brought the proceedings to a premature end or indeed be perpetrated during their aftermath, for example, by an intimidating approach to a juror. However they argue that this consideration does not derogate from the proposition that the powers granted by the subsection are conferred in aid of the proper despatch of the proceedings. From this they argue that the protection of the rights of the defendant's children was remote from the proper conduct of the defendant's trial at the Crown Court.
28. Mr Nicol responds to the effect that this argument requires that words limiting the ambit of
s45(4)
, which are not there, must be read into it. He points for example to
s.4(2)
of
the 1981 Act
and says that, when Parliament wishes to confer a power for use "where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings", it says so.
29. There is a dearth of reported authority on the construction of
s.45(4)
of the
Supreme Court Act 1981
. In ex parte
HTV Cymru (Wales) Ltd
[2002] EMLR 184
. Aikens J restrained a television company from interviewing witnesses who had given evidence until all the evidence was complete. He pointed out that one witness would have to be recalled, and others might be recalled, and accordingly held that the proposed interviews would constitute a contempt of court pursuant to
ss.1
and 2 of
the 1981 Act
. He proceeded to hold that
s.45(4)
of the
Supreme Court Act 1981
conferred upon the Crown Court the same power to make an injunction as was conferred upon the High Court by
s.37
of the same Act. He observed:
"23. Of course the power of the Crown Court to grant injunctions is strictly limited to the specific matters that are set out in
section 45(4)
. There is no general power in the Crown Court to grant injunctions. But I am satisfied that the Crown Court has the power to grant an injunction to restrain a threatened contempt of court in relation to a matter that is before the Crown Court in question."
This decision seems unimpeachable. Mr Nicol points to Aikens J's use of
s.45(4)
as a source of power to make an injunction such as can be made in the High Court by virtue of
s.37
. On the other hand Mr Millar relies on its use "to restrain a threatened contempt of court in relation to a matter that is before the Crown Court". Reasonably enough Mr Nicol responds that the judge's words were not designed to be prescriptive of the ambit of the subsection, but to identify the particular mischief at which his order was aimed. Nevertheless Mr Millar suggests that this decision provides a prime example of the proper use of the subsection, to ensure the proper despatch of the proceedings.
Conclusion
30. In our judgment for the purposes of
s.45(4)
, and for the reasons advanced by Mr Millar and Mr Tomlinson, matters are "incidental to" the jurisdiction of the Crown Court only when the powers to be exercised relate to the proper dispatch of the business before it. We agree with Aikens J that the Crown Court has no "general" power to grant injunctions. There is no inherent jurisdiction to do so on the basis that it is seeking to achieve a desirable, or indeed a "just and convenient" objective. Unless the proposed injunction is directly linked to the exercise of the Crown Court's jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking. The order was not incidental to the defendant's trial, conviction and sentence. Accordingly, the ambit of
s45(4)
of the
Supreme Court Act 1981
did not extend to protect the children from the consequences of the identification of their father in the criminal proceedings before the Crown Court.
31. The court with jurisdiction to make this order, if it were ever appropriate to be made, is the High Court. The nature of the problem which would confront the High Court is summarised by Sir Mark Potter P in
A Local Authority v. W and others,
the only reported case to date in which the High Court has agreed to restrain identification in the media of the defendant to criminal proceedings on the basis that this order was necessary to protect the rights and interests of her (or his) children. He said of Articles 8 and 10, at para 53:
"... each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out."
32. This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.
33. It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences, the parent will disappear from home when he or she is sentenced to imprisonment, and indeed, depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant's children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.
34. This court is naturally concerned for the welfare of the defendant's children. We accept the assessments of their mother, their headteacher, their social worker and the consultant child psychiatrist. Nevertheless we must adopt a much wider perspective. For the reasons set out above, we concluded at the end of the hearing that all we could properly do in the interests of the children was - exceptionally - to announce our decision in advance both of the delivery of our judgment and of our setting aside of the judge's order. Our intention was to create a period in which work might be done with the children, with a view to enable them better to cope with the public identification of their father following its earlier postponement. | [
"IN THE MATTER OF AN APPEAL UNDER SECTION 159 CRIMINAL JUSTICE ACT 1988",
"H.H. JUDGE WARWICK MCKINNON T2006/0697",
"THE RIGHT HON SIR IGOR JUDGE, PRESIDENT OF THE QUEEN'S BENCH",
"THE RIGHT HON SIR MARK POTTER, PRESIDENT OF THE FAMILY",
"LORD JUSTICE WILSON",
"LADY JUSTICE HALLETT",
"MR JUSTICE DAVID CLARKE"
] | 2008_02_01-1356.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/50/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/50 | 780 |
e2ded23315dcb80b4ba554566dab8cbf9a3d56a5f598946602e0f2874cd00e7f | [2012] EWCA Crim 650 | EWCA_Crim_650 | 2012-03-30 | crown_court | Case No: 2011/04453/B4 Neutral Citation Number: [2012] EWCA Crim 650 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING HIS HONOUR JUDGE ROSS Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/03/2012 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MRS JUSTICE DOBBS and MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Alan Newell Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Case No:
2011/04453/B4
Neutral Citation Number:
[2012] EWCA Crim 650
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
HIS HONOUR JUDGE ROSS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
30/03/2012
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MRS JUSTICE DOBBS
and
MR JUSTICE UNDERHILL
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Alan Newell
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr P Jackson
for the
Appellant
Mr R Spencer-Bernard
for the
Respondent
Hearing date: 24 January 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
President of the Queen’s Bench Division:
1.
The issue in this appeal against the conviction of the appellant on 11 July 2011 for possession of cocaine with intent to supply is whether the judge was right to admit as evidence a previous inconsistent statement that the appellant’s previous counsel wrote on a Plea and Case Management Form (PCMH Form) at the Plea and Case Management Hearing (PCMH).
2.
At the conclusion of the hearing we stated that we would allow the appeal and quash the conviction for reasons we would give later. These are our reasons.
The evidence
3.
The evidence in the case can be briefly stated.
4.
A cousin of the appellant who was the tenant of a flat in Bracknell, Berkshire allowed the appellant to stay in 2009. Later in the year the cousin effectively moved out and the appellant had almost sole use of the flat. On 8 February 2010 officers of the landlords of the flat gained entry to enforce an eviction order against the appellant’s cousin for non-payment of rent. The officers found a large square bag with a “Yankees” logo on the front. Inside the bag was a quantity of white powder. This was later examined and found to contain 383 grams of lignocaine, a cutting agent commonly used with cocaine. They also found a quantity of white power which on analysis was found to contain 26.6 grams of 66% cocaine. Next to the cocaine £400 in cash was found and on the dining table an empty box for digital mini scales. Pieces of paper showing names and amounts were also found.
5.
The appellant was arrested and interviewed on 23 February 2010 and 9 April 2010 in the presence of a solicitor. To each question, including questions such as his address and questions about what had been found in the flat, he answered, “No comment”.
6.
He was committed for trial. A PCMH was heard on 24 November 2010 before HH Judge Wood. Neither the Crown nor the advocate for the appellant who were present at that hearing were the advocates at the trial. No defence case statement had been served. In answer to question 10.4 on the PCMH Form, “If not clear from the defence statement, what are the real issues?” the advocate wrote, “No possession”.
7.
The case was put into the warned list for the two weeks commencing 31 January 2011 with an estimated trial length of 1-2 days. In April 2011, the appellant changed solicitors and new counsel was instructed.
8.
The trial came on for hearing at the Crown Court at Reading before HH Judge Ross on 7 July 2011. On that occasion Mr Jackson, who appeared before us on this appeal, appeared for the appellant. The appellant had provided a proof of evidence from which a defence statement had been drafted; he had not signed it. Mr Jackson prepared a new defence statement and that was served on 7 July 2011, the first day of the trial. Paragraph 1 of the statement said, “I accept possession of exhibit MLR/07 [the cocaine]. However I deny that I was in possession of the cocaine with intent to supply”. The statement then added an explanation of other parts of his defence including saying that the cash was money he had earned and had nothing to do with drug dealing.
9.
Following service of the defence statement, counsel for the Crown added a second count of simple possession to the indictment to which the appellant then pleaded guilty.
10.
In his evidence-in-chief the appellant gave evidence in accordance with his defence statement. He explained that he had answered, “No comment” to the questions in both interviews because that was the advice he had received from his original solicitors; he explained he had not been involved in anything like this case before; he had thought it best to follow the advice given to him.
11.
At the beginning of his cross-examination by the Crown, counsel for the Crown handed the PCMH Form to the appellant and the judge. Mr Jackson (who had been given no notice of the intention to use the PCMH Form) objected. Counsel for the Crown explained that he sought to adduce what was stated on the PCMH Form as it was inconsistent with the appellant’s defence and his plea as to possession. The judge ruled that what was on the PCMH Form was no different to a defence statement signed on the appellant’s behalf by his solicitors in accordance with his instructions; the PCMH had been the first occasion on which the appellant advanced his case and that the defence could call the advocate who had originally represented him if they so wished. It was therefore perfectly proper to cross-examine the appellant on the statement.
12.
When cross-examined on the PCMH Form, the appellant accepted that the form had been completed by his counsel. He said that the words, “No possession” was the result of a misunderstanding by his counsel. He said he was a bit confused and his position had been that he was denying the whole thing, possession with intent to supply.
13.
Before the summing-up the judge made clear that he would give a s.34 direction in relation to both interviews, an adverse inference direction in relation to the failure to deliver the defence statement until the morning of the trial and that he would give a
Lucas
direction in relation to the entry on the PCMH Form. Mr Jackson made clear that he could say nothing in view of the fact that the judge had ruled against him in relation to the PCMH Form.
14.
In the course of his summing-up, after giving the two adverse inference directions, the judge then continued:
“The final aspect of areas of the case where you may hold his act or omission against him is in relation to what is said to be a lie. Now it is said that in the plea and case management hearing some months ago, because there was no defence statement available setting out what the issues were, the documentation that is produced for that hearing and is considered by the judge conducting the hearing, contains a box which is designed to identify for the judge what the issues in the case are, if there is no defence statement, and that box, as you know, has been completed by his counsel (his then counsel, not Mr. Jackson) and it contains two words “possession denied”. In other words, put in layman’s terms: “It’s not my cocaine”. That is what he was saying, it is said by the Crown, to the court and to the prosecution at the time of the plea and case management hearing.
You have to consider, first of all, therefore, what caused those words to be written on the form. Were they written on the form and communicated to the court by his counsel upon his instructions? In other words, do those two words sum up what his case was at the plea and case management hearing? “It’s not my cocaine.” “Possession denied.” If you are satisfied so that you are sure that those words in that document, communicated to the court and to the prosecution, were inserted into that document as a result of his instigation, him saying: “Not my cocaine”, then that is a lie which you are entitled to lay at his door.
If you are not sure that the entry of the form was as a result of his clear instructions to his barrister, then you don’t take any consideration of this any further because, in other words, if they are not his words it can’t be his lie.
But if you are satisfied that this was a lie which was told through his counsel, at his instigation, then you are entitled to consider whether or not this supports the case against him. First of all, did he deliberately lie? Well, was it something that happened as a result of the confusion of the court morning, an unfamiliarity with the process of court proceedings? If you are not satisfied it was a deliberate lie, as I say, ignore it.”
The judge then gave the rest of the
Lucas
direction. We should observe that when the judge referred to the form he said it contained the words, “possession denied”. That was an error; it said, as we have set out, “no possession”.
15.
The appellant was convicted and on 8 August 2011 was sentenced to two years imprisonment on both counts. He appeals to this court by leave of the single judge.
16.
The issue which we stated at paragraph 1 has two sub-issues. First, was the statement admissible evidence? Second, if it was, should the judge have exercised his discretion under s.78 of the Police and Criminal Evidence Act 1984 (PACE) to refuse to admit it?
Was the statement admissible?
(a)
The submissions
17.
It is contended by Mr Jackson on behalf of the appellant that the words, “No possession” recorded on the PCMH Form were not what the appellant told his then counsel. His evidence at the trial was that he had been trying to communicate to his counsel that he had not been guilty of supplying cocaine. He had therefore not made a statement denying possession and therefore said nothing inconsistent with the statement he had made at trial admitting possession.
18.
In response it was submitted on behalf of the Crown that the form should be deemed to be a court document submitted on behalf of the appellant and that the appellant should be responsible for its content, save arguably on a point of law of which this was not one. In the absence of any evidence to the contrary it was a fair inference to draw that the appellant knew the issue of possession was a live one.
(b)
Statements by counsel as the defendant’s agent
19.
The admissibility of hearsay evidence in criminal proceedings is governed by Chapter 2 of Part 11 of the Criminal Justice Act 2003. Under s.118(2) the common law rules were abolished save for the rules preserved by s.118(1). The sixth rule preserved by s.118(1) is:
“Admissions by agents etc.
Any rule of law under which in criminal proceedings –
(a) an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
(b) a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.”
20.
In
R v Turner (Bryan)
(1975) 61 Cr App R 67, this court had to consider whether what a defendant’s counsel had said in a plea in mitigation in one case could be proved and admitted as evidence in another trial. The objection was made that the evidence could not go before the jury until the prosecution proved that what counsel had said in mitigation was on the defendant’s instructions. The trial judge admitted the evidence as an admission made by an agent within the apparent scope of his authority. The barrister was then called who said on oath that he had said what he had said without instructions. Lawton LJ giving the judgment of the court said that the issue ought to be decided in the light of elementary principles:
i)
“A duly authorised agent can make admissions on behalf of his principal.”
ii)
“The party seeking to rely upon the admission must prove that the agent was duly authorised”.
iii)
“Whenever a fact has to be proved, any evidence having probative effect and not excluded by rule is admissible to prove that fact …. Whenever a barrister comes into court in robes and in the presence of his client tells the judge that he appears for that client, the court is entitled to assume and always does assume that he has his client’s authority to conduct the case and to say on the client’s behalf whatever in his professional discretion he thinks is in his client’s interests to say. If the court could not make this assumption, the administration of justice would become very difficult indeed. The very circumstances provide evidence first that the barrister has his client’s authority to speak for him and secondly that what the barrister says is what his client wants him to say.”
In the circumstances, the court concluded that the contested evidence was admissible as the circumstances in which the barrister said what he said amounted to
prima facie
evidence that he was authorised by the defendant to say it.
21.
A similar decision was reached by this court in
R v Hayes
[2004] EWCA Crim 2844
,
[2005] 1 Cr App R 33
, although
Turner
was not cited. This court had to consider whether a letter written by the appellant’s solicitor admitting the appellant had inflicted injury could be admitted as a previous inconsistent statement at the trial when he denied causing the injury. The court held that it could be. Its reasoning was that the appellant’s solicitor was his agent and had ostensible authority to write a letter; no competent solicitor would have written such a letter without instructions to do so. The letter was therefore in principle admissible, subject to considerations under s.78.
Turner
was followed and applied by the Divisional Court in
R (Firth) v Epping Magistrates’ Court
[2011 EWHC 388 (Admin)
;
[2011] 1 Cr App R 32
to which we shall refer in more detail at paragraph 26.
22.
In our view, an advocate plainly has implied actual authority to do what is normally incidental, in the ordinary course of his profession, to the execution of the advocate’s express authority: see
Bowstead on Agency (18
th
Edition)
paragraph 3-027. Recording a matter on a PCMH Form is incidental to that which the advocate has been authorised to do – to conduct the defence of a client. Even if the advocate had no implied authority, as the client had said something different to what he recorded, the advocate would have ostensible authority to do so as regards the court on the principles set out in
Waugh v H B Clifford & Sons
[1982] Ch 374 and in
Turner.
23.
As what the court was told at the PCMH before HH Judge Wood was said by counsel in the presence of the appellant, it was admissible on the principles we have set out for the same reasons as the statement by counsel in an earlier plea was admissible in
Turner
and the solicitor’s letter was admissible in
Hayes.
As is clear from the decision of this court in
Turner
, it matters not that the defendant can call evidence to show that what was said was not said on instructions; the advocate had ostensible authority to make the statement; the evidence is admissible, though the defendant can call evidence to show that it was said without authority.
24.
In this case, therefore, HH Judge Ross was entitled to conclude that the statement made on the PCMH Form was in principle as a matter of law admissible at the trial before him.
The exercise of the discretion: the status of a Plea and Case Management Form
(a)
The decision in Firth v Epping Forest
25.
Although the statement was admissible, the judge had a discretion under s.78 of PACE, as we have set out, to decline to admit the evidence. Before turning to the particular circumstances of this case and how the discretion should have been exercised, it is necessary to consider the wider issue that arose in
Firth
, namely the use of an assertion, remark or statement made on a Plea and Case Management Form or a similar form.
26.
In
Firth
the defendant was charged with assaulting a woman on the train. Her then lawyer told the court in the defendant’s presence that the issue for trial would be “Assault on defendant by complainant. Only contact made was in self defence”. That was written on the Case Progression Form then in use in the Magistrates’ Courts. When subsequently the defendant was charged with a more serious offence and arrangements were made for committal to the Crown Court, the defence challenged the sufficiency of the evidence that the defendant was present at the scene of the offence at all. The prosecutor sought to rely on what was set out on the Case Progression Form as evidence that the defendant had admitted being involved. The Magistrates decided the statement was admissible and the case was committed.
27.
The committal was challenged by judicial review in the Divisional Court. After determining that what was stated on the form was admissible on the basis of the decision in
Turner
(to which we have referred at paragraph 20 above) it was argued on the defendant’s behalf that the Case Progression Form was not admissible as the ordinary principles of admissibility recognised in
Turner
did not apply to a document completed at a Case Management Hearing. The court rejected that argument, holding that what had been said by this court in
R v Hutchinson
[1986] 82 Cr App R 51
in relation to the then system of pre-trial review and in
R v Didrich and Aldridge
[1997] 1 Cr App R 361 in respect of a PCMH that had taken place under the then provisions were no longer good law. It rejected the contention that the information given on the form should not properly be regarded as identifying the issues but merely a forecast of what the issues are likely to be.
28.
This decision has been much discussed. For example, in an article entitled
Case Management Forms
at [2011] Crim LR 547, Mr Anthony Edwards pointed out that, as the Crown had to prove its case without the help of a defendant, if information given to assist in case management became admissible in evidence defence solicitors would be well advised to ensure that appropriate parts of the form were merely completed with the word “privileged”.
29.
The CPS has issued guidance in relation to the use of statements made on PCMH Forms following the decision in
Firth
. After referring to
Turner,
the guidance states:
“It follows that assertions should not be relied on to bolster an inherently weak case or where a technical deficiency can be remedied by the use of other evidence. An application to admit assertions should only be made to admit when necessary and appropriate. For example, where the defence are not acting in the spirit of the Criminal Procedure Rules, in seeking to ambush the prosecution or raising late and technical defences that were not previously raised as issues.”
30.
In written submissions to us it was accepted by the Crown Prosecution Service that the use by the Crown of what is recorded on the PCMH Form as either evidence to establish a
prima facie
case against a defendant or to cross-examine a defendant on the basis that it is an inconsistent statement or representation should be the exception rather than the rule. There were however cases where the court should permit what was stated on the form to be used, as it would be fair to do so.
31.
It appears that since the decision in
Firth
, one of the consequences has been that defence lawyers have become much more cautious in providing information on the form (which is intended to help in the management of cases before and at trial) so as to avoid the risk that what might be said on the form would be used as evidence against their client or to cross-examine the client.
(b)
The PCMH
32.
It is necessary, we think, to stand back and look at the position as it currently exists under the Criminal Procedure Rules:
i)
It is and remains the task of the Crown to establish a
prima facie
case and then to prove its case.
ii)
The Criminal Procedure Rules require a “cards on the table” approach and give to the PCMH a central role as an integral part of the trial process. The PCMH is not a formality. A rigorous examination of each case in which there is no guilty plea is required to ensure that the trial can be fairly and expeditiously conducted in the interests of justice.
iii)
The defendant is therefore required at the PCMH through his trial advocate who must be present in person (or through a nominee whose informed decisions will bind the defence at trial) to identify the issues which will arise at trial. The trial advocate will also identify which part of the Crown’s case will be challenged and which witnesses are required, the detailed timetable set for speeches, examination and cross-examination of witnesses. The trial advocate must also provide all the other information required in the PCMH Form.
iv)
If an issue is not identified and subsequently raised, the Court has ample powers including giving the Crown time to deal with that issue: see
R (DPP) v Chorley Justices and Forrest
[2006] EWHC 1795 (Admin)
and
R v Penner
[2010] Crim LR 936.
v)
In the Crown Court the defence statement provided for by s.5 of the Criminal Procedure and Investigations Act 1996 (CPIA) will set out the nature of the defendant’s defence. Although it is good practice for this to be signed by the defendant, a defendant does not have to sign it but a judge can require a defendant where a statement is unsigned to satisfy him that the document really is his statement.
vi)
S.11 of the CPIA sets out the nature of the breaches of requirement that can attract a sanction (such as the failure to serve a statement or serve it within time or setting out inconsistent defences). The sanctions are that the court or any other party may comment and the court or jury may draw such inferences as appear proper.
33.
Given that statutory regime in the Crown Court embedded primarily in the CPIA and the Criminal Procedure Rules, and the obligation to put “cards on the table” through the attendance of the trial advocate at the PCMH, the requirements of a PCMH Form in the Crown Court should be seen primarily as a means for the provision of information to enable a judge actively to manage the case up to and throughout the trial and the parties to know the issues that have to be addressed and the witnesses who are to come. The nature of the defence should appear from the defence statement with the statutory consequences provided for in the result of a breach of requirements. The Crown is also generally protected by the principles in
Chorley Justices
and
Penar
, if in breach of the obligation to identify the issues an ambush is attempted by the defence.
34.
A typed defence statement must be provided before the PCMH. If there is no defence statement by the time of the PCMH, then a judge will usually require the trial advocate to see that such a statement is provided and not proceed with the PCMH until that is done. In the ordinary case the trial advocate will be required to do that at the court and the PCMH resumed later in the day to avoid delay and further cost to be borne by the public purse. Given that position, the trial advocate at the PCMH should see it as part of the trial advocate’s duty to help the court with the management of the case by setting out information on the PCMH Form without the risk of the information being provided being used as a statement admissible in evidence against the defendant, provided the advocate complies with the letter and the spirit of the Criminal Procedure Rules.
35.
In the Magistrates’ Court where there is no PCMH and no provisions equivalent to s.11 of the CPIA unless a defence statement is given voluntarily, the position is a little different. The Trial Preparation Form (which has replaced the Case Progression Form) should be completed at the first hearing. It provides for the making of admissions or the acknowledgement that matters are not in issue. Where admissions are made in that way they will be admissible at the trial. Where statements are made on the form which are not made under the section relating to admissions, such statements should be made without the risk that they would be used at trial as statements of the defendant admissible in evidence against the defendant, provided the advocate follows the letter and the spirit of the Criminal Procedure Rules.
36.
Applying what we have set out, therefore, the position should be, provided the case is conducted in accordance with the letter and spirit of the Criminal Procedure Rules, that information or a statement written on a PCMH Form should in the exercise of the court’s discretion under s.78 not be admitted in evidence as a statement that can be used against the defendant. The information is provided to assist the court. Experience has shown that, unless the position is clear, the proper administration of justice is hampered. There may of course be cases where it would be right not to exercise the discretion but to admit such statements. Those circumstances are fact-specific, but an example is a case where there was no defence statement, despite the judge asking for one to be provided, and an ambush attempted inconsistent with what was stated on the PCMH Form. In such a case it would not be appropriate to exercise the discretion to refuse to admit what was stated on the form, if an adjournment to enable the Crown to deal with the issue could be avoided. However, we think, provided the parties adhere to the letter and the spirit of the Criminal Procedure Rules and follow the practices we have outlined, such cases should be very, very rare.
The application of the principles to the facts in this case
37.
In our view, applying the principles we have set out, the judge should not have admitted the statement on the PCMH Form as evidence against the appellant. We have reached that decision partly for the reasons connected with the good administration of justice which we have set out in the preceding paragraphs, but primarily because of what happened at the trial. The appellant’s counsel had by the time of the trial produced a defence statement which made the case clear and admitted possession. The sanction provided for in the CPIA was sufficient. The statement on the PCMH Form was put to the appellant in the witness box without any warning to the appellant’s counsel. The Crown were then seeking to say that his previous position as recorded on the form was a lie and to rely on that lie as evidence of his guilt. This was therefore a case where there was no disadvantage to the Crown; on the contrary, the Crown was seeking to use the statement to the detriment of the appellant. The way in which it was done was unfair to the defence. The direction under s.78 should have been exercised so as to refuse the admission of the statement.
38.
The conviction in such circumstances was not safe and had to be quashed. | [
"MRS JUSTICE DOBBS",
"MR JUSTICE UNDERHILL"
] | 2012_03_30-2960.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/650/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/650 | 781 |
d199e44ba0121736ebd89d8dde0beb5d5fb05ca945138579e79bb5988c0006c9 | [2021] EWCA Crim 503 | EWCA_Crim_503 | 2021-04-08 | crown_court | Neutral Citation Number: [2021] EWCA Crim 503 Case No: 202002487 B2 202100475 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CANTERBURY CROWN COURT His Honour Judge O’Mahony T20200116 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/04/2021 Before : LORD JUSTICE EDIS MR JUSTICE HOLGATE HER HONOUR JUDGE TAYTON QC, sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : THE CROWN - and - FOUAD KAKAEI Appellant - - - | Neutral Citation Number:
[2021] EWCA Crim 503
Case No:
202002487 B2
202100475 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CANTERBURY CROWN COURT
His Honour Judge O’Mahony
T20200116
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 08/04/2021
Before :
LORD JUSTICE EDIS
MR JUSTICE HOLGATE
HER HONOUR JUDGE TAYTON QC,
sitting as a judge of the Court of Appeal Criminal Division
-
- - - - - - - - - - - - - - - - - - - -
Between :
THE CROWN
- and -
FOUAD KAKAEI
Appellant
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Aneurin Brewer
(assigned by the Registrar) for the
Appellant
James Marsland
(instructed by
the Crown Prosecution Service Appeals Unit
) for the
Respondent
Hearing dates : 25 March 2021
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Edis :
Introduction
1.
On 4
th
September 2020 in the Crown Court at Canterbury, His Honour Judge O'Mahony determined a legal issue before trial. As a result of his ruling the appellant changed his plea to guilty to two counts, numbered 1 and 3 on the indictment, of assisting unlawful immigration to a member state contrary to section 25(1) of the Immigration Act 1971. These counts alleged that he had piloted a boat across the channel containing illegal migrants on two occasions, 24 July 2019 and 29 December 2019. Count 2 alleged that he had also committed a similar offence on the 12 December 2019. This was ordered to lie on the file in the usual terms.
2.
In separate proceedings before the justices he had pleaded guilty to an offence contrary to section 24 of the 1971 Act which alleged that his own entry into the United Kingdom (UK) on 29 December 2019 had been unlawful. He received a sentence of 4 months imprisonment in respect of that offence on 31 December 2019.
3.
On 21
st
January 2021 he was sentenced to 26 months imprisonment on each count concurrently by HHJ Weekes, and further ancillary orders were made.
4.
Leave to appeal against conviction was granted by the full court. He also applies for leave to appeal against sentence, his application having been referred to the full court by the single judge.
5.
At the conclusion of the hearing we announced that this appeal would be allowed, and that we would give our reasons on a later date. This we now do. We also directed that the parties should serve written submissions on whether or not we should order a retrial and we will deal with that issue after this decision has been handed down.
6.
The appellant was represented before us by Mr. Aneurin Brewer, as he was before the Crown Court. The respondent is represented by Mr. James Marsland, who did not appear below. We are very grateful to both counsel for their assistance in this case. In particular, we would like to thank Mr. Marsland for correcting the position taken by the prosecution below and doing so in time to enable Mr. Brewer to respond to the position now adopted in answer to this appeal.
7.
We have set out the relevant provisions of the Immigration Act 1971 in the Appendix to this judgment.
The proceedings below and the facts
8.
The appellant pleaded guilty on a factual basis set out in a Basis of Plea and the sentencing judge accepted that basis.
9.
The background is set out in the appellant’s Defence Case Statement:-
“Over the second half of 2019, following the refusal of his asylum claim in Denmark in April 2019, the Appellant, along with other migrants, repeatedly attempted to enter the UK as genuine asylum seekers on numerous occasions including on 24
July, 12 and 29 December 2019 as alleged. He will say that over
that period he made near nightly attempts to enter the UK and was routinely detained by the UK and French authorities. He will say that, save for the period when he was detained in the UK, he resided in migrant camps and slept rough in the area of Dunkirk.
“With respect to his crossings of the British Channel on 24 July and 29 December 2019, he will say that the crossing was planned and arranged by others and he, like the other migrants aboard, paid agents to be allowed passage on the vessel. He will concede that at some point during the journeys across the Channel he helped to steer the vessel. However, he will say that a number of the occupants of the vessel took turns to steer the vessel at various points during the journey. He will say on the second occasion he initially refused to help steer the boat and was allowed to be a passenger on that basis but eventually did assist when it became clear to him during the crossing that the other passengers could not safely steer the vessel and he became convinced their lives were at risk if he did not assist. He will say he believed all the other passengers on both occasions to be genuine asylum seekers like himself who intended to present themselves to the authorities immediately on disembarkation to claim asylum.”
10.
Elements of this appear in the Basis of Plea, which reads as follows:-
1.
Mr Kakaei will plead guilty to counts 1 and 3 on the indictment to the following limited extent. He will accept that he facilitated the entry of the other migrants on the boat with him only by, along with many of those aboard, helping to pilot the vessels.
2.
Mr Kakaei will deny that he had any financial motive to assist with the piloting of the vessels and that he in fact paid a people smuggler like all the other migrants on board for the opportunity to try and cross the channel on those two occasions.
3.
Mr Kakaei will say that he believed that all the migrants aboard on both occasions, including himself, would surrender to the UK border authorities and claim asylum immediately on disembarking in the UK.
4.
Mr Kakaei will say that he is a genuine refugee who was forced to flee from his home country of Iran due to his sexuality.
11.
The prosecution evidence showed that on 24 July 2019 the appellant and 26 migrants were stopped by UK Border Force officers as they attempted to cross the British Channel from France in a rigid hull inflatable boat (RHIB). The appellant was seen operating the rudder of the vessel. The 26 migrants were undocumented and made applications for asylum immediately after disembarking from the vessel. The appellant was searched and found to be in possession of £210 in cash and a Samsung smart phone. He refused to provide the PIN number for this phone and declined to make an application for asylum. He was subsequently returned to Denmark where a previous application for asylum had been refused.
12.
On 29 December 2019, the appellant and 10 migrants were intercepted by UK Border Force officers whilst attempting to cross the channel in the same manner as they had on 24 July 2019 and again with the appellant operating the rudder of the vessel. On this occasion, the appellant did make an application for asylum along with the other 10 migrants that had accompanied him. The basis for the appellant’s claim was that he was at risk of persecution in his native Iran as a result of his sexuality. The investigators also noted that the appellant was in possession of a mobile telephone, 2 further SIM cards and an SD card in his possession. He refused to provide the PIN number for his phone to the investigators, although they were subsequently able to access it. He was the only person on the vessel who had a mobile phone, although he says that this was because other people on board threw their devices overboard.
None of the occupants of the boat had any documentation.
13.
The appellant was interviewed under caution on 29
December 2019 and 13 March 2020. He stated that he had travelled to the UK in order to claim asylum and had brought the other migrants with him but he denied that he had done so for financial gain. He stated that he had piloted the boat for part of the journey but denied that he had been the sole person in charge of the boat for the July crossing. He accepted that he was the only person who piloted the boat during the December journey but only because no one else knew how to do so. He stated that he had not claimed asylum in July 2019 as the authorities had told him that that he would be unable to claim asylum in the UK as a result of the fact that his claim had been refused in Denmark.
14.
All involved, therefore, were travelling from a safe country, France, to the UK on both occasions. No-one had any documentation. The appellant pleaded guilty, as we have said, to the offence of unlawfully entering the UK on 29 December 2019, contrary to section 24 of the 1971 Act.
15.
The two relevant counts on the Indictment had been amended before the judge’s ruling to specify the breach of immigration law relied on: they now said:-
STATEMENT OF OFFENCE
ASSISTING UNLAWFUL IMMIGRATION TO MEMBER
STATE, contrary to section 25(1) of the Immigration Act 1971.
PARTICULARS OF OFFENCE
FOUAD KAKAEI on [date] assisted the illegal entry of persons who were not citizens of the European Union which facilitated the commission of an attempted breach of immigration law by those individuals, namely entering the United Kingdom without leave contrary to section 24 of the Immigration Act 1971, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law by those individuals and that those individuals were not citizens of the European Union.”
16.
There was no evidence that any other entrant on either occasion had been convicted of an offence under section 24, but neither was there any evidence that any of them had any more right to enter the UK than he had on that second occasion to which his conviction related. The judge proceeded on the basis that this conviction would have been admissible in any trial to prove that the appellant’s entry into the UK on 29 December 2019 was unlawful, and, by extension, that all other entries by occupants of these two vessels on both occasions were also unlawful. That would have been a matter of fact for the jury to decide, if there had been a trial, in the light of any evidence adduced by the parties at trial which might explain why that inference should not be drawn.
17.
Although, therefore, this case has features which enable a consideration of the general state of the law, it also has a particular feature which other cases may lack. There was evidence of unlawfulness derived from the appellant’s own plea of guilty on 31 December 2019.
The proceedings before the judge and his ruling
18.
Unfortunately, the proceedings before the judge were not formulated in such a way as to assist him in his task. It appears that counsel for both sides believed that there was a conflict of authority in this court, and that this required the judge to make a ruling of law at the pre-trial stage. The prosecution case was that the appellant had no defence even on his own case, and the defence wanted to know whether this was right. They wanted it decided in advance of the trial so that if his defence was excluded as a matter of law he could plead guilty. That appears to have been the common understanding of counsel and of the judge, although it was not formulated in this way. That was to lead to some lack of clarity in the outcome, as we shall see.
19.
Mr. Brewer submitted
that the case of
R v Kapoor
[2012] EWCA Crim 435
applied to the present case. He submitted that if a person who had no right to come into the country appeared at a port and immediately claimed asylum, there was no breach of immigration law. As a result, in the present case, the appellant would not be guilty of the offence of assisting in the attempted breach of immigration law.
20.
Counsel who then appeared for the Prosecution submitted that the facts of the present case had to be distinguished from
Kapoor
which concerned a very different factual scenario and a different section of 1971 Act, (section 11)
.
The guidance which applied to this case was derived from
R v. Bina
[2014] EWCA Crim 1444
. As the illegal entrants had no documents, they would have been committing a section 24 offence which would have formed the basis of the allegation that the appellant was assisting unlawful immigration.
21.
After setting out the facts of the three counts he was then considering, the judge said this:-
The development of this case in terms of the legal process is that, following all those facts, the indictment has now been amended. Arguments centred, at least initially, on whether this was a
Kapoor
situation or whether it is a situation which comes within the court’s thinking in
Bina
, but the thinking in
Bina
is clear, and that is the court there considered definitively that (inaudible) the fact that you are guilty of a section [25A] offence does not exempt you from liability under section 25.
There is a further issue, which is, I think agreed now to be a matter for the jury. Certainly, I think it is and I rule it is. If the defendant, as he has admitted, piloted the boat at times during the course of its carriage across the Channel, is that de minimis or facilitating unlawful entry. But the argument before me doesn’t visit that matter, it appears to be accepted – and I am grateful for the very helpful arguments on both sides, particularly from Mr Brewer but also [counsel who then appeared for the prosecution]. That’s not what I have to decide because it seems to be accepted that section 24 does not exempt you – guilt in that – from section 25.
So it boils down to a discrete issue and that is this. The defendant is charged with assisting – and here’s the word – unlawful immigration. The particulars are that, in each case, he attempt – assisted in the attempted breach of immigration law and – and the question is, therefore, and the issue, “Would the illegal entrants have been committing an offence, either as an attempt or, if it was the completed matter, the full offence?” And that’s the legal matter that I have to rule on now, which I am invited to do.
Put in simple terms, if it’s a
Kapoor
situation, the answer is no. If it’s a section [25A]
Bina
situation, the answer is yes. The – Mr Brewer, on behalf of the defendant, submits, not only in his written submissions but orally also, that
Kapoor
is the leading case which applies here; that, if a – a person has no right to come into this country, per se, appears at a port, at a country, and immediately surrenders to – to a breach – to claim asylum, that there is no breach of immigration law and that
Bina
merely adds a gloss to that, that section [25A] doesn’t of itself mean that it’s not also section 25 and that would be a matter for the jury if they concluded that it may have been the case that the illegal entrants per se were not in breach of immigration law because of the
Kapoor
application.
Counsel on behalf of the prosecution, says really quite simply that the illegal entrants would have committed a complete section 24 offence had they disembarked. The case of
Kapoor
must be distinguished because it is fact-specific and very different from this situation and that the clear guidance is from the case of
Bina
.
In particular,
Kapoor
was based on the specific legislation of the Immigration Act of 1971, section 11, referred to a disembarking entrant, and it’s indicative, says the Crown, the flight there was one that had come from Bangkok to London and that immigration
officials
were
involved
at
the
point
of disembarkation and that it’s indicative here that the defendant was coming from one member state to another, not seeking asylum from France; that there is a strong inference that the – the craft was not heading for a port where UK border officials, immigration officials, would be present in order to receive claimants for asylum.
But the (inaudible) – I appreciate you can’t interpret that – of
Kapoor
is that, under the 1971 Act and on the particular facts, if you are entering for the specific purpose of surrendering to the authorities and claiming asylum, that that does not amount to unlawful entry, but my conclusion, as a matter of law, and I so rule, is that, in respect of this issue, the Crown is correct and that, at the height of the evidence of course - because this could still be a jury trial - that the defendant was assisting unlawful immigration, leaving aside the
de minimis
point, because the illegal entrants would have been committing a section 24 offence.
They have no documents and it’s not without significance the defendant himself pleaded guilty to a section 24 offence in respect of what is now count 3, and that’s my ruling.
22.
The
de minimis
point the judge refers to is the submission on behalf of the appellant that his actions in piloting the boat, and doing nothing more, could not amount to facilitation of the unlawful entry of the other migrants in the boat. The content of the Defence Statement, see [9] above, was designed to set out the facts on which this is based. That submission was abandoned before us by Mr. Brewer as being completely hopeless. It was, however, treated by the judge as a matter which would be determined by the jury if the appellant did not plead guilty.
The grant of leave
23.
The ground on which leave was given is as follows:-
“The Judge erred in ruling that the present case could be distinguished from
R v Kapoor
[2012] EWCA Crim 435
. The ratio in that case precisely covered the situation in the present matter. It is submitted that if the migrants had been intending to surrender and claim asylum immediately upon disembarking they would not have breached immigration law and the only applicable offence would have been one contrary to section 25A of the Immigration Act 1971 if a financial motive could have been established. It is submitted that the Judge erred in accepting the prosecution’s submission that
R v Bina
[2014] EWCA Crim 1444
applied to the present case. The fact that the appellant had himself pleaded guilty to an offence of illegal entry contrary to section 24 of the 1971 Act was wholly irrelevant to the question that the Judge had to resolve. It is submitted that contrary to the judge’s ruling, the appellant’s case did amount to a defence in law. In ruling as he did, the Judge deprived the appellant of a realistically viable defence before the jury and therefore made an acquittal all but legally impossible. As a result of this error the appellant’s conviction by his own plea is unsafe
(R v Chalkley
[1997] EWCA Crim 3416).”
24.
The reason why the full court gave leave is explained in its ruling given by Popplewell
LJ:-
“The argument before the judge was concerned in particular with the relationship between s.11, 24, 25 and 25A of the 1971 Act. The applicant relied in particular on the decision of this court in
Kapoor
[2021] 1 WLR 3569
, whereas the respondent relied in particular on the subsequent decision of this court in
Bina
[2014] 2 Cr App R 30
. The judge based his ruling against the applicant on
Bina
. Against the background of the tension between the decisions in
Kapoor
and
Bina
and the interrelationship between the sections of the 1971 Act to which we have already referred, we have concluded that it is arguable that the judge was wrong. In addition, given the prevalence of this type of offending and the potential practical consequences, there is an obvious need for clarity.”
25.
Before the full court, the respondent made a concession which has now been withdrawn, following the instruction of Mr. Marsland. It said:-
“The respondent concedes that the judge's ruling deprived the applicant of any defence such that he is able to argue that if the ruling was wrong his convictions on Counts 1 and 3 are unsafe.”
26.
In a skeleton argument dated 16 March 2021, Mr. Marsland, has fundamentally recast the position of the prosecution. He says that the judge’s ruling on the issue he was asked to decide was wrong, but withdraws the concession that it deprived the appellant of any defence and so he should nevertheless be held to his pleas of guilty.
27.
It is therefore agreed that the decision of the judge was wrong, and the issue before us is what the consequence of that is. In view of the terms on which leave was given, we should set out our view of the correct legal position, even though it is now agreed. It is apparent that the judge did not have the benefit of the legal analysis advanced before us by Mr. Marsland and that, if he had, things would have turned out differently.
The correct legal position on the ambit of sections 25 and 25A of the Immigration Act 1971
28.
In his recent skeleton argument, agreed by Mr. Brewer, Mr. Marsland analyses the authorities in a way which accords with our understanding of their meaning. We shall set that out below. In essence, he says that because of section 11 of the 1971 Act a person who arrives at a port or airport with an approved area where people are held pending consideration of their entry into the UK, is deemed not to enter the country until they leave that area. Such arrangements are familiar to anyone who travels by air. Entry into the UK does not occur on arrival, it occurs on passing through passport
control and customs and exiting the approved area into the airport. He therefore submits that if the plan was to arrive at a port, and to claim asylum before leaving the approved area in that port, then that arrival would not constitute entry and so no offence could be committed under section 24 of the Immigration Act 1971.
29.
He cites
R v. Naillie
[1993] AC 674,
R v. Adams
[1996] Crim LR 593, and
R v. Javaherifard
[2005] EWCA Crim 3231
in support of that distinction between arrival and entry for the purpose of the Immigration Act 1971.
30.
He then submits that
Kapoor
and
Bina
, the only cases placed before the judge, were merely illustrations of this principle.
Kapoor
was a case where the migrants travelled on a flight and would inevitably be held within an approved area and would not be deemed to enter the UK under section 11 of the Immigration Act 1971.
Bina
was a case where the immigration law which was to be breached was the law of Spain and nobody was intending to claim asylum in Spain, so the distinction between “arrival” and “entry” was irrelevant. That offence was complete before anyone arrived in the UK.
31.
The judge decided that the arrival of the migrants in the UK would inevitably involve the commission of an offence under section 24 and he was wrong about that, Mr. Marsland accepts. That would depend on whether that arrival was at a port with an approved area which the migrants did not leave before claiming asylum. The submission before the judge of the prosecution that it depended on whether the migrants had documents or not (see the passage at the end of his ruling) was simply wrong in law.
The Immigration Act 1971
32.
We have set out the provisions of sections 11, 24, 25 and 25A of the Immigration Act 1971 in full in the appendix to this judgment. They are set out as they were at the relevant time. Section 25 has since been substantially amended because of the UK ’s departure from the EU.
33.
Section 24 creates a number of summary offences which may be committed by a person who is not a citizen of the UK. The relevant one in this case is knowingly entering the UK without leave. The prosecution case was that all those on the boats on both journeys committed this offence, and that the appellant facilitated that by piloting the boat.
34.
Section 25 is the section under which the appellant was indicted. It creates an offence where a person does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union, and knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
35.
Section 25A creates a similar offence where a person knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the UK of an individual, and he knows or has reasonable cause to believe that the individual is an asylum-seeker.
36.
The offences under section 25 and 25A are triable either way, and, if tried on indictment, carry maximum terms of 14 years’ imprisonment.
The short point
37.
The question posed by the full court when granting leave is whether, given the terms of section 25A, an offence cannot be committed under section 25 where the person whose entry into the UK is facilitated is an asylum seeker. If that is right, then the only offence which can be committed in respect of those seeking to enter as asylum seekers in good faith is that under section 25A, which requires proof that the assistance was provided for “gain”. That is the issue which arises from what it describes as the tension between
Kapoor
and
Bina
.
38.
The broader issue is whether, and in what respects, the judge’s ruling was wrong and whether the case falls into any of the categories of case where this court may allow an appeal despite the fact that the convictions follow guilty pleas.
The authorities on the 1971 Act
39.
We have considered four decisions on the proper construction of the Immigration Act 1971. In date order these were
Sternaj v. DPP
[2011] EWHC 1094 (Admin)
,
R. v. Kapoor
[2012] EWCA Crim 435
;
[2012] 1 WLR 3569
,
R. v. Dhall (Harpreet Singh)
[2013] EWCA Crim 1610
, and
R. v. Bina
[2014] EWCA Crim 1444
;
[2014] 2 Cr. App. R. 30
. The full court identified a tension between
Kapoor
and
Bina
to which we will turn after summarising the effect of each of the decisions.
40.
In
Sternaj,
the Divisional Court considered the issue which is before us. Laws LJ at paragraphs 18 and 19 said:-
“The overall submission here is that the legislative scheme of Sections 25 and 25A is to the effect that a person who facilitates or seeks to facilitate the entry into the United Kingdom of an asylum seeker may only be proceeded against under Section 25A, and in that case the prosecution have to prove that it was done for gain. It is also said that Section 25 must be referring to the immigration law of a European Member State other than the United Kingdom (see paragraph 38 (a) of the skeleton argument), and that there could have been no offence contrary to Section 25 on the facts here because Edmir's son, being only 2, cannot himself have been guilty of any offence and so has not committed a breach of immigration law within the meaning of Section 25 (1) (a).
“19. There is nothing in these two subsidiary submissions. There is nothing whatever to suggest that the first is the case….”
41.
And at paragraph 21 and 22:-
“21. I return to the principal point on the relation between Section 25 and 25A. In my judgment it is not possible to conclude, by reading Section 25 and 25A together, that only Section 25A covers a case where the third party is an asylum seeker. Section 25A would in my judgment apply in the case of an asylum seeker who arrives in or enters the United Kingdom without any breach of immigration law being committed by the third party at all. It is plainly principally directed at traffickers of asylum seekers.
“22. Section 25, by contrast, is concerned with facilitation of the commission of breaches of immigration law.”
42.
Kapoor
involved an alleged conspiracy to assist Afghans to enter the UK on a flight from Bangkok to London using false documentation to board the flight, with the plan of disposing of the documentation during the flight, arriving without any documentation, and claiming asylum. The prosecution claimed that this was a breach of an immigration law, because of the terms of section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This creates an offence of being at a leave or asylum interview without a valid immigration document. The court held that this was not an “immigration law” for the purposes of section 25 of the 1971 Act, saying:-
“36. In our view for the purposes of section 25(2) an immigration law is a law which determines whether a person is lawfully or unlawfully either entering the UK, or in transit or being in the UK. If a person facilitates with the necessary knowledge or reasonable cause to believe, the unlawful entry or unlawful presence in the UK of a person who is not a citizen of the EU, then he commits the offence.”
43.
This conclusion was based on the construction of section 25(2) of the 1971 Act which defines “immigration law” for the purposes of that section. It derived support from the Council Directive 2002/90EC of 28 November and
R v. Javaherifard
[2005] EWCA Crim 3231
;
[2006] Imm AR 185
.
44.
Further support for it was identified in the following paragraph:-
“38. We also note that, if the respondent is right, then, on the facts of this case, section 25A can simply be bypassed. Section 25A limits the offence of facilitation to someone who knowingly and for gain facilitates the arrival in, or the entry into, the United Kingdom of an asylum seeker and excludes anything done by a person acting on behalf of an organisation which aims to assist asylum-seekers and does not charge for its services. Section 25A strikes a careful balance reflecting the obligation of the UK under the Refugee Convention. It would be strange if a person who facilitated the arrival into this country of an asylum seeker would not be guilty of an offence under section 25A designed specifically to deal with asylum seekers but guilty of the general offence in section 25. Given that an asylum seeker who presents himself to an immigration officer at an airport and claims asylum is not an illegal entrant or, at least for the time being and following temporary admission, not unlawfully in the UK, section 25 would, on our preferred interpretation not bite.
It would be strange if Parliament by enacting the 2004 Act intended to interfere with the balance achieved in 2002 when enacting section 25A.”
45.
In
Dhall (Harpreet Singh)
the Court of Appeal had occasion to consider the meaning of “immigration law” again for the purposes of section 25 of the 1971 Act. It was held that sections 1(2) and 3(1)(b) of the 1971 Act constituted an immigration law for that purpose, and that the fact that they had not been identified as such in the proceedings in the Crown Court did not invalidate the conviction. This decision essentially applies the same definition to the term “immigration law” in section 25 as had
Kapoor
.
46.
In
Bina
the Court of Appeal was considering a case in which it was alleged that there was a conspiracy to facilitate the breach of an immigration law of Spain, and other European countries, in order to secure the entry of Iranian nationals with the intention that they would then travel to the UK where they intended to claim asylum. There was evidence that the conspirators made a substantial financial gain by their activity, which includes the provision of false documents for use by the asylum seekers at different stages of their journey. It was commercial “people trafficking”. For reasons which are not clear from the judgment, the prosecution indicted two conspiracies, Count One alleged a conspiracy to breach section 25 and Count Two a conspiracy to breach section 25A. There were also convictions for two substantive section 25A offences, as Counts Three and Four. The judgment is on the application for leave to appeal against conviction. The part which is relevant to the present case related to Count 1, and was summarised and dealt with as follows by McCombe LJ giving the judgment of the court:-
“16. We turn to the arguments, principally of law, raised on the proposed conviction appeal. First, it is submitted that the judge erred in failing to accede to the defence submission of no case to answer. Behind that broad submission there are three points. First, it was submitted that the judge was wrong to conclude that the offence in s.25(1) of the 1971 Act can be committed where the individual, whose breach of immigration law is hypothetically facilitated, is an asylum seeker or proposed asylum seeker. It is submitted that the Crown evidence indicated that all the individuals concerned fell into that category. Secondly, it is argued that the judge was wrong in failing to find that the offence in count 1 had been wrongly charged as a conspiracy to commit the s.25(1) offence, rather than as an offence under s.25A of the Act (helping an asylum seeker to enter this country). Thirdly, [an immaterial submission is summarised].
“17. The first point can be dealt with in our judgment shortly. There is nothing whatsoever in s.25 of the 1971 Act to indicate that the individual non-national of the European Union, whose breach of the immigration law has been facilitated, needs to be a
person who is not an applicant for asylum. In our view it is plain that there is no such limitation. Unfortunately, even persons who in the end are found to have genuine asylum claims have sometimes committed breaches of immigration law on securing entry to an EU state. The statute, in our judgment, is aimed at those who facilitate such illegal entry. On the face of the statute there is no such limitation as that for which Mr Kivdeh contends. “18. In the course of his robust submissions to us this morning, Mr Kivdeh helpfully referred us to
R. v Kapoor
[2012] EWCA Crim 435
; [2012] 2 Cr. App. R. 11 (p.125), in which the judgment of the court was given by Hooper LJ [the court then set out the passage from
Kapoor
at [38] set out above].
“19. As Mr Kivdeh pointed out to us, those cases were specific cases of immigrants who presented themselves on arrival to immigration officers, as the last passage of the judgment in
Kapoor
indicates. On the contrary, in this case what was alleged by the Crown was not the presentation of individuals to immigration officers in Spain saying “We want to go to the United Kingdom to claim asylum”; the case for the Crown was simply that facilitation was carried out to get people into Spain (as Mr Kivdeh put in his argument on sentence) through the use of forged documents. Therefore, the distinction made in
Kapoor
in our judgment does not apply to the instant case.
“20. We turn to the second point. It is, in our judgment, no answer to the offence charged that there may have been a parallel offence of conspiracy to commit an offence under s.25A. That may well have been the case. But it was, in our judgment, no objection to the preferment of a charge of conspiracy to contravene s.25(1).”
Discussion and conclusion on sections 25 and 25Aof the 1971 Act
47.
The judge in his ruling dealt with submissions from the prosecution which sought to equate the present case with
Bina
and to distinguish
Kapoor
. The defence submissions were a mirror image of that. The defence position appears to have been that
Kapoor
is authority for the proposition that a person who arrives in the United Kingdom without leave but who intends to make a claim for asylum as soon as he can after arrival commits no offence under section 24 of the 1971 Act, wherever in the United Kingdom that arrival takes place. It is not, therefore, an offence under section 25 to facilitate him. The facilitator can only be prosecuted under section 25A which requires proof of gain.
48.
We do not accept that analysis of the authorities. It appears to us that there is no doubt that both
Kapoor
and
Bina
were correctly decided, in their result although there is a tension between paragraph [38] of
Kapoor
and
Bina
. An offence under section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 is not a breach of an “immigration law” for the purposes of section 25. It is unnecessary to go beyond the plain words of section 25(2) of the 1971 Act to reach that conclusion. The passage contained in paragraph [38], which is the gravamen of this appeal, was not necessary to the decision. The decision of the Divisional Court in
Sternaj
was not binding on the Court of Appeal Criminal Division as matter of precedent, but it was certainly persuasive. It does not appear to have been cited to the court in
Kapoor.
We venture to suggest that if it had been the Court in
Kapoor
would probably not have departed from it in order to make a point in support of a conclusion which was clearly correct without it. At all events, it is open to us to treat paragraph [38] of
Kapoor
as
obiter dicta
and not to follow it.
Kapoor
was based on the fact that the asylum seekers would arrive on a flight and never leave the reserved part of the airport for the purposes of section
11of the 1971 Act. That is why, in that case, the prosecution sought to rely on the subsequent breach of the 2004 Act as the breach of immigration law for the purposes of the section 25 offence. It was not necessary to consider the terms of section 25A to conclude that this was misconceived.
49.
The distinction of
Kapoor
in
Bina
on the facts is not available to us in this case. Paragraph 3 of the Basis of Plea set out above puts that beyond doubt. However, paragraph 17 of
Bina
does not depend on that distinction.
In
Bina
the offence was committed when a breach of Spanish immigration law was committed, and the issue of whether arrival in the UK would or would not be deemed to constitute entry into the UK for the purposes of section 11 and 24 of the 1971 Act simply did not arise for decision.
50.
There is therefore no tension between
Kapoor
and
Bina
save as to the
obiter dicta
contained in paragraph [38] of
Kapoor.
On that question
Bina
is to be preferred since the rejection of the submission that the fact that the migrants were intending to claim asylum in the UK at some point long after the section 25 offence was complete in Spain was a defence to the allegation of conspiracy to breach section 25 of the 1971 Act was necessary to the decision and plainly correct.
51.
Both
Kapoor
and
Bina
appear to us to have been correct in their result, and examination before the judge of the legal reasoning in those cases, as well as the factual positions, would have shown this, and also illustrated the correct answer to the present case. That answer is that the judge should not have given the ruling he did, and should probably not have given any ruling of law at that stage at all. Whether this appellant had a defence in law on the facts as he asserted them to be was a nuanced question which would have been better determined at trial in the light of the way in which he conducted that defence, and of the evidence which emerged about it.
The question was whether there was any material before the court to show that the passengers on these journeys would have committed an offence under section 24 if they had carried out the plan which the appellant had facilitated by piloting the boats. It was later agreed in the basis of plea that they planned to disembark and surrender to the UK Border authorities and claim asylum immediately. Whether that constituted an offence under section 24 would depend on where they arrived in the UK. If it was at a port with an approved area, then they would not commit the offence. Consideration would also have to be given at trial to an alternative possibility (raised by the appellant in interview), which was that they actually intended to be picked up at sea and hoped to be brought into the UK by UK officials. We have heard no argument on whether that constitutes a breach of section 24 by those entering the UK in that way, and whether in consequence facilitation of it constitutes an offence contrary to section 25.
The effect of the judge’s ruling
52.
Because the live issue before us is whether the convictions are safe given that the appellant entered guilty pleas, it is necessary to say something further about the ruling.
53.
This case demonstrates the care which is required when dealing with legal issues before trial. The law is summarised in Archbold at 4-151. The power to determine points of law before trial, other than in a preparatory hearing, is found in sections 39-40 of the Criminal Procedure and Investigations Act 1996. In
R
v.
Marshall Coombes and Eren
[1998] 2 Cr App R 282, 285 this court said this:-
“Before considering that remaining ground we permit ourselves to make certain observations as to the procedure adopted in the lower court. It is beyond question that an appeal will lie from a conviction entered upon a plea of guilty where that plea is a
consequence of an earlier incorrect ruling in law. (See
D.P.P. v. Shannon
(1974) 59 Cr.App. R. 250,
[1975] A.C. 717
.) We were told that in this case the judge was asked to rule upon the relevant matters of law under section 40(1) of the Criminal Procedure and Investigations Act 1996 at a pre-trial hearing. We were further told by counsel that little thought had been given to the procedure to be followed. The statute enables rulings of law, binding unless and until discharged, to be made before a plea is entered or a jury sworn, which in appropriate cases is a great advantage. It will, however, be important to ensure that the facts are fully and accurately before the Court, something which cannot always be achieved without oral evidence. Where oral evidence is not required it is preferable, if not essential, for the agreed facts to be written
down if only because the ruling may become the subject of an appeal.”
54.
We agree with that, and would add also that it would almost always be wise for the court to have an application before it in which it was absolutely clear what it was being asked to do, by whom, and for what purpose. With great respect to the judge, it is not always clear from his ruling whether he was deciding a submission of no case to answer, or dismissal application, taking the prosecution case at its highest, or whether he was ruling that even on his own evidence, taken at its highest, the appellant had no defence in law to the charges he faced. He expresses his final conclusion in favour of the prosecution as one reached “on the height of the evidence of course – because this could still be a jury trial.” What was clear, though, is that he regarded factual matters as being of importance to the outcome. We can identify these as follows:-
i)
The judge did entirely understand the point in
Kapoor
and suggested that it was important, his word was “indicative”, that the migrants were coming from France, and that the craft “was not heading for a port where UK border officials, immigration officials, would be present in order to receive claimants for asylum”. He was no doubt right about the significance of these alleged facts, but the intended place of entry by the migrants was a matter of evidence, and therefore for the jury. He was not entitled to make any factual findings about it.
ii)
The judge plainly regarded the guilty plea of the appellant to the section 24 offence with which he was charged in relation to the count 3 journey to 29 December 2019 as important. He does not explain why. Had he done so, he would have been driven to conclude that its potential significance was a matter for evidence and argument in a trial. The burden of the submissions before the judge on behalf of the appellant was that he was not guilty of the section 24 offence, and neither was anyone else in the boat. Mr. Brewer made the optimistic submission that the guilty plea should be excluded as irrelevant, or because it would have an adverse effect on the fairness of the proceedings, under section 78 of the 1984 Act. The correct legal analysis was that its importance
was a matter of fact for the jury having heard evidence as to why it was entered. We shall return to this at the end of this judgment.
55.
The effect of the ruling in fact was that the appellant was advised to plead guilty to counts 1 and 3 because he was advised that the judge had withdrawn his defence to those counts, leaving only the
de minimis
issue open. As we have said, the appellant was advised that this was hopeless. This appeal is not based on the suggestion that this last piece of advice was incompetent, and it clearly was not. Steering the boat is a pretty clear case of facilitation, many people would think.
The safety of the convictions
56.
Mr. Marsland has helpfully analysed the appellant’s case as having three potential routes to acquittal. We accept that analysis and will adopt in below in expressing our conclusions. Mr. Marsland accepts that the ruling removed the first two of them but submits that it left the third open for the appellant to run if he wanted to. That is a controversial matter to which we shall have to return. It explains the withdrawal of the concession made before the full court by his predecessor.
57.
Those elements were
i)
The prosecution could not prove that one or more of the migrants were intending to disembark at a location other than a recognised port of entry, or otherwise evade immigration control;
ii)
In any event, the appellant did not know and had no reasonable cause to believe, that the migrants were intending to commit an offence under section 24;
iii)
The appellant’s actions in being one of a number to help pilot the boat were
de minimis
in terms of “facilitation” and did not amount to the offence under section 25.
58.
Mr. Marsland relies on
R v. Asiedu
[2015] 2 Cr App R 8
, and submits that the appellant should have relied on the third of these points before the jury, and says that if convicted he could appeal on the basis that the first and second was wrongly taken from him by the judge. Pleas were instead offered on a reduced basis, in which count 2 was left to lie on the file and his Basis of Plea was accepted. It is submitted that the appellant took a beneficial course to him and should now be held to it.
59.
This would be more persuasive if it had been the prosecution position consistently throughout these proceedings. However, the Form RN was submitted to the Court of Appeal in November 2020 and was drafted by counsel who appeared for the prosecution before the judge. It makes the concession recorded by the full court and quoted above. This, we think, reflects the way in which the matter was dealt with by the prosecution in the Crown Court as well. Having succeeded on their argument, they took the view that the appellant had nowhere to go but to plead guilty.
60.
We asked Mr. Marsland whether the Basis of Plea amounted to an admission of an offence in law. He said that it did, although accepted that the ruling which had been secured by the prosecution creates a difficulty in that submission. That is a realistic position in our judgment, because the fact is that the document does not set out precisely
what breach of immigration law the other migrants had committed or planned to commit, or how their conduct or plan would amount to a breach of section 24 of the 1971 Act as alleged in the amended indictment. That breach is not identified in anything which has ever emanated from the appellant. It comes only from the judge’s ruling.
61.
Mr. Brewer agrees with Mr. Marsland’s analysis of the legal issues so far as the legality of the arrival of the migrants in the UK is concerned. He now advances the submissions we summarise at [62]ff below on this part of the appeal, which go to the consequences for the safety of the conviction of the guilty pleas following the judge’s ruling.
62.
He points to paragraph 2.2 of the Defence Case Statement, set out above, and paragraph 5 and following of the prosecution document of 8 August 2020, as defining the issue for the judge. It was clear that the prosecution submitted that arrival into UK waters without documents would amount to an offence. This would not and could not be right, he says, but the judge so ruled. He says that the appellant’s plea to the section 24 offence was entered in error.
63.
He thus submits that the effect of the ruling was to remove all viable defences from the appellant because the one which it left open, whether the conduct amounted to facilitation, was not arguable. The admitted conduct of the appellant by piloting the boats amounted to facilitation as a matter of law. This line of defence, called “
de minimis
” by the judge, was, we are told, not run before the jury because the appellant was advised it was hopeless. This distinguishes the present case from
Asiedu.
64.
If that is wrong, then it is submitted that the conviction is unsafe relying on the approach to convictions based on guilty pleas in
R v. Boal
[1992] QB 591
. He was deprived by the judge’s ruling of a defence which would very probably have succeeded and the conviction is therefore unsafe. The point is made that there is no evidence that the boats were not heading to a recognised port of entry, although, inconsistently with this, the suggestion is also made that it was obvious to the migrants that they would be interdicted during the crossing. If that is true, then they may not actually have been heading anywhere except to such place as they would be picked up by the UK authorities and led to safety.
Discussion and conclusion on safety of convictions
The proper approach in this court to the guilty pleas
65.
We have had to consider a line of authority culminating in
R v. Asiedu
[2015] EWCA Crim 714
;
[2015] 2 Cr. App. R. 8
as to the consequences of the fact that these pleas followed this ruling. In this respect the position has moved on from that before the full court, the Crown having withdrawn its earlier concession.
66.
In
Asiedu
, Lord Hughes, giving the judgment of the Court of Appeal Criminal Division, said that there were two principal situations where a guilty plea is no bar to an appeal. The second is where the proceedings against the appellant were an abuse of process such that they should not have been taking place at all. This does not arise here. As to the first category he said, at paragraph 20:-
“It does not follow that a plea of guilty is always a bar to the quashing by this court of a conviction. Leaving aside equivocal or unintended pleas (which do not concern us here), there are two principal cases in which it is not. The first is where the plea of guilty was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury. So, if the judge rules as a matter of law that on the defendant’s own case, that is on agreed or assumed facts, the offence has been committed, there is no arguable defence which the defendant can put before the jury. In that situation he can plead guilty and challenge the adverse ruling by appeal to this court. If the ruling is adjudged to have been wrong, the conviction is likely to be quashed. Contrast the situation where an adverse ruling at the trial (for example as to the admissibility of evidence) renders the defence being advanced more difficult, perhaps dramatically so. There, the ruling does not leave the defendant no case to advance to the jury. He remains able, despite the evidence against him, to advance his defence and, if convicted, to challenge the judicial ruling as to admissibility by way of appeal. If he chooses to plead guilty, he will be admitting the facts which constitute the offence, and it will be too late to mount an appeal to this court. For this important distinction see
R. v Chalkley [1998] 2 Cr. App. R. 79; [1998] Q.B. 848
, which on this point is clear law. That was a case in which the defendants had failed to persuade the trial judge to exclude evidence pursuant to s.78 of the Police and Criminal Evidence Act 1984 , and, faced with evidence which they judged to be difficult to overcome, had pleaded guilty, indeed in explicit terms which made it clear that they now admitted the conspiracy to rob which was charged. Giving the court’s judgment, Auld LJ said this at 94 and 864:
“Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.”
67.
We would add a third such category, which can perhaps be viewed as an extension of the first. Where a person has pleaded guilty following legal advice which deprived him of a defence which would probably have succeeded that is a proper ground for regarding the conviction as unsafe, see
R. v. Boal
[1992] 1 QB 591
, which has been frequently applied: see for example the recent case of
R. v. P.B.L
.
[2020] EWCA Crim 1445
. The test for this approach to guilty pleas in this court is not the same as
Chalkley
.
Chalkley
requires a situation where the ruling on law means that the appellant has no defence
even on the most favourable view of the facts from his or her point of view. If that ruling is wrong, then the conviction will probably be held to be unsafe even if the chances of the jury accepting that such a view of the facts was possible appear to the court to be low. Where the plea follows legal advice that advice may concern factual or legal issues, or commonly mixed issues of fact and law, but its effect must be to deprive the appellant of a defence which would probably have succeeded. No doubt the difference arises, at least in part, from the fact that a defendant is required to accept and follow the legal rulings of the trial judge, but has a choice as to whether to accept legal advice, and, indeed, whether to continue to retain the lawyer giving it. The reasons for choosing to accept advice may not always be capable of proof, and they may also involve many factors.
That approach applied to this case
68.
In this case, there was no focus on the precise means by which the migrants would arrive in the UK and whether they would be deemed not have to have entered it at that point by reason of section 11 of the Immigration Act 1971. On one view of the facts, the boat would land wherever it landed and the occupants would enter the UK unlawfully at that point. They would not be able to arrive at a port and then:-
“…remain in such area (if any) at the port as may be approved for this purpose by an immigration officer..”
69.
Section 11(1) of the 1971 Act would not on that basis operate to deem that their arrival by boat did not amount to entry into the UK. They would commit the summary offence of entering the UK without leave.
70.
In order to show that this provision assisted him, the appellant would have to persuade the court that he intended to deliver the occupants of the boats directly into the approved area of a port. Given the circumstances of these journeys it is easy to see why he might encounter a problem doing that. These boats are very difficult to steer in the conditions in the Dover Straits for which they are completely unsuitable, and the task of entering an approved area of a port would have been very difficult. It would not have been assisted either by the evidence that when intercepted these boats were not heading towards any port with an approved area, or any port at all. Further, his case is that he was only steering the boats with others on the first occasion, and because no-one else could do so on the second occasion. He suggested in interview that on the first occasion he was told to aim for a particular landmark on shore but that is all he said about his intended course. That account is quite inconsistent with the pilot of the vessels having a fixed plan to aim for a particular port with an approved area which he could reach and enter. Had that been the plan, it is likely, the jury may think, that he would have mentioned in interview which port he was aiming for.
71.
The alternative line of defence identified in interview was that actually the point at which he was steering was a point at which it was expected that the UK authorities would intercept the boat and pick up the migrants. If it was with the intention that this should happen that the appellant steered the boats, then the trial court would have to consider whether that amounted to facilitation of a section 24 offence by the others in the boat.
72.
Although the appellant’s guilty plea on 31
December 2019 to an offence under section 24 appears to close off these lines of defence at least in respect of the second journey, the judge did not fully articulate its evidential significance. By section 74 of the Police and Criminal Evidence Act 1984 the conviction was evidence that the appellant had entered the UK unlawfully on the second occasion. By extension that evidence applied to everyone else in the boat in that occasion because they were all, as it might be put, in the same boat. However, even as far as the appellant’s guilt is concerned that conviction is not conclusive. It proves that his entry was unlawful “unless the contrary is proved”, see section 74(2). The judge made no ruling on its evidential status so far as the guilt of others in the boat are concerned in December, and the conviction does not relate to the first journey at all. The judge was therefore wrong in law to hold, to the extent that he did, that the effect of the earlier conviction was to remove the first two lines of defence from the appellant.
73.
So far as the first two lines of defence are concerned, these were withdrawn by the ruling of the judge and on a wrongful basis. Here, there is no requirement that the defence which was wrongly withdrawn would probably have succeeded. It might have done, or it might not. It appears to us that a closer focus was required than occurred in the Crown Court on how in fact the migrants intended that their journey would end, and on the lawfulness or otherwise of that conduct.
74.
That is the position so far as the first two lines of his defence are concerned. His third, what was called the
de minimis
point, was and is regarded as hopeless on the facts by his counsel. His pleas to counts 1 and 3 did not deprive him of a defence which would probably have succeeded in that respect and given that the
Boal
test applies here, the loss of that line of defence (which the judge left open) cannot found an appeal. However, we do not accept the prosecution submission that the fact that this line of defence was left open by the judge when he wrongly removed the real defences in this case means that the convictions must be regarded as safe. We do not, of course, doubt
Chalkley
and
Asiedu
. On the contrary, we have no doubt they are right. But we do consider that the lack of clarity on the facts of this particular case about the scope and meaning of the ruling is important. The prosecution position, which was until recently that it did close down all possible lines of defence, illustrates precisely the lack of clarity this appellant faced when deciding how to respond to the ruling. We do not consider that it is in the interests of justice to allow the prosecution to withdraw the earlier concession and to run the present argument. The time for clarity about that was before the pleas were entered.
75.
This could be viewed, therefore, as a mixed case where the three lines of defence were removed by a combination of correct legal advice and an incorrect legal ruling. Although the judge left one line of defence open, in truth he deprived the appellant of the only viable line of defence. Viewed in this way, the case falls within
Chalkley
rather than
Boal
. When we say “viable” we do not hide the difficulties it involved from the appellant’s point of view but as we have said, where the defence is removed by an erroneous legal ruling by the judge, its factual merits are usually immaterial: the appellant was entitled to the verdict of a jury on the factual issues.
Conclusion
76.
For these reasons we concluded that the appellant’s convictions were unsafe and should be quashed. The question of whether to order a re-trial is complex, largely because the appellant is due for release from his sentence on 14 April 2021. If convicted again after a trial he might receive a somewhat longer sentence because there will be no credit for a plea. If he is remanded in custody pending the re-trial he will certainly have served his sentence before that second trial starts. There is a real possibility that he would be held in this country pending trial for far longer than it will take to deport him if there is no re-trial. We therefore invited the Crown to consider the public interest in a re-trial in consultation with the Home Office who will be able to assist with explaining the practical consequences of a conviction at a re-trial and the likely course of events if no re-trial is ordered. The lists at Canterbury are likely to be full and there is a substantial backlog of cases awaiting trial throughout the country. We will receive these submissions and decide the question now.
Post-Appeal events
77.
The court directed a re-trial which was held at Canterbury Crown Court and resulted in the acquittal of the appellant on 13 May 2021.
78.
The order postponing publication of this judgment until the conclusion of the re-trial has therefore come to an end and this judgment may now be published.
R. v. FOUAD KAKAEI
APPENDIX TO JUDGMENT OF COURT OF APPEAL 8 APRIL 2021
ss. 11, 24, 25 and 25A of Immigration Act 1971 as in force in 2019
11.— Construction of references to entry, and other phrases relating to travel.
(1)
A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016.
(2)
In this Act
“disembark”
means disembark from a ship or aircraft, and
“embark”
means embark in a ship or aircraft; and, except in subsection (1) above,
(a)
references to disembarking in the United Kingdom do not apply to disembarking after a local journey from a place in the United Kingdom or elsewhere in the common travel area; and
(b)
references to embarking in the United Kingdom do not apply to embarking for a local journey to a place in the United Kingdom or elsewhere in the common travel area.
(3)
Except in so far as the context otherwise requires, references in this Act to arriving in the
United Kingdom by ship shall extend to arrival by any floating structure, and
“
disembark”
shall be construed accordingly; but the provisions of this Act specially relating to members of the crew of a ship shall not by virtue of this provision apply in relation to any floating structure not being a ship.
(4)
For purposes of this Act
“common travel area”
has the meaning given by section 1(3), and a journey is, in relation to the common travel area, a local journey if but only if it begins and ends in the common travel area and is not made by a ship or aircraft which—
(a)
in the case of a journey to a place in the United Kingdom, began its voyage from, or has during its voyage called at, a place not in the common travel area; or
(b)
in the case of a journey from a place in the United Kingdom, is due to end its voyage in, or call in the course of its voyage at, a place not in the common travel area.
(5)
A person who enters the United Kingdom lawfully by virtue of section 8(1) above, and seeks to remain beyond the time limited by section 8(1), shall be treated for purposes of this Act as seeking to enter the United Kingdom.
24.— Illegal entry and similar offences.
(1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:—
(a)
if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;
(b)
if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either—
(i)
remains beyond the time limited by the leave; or
(ii)
fails to observe a condition of the leave;
(c)
if, having lawfully entered the United Kingdom without leave by virtue of section
8(1) above, he remains without leave beyond the time allowed by section 8(1);
(d)
if, without reasonable excuse, he fails to comply with any requirement imposed on him under Schedule 2 to this Act to report to a medical officer of health, or to attend, or submit to a test or examination, as required by such an officer;
(f)
if he disembarks in the United Kingdom from a ship or aircraft after being placed on board under Schedule 2 or 3 to this Act with a view to his removal from the United Kingdom;
(g)
if he embarks in contravention of a restriction imposed by or under an Order in
Council under section 3(7) of this Act;
(h)
if the person is on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016 and, without reasonable excuse, the person breaches a bail condition within the meaning of that Schedule.
(1A) A person commits an offence under subsection (1)(b)(i) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter; but a person shall not be prosecuted under that provision more than once in respect of the same limited leave.
(3)
The extended time limit for prosecutions which is provided for by section 28(1) below shall apply to offences under subsection (1)(a) and (c) above.
(3A) The extended time limit for prosecutions which is provided for by section 28(1A) below shall apply to offences under subsection (1)(h) above.
(4)
In proceedings for an offence against subsection (1)(a) above of entering the United
Kingdom without leave,—
(a)
any stamp purporting to have been imprinted on a passport or other travel document by an immigration officer on a particular date for the purpose of giving leave shall be presumed to have been duly so imprinted, unless the contrary is proved;
(b)
proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced.
25.---- Assisting unlawful immigration to member State
(1)
A person commits an offence if he—
(a)
does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,
(b)
knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and
(c)
knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
(2)
In subsection (1)
“immigration law”
means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to—
(a)
enter the State,
(b)
transit across the State, or
(c)
be in the State.
(3)
A document issued by the government of a member State certifying a matter of law in that State—
(a)
shall be admissible in proceedings for an offence under this section, and
(b)
shall be conclusive as to the matter certified.
(4)
Subsection (1) applies to things done whether inside or outside the United Kingdom.
(6)
A person guilty of an offence under this section shall be liable—
(a)
on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
(b)
on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
(7)
In this section–
(a)
a reference to a
member State
includes a reference to a State on a list prescribed for the purposes of this section by order of the Secretary of State (to be known as the
“Section 25 List of Schengen Acquis States”), and
(b)
a reference to a citizen of the European Union includes a reference to a person who is a national of a State on that list.
(8)
An order under subsection (7)(a)–
(a)
may be made only if the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom's obligations under the EU Treaties,
(b)
may include transitional, consequential or incidental provision,
(c)
shall be made by statutory instrument, and
(d)
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
25A Helping asylum-seeker to enter United Kingdom
(1)
A person commits an offence if—
(a)
he knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom of an individual, and
(b)
he knows or has reasonable cause to believe that the individual is an asylum-seeker.
(2)
In this section
“asylum-seeker”
means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under—
(a)
the Refugee Convention (within the meaning given by section 167(1) of the
Immigration and Asylum Act 1999 (c. 33) (interpretation)), or
(b)
the Human Rights Convention (within the meaning given by that section).
(3)
Subsection (1) does not apply to anything done by a person acting on behalf of an organisation which—
(a)
aims to assist asylum-seekers, and
(b)
does not charge for its services.
(4)
subsections (4) and (6) of section 25 apply for the purpose of the offence in subsection (1) of this section as they apply for the purpose of the offence in subsection (1) of that section. | [
"His Honour Judge O’Mahony",
"LORD JUSTICE EDIS",
"MR JUSTICE HOLGATE",
"HER HONOUR JUDGE TAYTON QC,sitting as a judge of the Court of Appeal Criminal Division"
] | 2021_04_08-5155.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/503/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/503 | 782 |
249213986fba9fd988c7e0a2359c8dac73fe1c9e8f93da3ade7ae1944315341d | [2009] EWCA Crim 2345 | EWCA_Crim_2345 | 2009-10-13 | crown_court | Neutral Citation Number: [2009] EWCA Crim 2345 Case No. 2008/04613/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 13 October 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE PENRY-DAVEY and MR JUSTICE KEITH - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - LOUIE PRESENCE CHARISMA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International L | Neutral Citation Number:
[2009] EWCA Crim 2345
Case No.
2008/04613/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 13 October 2009
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE KEITH
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
LOUIE PRESENCE CHARISMA
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A S Longworth
appeared on behalf of the Appellant
Miss L Roberts
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an appeal against conviction with leave of the single judge. On 22 July 2008, in the Crown Court at Manchester, before His Honour Judge Hammond and a jury, the appellant, Louie Charisma, was convicted of rape (count 2) and of causing a person to engage in sexual activity without consent (count 7). On 9 February 2009 he was sentenced on both counts to a Hospital Order with a restriction, pursuant to
section 41 of the Mental Health Act 1983
.
2. On 22 July 2008, before the same constitution, the co-defendant, Michael West, was convicted of false imprisonment (count 1), causing a person to engage in sexual activity without consent (count 3), rape (counts 4, 5 and 6), and making a threat to kill (count 8). He was later sentenced on counts 3, 4, 5 and 6 to life imprisonment with a minimum specified term of nine-and-a-half years, with 496 days spent in custody on remand to be credited towards that sentence. On counts 1 and 8, he was sentenced to three years' imprisonment to run concurrently.
3. West had renewed his application for leave to appeal against conviction and for an extension of time, following refusal of leave by the single judge. We were told yesterday that West's counsel had been admitted to hospital. In those circumstances we were invited to remove West's application from the list. We acceded to that request, and so today we confine ourselves to Charisma's appeal.
3. The victim of the sexual offences was a 16 year old girl. The prosecution alleged that prior to June 2007 West had groomed the complainant sexually and had gained her confidence. The result was that she went to visit him on 18 June. She alleged that she was kept a prisoner in his room. They were both joined later by the appellant. They both raped her -- West more than once -- and each held her while the other raped her. The appellant left. Thereafter, West made threats to kill her using a knife. After the attack he made her bathe and he shaved off his own body hair in an attempt to remove any possible link which might be established forensically between him and the complainant.
4. Following a medical examination of the complainant, evidence was found of bruising in the area of her vagina, her anus and wrists. The bruising of the vagina was consistent with penile penetration.
5. On 19 June 2007 West was arrested and interviewed. He produced a prepared statement in which he denied the allegations and denied having any form of intercourse with the complainant. He also asserted that no one else had entered the room while she was with him.
6. On the following day the appellant was arrested. He was interviewed. He did not seek the assistance of an appropriate adult and it was not thought necessary or appropriate for such an adult to be made available to him. He denied any offence of rape of the complainant. He explained that on 16 June 2007 West had told him that he knew a girl who was hoping to make some money from prostitution. He asked the appellant if he was interested. He was. He went to West's room on 18 June. West told him that the girl was there. West said that she wanted £20 to have sexual intercourse. The appellant left the house to go to a cash machine to obtain the money. When he returned, he handed the money to West. West left the room. The complainant was wearing a top but had no trousers on. The appellant smoked some crack while she gave him oral sex. Shortly afterwards, West returned to the room. The appellant thought that the complainant seemed fond of West. He observed them chatting and cuddling one another.
7. The precise details of the activities alleged by the complainant need no elucidation in this judgment.
8. The issue which arises in the present appeal stems from the fact that the appellant chose not to be present at his trial. He elected to remain in custody while it took place. The case advanced by counsel on his behalf was that the appellant had no recollection of events on the night in question. He denied that he had been involved in the offences in any way. Reliance was placed by counsel on the instructions from the appellant that he would have told the truth to the police when he gave his account after his arrest on 20 June, and so counsel was entitled and justified to put forward that account as material for the jury to consider in support of the appellant's case. In the result there was no evidence from the appellant. In passing we note (although for present purposes it goes no further) that West gave evidence denying the offence.
9. The ground of appeal is critical not of any terms of the directions given by the judge under
section 35 of the Criminal Justice and Public Order Act 1994
in relation to the appellant's failure to give evidence, but of the fact that any such directions were given at all. It was made clear at the outset that the appellant was fit to plead and stand his trial. That remained the position from start to finish. When the trial began the judge directed the jury that the appellant had the right not to attend, and so the exercise of that right should not be held against him.
10. When the evidence for the prosecution was reaching its conclusion, counsel, acting on the medical evidence that the appellant was fit to understand advice and give instructions, having formed his own view of the appellant when he saw him, explained the potential adverse impact on his defence if the appellant declined to give evidence. Counsel was satisfied that the appellant understood the advice. The appellant was adamant that he would not give evidence on the basis that he had no memory of the alleged incident.
11. Later, at the appropriate stage, the judge satisfied himself that appropriate advice had been given by counsel and that the appellant had understood the advice.
12. The question whether the jury should be given any direction under
section 35
of
the 1994 Act
was canvassed before the judge.
Section 35(1)
, so far as relevant, provides:
"At the trial of any person .... for an offence, subsections (2) and (3) below apply unless --
(a)
the accused's guilt is not in issue; or
(b)
it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
...."
Section 35(2)
provides:
"Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution satisfy itself .... that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question."
Section 35(3)
provides:
"Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question."
13. As we have explained, no issue is taken about the process adopted by the judge or the language in which he gave an appropriate direction. The single issue in the appeal is whether the mental condition of the appellant made it undesirable for him to give evidence, so that he fell within the protective ambit of
section 35(1)(b)
.
14. In order to sustain that submission, and with the agreement of both sides, evidence was provided for the judge. It took the form of a report from Dr Windgassen, a Consultant Psychiatrist, dated 13 November 2007, and a report from Dr Ronan Brennan, a Consultant Forensic Psychiatrist, dated 12 March 2008. Neither gave oral testimony. There are a number of features in the report of Dr Windgassen on which reliance was placed before the judge and is placed before us by Mr Longworth on behalf of the appellant. In his report Dr Windgassen said this:
"10
OPINION
10.1 .... there is no evidence that Louie Charisma is 'under disability' in relation to his forthcoming trial.
10.2 However, it is my opinion that Louie Charisma suffers from a psychotic illness, characterised by seemingly vague but possibly much more systematised persecutory delusions, auditory hallucinations and a subtle degree of thought disorder."
In relation to the appellant's mental state, the doctor said:
"8.8 Cognitively he appeared intact on gross testing and he seemed of above average intelligence."
Particular attention was focused by Mr Longworth on this observation:
"10.3 .... Whilst it is not my role to comment on his plea, it is my opinion that Louie Charism is a naive, vulnerable and easily influenced individual who does not impress as mendacious or manipulative, and who may well be speaking the truth."
Mr Longworth submits that the doctor there appears to be accepting that the claimed loss of memory may well be true. It is far from asserting that it is true, and equally far from asserting any particular condition to which the loss of memory may be attributed.
15. Dr Brennan took a different view. He accepted that the appellant suffered from a mental illness within the meaning of the
Mental Health Act 1983
. The most likely diagnosis was paranoid schizophrenia. He expressed the opinion that, notwithstanding that mental illness, the appellant did not currently require transfer to a psychiatric hospital. He said that he explored the appellant's history in very great detail and then made this observation:
"12.3 Although Mr Charisma describes subjective difficulties with his memory, suggesting that they result from previous head injuries he has allegedly suffered in June 2007, there is no collateral information to support this."
Dr Brennan set out a number of assertions made by the appellant and concluded a little later in the paragraph:
"On gross testing of Mr Charisma's cognitive functioning I formed the view that he was orientated with intact immediate and long-term memory. Although he suggested that he was unable to recall new information which may suggest a short-term memory problem I found his responses inconsistent and unconvincing raising suspicion that he may be exaggerating problems with his memory. This may be relevant with respect to differing accounts of the alleged offence that Mr Charisma has given ...."
It is relevant to record that Dr Brennan believed that the appellant was capable of instructing his solicitors. He concluded that in relation to his ability to follow court proceedings, he did not believe that his psychotic symptoms had seriously impacted on the appellant's ability to concentrate. Notwithstanding the appellant's suggestions of memory problems, the doctor concluded that he did not accept that this was objectively the case (at any rate based on his analysis of the appellant at interview). His view was that the appellant was capable of following proceedings in court.
16. Having considered the material before him, Judge Hammond summarised the issues before him and addressed the question whether on this evidence the appellant's mental condition made it undesirable for him to give evidence. He summarised the position and rejected the application that he should not give any direction under
section 35
of
the 1994 Act
. That decision is criticised. The basis of the criticism is that the judge failed to appreciate the consequence of his ruling, in particular in the context of what might have happened if the appellant had given evidence and denied his loss of memory, and asserted that his loss of memory was based on the taking of drugs and the consequences of head injuries.
17. Again, we must look at the background. It is true that the appellant was subject to a degree of mental illness. Nevertheless, he was fit to attend his trial and to give instructions to his legal advisers. The precise impact on his memory of the events on the night of the alleged offences was (to put it no higher) in issue. Certainly there was no consistent view between the psychiatrists that he was suffering from the loss of memory which he was asserting. There were grounds for doubting the accuracy of his claim. He appeared to his counsel to have understood precisely the consequences of a decision not to give evidence. Approaching the case in the round, it is difficult to avoid the conclusion that, in reality, the appellant had made a firm and settled decision that he would not attend trial or give evidence, whatever happened, and that, notwithstanding the advice given by counsel, he would not, and there was no likelihood that he ever would, change his mind.
18. It is not suggested on the appellant's behalf that this settled decision resulted from mental illness. If, however, his loss of memory was genuine, then he was entitled to give evidence that he could no longer remember anything that had happened or indeed what he had actually said when he was interviewed by the police. If he had given that evidence he would have been open to cross-examination and the issue of whether or not the loss of memory was genuine would have been examined. The jury would have assessed whether or not the asserted loss of memory was genuine and would have evaluated the evidence at trial in the light of their conclusion on that issue. If genuine, that would have been taken very much into account. The jury would not have held it against him that he was unable to say anything about events on the night in question. A genuine loss of memory would have precluded him from doing so. They would have evaluated the evidence of the complainant in the light of what the appellant had said in his police interview.
19. If, on the other hand, the jury had concluded that the asserted loss of memory was a smoke screen and false, then it would have been open to them to take that into account in deciding whether the assertions made by the appellant to the police in his interview were true (or any more true than his assertions of loss of memory). We accept that medical evidence might have been admissible to enable the jury to understand the appellant's condition as seen by the doctors and its particular impact on his memory so as to help them formulate their own conclusion. It would not, we think, have been open to the doctors to decide that question. They had formed different views.
20. What should the judge have done when faced with this situation? It was not suggested that there might have been damaging consequences to the appellant's mental health had he given evidence to the jury. Nor was this a case in which the evidence of loss of memory was as unequivocal as it might be if, for example, following the alleged incident there had been a major trauma involving brain damage to the appellant after the conclusion of the police interview. All that might have produced a different result.
21. However, standing back and looking at the evidence that there is, it seems to us that the judge cannot be faulted for his conclusion that there was no basis which required him to take a different course to that which normally obtains when
section 35
is established. We agree with the judge's view that there was no evidence which should have led him to the conclusion that it would be undesirable for the appellant to give evidence by reason of his mental condition.
22. That being the case, the single ground of this case must fail and the appeal will be dismissed.
23. We have one observation to add in relation to Michael West's case. As we indicated at the start of this judgment, West is not present. Each member of the court had read the papers and considered the case in some detail before it became apparent that the renewed application could not be listed today.
24. We shall invite counsel who is acting for West to remind himself and to remind the applicant of the court's power to order that some time served should not count if the full court hearing the renewed application comes to the conclusion that this application is and always was without any merit -- in reality, hopeless.
25. Having made that observation, if the application continues to be renewed it must be listed before a constitution which does not include any member of the current constitution.
___________________________________________ | [
"MR JUSTICE PENRY",
"MR JUSTICE KEITH"
] | 2009_10_13-2118.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2345/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2345 | 783 |
9920d75b966d879c7a06530c02a854a73592abf7c097328290ce37f6dbfde9ff | [2023] EWCA Crim 1434 | EWCA_Crim_1434 | 2023-10-12 | 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 202301882/A1
[2023] EWCA Crim 1434
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday, 12 October 2023
Before:
VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
LORD JUSTICE HOLROYDE
MRS JUSTICE McGOWAN DBE
MRS JUSTICE STEYN DBE
REX
v
JASON GRAINGER
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 CRIMINAL APPEAL ACT 1995
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MISS L O’BRIEN
appeared on behalf of the Appellant
MISS V AILES
appeared on behalf of the Crown
_________
J U D G M E N T
(Approved)
1.
THE VICE-PRESIDENT: The Criminal Cases Review Commission, to whom we are grateful, have referred this case to the court pursuant to
section 9
of the
Criminal Appeal Act 1995
. The Reference takes effect as an appeal against sentence.
2.
The appellant and his co-accused Trendell were convicted in 2018 of offences of causing grievous bodily harm with intent, contrary to
section 18
of
the Offences Against the Person Act 1861
, and false imprisonment. It is unnecessary to go into detail about the shocking facts. It suffices to say that the two accused detained and tortured their victim over several hours using a knife, scissors and an electric iron to inflict severe physical injuries and causing him severe psychological trauma.
3.
On 12 October 2018, in the Crown Court at Maidstone, they were each sentenced to life imprisonment, pursuant to
section 225
of the
Criminal Justice Act 2003
. The judge specified a minimum term of 10 years in the case of this appellant, who had a previous conviction for a similar offence, and eight years in the case of Trendell.
4.
Both men appealed against their sentences. In June 2019 this court, differently constituted, allowed appeals to the extent of reducing the minimum terms to eight years and six years respectively. The judgment of the court on that occasion is publicly available:
[2019] EWCA Crim 2507
. We need not repeat all that was said in it. We note however that it included a citation of
section 82
A of the
Powers of Criminal Courts (Sentencing) Act 2000
, which was in force at the time of the conviction and sentencing of the appellant and his co-accused. That section provided that when imposing a life sentence under
section 225
of
the 2003 Act
, the minimum term to be specified should be such as the court considers appropriate taking into account, amongst other things, the effect that
section 240
ZA of
the 2003 Act
would have had if the court had imposed a determinate sentence of imprisonment. The effect of
section 240
ZA(3) in the case of an offender who received a determinate sentence of imprisonment was to entitle him to credit for the number of days when he had been remanded in custody in connection with the offence.
5.
At the time of their sentencing, both men had been remanded in custody for significant periods. Unfortunately, it appears that no one referred to that fact at the sentencing hearing, and the judge failed to take account of the effect which
section 240
ZA would have had if she had imposed a determinate sentence. There was a similar collective oversight at the 2019 appeal to this court.
6.
Mr Trendell raised that oversight with the Criminal Cases Review Commission, who referred his case to this court. This court allowed Trendell's appeal against sentence to the extent of reducing his minimum term by the number of days he had been remanded in custody. The judgment of the court is reported at
[2022] 4 WLR 38
,
[2022] EWCA Crim 267
. Again, we need not repeat all that is there said. We will however refer to three passages in the judgment.
7.
First, at paragraph 9 the court indicated that the provisions formerly contained in
section 82
A of
the 2000 Act
have been replaced by those in section 323 of the Sentencing Code, but that the provisions are materially the same and that the outcome of the appeal would not have been different if the provisions of the Sentencing Code had been applicable.
8.
Secondly, at paragraph 11 the court explained that the automatic crediting of time spent in custody, pursuant to
section 240
ZA, applies when a court imposes a determinate sentence but not when it imposes a discretionary life sentence and specifies a minimum term.
9.
Thirdly, at paragraphs 17 to 18 the court gave the following guidance as to the approach to be adopted in circumstances such as these:
"17.
... it is not correct to say that a court imposing a discretionary life sentence and making a minimum term order is required to give credit for the time spent on remand in custody. The duty of the court, consistently with
section 82
A of
the 2000 Act
and now with
section 323
of the Sentencing Code, is to impose such minimum term as it considers appropriate, taking into account amongst other things what the effect of
section 240
ZA would be if it were imposing a determinate sentence. The statute requires the effect of
section 240
ZA to be taken into account, but gives the court a discretion as to how it is taken into account. If Parliament had not intended to confer any such discretion, and instead to impose a mandatory requirement that each day spent on remand in custody must count towards the minimum term, it could easily have said so.
18.
However, although a court has that discretion, it will, in our view, generally be appropriate to reduce the minimum term by the precise number of days which the offender has spent remanded in custody for the relevant offence or an associated offence. That is because it will generally be appropriate, in the absence of any compelling reason to the contrary, to make the same reduction in respect of time on remand as would automatically be made pursuant to
section 240
ZA if a determinate sentence were imposed. It will also generally be appropriate, in the interests of transparency, to make clear that the reduction reflects the precise period of remand in custody."
10.
Following that judgment, the Commission promptly and properly informed this appellant of the successful outcome of Trendell's appeal. In the result, the Commission referred the case to this court. So it comes about that today, five years to the day after the sentencing hearing, we have heard helpful submissions from Miss O'Brien on behalf of the appellant and Miss Ailes on behalf of the respondent. The respondent properly does not oppose the appeal.
11.
It is common ground between the parties that so far as the failure to take into account the effect of
section 240
ZA is concerned, there is no material distinction between this appellant and Trendell. We agree with that analysis. We also agree with the parties that there is nothing in the circumstances of this appellant's case which would make it appropriate to depart from the usual approach. We conclude accordingly that the judge should have taken into account the period of 199 days when the appellant was remanded in custody by deducting precisely that period from the minimum term which would otherwise have been specified.
12.
We therefore allow this appeal to the following limited extent. The sentence of imprisonment for life stands unaltered but we quash the minimum term of eight years and substitute for it a minimum term of seven years 166 days.
13.
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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
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Email: [email protected] | [
"LORD JUSTICE HOLROYDE",
"MRS JUSTICE McGOWAN DBE",
"MRS JUSTICE STEYN DBE"
] | 2023_10_12-5857.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1434/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1434 | 785 |
311312b1ffa5fe65362109c9017d8a771bb7ee4f2a4ff9caf3ed7ffe60b16852 | [2007] EWCA Crim 1499 | EWCA_Crim_1499 | 2007-06-06 | crown_court | Case No: 200605125/C3 Neutral Citation Number: [2007] EWCA Crim 1499 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 6th June 2007 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE WALKER HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- JASON GRAHAM - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited | Case No:
200605125/C3
Neutral Citation Number:
[2007] EWCA Crim 1499
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 6th June 2007
B E F O R E:
LORD JUSTICE TOULSON
MR JUSTICE WALKER
HIS HONOUR JUDGE WADSWORTH QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - -
R E G I N A
-v-
JASON GRAHAM
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
A Merrill Communications Company
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
Mr C Johnston
appeared on behalf of the appellant
Mr B Phelvin
appeared on behalf of the crown
- - - - - - -
J U D G M E N T
1.
Lord Justice Toulson: On 29th September 2006, at the Inner London Crown Court before His Honour Judge Wakefield, the appellant was convicted on count 1 of possessing a class A controlled drug with intent to supply and on count 2 of simple possession of a class A controlled drug. On count 2 he had been charged with possession with intent to supply, but the jury convicted him of the alternative lesser offence. On 1st December 2006 he was sentenced to four years' imprisonment on count 1 and no separate penalty was imposed on count 2.
2.
He appeals against his conviction on count 1 by leave of the single judge.
3.
The prosecution resulted from a police search of premises in Peckham occupied by the appellant, his partner, Jade Dupres, and their children. His partner was also charged with him but she was acquitted of all charges on the direction of the judge.
4.
In the course of the search the police found 61 grammes of ecstasy powder divided into three bags, which had a street value of approximately £1,800, and five ecstasy pills in a purse. The ecstasy powder was the subject of count 1 and the ecstasy pills the subject of count 2. Also found in the flat were a number of other items on which the prosecution relied. A sum in excess of £3,000 was found in three separate amounts in different places around the flat: approximately £1,400 was found inside a black tube on the top of the kitchen fridge, £1,200 was found in a blue plastic carrier bag inside a jacket hung on the back of the kitchen door, and another quantity of cash was found under clothing in the bedroom. A set of electronic scales was recovered from the kitchen. Some clear plastic bags were recovered from the bathroom.
5.
The police also found a number of mini-video discs with home video footage of the appellant in Barcelona, Amsterdam and Canada. One of the films showed the appellant and a friend in a hotel room in Montreal. The appellant was shown holding a large sum of Canadian dollars which he brandished in front of the camera. Another sequence of footage showed the same people in a hotel room in Amsterdam and there was banter about the amount of money which the appellant had spent in a short time.
6.
The prosecution case, in short, was that the appellant was in possession of the ecstasy powder and tablets with intent to supply. They relied in support of this case not merely on the quantity of the drugs but the drugs paraphernalia in the flat and the video evidence suggesting a high lifestyle.
7.
The appellant's case was that the drugs were for his own personal use and that his foreign travel was paid for by a friend, Mr St John, who was a musical artist. The appellant used to accompany him on his trips to help him and get the audience warmed up.
8.
There are three grounds of appeal. Ground 1 is that the judge erred in failing to direct the jury to ignore the lifestyle evidence of the videos after the Crown conceded that they no longer contended that it was evidence of the proceeds of drug dealing.
9.
Unfortunately, the tape recording of the trial has been mislaid and so we do not have a full transcript of the proceedings. However, counsel have prepared an agreed note. We are grateful to them for that and we treat it as accurate.
10.
They also agreed on what happened so far as this aspect of the case is concerned. The judge having ruled that the video evidence was admissible, evidence was given by the appellant and also by Mr St John to explain the content of the videos. In short, their evidence was that the trips were not paid for by the appellant, nor was the money shown in the videos his money. The prosecution probed that evidence in cross-examination without putting it to either witness in direct terms that the money in the video was drugs money.
11.
Before closing speeches Mr Johnston, on behalf of the appellant, submitted that the judge should in his summing-up direct the jury to disregard the video evidence, because the prosecution had not put it in terms that the money shown in the films had anything to do with drugs.
12.
Mr Phelvin, for the prosecution, did not oppose that submission. He took the view that he had far stronger points to make on behalf of the prosecution and did not wish to complicate the case by seeking to persuade the jury that the appellant and Mr St John's evidence about the videos should be disbelieved. That was no doubt sensible advocacy. There is always a great deal to be said for concentrating on the main points in a case.
13.
The judge did not give a specific indication at that stage how he intended to deal with the matter, but both counsel understood, because Mr Johnston's submission had been unopposed, that the judge would direct the jury as he had requested. Certainly the judge gave no contrary indication. Accordingly, Mr Johnston addressed the jury in his closing speech on that assumption. He made some reference to the video evidence and to Mr St John's evidence, but not at length.
14.
In his summing-up the judge, according to the agreed note of counsel, said as follows:
"The prosecution put before you evidence of lifestyle, home videos in various locations, Barcelona Amsterdam and Montreal. The prosecution say that he's only able to live if he has another other source of income, not on social security. Given that he has drugs you can draw the conclusion that he could not have enjoyed that except with an income from selling drugs. His expenses are paid. It's for you to decide if you accept the evidence that the defendant does get all his expenses paid. Is he able to do this? Or, whether it is only because he does it from his own income -- the sale of drugs."
15.
The judge was unable to conclude his summing-up on the day that he started it, so after the jury had been sent home Mr Johnston raised the point and asked the judge to indicate to the jury that it was indeed now accepted, and conceded by the prosecution, that no reliance was to be put on the video evidence. The judge indicated that he saw the point and would come back to it the following day.
16.
In the event, the judge on the following day did come back to the subject, but did not direct the jury to disregard the evidence. It appears from a further exchange between the judge and counsel that the judge took the view on further consideration that the evidence was before the jury and that it must ultimately be for the jury to determine what they made of it. He should not direct that they ignore such evidence merely because of a concession on the part of the prosecution.
17.
We accept that in these circumstances there was a material irregularity. If the judge intended to take that approach, then he ought to have given that indication when the issue was raised by Mr Johnston before closing speeches. Mr Johnston's address to the jury would then have taken a rather different course. It is unnecessary to decide whether the judge could properly have adopted the position which he ultimately did, although we see the force of the judge's position that when a jury has heard relevant and admissible evidence it is for the jury to assess it. Indeed, a standard part of every direction is to tell the jury that it is for them to assess the evidence and decide what witnesses they believe and which witnesses they disbelieve. But we have no doubt that there is validity in the point taken that if the judge was going to take that position counsel needed to know when the point was first raised with him, rather than learn of it during the summing-up, having proceeded until then on a mistaken understanding about how the matter was going to be left to the jury.
18.
The second ground of appeal is that the judge failed properly to direct the jury on the use that they could make of cash found at the appellant's flat, in that he said that they had to find that the money was evidence of drug dealing, whereas he should have directed them that it must be evidence not just of past dealing but of continuing dealing.
19.
Reliance is placed on the case of
Grant
[1996] 1 Cr App R 73. In that case the defendant was charged with possession of a class A drug with intent to supply. He was arrested in the street. He had on him a quantity of crack cocaine and over £900 in cash. His explanation for the possession of the money was that he had been intending to buy a secondhand car, which he had seen advertised. Some of the money came from his mother and some came from savings. He had started out that day with a larger sum of money on him but after test driving the car he decided against buying it. However he then, opportunistically, used part of the money to stock himself up with cocaine for his own use. That was how it came about that he had a quantity of cocaine and a substantial sum of cash on him at the time when he had the misfortune to be arrested. The judge in his summing-up said nothing to the jury about how to approach the evidence of possession of the money.
20.
Lord Taylor CJ, giving the judgment of the court, said at page 78:
"In our judgment it is necessary, in the circumstances, for the judge to indicate that any explanation for the money which has been put forward by way of an innocent explanation by the accused would have to be rejected by the jury before they could regard the finding of the money as relevant to the offence. Again the jury should be directed that if there were any possibility of the money being in the accused's possession for reasons other than drug dealing, then the evidence would not be probative. If, on the other hand, the jury were to come to the conclusion that the presence of the money indicated not merely past dealing, but an ongoing dealing in drugs, then finding the money, together with the drugs in question, would be a matter which the jury could take into account in considering whether the necessary intent had been proved."
21.
It is not clear from the judgment whether there was anything in the evidence in that case which might have suggested that the possession of the money was of no more than historic relevance.
22.
In this case the jury was told by the judge that possession of the money in the flat could only be probative of intent to supply if they could see no other explanation than that he was a drug dealer, and that before reaching such a conclusion they must consider the explanation given by him. That direction went to the heart of the matter. The judge went on to remind the jury of the explanation which this appellant gave for his possession of the money. His explanation was that the greater part of it came from his mother, and she gave evidence in support of that account.
23.
The criticism made is that the judge should have gone on to say that, even if they were satisfied that the money was the result of dealing in drugs, they could not treat it as evidence of a current intent to supply unless satisfied that the presence of the money indicated not merely past dealing but that the appellant was an ongoing drugs dealer. The reason why a drugs dealer will often have significant quantities of cash is two-fold. He will have obtained the money from sales and intend to use it for purchases. That is the nature of being a drug dealer, as would be obvious to any jury. Logically, the more recent the sales, the stronger will be the case that he is a drug dealer and not merely an ex-drug dealer. In this case there was no positive evidence as to the date of any prior sales. There was no suggestion from the appellant that this money was of historic origin. Quite the reverse. His case was that he had come by it recently, albeit from a source which the jury must have rejected.
24.
In these particular circumstances, we do not think that it was incumbent on the judge to complicate or lengthen his direction by giving them a specific direction that they needed to consider, if they were satisfied that the money simply came from the sale of drugs, whether it was more than merely past behaviour of an ex-drug dealer.
25.
There is a further relevant factor raised by the court in argument but on which we have not heard detailed submissions.
Grant
was decided long before the
Criminal Justice Act 2003
. Under the bad character provisions of that Act, conduct showing that a defendant had supplied drugs in the past would be admissible as going to show propensity. If the jury is satisfied that the true explanation for the presence of money on a defendant at the time of his arrest is that it represents the proceeds of drug dealing, the distinction between treating it (a) as evidence that he is a drug dealer, or (b) as evidence that he has dealt in drugs and has a propensity to do so, is fine. In many cases it would be a distinction without a practical difference. As at present advised, we think, generally speaking, that it would be needlessly complicating for a judge to have to explore such a distinction in giving directions to a jury. There would also be something highly artificial in the prosecution having to make an application under the Criminal Justice Act for the admission of such evidence as going to show propensity when the evidence is already admissible.
26.
In this particular case, given that the appellant's own case was that he had received the money recently, and that there was no suggestion that it came from some purely historic transaction, the real issue for the jury in relation to the money at the flat was whether they accepted that his explanation might be true, or could think of any other plausible explanation apart from his being a drug dealer. That issue was put to the jury squarely by the judge.
27.
Assuming that they were satisfied that the prosecution was right on that issue, the mere fact that he was a drug dealer, or had a propensity to deal in drugs, would not necessarily lead to the conclusion that the particular drugs in his possession were for supply rather than for his personal use, but the jury were plainly aware of that, as was demonstrated by the fact that they convicted the appellant on count 1 of possession with intent to supply and on count 2 of simple possession. Accordingly, although Mr Phelvin for the prosecution initially conceded that there had been a misdirection and that the second ground of appeal was well founded, we are not so persuaded.
28.
The third ground of appeal is that the judge failed to refer adequately to the appellant's case in the summing-up in a number of respects. In particular, he failed to remind them in detail of the evidence given by the appellant's mother about the money at the flat, or by Mr St John about the funding of foreign trips, or by the appellant himself about some of his musical earnings.
29.
As to the evidence of Mr St John, the judge did refer to that, although quite shortly according to the note of the summing-up prepared by counsel. As to the money in the flat, the judge reminded the jury what the appellant's case was and referred to his and his mother's evidence, but again without going into detail according to the summary which we have. As to the appellant's musical earnings, the judge referred to the appellant's evidence that he had some income from the music industry without, again, going into details of the matter.
30.
What was required of the judge was that he should indicate to the jury what the issues were, to outline the case presented by both sides in its essentials and to do so in an even-handed manner. It was not incumbent on him to go into every point of detail. We are unpersuaded that there is any substance in this ground of appeal.
31.
We come then to the question of the safety of the conviction in the light of the fact that we have accepted the criticism made under the first ground of appeal. In giving leave to appeal the single judge warned the appellant:
"... you should be prepared to hear that the case against you was so strong that the conviction is not unsafe even if the summing-up were defective."
32.
The case was indeed a very strong one. The quantity of ecstasy powder, its division into bags, the electronic scales, the other clear plastic bags and the quantity of cash, when taken together pointed very powerfully towards an intent to supply, regardless of the video evidence. We share the view tentatively expressed by the single judge. We add that we would be of the same view even if there was technically a misdirection in relation to the second ground of appeal, by the judge failing to direct the jury in explicit terms that they must be satisfied that the money in the flat pointed towards the appellant being a current drug dealer before they could attach any significance to it.
33.
We are not persuaded that this conviction is unsafe. Accordingly the appeal is dismissed. | [
"LORD JUSTICE TOULSON",
"MR JUSTICE WALKER",
"HIS HONOUR JUDGE WADSWORTH QC"
] | 2007_06_06-1132.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1499/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1499 | 786 |
f83878dfa430f0b472784da0cc53f21328c3cb49ddf6c94b7a4677fd9f90ece9 | [2010] EWCA Crim 1564 | EWCA_Crim_1564 | 2010-06-15 | crown_court | Neutral Citation Number: [2010] EWCA Crim 1564 Case No: 200906678D1, 201000053D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 15 June 2010 B e f o r e : LORD JUSTICE PILL MR JUSTICE FOSKETT MRS JUSTICE NICOLA DAVIES DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v (1) MARK JOSEPH WELLS (2) RECEP OZER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A | Neutral Citation Number:
[2010] EWCA Crim 1564
Case No:
200906678D1, 201000053D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 15 June 2010
B e f o r e
:
LORD JUSTICE PILL
MR JUSTICE FOSKETT
MRS JUSTICE NICOLA DAVIES DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
(1) MARK JOSEPH WELLS
(2) RECEP OZER
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr LJC Selby
appeared on behalf of the
First Appellant
Mr J Carr
appeared on behalf of the
Second Appellant
Mr S Wilshire
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE PILL: On 19 October 2009 in the Crown Court at St Albans before HHJ Catterson and a jury, Mark Joseph Wells and Recep Ozer were convicted of conspiracy to rob (count 1). On 27 November, Wells was sentenced to 30 months' detention in a Young Offenders Institution, less 39 days spent on remand, and Ozer to 78 months' imprisonment, less 249 days spent on remand. Wells appeals against conviction by leave of the single judge. Ozer appeals against sentence by leave of the single judge. These are quite distinct appeals, and we deal with the appeal against conviction by Wells first.
2.
A co-accused, Adamson, was convicted of conspiracy to rob and sentenced to two years' imprisonment, less time spent on remand. Ajibulu changed his plea to guilty to count 1, and was sentenced to 54 months' imprisonment, less time spent on remand. Webster changed his plea to guilty to count 1. He too was sentenced to 54 months' imprisonment, less time spent on remand. Ajibulu and Webster pleaded guilty to count 1, the conspiracy being dated between 1 February and 21 March 2009.
3.
A count of conspiracy to steal between the same dates was added to the indictment as count 2. That was done immediately prior to the trial of Wells, Ozer and Adamson. It was done to reflect the contents of the defence statements of Ozer and Adamson. They admitted that they had been a party to a conspiracy to steal, but claimed that it was only a conspiracy to steal, and that Ajibulu and Webster, who pleaded guilty to count 1, must have entered into a new agreement of their own accord.
4.
Ozer and Adamson then pleaded guilty to count 2. Their pleas were not accepted by the prosecution. Wells, having pleaded not guilty to count 1, also pleaded not guilty to count 2. Thus the trial proceeded on count 1 for both Ozer and Adamson, and on counts 1 and 2 for Wells.
5.
When the jury brought in their verdicts of guilty on count 1, they were discharged from giving a verdict in relation to Wells on count 2.
6.
Mr and Mrs Yesilada live at an address in Baas Lane, Broxbourne. They own a meat wholesaler business. It had moved to new premises in January 2009 and had a high profile in that the opening ceremony had been well publicised. Mrs Yesilada was responsible for the banking of the business' money. She would usually do that on her way home from work.
7.
At around 8 o'clock on 20 March 2009, Mrs Yesilada drove home in her vehicle from the business to the drive of her family home. Unbeknown to her, hidden in the bushes of the driveway and waiting in ambush were Ajibulu and Webster. They were intent on robbing her. Ajibulu was wearing a dark hooded top and full dark navy denim overalls which covered him from head to toe. Webster was wearing gloves and dark clothing, which included a hoody pulled over his head and a scarf which was capable of covering his face up to his eyes.
8.
The prosecution case was that they were part of a five-man team involving all those mentioned, who had been watching the Yesiladas on each Friday of the preceding weeks, with a view to robbing them of what they thought would be the weekly takings from the business. In fact, on the relevant date (20 March), the takings had been taken to the bank earlier in the day by Mrs Yesilada's daughter.
9.
The accused had themselves been under surveillance by the police during the same period. As Mrs Yesilada drove onto her drive, she was followed by two police vehicles, from which officers emerged and detained and arrested Ajibulu and Webster from their hiding place. Ozer and Adamson were not in the lane, but were in Webster's vehicle, which had been seen to follow Mrs Yesilada from her place of work. Their vehicle was stopped by police as it went to the location thought to be the location at which they planned to meet Ajibulu and Webster after the robbery.
10.
The appellant Wells was not part of the events that evening, but had been present and taken part in the planning and preparation of the robbery over the preceding weeks. He had been involved in watching and following the Yesiladas, and he was arrested two days later.
11.
During the trial there was little dispute about the surveillance evidence. The prosecution also placed reliance on an analysis of billing records from mobile phones seized from the defendants to show contacts between them at the material times, and also relied on recordings taken from a probe which had been inserted in Ajibulu's vehicle, and recorded conversations for several hours on the day of the proposed robbery.
12.
Wells denied that he had ever been party to any criminal enterprise, whether an agreement to rob or an agreement simply to steal. He did not give evidence in the course of the trial. Ozer gave evidence and was cross-examined. He accepted being good friends with Wells and having known him for three to four years.
13.
It is not necessary to describe the surveillance evidence in great detail. There is no doubt that the appellant was involved in that. He was the owner of a Ford Focus motorcar, and that, on Friday 27 February, was driven in Waltham Chase by Wells with Ozer as his passenger.
14.
On 6 March there was a text message in the early evening from Wells' phone to Ozer's phone and a voice call the other way. A little later there were two voice calls from Ozer's phone to Wells' phone. Wells was seen driving his vehicle in the centre of Waltham Cross and Ozer was observed as his front-seat passenger. Later that evening on 6 March there was a telephone call from Ozer's phone to Wells' phone.
15.
On 13 March, Wells' vehicle was parked in Waltham Chase during the afternoon of Friday the 13th. Wells' phone had made three voice calls to Ozer's and there was one call in return. In the early evening Wells was observed driving his vehicle, and when another vehicle approached, he ducked down into his car. There were further messages between Ozer and Wells. The vehicle moved off at 8 o'clock, which was the same time as Mrs Yesilada was arriving at Baas Lane. A phone call from Wells to Ozer followed shortly afterwards.
16.
Save that earlier in the day there were phone calls, Wells was not involved in the activities of 20 March. The prosecution did not challenge evidence that on that day, the day of the events which we have described, he had attended a farewell drink for a work colleague, and that was followed by his giving colleagues a lift home from the party. Later in the evening he attempted to contact Ozer and then Ajibulu, both of whom had by that time been arrested.
17.
The submission made by Mr Selby on behalf of the appellant Wells arises out of the addition of the second count to the indictment. That, submitted Mr Selby, was the cause of the difficulties which arose at the trial. He submits that once the second count was added, the prosecution were necessarily submitting that there were two separate agreements, one a conspiracy to rob and the other a conspiracy to steal.
18.
There was a real danger, submits Mr Selby, that the jury would convert what they were considering as an agreement to steal into an agreement to rob. That danger, it is submitted, was highlighted by the direction given to the jury by the learned judge. There were written directions following submissions on the subject from counsel. Mr Selby relies on the first paragraph of that written direction:
"As a preliminary, you must be sure of the following two matters:
1. that there was a plan to steal cash belonging to the Yesiladas;
2. that the defendant in question was at some stage in the indicated period a party to that agreement. Neither Ozer nor Adamson disputes that, since both have pleaded guilty to count 2. In the case of Wells, however, that is in dispute."
19.
The submission is that, with that starting point, the agreement to steal might be converted by the jury into an agreement to rob. Reliance is placed on the decision of this court in
Barnard
[1980] 70 Cr App R 28
(Lawton LJ presiding). We refer to the headnote:
"A conspiracy to commit theft could only be committed if the course of conduct to be pursued would necessarily involve the commission of the theft in accordance with the intention of the conspirators. In the instant case, as a conspiracy to steal was not a lesser form of a conspiracy to rob but a different agreement, the evidence of the conspiracy to rob had no relevance to a conspiracy to commit theft. Accordingly, as the appellant's case had been undermined by the trial judge allowing the evidence of the robbery to go before a jury and thus enable them to infer that the scheme had not been abandoned, whereas he should have directed them to ignore that evidence, the jury had been misdirected and the appeal would be allowed and the conviction quashed."
20.
Lawton LJ stated at page 33:
"It also follows that the evidence of the overt acts pursuant to the conspiracy to rob had no relevance to the conspiracy to steal, because they showed an intention by those who carried out the agreement to rob to do something other than follow the intentions of those who had started by agreeing to steal.
We note the court's finding in that case that the case of conspiracy to steal was not put as a lesser form of a conspiracy to rob, but as a different agreement.
21.
On behalf of the prosecution, it is submitted that, when adding the second count to the indictment, the prosecution made no concession that factually there were two conspiracies. Count 2 was added to allow the defendants to address that possibility, having pleaded guilty to conspiracy to commit theft. The prosecution did not argue that a conspiracy to steal could be converted into a conspiracy to rob. The defence case was that there were two agreements. The prosecution case was that there was a single agreement, a conspiracy to rob. Two defendants had of course pleaded guilty to such a conspiracy, and the two who had pleaded guilty to the conspiracy to steal were found guilty by the jury of the conspiracy to rob.
22.
The judge, in the course of the summing-up of Ozer's evidence, put the nature of the defence clearly to the jury on page 70:
"So I come then to Mr Ozer's account to you of what happened. He said to you, 'I was arrested for conspiracy to rob, but what I was a party to wasn't that. It was to steal ... We weren't looking to rob anyone. It wasn't left in the boot so we were waiting for the chance for the money to get left in the boot.'"
23.
At page 71:
"[Ozer] accepted of course that Mr Ajibulu and Mr Webster had pleaded guilty to rob, but he said to you, 'My agreement was a conspiracy to steal and I know the difference', and he explained the difference.
And he said to you, 'I never agreed any force should be used. I mentioned no force being used when we spoke about this in the beginning. It was just going to be breaking into the car and grabbing the bag while nobody was there. When we first spoke about it we were all together. I said to them there ain't going to be a robbery, its going to be a theft and there's no violence to be used at all. I said that because I know if you get caught for robbery, there's a difference in sentence.'"
24.
Thus, not only the defendant Ozer, but the jury, were perfectly well aware of the cases being put by the prosecution and by the defence. For the prosecution, there was a single conspiracy between the five men. It was a conspiracy to rob. For the defendants Ozer and Adamson:
"We only made a conspiracy to steal. If Ajibulu and Webster then made some other agreement, we are not responsible for that."
25.
In the circumstances as described, that was clearly a difficult defence to run having regard to the manner in which the vehicle driven by the victim was to be approached, and the intention to take the money from it. Nevertheless, it was entirely appropriate that the defendants Ozer and Adamson should be permitted to run that defence, and they were given an opportunity to do so.
26.
We have been referred to the remainder of the written directions and to passages in the summing-up to consider whether the risk on which Mr Selby relies was present, and whether there was a danger that the jury would fall into the trap suggested. We regard reliance on
Barnard
as misplaced. That was a quite different situation. On the evidence admitted, there was in that case plainly a risk of confusion between the one agreement and the other. In this case, the defendants attempted to say that there were two agreements. The prosecution said that there was one and no evidence was admitted to blur that case.
27.
We refer to certain parts of the summing-up. The judge was entitled to tell the jury that they should consider the charge of conspiracy to rob and that in relation to a particular agreement, it may either be an agreement to rob or it may be an agreement to commit theft. The jury were, in our judgment, fully alerted to that and to the defence which the other two defendants sought to put forward, on which of course the appellant Wells was entitled to rely.
28.
We refer to the last two paragraphs of the written directions:
"If, for example, you were to conclude that it is reasonably possible that Webster and Ajibulu privately agreed between only themselves that they would use force or threaten force to a person to effect the planned theft, in what might be termed an extension of their own of the original plan, to which a defendant on trial here was not a party and to which he had not agreed, then that defendant will not be guilty of the conspiracy to rob.
A defendant here can be convicted of conspiracy to rob only if the prosecution has made you sure that the defendant intended and had agreed with any of the others named in the count that force or threat of immediate force to a person would be used, if necessary, to steal the expected cash from Mrs Yesilada."
29.
In our judgment, that was an admirable way of putting the case to the jury.
30.
Mr Selby also referred to page 14 of the summing-up:
"Has the prosecution made us sure in the case of Mr Ozer and in the case of Mr Adamson, and in the case of Mr Wells, considered individually, that that individual was party to a conspiracy to rob, not merely to steal? And in Mr Wells' case, if we are not sure that he was a party to the conspiracy to rob alleged, has the prosecution at least made us sure that Mr Wells was party to a conspiracy to steal?"
31.
At page 13:
"... you're not being asked, members of the jury, to find Mr Wells guilty on both these counts, because there's no point. So ... you consider count 1 in Mr Wells' case, it being as you follow a more serious charge. If you find Mr Wells guilty of count 1, there's no need in those circumstances for you to go on and return a verdict on count 2 at all."
32.
That might leave the jury, submits Mr Selby, into falling into the trap of converting a conspiracy to steal into a separate conspiracy to rob.
33.
Mr Wilshire relies on other passages to emphasise the clarity with which the summing-up, as well as the latter part of the written direction, states the position. Mr Wilshire accepts that it is required of the judge, where there is a count of conspiracy to rob and a count of conspiracy to steal which are founded on different arguments, to ensure that the jury are clear that the counts reflect separate agreements. That does not prevent, he submits, the jury, when considering a particular agreement, to decide whether that agreement is a conspiracy to rob or a conspiracy to commit theft.
34.
Mr Wilshire refers to a further direction by the judge, having referred to the guilty pleas:
"It does not prove that either Mr Ozer or Mr Adamson was a party to a conspiracy to rob as opposed to a conspiracy simply to steal, as each of them admits and contends. Nor does it prove that Mr Wells was a party to any criminal conspiracy, whether to rob or to steal. The questions for you in this trial remain, 'Has the prosecution made us sure in the case of Mr Ozer and in the case of Mr Wells, considerable individually, that that individual was party to a conspiracy to rob, not merely to steal? And in Mr Wells' case, if we were not sure that he was a party to the conspiracy to rob alleged, has the prosecution at least made us sure that Mr Wells was party to a conspiracy to steal?"
35.
At page 19:
"... you must be sure of the following two matters. Number one, that there was a plan to steal, that is steal cash belonging to the Yesiladas. Now that, I anticipate in the light of what you've heard, isn't going to trouble you overmuch. Secondly, you must be sure that the defendant in question was at some stage in the indicted period a party to that agreement. And neither Mr Ozer nor Mr Adamson disputes that, and as you know both of them have pleaded guilty to count 2. In the case of Mr Wells, however, that is in dispute. To convict any defendant of conspiracy to rob as alleged in count 1, you have to go on to consider the following additional matter. Number three, are you sure that the defendant in question intended and had agreed that force or threat of immediate force to a person would be used if necessary to get the bag of cash Mrs Yesilada was expected to have with her when she arrived home."
36.
We see nothing dangerous in that way of putting it. It was a logical approach, and one which, in our judgment, did not carry the dangers which Mr Selby contemplated.
37.
It is necessary to consider the evidence and the summing-up as a whole. We can find no fault either in the procedure followed or in the careful directions which were given to the jury. We see no danger of confusion on the jury's part. It does not necessarily follow, as alleged by Mr Selby, that irreparable difficulties are created once, in circumstances such as the present, a second count is added. The prosecution always alleged that there was a single agreement, and that it was an agreement to rob, leaving to the jury the option of considering that that single agreement was not an agreement to rob, but an agreement to steal.
38.
It is right that the other two defendants had been given the opportunity of alleging that there were two separate agreements, in the more serious of which they were not involved, but we consider the judge dealt with the situation admirably. We have no doubts about the safety of this verdict, and accordingly the appeal is dismissed.
39.
We turn now to the appeal against sentence of the other defendant mentioned, Ozer. It is not necessary to repeat the facts. We have set them out in considerable detail when considering Mr Wells' appeal against conviction.
40.
We would like to add at this stage that all three counsel in this case have presented their cases admirably, carefully and helpfully. On behalf of the appellant Ozer, Mr Carr submits that the judge was in error in three respects when sentencing Ozer, who is now 22 years old: she made no reference to the appropriate guidelines; she was under the impression that, because the offence was a conspiracy to rob, the guidelines did not apply; thirdly, it is submitted there was an unjust disparity between the sentence imposed on Ozer and the sentences imposed on the other defendants.
41.
When sentencing Ozer and the other defendants, HHJ Catterson referred to the nature of the offence. Addressing the defendants, she stated:
"You thought, entirely erroneously, that on Friday evenings Mrs Yesilada was in the habit of bringing home with her from work a large sum of cash from the business."
42.
In our view, the judge was entitled to infer that the intention was to steal a large sum of money. Friday was the day when it would be expected that the weekly takings may well be taken home at the end of the business week. The judge stated:
"The intended robbery was carefully planned and involved detailed preparations over a significant period of time."
43.
She described the surveillance, which we have already summarised. She referred to the impact of the offence on Mr and Mrs Yesilada:
"They had no inkling of what was afoot but since of course they have learned not only of the police operation but of your activities. Their children were in the house at the time. Mrs Yesilada had to be, of course, for her own safety, kept by a police officer in her car until it was safe for her to proceed into her house."
44.
The judge referred to the impact statements:
"It has inevitably undermined the family's sense of security at home and has driven Mr and Mrs Yesilada to have to consider moving."
45.
Of course, we shall never know, and happily we shall never know, what would have happened had the police not conducted their surveillance and pursuit in the efficient manner they did. The judge stated:
"As a matter of realities, none of you could have predicted accurately how your victim might react to being very severely frightened. Sometimes extreme fear causes a victim to fail to comply with criminal demands or not to do so quickly enough. In that situation who knows what might have happened when the adrenalin was pumping. I am satisfied that this robbery was to be effected by fear and by threats, but if it came to it some measure of brute force if that proved necessary. I think it right to say that there is nothing to suggest to me that any more force than absolutely necessary would have been used but it was, I find, within everyone's contemplation that that might occur."
46.
He addressed Ozer first:
"You were convicted by the jury of conspiracy to rob. Having heard the evidence in the trial I am clear that whether or not you were the original instigator of it, whether in other words it was your bright idea in the first place, you were certainly its prime mover, organising its preparation and taking the lead role, calling the shots throughout the weeks that this plot was in being. You are 21 now, you have appeared before the courts in the past on nine previous occasions for I think some 15 offences in the last five years but it is right to say nothing at all approaching this level of criminality."
47.
In stating that the appellant Ozer was the prime mover, the judge had the advantage of having conducted the trial, and she was entitled on the evidence to find that it was Ozer who had taken the lead role in the conspiracy and the events described.
48.
Counsel has referred the court to the guidelines. We do not propose to analyse them in detail. The judge did not refer to them, but the judge could not be criticised, in our view, for treating this as a level 2 offence. She had to bear in mind the aggravating features, the very careful planning and the number of people involved.
49.
Mr Carr has referred the court to
Attorney General's Reference No 147 of 2006
[2007] EWCA Crim 961
. That was a case in some respects more serious than the present one, in that a kitchen knife with a 12-inch blade was brandished and the victim driven to a secluded place. The court took the opportunity to consider the appropriate range of sentences for robberies of this kind. Latham LJ stated at paragraph 17:
"In our judgment it falls within a sentencing range of six to ten years (and maybe more for the ring leader). If that is applied as the range appropriate for this offence, it seems to us that for the purposes of determining the correct sentence for this offender account must be taken of the judge's assessment of him and his culpability in relation to this offence. The judge considered that the offender was vulnerable to being manipulated by more sophisticated offenders. It is therefore appropriate it seems to us to reflect that conclusion in what we consider to be the appropriate bracket for this offender, which would be six to eight years."
50.
Thus there were mitigating as well as aggravating features in that case, and unlike the appellant Ozer, the defendant in that case was not the ringleader. The court imposed a sentence of six years in that case, increasing that imposed by the trial judge. There was of course an allowance for double jeopardy in that figure.
51.
In our judgment, the sentence of six and a half years imposed in the present case following a trial and a finding that the appellant was the ringleader is not out of scale.
52.
Reference was also made to the case of
Rickets
[2001] EWCA Crim 518
, Mance LJ presiding. In that case, where a theft involving takings at a greyhound stadium amounting to £635 was involved, and there were previous convictions for robbery, the court reduced the sentence from five years to one of four years.
53.
Having regard to the features we have described, and to the more up-to-date approach to the offence of robbery, we do not consider the sentence imposed by the judge to be out of scale. It was a severe sentence. We find no merit in the disparity argument. Two men who pleaded guilty were sentenced to four and a half years, though the discount for guilty plea was a small one because of their late pleas.
54.
In our judgment, the defendants, including Wells, who received substantially lower sentences, were in a different category. Wells was not present in the evening of the proposed robbery, and the other man was a late addition to the team and had not been involved throughout the period we have described.
55.
The appellant could expect a longer sentence than the defendants Ajibulu and Webster, notwithstanding their presence at the scene, because he was the prime mover and because he had no credit for a guilty plea.
56.
We have come to the conclusion that the sentence of six and a half years was not manifestly excessive and accordingly the appeal is dismissed. | [
"LORD JUSTICE PILL",
"MR JUSTICE FOSKETT",
"MRS JUSTICE NICOLA DAVIES DBE"
] | 2010_06_15-2413.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1564/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1564 | 787 |
8ca7108751e1581f19add2b933f850f1dfd81e57aafbcf76b78a8108b25c429a | [2014] EWCA Crim 457 | EWCA_Crim_457 | 2014-03-18 | crown_court | Case No: 201203050 C2 Neutral Citation Number: [2014] EWCA Crim 457 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION S9 CAA 95 His Honour Judge Hopkin T19990880 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2014 Before: LADY JUSTICE RAFFERTY DBE MR JUSTICE COLLINS and SIR DAVID CALVERT-SMITH (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Regina - v- JOHN DEN | Case No:
201203050 C2
Neutral Citation Number:
[2014] EWCA Crim 457
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION S9 CAA 95
His Honour Judge Hopkin
T19990880
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/03/2014
Before:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE COLLINS
and
SIR DAVID CALVERT-SMITH
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- v-
JOHN DENT
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mark Barlow
for the
Appellant
Michael Auty QC
for the
Crown
Hearing date: 6
th
February 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Rafferty:
1.
John Dent (64) in a reference by the CCRC under S9 Criminal Appeal Act 1995 challenges the safety of his conviction for sexual offences. On 13
th
December 2001 following a retrial in the Crown Court at Nottingham he was convicted of nine counts of indecent assault and two of attempted buggery and on 25
th
January 2002 sentenced to a total of seven years imprisonment. An application for leave to appeal against conviction was refused by the Full Court on 14
th
March 2003.
2.
He argues that the convictions are unsafe in that:
a)
Count 1: There was non-disclosure of material relating to the truthfulness of the complainant CF.
b)
Counts 2 – 3: It is impermissible to prosecute for indecent assault outside the 12 months time limit for unlawful sexual intercourse with a girl under 16 years. The Crown concedes this Ground.
c)
Count 4: Missing contemporaneous documents might have resolved whether the offence alleged could have taken place during a weekend in August 1976.
d)
Count 5: The evidence and arguments in relation to count 4 affect the safety of the conviction on count 5.
e)
Counts 5 – 11: Had the evidence and arguments been adduced at trial in relation to counts 1 – 4 this would have affected the safety of the convictions on the remaining counts.
3.
The appellant was born on 9
th
March 1949. From 10
th
March 1975 to 12
th
June 1977 he was deputy house warden at Enderleigh children’s home. CF (count 1), HE (counts 2 – 3) and LL (counts 3-4) alleged that he sexually abused them whilst they were residents. At Hillcrest children’s home he was officer in charge from 13
th
June 1977 to 23
rd
August 1978. SG, the only male complainant, (counts 6 – 11) alleged sexual abuse whilst a resident.
4.
At the first trial, in 2001, Dent was acquitted of four counts of rape and eight of indecent assault but the jury could not agree in respect of the remaining counts, some of which founded the retrial.
5.
The Court of Appeal office has helpfully distilled the allegations dates and complainants and, with gratitude, we reproduce it.
Count
Offence
Complainant
Period
Brief description of allegation
Enderleigh children’s home
Count 1
Indecent assault
CF
24
th
July 1975 – 1
st
April 1976
Whilst in the treatment room, the appellant kissed CF (aged 15) and touched her vagina, and asked her to touch his penis
Counts 2 – 3
Indecent assault
HE
30
th
October 1975 – 11
th
November 1975
The appellant and HE (aged 15) had consensual sexual intercourse.
Count 4
Indecent assault
LL
12
th
April 1976 – 14
th
September 1976
On a weekend in August 1976 the appellant took LL (aged 14 – 15) into his bedroom and kissed her and touched her vagina.
Count 5
Indecent assault
LL
LL (aged 14 – 15) then moved to another children’s home. She met the appellant and went out in his car. The appellant placed his hand into her knickers.
Hillcrest children’s home
Counts 6 – 8
Indecent assault
SG
21
st
October 1976 – 23
rd
August 1978
Specimen counts. The appellant asked SG (aged 14 – 16 years old) to come to his room at night. The appellant then masturbated SG’s penis and made SG touch his erect penis.
Count 9
Indecent assault
SG
Specimen count. The appellant masturbated SG (aged 14 – 16 years old) in his car.
Counts 10 – 11
Attempted buggery
SG
The appellant attempted to penetrate SG (aged 14 – 16 years old)’s anus with his penis on two separate occasions.
6.
The Crown relied upon other witnesses to support the complainants and upon his alleged lies. His case was complete denial. The complainants might have been motivated by desire for compensation. SG had explored it and there were inconsistencies in his accounts. The appellant was at a great disadvantage due to the passage of time and loss of records.
Evidence of general practice
7.
Patricia McDonnell
worked at Enderleigh when the Appellant was the only male member of staff, save the gardener. He introduced relaxation of harsh rules and had been advised that it would not be appropriate for him to be in the dormitories unaccompanied by a female member of staff because of the possibility of allegations. Margaret Pollard,
in charge of Enderleigh, described him as a young man of 27 who whilst he tried very hard was not fully aware of the problems his position might cause. She was concerned, knowing how manipulative the girls could be, about what might happen were he left alone with then.
8.
Elizabeth Reid-Morrison
said that in her second spell at Enderleigh as a resident she was there for 18 months. During her time the appellant was in charge of discipline and very strict. To her evidence we shall return.
Evidence supporting the counts
9.
Count 1.
CF
(dob 15
th
July 1960) consequent on a Care Order had been sent to Enderleigh because of a relationship with an older man, her truancy and her parents’ inability to control her. The Appellant was third in command. She told a member of staff he had put her in the cell room because she would not skip. She said he could be nasty, or nice and give her cigarettes and sweets. On one occasion he brought his hand down as if to touch hers. After that she was wary.
10.
She said he would hand out medicines from the treatment room. She once went to get hers and he said “You know the rules,” so she put on her nightclothes, returned to the treatment room, he closed the door, kissed her on the arms and neck and said “It’s either here or the [cell] room.” He started ‘playing with her down below, both on the outside and inside’. He wanted her to touch his penis but she refused. He said he was ‘going to have her properly’. She did not tell anyone because she had to live in the Home. She ran away and on return did not explain why she had left because the appellant was in the room.
11.
Carol Lievesley
,
resident at the same time as CF, confirmed that the appellant handed out medicines without other staff present. Maureen Guest a member of staff could not remember the appellant giving out medicines but whoever was on duty did that job.
12.
Counts 4 – 5
LL (dob 28
th
May 1961) was at Enderleigh from April 1976 to September 1976. She said the appellant made things more bearable by bending the rules slightly. One weekend in August when the others had gone home she went to bed and the appellant came into her room, put a pillow lengthways in her bed and took her into his bedroom. He kissed her and touched her between her legs so that she became aroused. He rubbed his erection against her genitals. She stopped things, fearful of pregnancy. After her move to St Joseph’s she went out with him in his car. They got out and began kissing. He lowered her on to the ground and put his hand into her pants. She stopped him.
13.
The second incident made her wary of him. She continued to see him but quite often his girlfriend was present and nothing happened.
14.
She said telling anyone at Enderleigh would have been pointless as naughty girls were there to be punished. As a joke he once put a light on top of his car. At a gay club he knocked on the door and shouted “Police”. She remained friendly with him and in 1984 he was very kind to her after a personal difficulty. After a gap she contacted him and they met when she was 19. He began kissing her and fondling her breasts. She admitted she did not tell her therapist about the matters raised because he had helped her in the past.
15.
Counts 6 – 11
SG (dob 3
rd
February 1962) was at Hillcrest from October 1976 to August 1978. After evening staff changeover the appellant would come through the door in the loft space to SG’s door and ask him to come to his room. Naked, he would get into bed with SG then mess about and play with him. He would masturbate SG, get on top, go up and down, ejaculate and put SG’s hand on his erect penis. SG was very worried about saying no because the appellant had said social workers wanted to send him to borstal or a detention centre. SG did not think he would be believed. The appellant indecently assaulted him on at least twelve occasions, trying to kiss his face, lips and neck. SG had no choice but to let him. The appellant attempted to penetrate SG’s anus on more than one occasion.
16.
On two occasions when they were disturbed SG went back to his room through the loft space or the hatch. SG was also taken to visit the appellant’s parents and once or twice a week to public houses or a gay club. The appellant on eight to ten occasions indecently assaulted SG in the car.
17.
SG went to see a solicitor to see if he could obtain compensation but was advised that he could not. SG denied that he was motivated by a desire for compensation.
Interview and trial.
18.
The appellant was on 29
th
October 1999 interviewed about the allegations by LL and SG and gave an account consistent with his evidence.
19.
He told the jury
that at Enderleigh he was never the only member of staff present with residents. At Hillcrest he was occasionally on his own but it was easy for others to hear what was going on. Astute to the risk of allegations he had only once been into the girls’ dormitory. There was no incident in the medical room as described by CF. Nothing sexual occurred. To the best of his recollection he did not give out the medicines at any time.
20.
Counts 4 – 5
LL would have gone on various trips. When he and his wife later saw her she told Mrs Dent how much he had helped her. He had not put a blue light on his car.
21.
Counts 6 – 11
SG never came into the appellant’s room by the roof space nor had the appellant ever been in the roof space. There was never any sexual activity and he never said people wanted to send SG elsewhere. In any event SG had quarterly meetings with his social worker whom he was free to telephone at any time. In December 1978 SG said he was looking for accommodation, asked the appellant if he could move in with him and, after speaking to SG’s family, the appellant agreed. There was never any sexual activity in his flat or car.
22.
Later, SG said he was still having problems so the appellant let him stay again. He went with SG to gay bars, but so did many heterosexuals.
Grounds of Appeal
23.
Ground 1
Non-disclosure. Counsel for the Local Authority considered the social services department (“SSD”) records but highlighted only material relating to sexual activities, not to untruthfulness, which latter was not disclosed though it was known to the Crown.
24.
For the Crown Mr Auty QC whilst not conceding it sensibly advanced argument as though there had been non-disclosure. We adopt that stance with like caveat. We add simply that we would have been cautious to avoid firm conclusions on non-disclosure. Even after the work of the CCRC it is impossible confidently or with precision to identify what material was disclosed in respect of CF. It is for example plausible that counsel representing the Appellant knew of what is now labelled “undisclosed” but chose not to use it. In the light of the Crown’s pragmatic approach it is unnecessary for us to reach a conclusion on the point so we say no more.
25.
This trial was in 2002 when practice in the courts was not as now. It was long before the hearsay provisions in Ss. 114 et seq. of the Criminal Justice Act 2003 came into force so that the extent to which material might properly be utilised was, to modern eyes, considerably restricted. Documents designed or sought merely for cross-examination were not admissible. Questions put on behalf of the Appellant if they went only to credit meant that answers would be final unless the defence could demonstrate that the questions fell within a recognised exception. None such is suggested.
26.
We have whenever possible tested whether what is presented to us as newly emerged is in part repetitive of evidence already before the court or of relevance so marginal as not realistically capable of having made a material difference to the verdict. Against that backdrop we return to the submissions of the Appellant.
27.
As to CF, documents record that a report dated 23
rd
May 1975 made by a school tutor refers to an incident relating to “pupils victimising” and refers to ‘complete fabrication.” A report for a case conference at Enderleigh on 14
th
August 1975, although presenting CF in a favourable light read ‘it is doubtful whether she has been constantly truthful.’ The author of a psychiatric report of 29
th
July 1975 doubted the veracity of some of her statements.
28.
There are difficulties in the way of this submission that reliance could have been placed on this material to the advantage of the Appellant. The material appears to reflect no more than opinion and as such would have been inadmissible. Even were some of it factual, in context it is of little relevance, and since it goes only to credit CF’s answers would have been final. At its highest it adds so little, if it adds at all, to CF’s evidence about how she came to be in care that its relevance to the jury’s verdict is difficult to identify.
29.
SSD records reveal “The records refer to C as being a ‘go – go’ dancer prior to going to Enderleigh” and portray her as quite promiscuous, although reports made during her stay at Enderleigh reflect her in a positive light. There is also reference to doubt as to the veracity of some of her statements, though comment made at a review at Enderleigh on 29/1/76 refers to her conduct there as ‘excellent’ and CF as ‘one of the most reliable and trustworthy girls in the home…..medical records [hold] no specific reference to her taking medication whilst at Enderleigh, although she was being treated for bladder problems and vaginal problems.”
30.
This material is said to have been admissible relevant and capable of undermining the Crown’s case, going to the reliability and honesty of a complainant in a historic sexual abuse case featuring a Children’s Home.
31.
Once again there are difficulties in the way of this submission. Any reference to alleged promiscuity would have been inadmissible given the unforgiving terms of S.41 Youth Justice and Criminal Evidence Act 1999 and CF’s evidence of how she came to be in care. We note too that the Appellant called his own witness Maureen Brown as to this so that the jury had the opportunity to reflect upon competing accounts supported by evidence.
32.
Nothing was identified to us which had it been available and admissible was capable of significantly undermining CF’s credibility on this aspect of the case.
33.
Documents are also said to reveal that at the time of the trial Carol Lievesley suffered poor memory possibly as a result of medication, argued as going to the reliability of her recollection on an important matter - that the Appellant gave out medicines - and to her evidence about the Home. The Crown relied upon what it suggested was the Appellant’s lie about handing out medicines and the judge gave a Lucas Direction.
34.
The records are said not to support CF receiving medication at Enderleigh, thus bearing on whether Ct 1 could have happened at all and whether the Appellant lied when he denied handing out medicines and that he was ever in the medicines room with her.
35.
We can take this shortly. Not only CF but also Carol Lievesley said the Appellant would give out medicines. He would do it from the treatment room. CF said that he would do so with the door closed. That was the sole issue to which the records are said to be capable of going.
36.
Whilst it is true that the material now disclosed does not directly confirm CF’s account, common sense suggests that had the Appellant behaved as alleged he would hardly himself document where he was. That would be to support an allegation a girl could later make against him. Even if a missing record suggested he did hand out medicine, it is difficult to see what advantage that afforded him. He was entitled to hand it out. To the narrow issue of the closed door therefore the potential evidence from Carol Lievesley did not directly go. Taking together the emerged material as to CF and as to Carol Lievesley there is nothing in this ground.
37.
As to other witnesses, Elizabeth Morrison’s evidence was that she had been at Enderleigh for two periods over some eighteen months whereas SSD records are advanced as showing she was there for just four weeks. Like much of the argument advanced in this appeal, Occam’s razor operates to show the simplest solution is generally the answer. The document relied upon by the Appellant suggests those two periods were between 9
th
May and 2
nd
September 1975, and 16
th
November and 14
th
December 1976. Added, they total some five months but some eighteen months (the term she mentioned) separate 9
th
May 1975 from 14
th
December 1976. In any event, though common sense suggests she made a mistake, her evidence, of marginal relevance, comes nowhere near threatening the safety of the conviction on this count.
38.
Julie Swindell’s evidence was that the Appellant physically abused her and that she saw him do the same to other female residents. She said she feared sexual advances from him because of his behaviour. SSD material is said (a) to undermine her honesty, (b) in a report by the Appellant on her to show a relationship different from that she portrayed and (c) to suggest that when she initiated contact with the SSD she ruled out abuse, in contrast to her evidence, a substantial inconsistency capable of affecting the jury’s view of her credibility and reliability.
39.
It is worth reviewing the exact wording of the July 2000 report recorded by SSD which where relevant reads:
“Call to Julie. She…..had heard about Dent being prosecuted for abusing children in care at the time she was in Enderleigh and he was OIC. She knew his reports had been significant in “shaping “ her care career and wanted to know what he had said about her. She would like a copy………She doesn’t have any recollection of abuse herself. Julie having psychiatric help at present and able to see now how her relationship with her father affected many aspects of her life…….””
40.
As to both these women the material upon which the Appellant seeks to rely is said to show a different general picture of his behaviour from that led by the Crown. Maybe so. But context is important. Elizabeth Reid, for example, was called as the final witness on the second day of trial and dealt with within minutes. Her evidence was not mentioned in the Judge’s summary of the evidence during his summing-up. The Appellant made no reference to her during his unsuccessful appeal against conviction. The sole suggestion is that the Social Services material “could” have affected her credibility in the minds of the jury.
41.
As to Julie Swindells we make the obvious point that the Appellant, the author of a report upon her, was hardly likely there to record matters adverse to himself if, as the Crown suggested, he were a knowing abuser. We attach no importance to that aspect of the argument. As to the balance of the SSD material, “She doesn’t have any recollection of abuse herself” would, we accept, have prompted the Crown carefully to reflect upon its implications but we repeat: this trial was in 2002 when practice in the courts was not as now. We are unconvinced that even assuming admissibility this material was capable of affecting the evidence so as to make us doubt the safety of the conviction.
Count 4
42.
LL dated a specific indecent assault as on a Saturday in August 1976 when she said she was the only girl at Enderleigh after a three week stay with foster parents in June or July 1976. There was no dispute that she said she was transferred to Enderleigh following a weekend at a local Home.
43.
Counsel led the dates of her arrival and departure and that in June or July she went to foster parents for three weeks. As to the incident founding Count 4 he asked:
“How did this incident begin to come about? Where was it, can you remember?”
“LL – “It was about August time. I was – at that point a lot of girls had gone off to different places and the remaining ones that were there like went home on weekend leave and I had to stay this particular weekend because my parents were away, there was nobody at home and I couldn’t go home. So I ended up staying the weekend at Enderleigh on my own and John (Dent) was there as the officer on duty in charge and a member of night staff……..””
44.
A police document of 19
th
December 2000 now available reads:
“LL was a resident at Enderleigh between 12/4/76 and 12/7/76. She then went into a foster home for the holiday period and subsequently returned to Enderleigh until 14/9/76 [a later date than thought at trial] when she was transferred to St. Joseph’s Wiltshire.”
45.
Another police document suggests she remained in foster care until 14
th
September. The agreed fact at trial was that she left Enderleigh on 15
th
September 1976. Were all these documents accurate as to dates it left but one day on which the abuse could have occurred.
46.
Records from the Home for this period were no longer in existence. The Appellant suggests that they would have shown whether, on duty, he had the opportunity to commit this offence. He advances it as “a classic Sheikh/Joynson point”:
R. v Sheikh
[2006] EWCA Crim 2625
and
R. v Joynson
[2008] EWCA
Crim 3049.
47.
We can deal with that point immediately. In Sheikh and in Joynson missing evidence was capable of having been determinative. This appeal is founded on material far short of that potential power.
48.
The Appellant accepts that in relation to Ct 5 the absence of records is not relevant to the safety of the conviction but argues that the impact of Ct 4 would have affected LL’s credibility and reliability and the jury’s assessment of her. He argues that Ct 5 is consequently unsafe:
R v Noyle
[2011] EWCA Crim 650
.
49.
We cannot know the provenance of the founding information which is reflected in these documents nor whether it were accurately recorded in the source material let alone by the compiler of the document. Even assuming it were, unless it is being suggested that August is excluded because of the reference to “holiday period,” it does not undermine LL’s account.
50.
If we looked for support for our conclusion we might find it in Misc doc 207 which consistently with LL’s evidence includes:
“Into voluntary care for weekend and then to Enderleigh April ’76 to September ’76 with three weeks June/July at Foster care.”
51.
Police Action 150 upon which the Appellant relies reads:
“LL at Enderleigh from 12/4/76 – 12/7/76 (to Foster care) at Enderleigh again 14/9/76 to date NK.”
52.
However, it is and was agreed that she did not return to but left Enderleigh on 14
th
September 1976. One plausible explanation for Action 150 is that the compiling officer misread her departure date as the start date of a second period there and recorded the end date as “NK”, presumably “Not Known.”
53.
If on the other hand LL and Misc Doc 207 are correct and she spent three weeks in foster care, she would have returned to Enderleigh on or about the 2
nd
August leaving 7
th
, 14
th
, 21
st
and 28
th
available for abuse on a Saturday. Enderleigh logs might have shed light on dates but even so are unlikely to have proved determinative. There would have been any number of unknowns, beginning with authorship. The Appellant’s case was not even that he did not work during August still less that he had no opportunity to do what was alleged.
54.
For the reasons clear from the route we have set out above, we are not persuaded that the conviction on Count 4 is unsafe.
55.
Count 5, said to have taken place after LL had left Enderleigh, is unsurprisingly unspecific. With commendable realism the challenge was advanced as dependent upon the success of that as to Count 4. Consequently the complaint as to Count 5 falls away.
Counts 6 to 11: Indecent Assault on and Attempted Buggery of SG
56.
The important distinction between SG and the other complainants is not only that he was the sole male but also that the abuse of which he complained is said to have taken place not at Enderleigh but at Hillcrest.
57.
The Appellant conceded a close friendship with SG who had shared a flat with him after discharge from care. SG described their consensual sexual relationship after he had reached the age of consent. Beyond the common factor of alleged sexual misconduct this was in every other respect different from the evidence of the other three complainants.
58.
Judge Hopkin could have directed the jury that the counts could be mutually corroborative:
DPP v P
[1991] 2AC 447
. The same would be the case today:
R. v Chopra
[2007] 1 Cr. App. R. 16
.
The Appellant however enjoyed the benefit of a generous direction to consider each count and the evidence upon it quite separately. The Judge’s directions can only have reinforced the natural separation between Enderleigh counts and Hillcrest counts.
59.
Even against that backdrop, all of it advantageous to the Appellant, the background and nature of the allegations by SG required distinct consideration irrespective of any direction. We are not persuaded that the jury’s path to verdicts was dependent upon or influenced by evidence supporting verdicts on the balance of the indictment.
60.
There is nothing in this final ground.
61.
Consequently, for all the reasons given, this appeal is dismissed save to the extent that as conceded we quash the convictions on Counts 2 and 3. | [
"LADY JUSTICE RAFFERTY DBE",
"MR JUSTICE COLLINS"
] | 2014_03_18-3379.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/457/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/457 | 788 |
22efd9d67fcbb846016ad28ce2294a94087dcc3a4db92aba62c8ae4ea9e26f3a | [2003] EWCA Crim 1052 | EWCA_Crim_1052 | 2003-03-27 | high_court_division_court | 2003/00282 Z4 Neutral Citation Number: [2003] EWCA Crim 1052 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Royal Courts of Justice Strand London WC2 Thursday, 27 March 2003 B E F O R E: MR JUSTICE SCOTT BAKER MR JUSTICE ASTILL - - - - - - - P. K. (CLAIMANT) -v- HARROW CROWN COURT (DEFENDANT) - - - - - - - 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 | 2003/00282 Z4
Neutral Citation Number:
[2003] EWCA Crim 1052
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Thursday, 27 March 2003
B E F O R E:
MR JUSTICE SCOTT BAKER
MR JUSTICE ASTILL
- - - - - - -
P. K.
(CLAIMANT)
-v-
HARROW CROWN COURT
(DEFENDANT)
- - - - - - -
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 M MCINTOSH
(instructed by Levenes Solicitors, Wood Green, London N22 8HF) appeared on behalf of the CLAIMANT
MR J D WHITLEY
(instructed by Legal Services Department of Barnet, Enfield and Haringey Mental Health Trust)appeared on behalf of the DEFENDANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE SCOTT BAKER: On 11th December of last year this applicant (as he now is) was made the subject of a hospital order under
section 37
of the Mental Health Act of 1983. He appealed against his sentence by leave of the single judge.
2.
Mr Whitley, for the Crown, at the commencement of the hearing, drew the court's attention to
sections 9
and
10
of the
Criminal Appeal Act 1968
, submitting that the court had no jurisdiction to hear the appeal.
3.
The point arises in this way.
Section 9
gives the Court of Appeal (Criminal Division) power to hear appeals against sentence following a conviction on indictment. That is not this case and one, therefore, turns to
section 10
.
Section 10
deals with appeals against sentence from the Crown Court in other cases.
Section 10(2)(a)
reads as follows:
"The proceedings from which an appeal against sentence lies under this section are those where an offender convicted of an offence by a magistrates' court:
(a) is committed by the court to be dealt with for his offence before the Crown Court..."
It is unnecessary to read subsection (2)(b) and (c). Subsection (3) provides for an appeal in specified cases. It provides:
"An offender dealt with for an offence before the Crown Court in a proceeding to which subsection (2) of this section applies may appeal to the Court of Appeal against sentence in any of the following cases:
(a) where either for that offence alone or for that offence and other offences for which sentence is passed in the same proceeding, he is sentenced to imprisonment or to a sentence of detention in a young offender institution for a term of six months or more [that is not this case]; or
(b) where the sentence is one which the court convicting him had not power to pass..."
That is not this case either, because the Magistrates' Court did have power to pass a
section 37
order and, in fact, they committed the appellant to the Crown Court for sentence because they thought that it was a case where a restriction order under section 41 of the same Act might be appropriate. The remaining provisions of subsection (3) are not relevant.
4.
Miss McIntosh sought to argue that this case does fall within
section 10(3)(a)
because, as she put it, a hospital order under
section 37
is tantamount to a sentence of six months or more. But she did not argue the point with any great vigour. It seems to us plain that Mr Whitley's submission is correct that the court does indeed not have jurisdiction.
5.
This question was not drawn to the attention of the court at any time before the commencement of the hearing at 10:30 this morning. There has been no opportunity to research whether there is any other provision that gives the court jurisdiction of which we are presently unaware. But, it seems to us, on the face of it, that Mr Whitley's submission must be right. In fairness to Mr Whitley, he made it clear that he was not taking the point in order to prevent the case being heard but simply because, as a jurisdiction point, he felt obliged to draw it to the court's attention. It was entirely proper, in my judgment, that he should have done so.
6.
Both sides, the Crown and the defence, are clear that the real issue in this case has to be resolved and that it has to be resolved today. Four psychiatrists have come to court to give evidence. The issues in the case ultimately depend on the view that the court takes of the evidence of each of them.
7.
In these circumstances, it seemed to the court that the appropriate way in which to proceed was for the court to reconstitute itself as a Divisional Court of the Administrative Court and to consider the issue by way of a deemed application for judicial review of the decision of the Crown Court. It is in those circumstances that my Lord and I will now proceed to judgment in the case.
8.
Returning for a moment to the background. On 23rd March of last year in the Hendon Magistrates' Court, the applicant pleaded guilty to assault occasioning actual bodily harm. He was later committed for sentence under the
Powers of Criminal Courts (Sentencing) Act 2000
and
section 43 of the Mental Health Act 1983
, with a direction that he be detained at the Dennis Scott Unit of the Edgware Community Hospital until disposal of the case. The facts of the offence can be shortly stated and are as follows.
9.
The victim, R.K., and the applicant had known each other for many years. On Thursday, 21st March of last year, Mr K. attended the applicant's home in Goldsmith Road, N11. The applicant had requested his attendance in order to speak to him about an ongoing argument involving Mr K.'s family. The applicant's home had been burgled a few days previously. The applicant suspected that Mr K.'s family were responsible. During the conversation, the applicant apparently became threatening and stated that he felt like kneecapping Mr K.. That is a fact that is denied by the applicant but has never been resolved, and it is unnecessary for it to be resolved.
10.
At about five minutes to nine, Mr K. decided to leave because he was concerned about the applicant's attitude towards him. As he was walking down Goldsmith Road he felt a thud from behind on his left leg. When he turned round, he saw the applicant with a hammer in his hand. The applicant then proceeded to hit him on the head and body with the hammer. When he fell to the ground he also kicked him on the head and body. He then walked away. An ambulance was called. Mr K. was taken to the Barnet General Hospital, where he was treated for a small scalp wound requiring six stitches and some cuts and grazes to his left shin. It perhaps goes without saying that the injuries could very well have been significantly more serious.
11.
In the early hours of the following morning, the police forced entry into the applicant's home, but he was not there. That same day, at about quarter to one in the afternoon, he went to Whetstone police station and handed himself in. The officer asked what injuries the victim had, and the applicant replied: "I hit him with a hammer multiple times all over the body." He was arrested. When he was interviewed he made a full admission, repeating that he had hit the victim about ten times to the head and body.
12.
There are, in my judgment, a number of disturbing features about this case. The first is that it is over a year since the offence was committed. The applicant has been detained in a mental hospital since, I think, 23rd July of last year. The second disturbing feature about the case is the dramatically different view between the psychiatrists who have given evidence before this court today and gave evidence to the Crown Court judge.
13.
Dr Annear says that the applicant is suffering from mental illness of a nature or degree that makes it appropriate for him to be detained in hospital for medical treatment. That has consistently been his view. That has also consistently been the view of Dr Naguib. On the other hand, Dr Barrett can find no signs or symptoms of any mental illness. Dr McClintock says, bluntly, that the applicant is not mentally ill and never has been. He has expressed his disquiet about the manner in which the applicant has been treated by the psychiatric services. One of those concerns, and this is also a concern of Dr Barrett, is that the applicant is being required to take what those two doctors describe as exceedingly high doses of anti-psychotic medication against his will when it is unnecessary for him to do so.
14.
Dr Heather McKee saw the applicant on 12th September 2002. She found no evidence of a mental disorder of the nature or degree to warrant him being further detained in a psychiatric hospital. She felt that the applicant's notes displayed no evidence of psychosis, and that a diagnosis of persistent delusional disorder, which had been made by Dr Naguib, was not substantiated.
15.
Psychiatric examination came about because the probation officer expressed her concern about disturbance in the applicant's thought process. There is no criticism to be made, in my judgment, of the probation officer for taking that view. There were features of the applicant's background that did call for some further investigation.
16.
The learned judge heard evidence from Dr Annear, Dr Naguib, Dr McClintock and Dr Barrett, all consultant psychiatrists, although Dr McClintock is the only one of the four who is a consultant forensic psychiatrist, albeit each of the other three has a considerable degree of experience and interest in that field. The judge also had the report in written form from Dr McKee.
17.
When he came to pass sentence, the judge said that he had listened to the evidence and read the reports, especially from Dr Naguib and Dr Annear who, as he put it, had been on the applicant's case from the start. He noted that Dr Annear had seen the applicant only the previous day. He went on to say that all the doctors were agreed that the applicant suffered from a mental illness. He was plainly wrong about that because two of them did not think that he was mentally ill at all, three indeed if one counts Dr McKee, who did not give evidence, but who had produced a written report.
18.
The judge went on:
"What Dr Naguib and Dr Annear say is that it is one [that is the illness] of a nature and a degree, which makes it appropriate for you, necessary for you to be detained or kept in hospital for medical treatment. That there is a bed available, we know and such treatment is likely to alleviate and prevent a deterioration of your condition. It is [to] stop you getting worse and maybe get you better; that is always the hope and if it cannot get you better immediately, at least to give you some treatment so that when you come out in the community, you will take that treatment, if you are sensible to stop yourself getting ill again."
He continued:
"It is also in my view desirable that you are detained in hospital for your own safety and the protection of others and that is why I have been persuaded now on all that I have heard including that of those psychiatrists called on your behalf by Miss McIntosh because let us not forget, we do not take sides and the Doctors are not taking sides. They do [not] represent the prosecution or defence. They represent the state and the patient's interests and they take all these matters into account just as I do.
Sometimes they differ in their opinion but then I sit in the middle and try to find the proper way."
He went on to say that the only alternative to a
section 37
order would have been a custodial sentence. He concluded that
section 37
of the Mental Health Act was the best route for the applicant's improvement and for the protection of others. He went on finally to say that he had to think long and hard, and that what had taken up most of his time was whether or not to impose a section 41 restriction order, which, in the event, he decided not to do.
19.
In my judgment, the judge fell into error in the manner in which he approached the medical evidence. What he had here was two doctors whose evidence supported an order, under
section 37 of the Mental Health Act 1983
, and three doctors (two orally and one in writing) whose evidence did not. There were dramatic differences in the evidence of the four doctors whom he heard. In my judgment, it was incumbent upon the judge to explain in the course of his sentencing remarks why he accepted the evidence of Dr Naguib and Dr Annear and why, therefore, he rejected the evidence of Dr McClintock and Dr Barrett. But he simply did not deal with that question at all.
20.
In these circumstances, it seems to this court that the only appropriate way for the matter to be dealt with is for the medical evidence to be considered afresh. When the matter came before the Court of Appeal (Criminal Division) earlier this month, the court adjourned the application so that the four doctors who had given evidence in the Crown Court could attend to give evidence again.
21.
We have had the advantage of hearing the evidence of four skilled and experienced professional men. Each of them, I am entirely satisfied, has being doing his honest best to give this court the assistance of his expertise in how to approach this difficult case.
22.
Dr Naguib has 23 years experience, but is not, as I have already mentioned, a forensic psychiatrist, although he has a special interest in this subject. He spent an hour talking to the victim last Tuesday, which conversation he told us fortified his belief about the applicant's paranoid behaviour. He has not, however, had an opportunity to take up with the applicant what the victim told him in this hour long conversation. He last saw the applicant some two weeks ago. In his opinion, the applicant does not have schizophrenia as such, although he somewhat qualified this later in his evidence. He said that in his view the applicant has a persistent delusional disorder which can be classified, as it were, as a subheading of a broad description of schizophrenia. He accepted that he had taken into account hearsay sources of information when diagnosing mental illness.
23.
If I may digress at this stage to say this. Both Dr Naguib and Dr Annear have made contact with the victim to hear, as it were, his side of the story. Both Dr Naguib and Dr Annear have regarded what he told them as a significant factor in reaching their diagnosis. There has also I think been some contact with the probation officer, who, of course, had some direct knowledge of the applicant and also with the applicant's mother, who is able to give some account of events as seen through her eyes in the past. Her position has, however, changed because although she initially felt that some psychiatric input was necessary for her son, she has subsequently backed off that view.
24.
Both Dr Barrett and Dr McClintock expressed extremely strong views that psychiatrists in these circumstances should not approach the victim. As it was put by Dr McClintock, a doctor cannot act as an investigator as this blurs the boundaries: "I would not have made contact with the victim. He is not a diagnostician." The plain implication from the evidence of both Dr McClintock and Dr Barrett was that the practice followed by Dr Naguib and by Dr Annear in the present case was highly undesirable.
25.
For my part, I would endorse their view. I cannot see any reason in ordinary circumstances why it would be appropriate for a doctor in such circumstances to begin making his own investigations by contacting the victim, or someone else in a similar situation, for his own account of events, especially if, as happened in this case, it was not possible for the applicant to give him the other side of the story.
26.
Returning to Dr Naguib. He accepted that the sources of information on which he relied were hearsay information. It was put to him, and he accepted, that there was really a hierarchy of sources from which a psychiatrist in these circumstances ought to look to decide whether the applicant was suffering from mental illness. This included, first of all, the interview; secondly, the inpatient assessment, the notes and discussions with the staff who were looking after him in the hospital; and, thirdly, other sources.
27.
He accepted that in the circumstances of this case one really obtained very little, if any, assistance from the first two sources, and that one was really down to the third source in finding any useful information at all. It is generally accepted that in diagnosing mental illness, which is not an easy task in borderline cases, the usual route to overcome uncertainty is to have the patient assessed as an inpatient in a mental hospital. That is what happened in this case. But, in my judgment, the doctors are, in reality, no wiser after the applicant has spent many months in hospital then they were before he was admitted. The plain fact is that on any objective assessment he has not displayed any signs of mental illness whilst in hospital.
28.
The problem with other sources, as illustrated in this case, is to assess the reliability of what the doctors are being told. It is not only a question of the reliability of the facts that they are being told but also their interpretation of those facts. In my judgment, it is perfectly clear that doctors in these circumstances are not bound by rules of evidence, so that they can only accept material that would be admissible in the courts; certainly, not. They are entitled to look at the whole picture and, indeed, they should look at the whole picture. But they have to exercise judgment over material which is of first, second or even third hand hearsay as to the weight that can be attached to it.
29.
In my judgment the problem in this case has really come about because Dr Naguib and, more particularly, Dr Annear, who has really been the main doctor in respect of treatment of the applicant, has given far too much weight to material that is of an extremely dubious nature. This late in the day, it is undesirable for me to go in great detail into all the matters about which I have particular concern. But one example is to be found in a statement in Dr Annear's most recent report of 28th February of this year, when he says:
"When [the applicant] first came into hospital, he had stated the tap water was poisoned."
If, in truth, the applicant said that, that would be important evidence as to delusional belief. However, no one has been able to draw attention to any contemporaneous record in the medical notes to that effect. I would have thought that a matter of that importance would inevitably have been recorded contemporaneously in the very full notes that are before the court.
30.
When one goes back to one of Dr Annear's earlier reports, namely that of 9th October, there is another reference, on a slightly different subject, to checking that drinks were not contaminated, but that was in the context of the applicant being required to take medication that he did not believe he ought to made to have. It is perfectly plain, it seems to me, that checking of the drinks that he was being provided with by the applicant were entirely in that context.
31.
Another matter arises from Mr Naguib's evidence, when he said this in his report of the 31st October:
"Another source of evidence brought to my attention this week was when one of my female patients at [the hospital] who had a brief encounter with Mr K. about twelve years ago. She told me that Mr K. has kept her photo with him until the present time despite the fact that she had told him at the beginning of their encounter (twelve years ago) that she was 'not interested'. She added that on one occasion he 'jumped on me' trying to kiss her and when she declined, he ended up smashing up a glass window. She stated that after she stopped seeing him (after that incident), as she was frightened of him, Mr K. started to stalk a mutual friend who was married and has a child. My female patient added that Mr K. was constantly harassing that other woman and on one occasion he had broken into her house. That lady had to get an injunction against Mr K. to protect herself. This is [said Dr Naguib] a very important new piece of information, which sheds light on another yet unknown aspect of Mr K.'s potential for violence and threatening behaviour. It could also be carrying other supporting evidence of mental illness and needs further exploration. The fact that Mr K. has kept my patient's photo with him for twelve years and that he brought it with him to the hospital not knowing that this patient is presently admitted, could raise several questions and deserves further exploration."
It is true that the applicant did have a photograph of the this woman amongst his belongings, including a number of other photographs. On the other hand, what is being spoken about here is second and third hand hearsay about events that occurred a very long time ago and which the applicant denies. In my judgment, they are quite irrelevant to the very serious issue that the doctors had to decide, namely whether it was appropriate to detain him under the Mental Health Act.
32.
The difficulty in this case, as it seems to me, arose at least in part out of the use by the applicant of expressions such as "paranoid" and "mind games". It appears that he has been using these expressions not in any medical sense, but in the way that they might be used by the man in the street. Furthermore, he has used these expressions in such a way that Dr Annear, in particular, has concluded amounts to evidence of delusional beliefs. But the conclusions of Dr Annear on this matter are to a very large extent dependent upon accepting accounts that he has been given by the victim rather than accepting what he has been told by the applicant.
33.
There has been a serious issue about the medication given to the applicant. This is covered in Dr Annear's report of 9th October. He said:
"[The applicant] refused to accept medication as authorised and prescribed, and so on 16th September 2002 arrangements were made to administer anti- psychotic zuclopenthixol acetate medium-acting injection in the anticipation he would thereafter accept oral sulpiride. Instead he accepted sulpiride but in the form of tablets. There was some indication of initial compliance, though he refused two further requests for interview by me to at least explain the medication and its effects. It was considered likely that he was covertly non-compliant with medication and so the prescription was increased to sulpiride 600mg then 800mg x2 daily and in syrup form, together with [another drug] for unwanted [side] effects."
34.
The evidence called by the applicant is to the effect that, first of all, it was inappropriate for the applicant to be given drugs at all; and secondly, that if he was given any drugs, oral sulpiride is an old-fashioned drug and that there are newer drugs which can more accurately be targeted at the problem which, in any event, the defence doctors did not think the applicant had; an atypical neuroleptic would have been a much better solution. Furthermore, there was, in the view of the doctors called by the defence, no justifiable reason for increasing the dosage from 400mgs to 600mgs and then to 800mgs twice daily. I am bound to say that, for my part, I am not convinced by Dr Annear's explanation as to why the dosage should have remained ever since last September at 800mgs twice daily.
35.
There is a dispute between the medical experts on both sides as to whether this is a wholly inappropriately high dosage, or one that falls within the ordinary ambit of what doctors might consider appropriate. It does not seem to me that this court is in a position to resolve that issue. On the face of it, the dosage of 800mgs does seem higher than one would have expected.
36.
In my judgment, the evidence of Dr McClintock and Dr Barrett, and I found Dr McClintock a particularly convincing and measured witness, was more impressive than the evidence of Dr Annear and Dr Naguib. It really was Dr Annear rather than Dr Naguib who was, as it were, in the driving seat for the Crown's evidence. Dr Naguib's involvement in the case has been of a rather lesser nature. Dr McClintock was of the opinion that the applicant has never been mentally ill. He has expressed considerable disquiet as to the manner in which his case has been handled. It appears to be common ground that in considering the applicant's illness, if he has one, one can divide the symptoms that one looks for into two broad general categories: positive symptoms and negative symptoms.
37.
Dr Annear put his case as follows. His conclusion was that there was an accumulation of evidence and inferences from several sources and reports that the applicant has a mental illness either continuous paranoid schizophrenia with prominent and negative symptoms or alternatively, continuous residual schizophrenia with episodic paranoid exacerbation or schizophrenic spectrum disorder.
38.
Dr Naguib accepted that there were no negative symptoms. Dr Annear in his evidence said that there were negative symptoms but he did not regard them as prominent. Negative symptoms can broadly be categorised as social withdrawal, blunting and restriction of effect, rigidity of ideation, amotivation, anergy and a past decline in work records. But Dr Annear, although saying that the negative symptoms were not prominent, really rested his case on the positive symptoms: delusions of persecution and reference and inferred delusions of control, other thought interferences of delusional mood and auditory hallucinations.
39.
The psychiatrists called by the defence made, in my judgment, extremely forcible points, that although reading carefully through the medical notes, no evidence could be found of anything to support the kind of positive symptoms that Dr Annear suggests the patient had. He is of the view that the applicant's condition has lasted over a number of years and that it has manifested itself from time to time. But really in order to support his conclusion, he has to draw inferences on the basis that what he has been told, in particular by the victim. In my judgment, it simply is not justifiable to do that in this case.
40.
Dr Barrett said:
"I think there are considerable problems with the diagnosis of paranoid schizophrenia which Mr K. has attracted. It seems to have been based upon almost no signs and symptoms which I would myself accept, or which I would expect my peers to accept. Many of the decisions regarding hallucinations and delusions seem to have been 'inferred'..."
41.
Our attention has been drawn to a letter of 28th January of last year from Dr Sous, which was just a couple of months before the applicant's offence. There were circumstances then which led to the Barnet Psychiatric Unit being called in as a result of a complaint by the applicant's mother. Apparently, there was an argument between the applicant and his mother. He chased her with a hammer after she had asked him to leave the house.
42.
In my judgment one has to view with a considerable degree of caution anything arising out of a dispute in this case between a mother and grown-up son, living in the same household, obviously in circumstances of some stress. Although the applicant's mother was, in the earlier part of January 2002 and, indeed, subsequently, concerned that the psychiatric services should have some input into her son, she has since backed off from that position.
43.
But of some significance, in my judgment, is what Dr Sous had to say:
"A 34 year old single man, being unco-operative, presenting with threatening behaviour towards his mother. Other reported oddities of behaviour. 'Arranging things in a peculiar fashion.' Previous contact with our services. Currently no clear cut psychotic or depressive symptoms. [Then these important words:] Not detainable under the Mental Health Act."
So in addition to three doctors who think that there is nothing wrong with the applicant's mental health, there was also another, Dr Sous, who took the same view in January 2002, albeit probably on pretty limited information.
44.
Our attention has also been drawn to a letter written by Dr Annear on 10th January 2000, indicating that by the end of February of this year, that is a month ago, that Mr K., the applicant, would be in the position of bedblocking; the purpose of the letter being to try and persuade the Homeless Persons Unit of Barnet to provide the applicant with some accommodation. The doctor's response when asked about that letter was that one has to anticipate the situation somewhat to make any progress at all with housing with the local authority. He said he did not really mean that Mr K. would be bedblocking by the end of February, but if he had not written that kind of letter there was no prospect of Barnet finding accommodation. That seems to me to be a sorry state of affairs. If doctors do not tell local authorities the truth it will not be long before local authorities disbelieve them when it really matters.
45.
So, drawing the threads together, where does that leave the evidence?
46.
In my judgment, Dr McClintock is right when he says there is no evidence of negative symptoms, a view supported by Dr Barrett and, indeed, by Dr Naguib (one of the doctors called by the other side). I also accept Dr McClintock's evidence that such evidence as there is of positive symptoms is flimsy in the extreme. In my judgment, Dr McClintock and Dr Barrett are right. There simply was not sufficient evidence here to justify making an order under
section 37 of the Mental Health Act 1983
. The evidence was not there, in my judgment, before the learned judge who heard this case, and the evidence is not there today from the doctors from whom we have heard.
47.
I regret to say that I have come to the conclusion that Dr Annear, in particular, has built up a picture in his own mind that there is much more here than meets the eye from the psychiatric view point. I, for my part, have no hesitation in preferring the evidence of Dr McClintock and Dr Barrett.
48.
In these circumstances, I would quash the
section 37
order. Since this court is acting by way of judicial review, we have no power to impose any separate penalty, but had we such power I would be strongly inclined to impose a conditional discharge for two years. I would do so for these reasons. It seems to me that this was an offence for which a sentence of immediate imprisonment was inevitable, had it been dealt with other than under the Mental Health Act. But, bearing in mind, first of all, the period in custody in Wormwood Scrubs that the applicant served before he went to hospital under the Mental Health Act, and the very substantial period that he has been in hospital and detained there, it would be quite inappropriate to make any other order now that deprived him of his liberty.
49.
It is not ultimately a matter for this court what penalty is imposed, but I hope that the Crown Court judge to whom, in my judgment, this case should be remitted, will bear in mind the views of this court, which has heard all the evidence today. One of the advantages of a conditional discharge is that for the period that it lasts, which in my view should be two years, it will hang over the applicant and will remind him that if he transgresses again he is liable to be brought back and dealt with in a rather less agreeable way in the future.
50.
MR JUSTICE ASTILL: This was not a case of the judge choosing between opposing experts. He did not assess their evidence accurately. He based his decision on an interpretation of the total medical evidence that was not possible given the differing views that they expressed.
51.
For the reasons given by my Lord, I agree with his conclusions.
(Bail granted with a condition of residence) | [
"MR JUSTICE SCOTT BAKER",
"MR JUSTICE ASTILL"
] | 2003_03_27-51.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1052/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1052 | 789 |
ecf5b2d2fbc3d5f2dcebc224ecce0c77a0055f9508377f3a0c3f6b96f44afa84 | [2010] EWCA Crim 2973 | EWCA_Crim_2973 | 2010-12-07 | crown_court | Neutral Citation Number: [2010] EWCA Crim 2973 Case No: 2010/05633/D5 2010/05849/D5 COURT MARTIAL APPEAL COURT COURT MARTIAL IN COLCHESTER ASSISTANT JUDGE ADVOCATE PETERS Royal Courts of Justice Strand, London, WC2A 2LL Date: Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE GRIFFITH WILLIAMS and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - Reference by the Judge Advocate General Under Section 34 of the Court Martial Appeals Act 1968 as amended. Appeal against co | Neutral Citation Number:
[2010] EWCA Crim 2973
Case No:
2010/05633/D5
2010/05849/D5
COURT MARTIAL APPEAL COURT
COURT MARTIAL IN COLCHESTER
ASSISTANT JUDGE ADVOCATE PETERS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE GRIFFITH WILLIAMS
and
MRS JUSTICE SHARP DBE
-
- - - - - - - - - - - - - - - - - - - -
Reference by the Judge Advocate General
Under Section 34 of the Court Martial Appeals Act 1968 as amended.
Appeal against conviction by Timothy Twaite
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Mark Hill QC and Mr Jonathan Simpson for the Appellant
Lt Colonel Phillips and Major Richards for the Prosecution
Mr Philip Havers QC for the Secretary of State for Defence
Mr David Perry QC for the Judge Advocate General, as amicus curiae
Hearing date :
7
th
December 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
On 16 September 2010, at a Court Martial held in Colchester before Judge Peters, Assistant Judge Advocate and a five member constitution, Flight Lieutenant Timothy Twaite RAF was convicted by a majority decision (4-1) of committing a civil offence contrary to
section 70 of the Air Force Act 1955
, namely “fraud by false representation contrary to
section 1 of the Fraud Act 2006
”.
2.
The particulars of offence alleged that on 18
th
June 2008, he dishonestly made a representation to Defence Estates which was or which he knew might be untrue or misleading, namely that he was due to be married on 29 August 2008 and that he was thereby entitled to service families accommodation, in breach of
section 2 of the Fraud Act 2006
.
3.
The representation was contained in an application form dated 18
th
June 2008 for service family accommodation, being sought as an entitlement on the basis of his impending marriage on 29
th
August 2008. The application was granted. The service family residence was occupied by him on 27
th
August. He did not in fact marry until a year later on 29
th
August 2009. Throughout the 12 month period between taking up occupation of the accommodation and the actual date of the marriage nothing was said to the relevant authorities about the fact that the marriage had not taken place. However there was no further or alternative allegation, alleging contravention of
section 3
of the Fraud Act after 29 August 2008, a feature of importance to the present case.
4.
Flight Lieutenant Twaite has sought leave to appeal his conviction. He was represented before this court by Mr Mark Hill QC, together with Mr Jonathan Simpson who had acted for him in the Court Martial.
5.
The finding of the Court Martial has been referred the Court Martial Appeal Court by His Honour Judge Blackett, the Judge Advocate General Given the points of law identified by the Judge Advocate General it is plain that leave should be granted. The points of law identified by the Judge Advocate General read as follows:
1.
Is a finding of guilt by a simple majority of a Board of 5 or more lay members in the Court Martial in a case where the defendant is in jeopardy of a significant sentence of imprisonment, as provided by the statute, inherently unsafe?
2.
Is a defendant deprived (of) his right to a fair trial under ECHR Article 6 where he can be found guilty of a serious offence (within the ambit of
schedule 2 of the Armed Forces Act 2006
and any other offences where the maximum sentence is 7 years or more imprisonment) by a simple majority thereby placing him in jeopardy of a significant sentence of imprisonment?
3.
If the answer to (2) is in the affirmative, will the Court Martial Appeal Court make a declaration of incompatibility in relation to the
Armed Forces Act 2006 (s160 (1))
, so far as it relates to the Armed Forces Act
schedule 2
offences and any other offences with a maximum sentence of 7 years or more imprisonment.
4.
Where during sentencing proceedings in the Court Martial the judge discovers that a finding of guilt by the Board of lay members was wrong in law, and decides to terminate those proceedings under the
Armed Forces (Court Martial) Rules 2009
r 25 (3), how should the conviction be referred to the CMAC so that the finding can be quashed?
5.
If a finding is quashed in these circumstances, may the defendant be subjected to re-trial on the same or a different charge?
The Facts
6.
Perhaps the starting place for examining the problems which have arisen in the context of what was otherwise an apparently straightforward case of alleged dishonesty is the moment when the prosecution notified the defence that it intended to advance the allegation against the appellant on the basis that, although he had made a false representation that he was to be married on 29
th
August 2008 when he submitted his application on 18
th
June 2008 for Service Family Accommodation, the Crown was also alleging that his subsequent representations were dishonest. The charge was based on the documentation dated 18
th
June, but there were a number of further relevant documents relating to the period before 29
th
August 2008 which were produced in evidence before the appellant actually moved into the accommodation. When the issue was raised with the Judge Advocate she was concerned that the prosecution had not included an alternative charge based on the alleged failure by the appellant to disclose the true facts after 29
th
August 2008, when he had not married, but was nonetheless living in the accommodation with his fiancée in breach of the Tri-service Accommodation Regulations. She invited counsel for the appellant to consider whether he wished further time for the purpose of preparing his case. He did not. In the course of the hearing counsel on behalf of the appellant said:
“I accept that the prosecution are entitled to cast their net wider and in any event my client will be dealing with events over many months and he is not trying to seek acquittal simply on the basis of what the Board felt he was doing on a particular day”.
7.
Later in the hearing the question whether the Court Martial should be provided with a written route to verdict was discussed between the Judge Advocate and counsel. At the conclusion of the evidence she drafted a series of questions for discussion with counsel. And, in due course, after giving entirely appropriate directions to the Board, the Judge Advocate summarised the route to verdict in this way:
“Question 1. Are you sure that when, on the 18
th
June, 2008, the defendant made a representation that he was to marry on the 29
th
August that he intended the recipient of that representation to believe that he was referring to the 29
th
August 2008?
That is the first question that you will have to address yourselves to,…if your answer to that question is yes, you are so sure, then you will go to question 3 under dishonesty. But if your answer to that question is no then you will go to question 2.
Question 2. Are you sure that at some time between the 18
th
June 2008 and on or shortly after moving into the address on the 27
th
August 2008, the defendant realised that the representations he had made, namely that he was to marry on the 29
th
August 2008 had become untrue or misleading?
If your answer to that question is yes, then again go to question 3. If your answers to both questions 1 and 2 have been no then you should find the defendant not guilty.”
The remaining questions identified on the route to verdict have no bearing on the present appeal.
8.
The Judge Advocate added that it was “very important”,
“that you note that if a minority of you were to answer yes to question 1 and a different minority of you were to answer yes to question 2 that would not suffice. That would not be right to add those two minorities together to make a majority. You can only convict if you have a majority who answer yes to one or other of the questions. I hope that is clear. Alright. If you have answered yes to one or other of those questions then you will have turned to question 3, which is the issue of dishonesty.”
9.
At the end of her summing up the Judge Advocate directed the Board that, having considered the arguments and speeches they had heard, and the views expressed in their deliberation by other members of the Board, it was obviously “preferable” that the Board should come to a unanimous decision, but that the laws relating to Courts Martial permitted the Board to reach a majority verdict. Having emphasised as strongly as she could that the Board should strive very hard to reach a unanimous decision if they could, she accepted that if that was not possible, a majority would be acceptable.
10.
The Board retired. The precise sequence of events thereafter takes this hearing no further, but in due course the Board returned and, in answer to questions by the Judge Advocate, reported that the majority verdict was that the defendant was guilty on the basis of their answer to question 2. That seemed to be that.
11.
The case was adjourned for a pre-sentence report. When it was relisted on 30
th
September, there was a further discussion between the Judge Advocate and counsel for the appellant about how, given the basis on which he was convicted, mitigation should be advanced to the Board. Towards the end of the discussion the Judge Advocate raised the question whether, in accordance with what would have happened in the context of a majority verdict in the Crown Court, she should ascertain how many of the members of the Board agreed with the verdict, and how many dissented. She recorded that she accepted that “The procedure guide does not specifically require me to do so but the…Court Martial Rules do say that where there is no rule one should follow the Crown Court as closely as possible and it seems to me that that would be asked in the Crown Court in these situations and, therefore, I would like to ask it here too”.
Her reference was to
Rule 26
of the
Armed Forces (Court Martial) Rules 2009
which provides:
“Subject to any other enactment (including any other provision of these Rules) the judge advocate shall ensure that proceedings are conducted –
(a) in such a way as appears to him most closely to resemble the way in which comparable proceedings of the Crown Court would be conducted in comparable circumstances; and
(b) if he is unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstance, in such a way as appears to him to be in the interests of justice.”
12.
When the question was posed to the President, he responded that 4 agreed with the verdict and one dissented.
13.
Evidence was offered in mitigation. Submissions were made on behalf of the appellant. The Board retired to consider sentence. Entirely in accordance with the rules which govern Court Martials, the Judge Advocate retired with the members of the Board. The Judge Advocate returned to court after about 45 minutes and began by observing that she was “disturbed by the conversations I am having with the Board”. She said that she had looked at question 2 of the routes to verdict and was reminding herself of the words in question 2, “or shortly after”.
14.
The Judge Advocate expressed herself concerned that “the basis on which they had convicted the defendant is that they have concluded that on 29
th
August, when he did not get married, he then should have done something about it.” In other words, the discussion suggested to her that the Board was satisfied that the appellant’s criminality began on or after 29
th
August and arose from his failure to draw the attention of the authorities to the fact that he had not married on that date. When she questioned this approach, the Board pointed to the phraseology in question 2 which included the words “or shortly after”. Her concern was that the Board seemed to have convicted the defendant on a false premise, and she added that if there been a
section 3
charge they “probably” would have convicted him of that, but they did not because there was none.
15.
She then reflected on the rules to establish whether, acting as Judge Advocate, she might terminate the proceedings if she considered it in the interests of justice to do so. She indicated an intention to exercise her powers under
rule 25
to terminate the proceedings, and recorded her view that this would mean that the conviction could not stand and the Crown would have to consider whether to bring fresh proceedings. She heard submissions from both sides. She told Major Richards that what was disturbing her in the context of what she had discovered from her discussions with the Board was that “had they been properly directed, … had they properly considered the issue on the charges you put to them they would have acquitted this defendant”. After a protracted discussion with counsel, the Advocate General invited the Board into court and informed them that she had decided to exercise her powers under
rule 25
of the
Armed Forces Court Martial Rules 2009
to terminate the proceedings in the interests of justice, adding that the court was dissolved, and the proceedings “are as if they have never taken place”.
16.
The hearing resumed a few days later. The position taken by the prosecution was that there was a guilty verdict on the record, and that the appropriate course was therefore for the matter to be considered by the Court of Appeal. The mechanisms were then addressed. After considering the arguments, the Judge Advocate reserved her judgment, and in due course she provided a written judgment explaining the reasons for referring the case to the Judge Advocate General, with a recommendation that he should exercise his powers under
section 34
of the
Court Martial Appeals Act 1968
.
17.
Effectively the written judgment repeated what the Judge Advocate had said in open court on 30
th
September. The reason for leaving question 2, or a question in similar form to question 2, to the Board was that “it seemed common ground that the act of moving into the house could constitute a continued false representation but that thereafter there had been mere silence which appeared to be more appropriately put as a failure to disclose (s 3) than a false representation (s 2)”. In the course of preparing the route to verdict she had agreed with defence counsel to add the words “and shortly after moving into the address” but with the benefit of hindsight, the inclusion of these words was an error, which thereafter contributed “to the confusion the Board appeared to suffer”. She added that at the end of the trial, after the appellant was recalled, he produced a number of receipts relating to his wedding plans one of which showed that he had collected his wedding ring from a shop on 28 August 2008, and given this evidence, as she explained, “it was to transpire that that evidence proved crucial to the Board in their conclusion that it was only on the 29
th
August that they were sure that the defendant had realised that he would not in fact be marrying that day and that was the first time that they were sure that he had acted dishonestly”. The Judge Advocate concluded that findings like these were potentially consistent with a verdict of guilty of a failure to disclose under
section 3
, but not on the basis of a false representation under
section 2
.
18.
The Judge Advocate was in a considerable personal difficulty because informed as she was of these matters she could not see how she could proceed to participate in sentencing a defendant who, should in her judgment, have been found not guilty. So she decided to make the parties aware of what had come to her knowledge, and that it would not be “proper” to proceed to sentence. That was why she had decided to terminate the proceedings. The Crown, while fully understanding her problem, submitted that she was functus officio and could not terminate the proceedings, an order which in effect purported to set aside the verdict of the Court Martial. When her attention was drawn to the decision in
Laming
[1990] 90 CAR 450 the Judge Advocate explained that had she known about that authority at the time (and no one, least of all the Judge Advocate herself is to be blamed for not having been aware of it at the time) she would have “hesitated” to exercise the terminating power in
rule 25
(3), although she added that, because of the drafting of
rule 25
, the matter was not beyond doubt.
19.
The Judge Advocate referred the problem to the Judge Advocate General and thus it is that he has referred the five questions set out in paragraph 4 for the decision of this court, and that the appellant challenges the safety of his conviction.
The Questions of Law
20.
The first three questions raised by the Judge Advocate General concern the majority verdict. Mr David Perry QC as amicus, advanced for consideration whether a conviction for a serious offence returned by a bare majority should be treated as unsafe, on the basis that a majority verdict dispenses with consensus, involves an over-riding of the views of the minority which itself suggests there are objective grounds for the existence of a reasonable doubt of guilt. For present purposes we are presumably invited to assume that an
acquittal
on the basis of a majority decision does not engage any of these considerations.
21.
The starting point is the clear language of
section 160 of the Armed Forces Act 2006
(
the 2006 Act
). This provides so far as material,
“(1) subject to the following provisions of this section, the finding of the Court Martial on a charge…must be determined by a majority of the votes of the members of the court…(3) in the case of an equality of votes on the finding, the court must acquit the defendant.”
22.
This is not new legislation. Its predecessor, so far as the Royal Air Force is concerned, was
section 96 of the Air Force Act 1955
, which again provided for majority decisions at Court Martial: so did the
Army Act 1955
and the
Naval Discipline Act 1957
.
The 2006 Act
was enacted after a number of concerns about the processes involved in courts martial were expressed both in the House of Lords and in the European Court of Human Rights. None of these concerns was directed at the principle of majority verdicts. It was enacted at a time when the legislation which permitted a jury in the Crown Court to return majority verdicts was well established in accordance with
section 17 of the Juries Act 1974
. Any problems about majority verdicts in the context of courts martial could and would have been addressed in
the 2006 Act
. We must assume that none was identified.
23.
Our attention was drawn to comparative studies about the way in which majority verdicts are permitted to operate in different systems for the administration of criminal justice, but it is perhaps of more significance within our jurisdiction that the majority verdict arrangements at courts martial are not isolated. Magistrates Courts, and appeals to the Crown Court against decisions by magistrates, are dealt with in exactly the same way. The court seeks to reach a unanimous verdict, but if members of the court cannot conscientiously do so, a majority verdict (whether for conviction or acquittal) is acceptable. Although we recognise the difference between the sentencing powers of the Magistrates Courts, whether sitting in their own courts or on appeal in the Crown Court, and the sentencing powers available to courts martial, the present arrangements in the Magistrates Court, where the overwhelming majority of criminal cases are tried, demonstrate that as a matter of principle majority verdicts are not on that account alone to be regarded as blemished by unfairness or uncertainty or lack of safety. This process has been long established without having been called into question.
24.
The Court Martial system has been subjected to close scrutiny in the last decade or so, both here, and in Strasbourg. It is illuminating that, as with Magistrates courts, it has not, as far as we can discover, yet been suggested either on behalf of any appellant or by any court that the arrangements by which majority verdicts are accepted constitutes a breach of a defendant’s right to a fair trial under article 6. Thus, in
R v Spear
[2003] 1 AC 734
it was contended by the defendants that a trial by Court Martial in the United Kingdom of an offence against the ordinary criminal law was incompatible with article 6(1) of the Convention. The appeals were dismissed. Such trials were not incompatible with the right to a fair hearing by an independent and impartial tribunal. The issue of majority verdicts was expressly highlighted, without adverse criticism or comment, in the speech of Lord Rodger of Earlsferry, where he recorded that the verdict was reached by a vote in which the defendant was open to conviction on the basis of a simple majority.
25.
In
Cooper v United Kingdom
(application number 48843/99)
(2204) 39 EHRR 2
, Cooper was convicted by a district court martial of theft. He complained that his trial was not fair, in particular because the tribunal was neither independent nor impartial. The Grand Chamber recorded, again without adverse criticism or comment, that decisions on verdict and sentence are reached by a “majority vote….the casting vote on sentence, if needed, rests with the President…”
26.
In
R v Martin
[1998] AC 917
the question raised on appeal was whether a civilian aged 17 could properly be tried before a Court Martial in Germany. The House of Lords considered the point of law of general public importance whether “proceedings by way of a court martial regularly constituted and conducted according to the provisions of the
Army Act 1955
may nevertheless be stigmatised as an abuse of process”. The short answer was that a form of trial approved by Parliament could not constitute an abuse of process. It is significant that the argument on behalf of the appellant was directed, among other criticisms, to the fact that before a court martial he might be convicted by a simple majority and that therefore he should have been tried by judge and jury. So the majority verdict question was directly engaged. Nevertheless the appeal was dismissed. The same case was heard before the European Court of Human Rights as
Martin v United Kingdom
[2007] 44 EHRR 31
. The Court found that the court martial had not constituted an independent or impartial tribunal, following its earlier decisions in
Findlay v United Kingdom
[1997] 24 EHRR 221
. It was open to the European Court to offer criticisms of the majority verdict arrangements which apply in courts martial. None was.
27.
We are unable to accept Mr Perry’s submissions. As in this case, the Board is directed if at all possible to reach a unanimous verdict, but it is not obliged to do so. Each member of the Board (whether it is a three member, or five, or even larger Board) is conscientiously reaching the decision which he or she believes to be right in the context of the evidence, and the discussion between the members. This involves addressing and evaluating the arguments of those who suggest that there may be a reasonable doubt about guilt. The same applies in reverse. That is the point of the discussion. If at the end of the discussion, a member of the Board believes or is persuaded that a reasonable doubt about guilt exists (so that he or she cannot conscientiously agree to a guilty verdict) it does not follow that a guilty verdict returned by the majority who are, notwithstanding all the contrary arguments, convinced of guilt, should be regarded as unsafe. It does not occur to us to conclude that a guilty verdict on the basis of a 10-2 majority by the jury is open to question because two of its members entertained reservations about guilt. Equally, where a jury cannot conscientiously achieve a verdict even on the basis of 10-2, it does not follow that there must be a doubt about guilt: a hung jury produces a re-trial, and if the second jury convicts, no one suggests that the verdict is unsafe because in the earlier trial at least three members of the jury (and it may well be more) were unable conscientiously to agree that guilt was proved.
28.
Mr Philip Havers QC for the Secretary of State identified a wide range of safeguards which were in place to guarantee the independence and impartiality of the members of a Board, and to ensure that each member of the Board would act in accordance with conscience, after careful reflection on every aspect of the case, including the views of his or her colleagues. We need not identify the further specific safeguards drawn to our attention by Mr Havers, or noted in the judgment of the Grand Chamber in
Cooper
at paragraphs 104-126 and indeed any of the other decisions which highlight these wide-ranging safeguards. They serve to produce a fair trial process.
29.
There is no reason to conclude that a finding of guilt on a basis of a simple majority is inherently unsafe, or that there is an increased danger that it may be unsafe if, after conviction, the defendant may be sentenced to a substantial term of imprisonment. Equally we can see nothing in a process in which a verdict may be returned by a majority which infringes the right to a fair trial, or produces an unsafe conviction. The trial process is intended to be fair, and, as in this case, is demonstrably fair. The statutory provision is clear, and unassailable. Accordingly a declaration of incompatibility, even to the extent that
section 160
(1) of
the 2006 Act
applies to
schedule 2
offences within the Act, and any other offences carrying a maximum sentence of 7 years’ imprisonment or longer would be inappropriate.
30.
We have been asked by Mr Havers to consider whether it is appropriate for the question whether the verdict was unanimous or a majority verdict to have been asked or investigated at all. He suggested that no questions should have been asked of the Board which were not directed to ascertaining whether a verdict had been reached, and if so whether it was guilty or not guilty.
31.
These problems arise for decision because the Judge Advocate General explained in his Reference that he introduced in November 2009 a “non-statutory policy whereby as a matter of practice the Judge Advocate always asks the Board on the record whether the finding on each charge was unanimous”. The Guidance he issued in October 2009 advises Judge Advocates that the appropriate way to proceed in respect of each charge should be – the President of the Board is first asked to answer ‘yes’ or ‘no’ to the question the Board has reached a finding in respect of each charge upon which they are all agreed; if the response is ‘yes’, the President is asked to state ‘guilty’ or ‘not guilty’; if the response is ‘no’, the President is then asked to answer ‘yes’ or ‘no’ to the question have the Board reached a finding upon which a majority are agreed; if the answer is ‘yes’, the President is asked to state ‘guilty’ or ‘not guilty’. There is no requirement in the Guidance for any question of the Board, as asked by the Judge Advocate in the present case, as to the number who agreed and the number who dissented.
32.
We immediately agree with Mr Havers’ submission that for reasons which should need no explanation, it should never be known that a defendant has been acquitted by a majority decision. Consistently with the position which applies with jury verdicts, it is in our judgment wrong in principle for any request to be made of the Board which in terms identifies an acquittal by a majority or requires it to record voting figures when the defendant is acquitted. The acquitted defendant should not be exposed to public ignominy consequent on the recording of the fact that one or more members of the Board was convinced of his guilt.
33.
Mr Havers advanced the further submission that it was inappropriate for any inquiry as to voting to follow the return of a guilty verdict. As the decisions in
Cooper
and
Morris
made clear, one of the important safeguards of the independence of the lay members of a Board is “the confidentiality of the deliberations, a point repeated in the member’s oath”: see paragraph 121 of the judgment in
Cooper
. Further, at paragraph 39, the court in
Cooper
emphasised that the deliberations of the Board are confidential and a member is forbidden to reveal any opinion or vote. We remind ourselves that magistrates announce their verdicts, without any investigation into the question whether they are unanimous, or not, and in the Crown Court on appeal from the Magistrates precisely the same rules apply. In short it does not follow from the fact that a guilty verdict may be returned by a majority of the court, that it is necessary or appropriate to seek to discover the answer to that question. Indeed when
the 2006 Act
itself confirmed the principle of majority verdicts at courts martial it did not equate the arrangements for such verdicts with majority verdicts in jury trials, which require both the fact and the voting relating to any majority guilty verdict to be publicly recorded. The Judge Advocate’s reliance on
Rule 26
(see paragraph 10 above) was misplaced. The verdict which is announced at the court martial is the verdict of the court.
34.
In our judgment the first matter which must be ascertained is whether the Board has reached a verdict. If so the simple question which should then be asked is, “Do you find the Defendant guilty or not guilty”. No further questions should be asked. The answer to that question is conclusive. There are no circumstances in which the way the individual members of the Board, or the way in which they voted, should be revealed.
35.
The Guidance issued by the Judge Advocate General should be reviewed in the light of our conclusion.
The processes in the present trial.
36.
After the verdict had been returned, the Judge Advocate discovered what she believed to be a flaw in the reasoning of the Board which undermined the safety of the conviction. She was in an impossible position. We understand why she decided that the case should not proceed, and that the appellant should not be in peril of sentence following a flawed conviction. She had, however, no power under the rules which gave her authority or jurisdiction to terminate the hearing. The verdict had been reached. Whatever the position which was by no means clear about the judge advocate and the president of the board signing a record of the findings in accordance with
Rule 110(3)
of the
Armed Forces (Court Martial) Rules 2009
, if that part of the process had not been concluded, she would never have been permitted, and she would not have sought, to enter into any discussion with the Board members on the sentencing issue. Her presence was only justified because the issue of guilt had been resolved. On this issue she was indeed functus officio. We need not address all the many rules drawn to our attention in the course of the argument. The processes open to the Judge Advocate were either to proceed to the sentencing decision, convene the Board in open session, and give a sentencing judgment along the lines adopted in
R Stables
[2010] EWCA Crim 2405
which would have revealed, as it did in that case, the flaws she had identified in the reasoning of the Board, or, again on the basis of a judgment on the lines she did give in this case, with an order that the sentence should be adjourned, pending any appeal by the defendant to this court. Such an appeal could have been put in train as a matter of urgency, and although the Judge Advocate is not entitled to certify that a point of law has arisen which merits attention on appeal, her judgment could have indicated that, if she had been possessed of the jurisdiction, she would have exercised it, for whatever reasons seemed to her to have been appropriate.
37.
As it is, the appellant was convicted by a majority verdict. No one had the power to set that verdict aside except this court. We have examined the history of the case, in the light of the concerns expressed by the Judge Advocate. For the reasons set out in the narrative of the facts, it seems fairly clear that the appellant was convicted by the Board on the basis of post 29
th
August 2008 dishonesty rather than dishonesty at any earlier stage.
38.
Question 2 was equivocal, and although the Board was entitled to reach the verdict it did in the light of question 2, this was not apt to cover post 29
th
August 2008 dishonesty. We therefore entertain the same reservations about the safety of this conviction which concerned the Judge Advocate. It must be quashed.
Section 19 (1) of the Courts-Martial (Appeals) Act 1968 enables us to order a new trial if the interests of justice require. In the end we concluded that as the new trial would have to be based on the only charge on which the appellant was convicted, and that it would not be open to amendment by the addition of further counts, and that it is a matter of record that the Board was not satisfied of his guilt before 29
th
August 2008, it would be artificial to allow the prosecution to seek to prove the elements of the offence about which, at least in substantial part, as it appears, the Board was not satisfied. Accordingly we do not order a retrial. | [
"MRS JUSTICE SHARP DBE"
] | 2010_12_07-2576.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2973/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2973 | 790 |
49a1905277ea28bbb0ee7892d95af5d60ae446aba0e7db9e8ff12ee72a67aaab | [2020] EWCA Crim 459 | EWCA_Crim_459 | 2020-02-13 | crown_court | Neutral Citation Number: [2020] EWCA Crim 459 Case No: 201805031 A4, 201805141 A4, 201805183 A4, 201901213 A4 & 201902383 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT His Honour Judge Mukherjee T20177955; T20170763; T20170764 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/02/2020 Before: LORD JUSTICE LEGGATT MRS JUSTICE CHEEMA-GRUBB DBE and HER HONOUR JUDGE ROBINSON THE RECORDER OF CROYDON (Sitting as a Judge of the CACD) - - - - - - - - - - - - | Neutral Citation Number:
[2020] EWCA Crim 459
Case No: 201805031 A4, 201805141 A4, 201805183 A4, 201901213 A4 & 201902383 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
His Honour Judge Mukherjee
T20177955; T20170763; T20170764
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/02/2020
Before:
LORD JUSTICE LEGGATT
MRS JUSTICE CHEEMA-GRUBB DBE
and
HER HONOUR JUDGE ROBINSON
THE RECORDER OF CROYDON
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
NEIL GREENFIELD
JOHN EMMINGHAM
ASIF LAHER
PETER NEEDHAM DARREN PETERS
Appellants
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr M Elwick
appeared on behalf of
Greenfield
Mr P Lazarus
appeared on behalf of
Emmingham
Mr P Taylor QC
appeared on behalf of
Laher
Mr J Beck
appeared on behalf of
Needham
Mr S Csoka QC
appeared on behalf of
Peters
Mr J Cox
appeared on behalf of the
Crown
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Leggatt:
1.
The appeals and renewed applications for leave to appeal against sentence which are before the court today are brought by five individuals who, along with at least eleven others, were convicted for their parts in some or all of four inter-related conspiracies to supply class A drugs. In summary these conspiracies were:
(1)
a conspiracy to supply cocaine between 1 June 2016 and 9 March 2017;
(2)
a conspiracy to supply heroin between 1 June 2016 and 23 February 2017;
(3)
a second conspiracy to supply heroin between 1 February 2017 and 7 June 2017; and
(4)
a conspiracy to supply crack cocaine between 1 November 2016 and 7 June 2017.
2.
All five appellants/applicants pleaded guilty to offences reflecting their various roles in these conspiracies, which we will describe as necessary when considering their individual cases. All the relevant proceedings in the Crown Court were dealt with by His Honour Judge Mukherjee sitting in the Crown Court at Birmingham. Three of the applicants put forward bases of plea which were not accepted by the prosecution. In consequence there was a
Newton
hearing which lasted for seven days and resulted in a ruling given on 6 September 2018.
3.
Before we come to the relevant facts and submissions made in the individual cases, it is worth reminding ourselves of a number of legal principles which are relevant to these applications and appeals. They are principally derived from the judgments of this court in
R v Cairns
[2013] EWCA Crim. 467,
R v Cuni
[2018] EWCA Crim. 600 and
R v Williams
[2019] EWCA Crim. 279, and authorities which are cited in or have followed those cases:
(1)
Where a defendant pleads guilty, it is the responsibility of the sentencing judge to determine the facts on which the sentence is based. These will normally be the facts disclosed by the prosecution evidence, unless the judge accepts an agreed basis of plea or material facts are disputed:
Cairns
, paras 4-5.
(2)
Where it is necessary to hold a
Newton
hearing to resolve a dispute of fact, it is for the judge to make relevant factual findings after holding a trial of the disputed issues without a jury.
(3)
It is well established that the Court of Appeal will not interfere with findings of fact made by the judge following a
Newton
hearing, provided the correct principles of law (including the criminal burden and standard of proof) have been applied and unless the judge has made a finding that no reasonable finder of fact could have reached: see
Cairns
, para 19. The same principle must apply in our view to any findings made without a
Newton
hearing where such a hearing is unnecessary. Essentially the test is the same as that which applies where the facts are found by a jury – the difference being that judges unlike jurors are required to give reasons for their conclusions, so that it is possible to consider the adequacy and rationality of those reasons, as well as any other evidence to which the judge may be taken to have had regard.
(4)
In cases such as the present where a judge has sentenced many defendants for their roles in a large conspiracy to supply drugs, the Court of Appeal will be similarly slow to interfere with the judge's assessment of the different roles of the various conspirators and the nature and extent of each person's involvement: see
Williams
, paras 3 – 4.
(5)
The Sentencing Council Guideline for offences of supplying or offering to supply a controlled drug are treated as applying to offences of conspiracy to supply: see
Cuni
, para 43(1).
(6)
In accordance with that guideline, where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than Category 1, for which the indicative quantity for heroin or cocaine is five kilograms, sentences of 20 years and above may be appropriate depending on the role of the offender.
(7)
Although there is no ceiling, sentences of more than 30 years are reserved for very exceptional cases: see
Cuni
, para 42.
(8)
For very significant commercial offending on a scale which is outside the indicative amounts of the guidelines, there is bound to be an element of bunching in the range of sentences between 20 and 30 years as the scope to differentiate for amounts and roles is very compressed, with the result that sentences on different offenders will be nearer to each other than might otherwise be the case: see
Cuni
para 43(3).
(9)
For such very serious offences many factors which might otherwise mitigate sentence are less important: see
Cuni
, para 43(4).
(10)
The court is not assisted by comparisons with sentences passed or substituted by the Court of Appeal in other cases: see
Cuni
, para 44.
Emmingham
4.
We have heard first a renewed application for leave to appeal against sentence made on behalf of John Emmingham.
5.
Emmingham was sentenced on 16 November 2018 to a total of 20 years and three months' imprisonment, comprising two concurrent sentences of that length, for what the judge found to be his leading roles in the first and second heroin conspiracies. His sentence was reduced from a "starting point" of 25 years by one year on account of personal mitigation and by a further 15 per cent because of his guilty plea.
6.
Mr Lazarus, who represents Emmingham in this court, has renewed today before us three grounds of appeal. The first relates to the quantities of drugs which Emmingham was found to have conspired to supply. The prosecution case as to the quantities supplied under the first heroin conspiracy was based, so far as Emmingham was concerned, on meetings between him and members of the Midlands organised crime group, which was his supplier. There were some 44 identified meetings between members of the Midlands group (Greenfield and Needham) and Emmingham during the relevant period. The prosecution argued that it could fairly be inferred that at least half of these meetings were deliveries of heroin and that each delivery was of half a kilogram, this being the amount found when Emmingham was arrested in March 2017 and also the amount of a supply that was being returned by Emmingham because of its low level of purity and was being carried by Greenfield at the time of Greenfield's arrest. In relation to the second heroin conspiracy, in which Emmingham was also involved, there were nine identified trips involving meetings with him.
7.
Emmingham put forward a basis of plea which the prosecution did not accept. At the
Newton
hearing he gave evidence about his involvement in which he claimed that only 12 of the 44 meetings during the period of the first heroin conspiracy had involved collections of heroin. He also asserted that not every supply involved a half kilogram quantity and that the early supplies were in much lower amounts which gradually built up to half a kilogram by the time of the seizures was that we have mentioned.
8.
The judge rejected that evidence. In those circumstances it was difficult for him to reach a conclusion about which he could be sure as to the number of supplies that had taken place; but he said that the number of 12 supplies as part of the first heroin conspiracy was the very least number that he was prepared to accept. The judge said that he had not been assisted by Emmingham's evidence on the issue as Emmingham was not prepared to be more specific as to how much heroin he had received. The judge also said that he was in fact satisfied that the heroin deliveries were way in excess of the accepted numbers suggested by Emmingham and that he could conclude that half a kilogram at least was being supplied on each occasion. In the result, the judge sentenced Emmingham on the basis that the minimum quantity that he was involved in receiving as a result of both heroin conspiracies was some 9½ kilograms.
9.
On behalf of Emmingham, Mr Lazarus seeks to suggest, as he has to do in order to seek to challenge the judge's finding in this court, that no reasonable fact-finder could have come to that conclusion. We regard this as a hopeless submission. It was manifestly reasonable for the judge to have drawn the inference that he did, which indeed was favourable to Emmingham, that as little as 9½ kilograms of heroin were supplied to him. The likelihood, although the judge could not be sure, was that the quantity supplied in fact substantially exceeded that.
10.
Mr Lazarus also seeks to argue that the judge mis-appraised the role of Emmingham in characterising him as playing a leading role and in assessing the nature and extent of his involvement in the conspiracy in arriving at a starting point for sentence of 25 years. That again is in our view a hopeless argument, particularly in light of the guidance which this court has recently given about attempts to challenge the judge's assessment of an offender's role and level of culpability within a large conspiracy of this kind. As was said by this court (in a judgment given by a constitution of which I was a member) in
R v Williams
[2019] EWCA Crim 279
, at paras 3 and 4:
“... it is worth emphasising the general difficulties which face defendants who seek to appeal against their sentence in cases of this kind where a judge has sentenced many defendants for their various parts in a large conspiracy to supply drugs. In such a case the judge will usually have had charge of the case over many months and at a series of hearings, will have read or heard the prosecution evidence as it relates to all the defendants and may have conducted trials or
Newton
hearings in relation to some of them. It is self-evident that in these circumstances the sentencing judge is uniquely well placed to consider the different roles of the various conspirators and the nature and extent of each person's involvement. The judge is thus also uniquely well placed to calibrate the sentences imposed so as to achieve parity among the defendants and reflect their relative levels of responsibility.
The Court of Appeal does not have those advantages. So unless it can be shown that in sentencing a particular defendant the judge did so on a factual basis which is obviously mistaken, or that the judge made an error of principle, or that in assessing the weight which should or should not be given to one or more relevant factors the judge formed a view which no reasonable judge, acting reasonably, could have formed, the Court of Appeal is most unlikely to think it right to interfere with the judge's assessment of the appropriate sentence. Arguments that the judge misappraised the level of a defendant's role in the conspiracy or imposed a sentence which is unfair in comparison with the sentences imposed on other defendants will seldom have any realistic prospect of success.”
11.
Those words apply exactly here. The judge had the advantage of seeing Emmingham give evidence at the
Newton
hearing, an experience which Mr Lazarus realistically described as an "unedifying spectacle". The judge formed the view that Emmingham had been boasting about the large quantities of drugs which he sold on a wholesale basis and the fact that he would have sold more if they had been available. In reaching a starting point of 25 years, the judge also took into account the fact that Emmingham had a recent conviction in 2009 for possession with intent to supply heroin. In these circumstances it is wholly unrealistic to argue that this court should interfere with the assessment made by the judge.
12.
The third ground of appeal – which Mr Lazarus in fact put at the forefront of his submissions – is that the judge failed to give adequate credit for Emmingham's guilty plea in giving credit of only 15 per cent.
13.
The relevant history in outline was that Emmingham was interviewed on the day after his arrest, that is to say on 15 March 2017, and answered all questions "no comment". His first appearance in the magistrates' court was on the following day – at that point on a charge of possession of heroin which was found in his possession at the time of his arrest. He was represented by solicitors on that occasion, but did not indicate any intention to plead guilty even to that charge. The case was first listed for hearing in the Crown Court on 13 April 2017. He was not arraigned on that day, but equally gave no indication that he intended to plead guilty to the count relating to the heroin found in his possession which was the only charge at that stage. He was interviewed a further three times on 23 April 2017 and again on 31 July 2017 and again answered "no comment" to all questions.
14.
The case was listed once more at Nottingham Crown Court for a pretrial and preparation hearing which took place on 7 August 2017. At that stage Emmingham did not plead guilty to any charge, but he indicated that he did intend to plead guilty to count 2 which related to the first heroin conspiracy and also to count 4. On the next hearing in the Crown Court on 28 September 2017 he entered guilty pleas on all the counts relating to him.
15.
The guideline on reduction in sentence for a guilty plea which was applicable in this case was the old guideline because the first hearing took place before 1 June 2017. Under this guideline full credit was said to be appropriate where an indication to plead guilty was given at the first reasonable opportunity. The guideline said that the first reasonable opportunity may be the first time that a defendant appears before the court and has an opportunity to plead guilty, but the court may consider that it would be reasonable to have expected an indication of willingness even earlier, perhaps whilst under interview.
16.
In our view, the judge in this case cannot be faulted for rejecting the submission that Emmingham had indicated an intention to plead guilty at the first reasonable opportunity in circumstances where, even when attending the magistrates' court and represented by solicitors, he had maintained his position of denial even of the straightforward allegation of possession of heroin.
17.
The second point which Mr Lazarus takes in relation to the guilty plea is that the judge should not have reduced the credit given for plea from 25 per cent, which he said was the amount that would otherwise have been given as credit, by a further 10 per cent because of the rejection of Emmingham's evidence at the
Newton
hearing. We have already mentioned the fact that the judge did not accept Emmingham's account of the quantity and weight of deliveries of heroin which he received. That
Newton
hearing was necessitated by Emmingham tendering a basis of plea which in that regard the prosecution did not accept. It is wholly unrealistic to characterise the outcome of the
Newton
hearing as a success so far as Emmingham was concerned and there was nothing wrong with the judge's decision to discount the credit given for plea by the amount that he did for that reason.
18.
For these reasons, we are satisfied that there is no substance in any of the grounds of appeal which have been renewed today on behalf of Emmingham, and therefore his application for leave to appeal is refused.
Laher and Peters
(There followed oral submissions on behalf of Asif Laher and Darren Peters)
19.
We have heard now the renewed applications for leave to appeal against sentence made on behalf of Asif Laher and Darren Peters. Laher was sentenced on 16 November 2018 to a total of 21 years' imprisonment, comprising three concurrent sentences of that length, for his leading roles in both the first and second heroin conspiracies and the crack cocaine conspiracy. There was also a six month concurrent sentence for possession. The “starting point” in his case was 25 years' imprisonment, which was adjusted upwards to 28 years because of previous convictions and the fact that he was dealing in different class A drugs, before being reduced by 25 per cent for his guilty pleas.
20.
Peters was sentenced on 7 March 2019 to 18½ years' imprisonment for his leading role in the first heroin conspiracy, which was the only one of the four conspiracies in which he was involved. The starting point in his case was 20 years' imprisonment, which was adjusted upwards to 22 years on account of previous relevant convictions, but then reduced by 15 per cent for his guilty plea.
21.
The conspiracies relevant on these applications were, first of all, what has been referred to as the first heroin conspiracy, which was to supply that drug between 1 June 2016 and 23 February 2017. The applicant Laher was at the top of an organised crime group based in Dewsbury, West Yorkshire, which supplied heroin to a group based in Lincolnshire for onward supply to the East Midlands. The Lincolnshire group was headed by Peters.
22.
Laher was also involved in the second heroin conspiracy. Pursuant to that conspiracy heroin was supplied by the West Yorkshire group to a different organised crime group.
23.
The crack cocaine conspiracy was a further conspiracy in which Laher was involved, which occurred between 1 November 2016 and 7 June 2017.
24.
The prosecution case as to the quantities supplied pursuant to the first heroin conspiracy was based first of all on evidence of 20 identified meetings between members of the West Yorkshire and Lincolnshire groups. The prosecution argued that it could safely be inferred that at least half of those meetings were collections of drugs and that each supply was of two kilograms, based on evidence that this was the size of supplies of cocaine purchased by the Lincolnshire group from the West Yorkshire group and also on evidence that deliveries to Emmingham, who purchased heroin from the Lincolnshire group, were of half kilogram quantities and that the Lincolnshire group was also supplying heroin to a number of other customers.
25.
There were 44 meetings between members of the Lincolnshire group and Emmingham and the prosecution invited the judge to find that at least half of those meetings were deliveries of heroin and that each delivery was of half a kilogram. Although the judge was ultimately not satisfied that he could be sure that there were so many deliveries of heroin, he was satisfied that the relevant quantities were of half a kilogram and that at an absolute minimum six kilograms of heroin were supplied by the group headed by Peters to Emmingham and in fact the quantity supplied was almost certainly considerably more than that.
26.
There was a
Newton
hearing which took place over seven days and resulted in a ruling given by the judge on 6 September 2018. Both Peters and Laher gave evidence at that hearing, one of the relevant issues being the quantities of drugs supplied. Their evidence was in each case rejected by the judge. In relation to the supplies by the West Yorkshire group headed by Laher to the Lincolnshire group headed by Peters, the judge made the following findings as regards the first heroin conspiracy. He said:
“I am not satisfied so that I am sure that all 20 identified meetings ... resulted in heroin being obtained by Peters. Some, a small minority of those meetings, are likely to have been cash-related. All of them concern this conspiracy. A reasonable conclusion would be that at least half of them concern the collection of heroin. This much is likely to be conceded in due course by the defence.”
27.
I interpose that it was ultimately common ground that the judge could safely conclude that at least 10 meetings (being half of the 20 identified meetings) did concern the collection of heroin. The judge went on to say:
“It is difficult to quantify how much heroin was supplied by Dewsbury (ie the West Yorkshire group) on each occasion ... It would, however, be unreasonable to conclude that two kilograms was obtained on every occasion although inevitably some. But I am satisfied, so that I am sure, that the amounts being ferried and dealt with were multiple kilos.”
He went on to say that in due course, although he would hear further submissions, it was “highly likely that I will conclude that the amount of heroin traffic is in excess of Category 1.”
28.
The judge did subsequently hear further submissions at the sentencing hearings. In relation to Laher he made the following relevant findings. First, he said:
“You supplied country wide multiple kilos of three different class A drugs. [It is agreed that that is a mistake, it should read two different class A drugs, those being heroin and crack cocaine]. It is true, not multi ton but multi kilos, and way in excess of Category 1 by some distance.” He later said:
“I am not going to guess and I am not going to double count, but the figures on that iPad list relate to both class A drugs and cash linked to the sale of class A drugs. The phrase
'eye-watering' was used. I agree.”
29.
The reference to the 'iPad list' was to a list found on Mr Laher's iPad which referred, as was conceded, to heroin, crack cocaine and very substantial amounts of money. Although at the sentencing hearing Mr Laher sought to deny that the iPad belonged to him and claimed that it was that of a friend, the judge rejected that explanation as an obvious falsehood.
30.
It is convenient to take first the submissions made on behalf of Peters by Mr Csoka QC. His argument proceeds in the following way. He accepts that the judge was entitled to find that there were at least 10 supplies of heroin made to the group headed by Peters as part of the first heroin conspiracy, but he submits there was no proper basis on which the judge could reasonably have concluded that the supplies were of two kilogram amounts, as the prosecution had contended. He points out that the two kilogram figure was based on supplies of a different drug by the West Yorkshire syndicate to the Lincolnshire group as part of a different conspiracy in which it was not shown that Peters was involved. Otherwise, the only basis for this figure was the half kilogram onward supplies to Emmingham, and potentially other customers; but given that the drug may have been adulterated at that point, those supplies did not provide a safe basis for concluding that the quantities supplied to the Lincolnshire group were two kilograms. The defence had argued that the amount supplied on each occasion to the Lincolnshire syndicate headed by Peters could only safely be taken to be half a kilogram, which on that basis would result in a total supply of five kilograms.
31.
If the judge had indeed made a finding that he could be sure that two kilograms had been supplied on every occasion, there might possibly have been a basis, notwithstanding the legal test that we have already mentioned, for seeking to challenge that finding on an appeal. In fact, however, that was not the finding which the judge made. We have already referred to the finding made at the end of the
Newton
hearing, subject to further submissions. When sentencing Peters, the judge said this:
“It is difficult to quantify how much heroin was supplied by West Yorkshire on each occasion, but these were not insignificant quantities and I am quite satisfied that a journey to West Yorkshire would not be for a tester. It would be unreasonable to conclude that two kilograms was obtained on every occasion, although inevitably on some. I am satisfied so that I am sure that the amounts being ferried and dealt with were multiple kilos.
I consider the seizures that have taken place, both of which were for half-a-kilogram quantities, and I therefore conclude that the amount of heroin trafficked in your conspiracy is well in excess of Category 1. Needham and Greenfield [the two others involved in that conspiracy] accepted that to be the case, you claim not to have known and no other defendant, apart from Emmingham, has offered any estimate to me, which leads me to remind myself of what the guideline tells me, namely: 'Where the operation is on the most serious 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.'”
He went on to find that Peters, in light of his role, came with that range.
32.
In our view, it was plainly reasonable for the judge to draw the factual conclusion that he did about the quantities of drugs supplied. He was entitled to take into account, amongst other matters, the stage in the distribution chain at which the drugs were being distributed by the West Yorkshire group, an operation which he found to be geographically a nationwide operation involving very large quantities of drugs. He was also entitled to take into account the fact that Peters and for that matter Laher had had opportunities to give evidence at the
Newton
hearing and give evidence that would explain what the quantities of drugs in fact were if they disagreed with the prosecution assessment. As it was, they chose to lie about those matters. In our view, it cannot possibly be said that no reasonable finder of fact could have drawn the conclusions which the judge did, which represented the factual basis for his sentence.
33.
Mr Csoka's alternative submission was that, even on the findings which the judge did make, it was unreasonable and wrong in principle to regard the case as falling into the most serious and commercial scale of drug operations where the quantity was significantly higher than Category 1. Mr Csoka invited us to conclude that, although the judge felt unable to put a more precise figure on the total quantity of drugs supplied to the Lincolnshire group as part of the first heroin conspiracy, his reference to there not being two kilograms on every occasion but he was sure that the amounts being ferried and dealt with were multiple kilos could properly be interpreted as suggesting that the average quantity might have been something like 1¼ kilos, which would result in a total supply of between 12 and 13 kilograms of drugs. He further submitted that, when one looks within the sentencing guideline at how the indicative quantities of drugs for each category progress through the different categories and then applies the same logic to consider what constitutes a quantity significantly higher than Category 1, a quantity in the region of 12 or 13 kilograms cannot properly be characterised as falling into that class. Mr Csoka drew our attention in that regard to the case of
Boakye
[2012] EWCA Crim. 838, where Hughes LJ made the point at paragraph 39 that the quantities of drugs listed under the categories of harm in the guideline are not thresholds at which the sentencing range changes; they are indications of the general weight which goes into the relevant categories. Therefore, Mr Csoka submitted, particularly when consideration is given to the sometimes substantial increases that mark the transition in indicative quantity from one category to another, the quantity which the judge by inference found to have been supplied in this case cannot reasonably be considered to be significantly above Category 1. Accordingly, he submitted that the sentence proceeded on a wrong factual basis.
34.
We are unable to accept that that is a correct approach. The guideline does not indicate what quantity counts as significantly higher than Category 1 and we do not accept that the matter should be approached on such a mathematical basis by analysing how the quantities change between different categories within the guideline. Inevitably, in our view, there is a question of judgment involved. Particularly in light of the principles to which we have already referred, which should make this court very slow to interfere with evaluative judgments made by a sentencing judge in this type of case, we think it impossible to say that on the facts of this case the judge was not entitled to conclude that the quantity of drugs involved was significantly higher than the five kilogram indicative amount for Category 1.
35.
Once that conclusion was properly reached, as in our view it was, in considering whether a sentence as high as 20 years was appropriate, the judge was required to consider the role of the offender. He found that Peters was at the top of the Lincolnshire organised crime group which operated this part in this conspiracy. The judge said in that regard:
“You used both Greenfield and Needham, they worked for you and they supplied on your behalf and therefore, it leads me to conclude that you played a leading role directing and organising the buying and selling on a commercial scale with substantial links to and influence upon others in the chain with a view to substantial financial gain and that is why I take your starting points for your involvement in this conspiracy as 20 years' imprisonment.”
36.
In our view, it cannot be said that the judge was wrong in principle to take that view, nor is there any other basis on which that assessment can realistically be challenged.
37.
A further point was raised by Mr Csoka about the purity of the relevant quantities of drugs. An argument had been made at the sentencing hearing that the drugs should have been treated as of low purity, which would have been a mitigating factor under the sentencing guideline. However, that was based on the 12 per cent purity of half a kilogram of heroin which Emmingham, who was a customer of the Lincolnshire group, had received and which was found in the possession of Greenfield (who worked, as the judge found, for Peters) at the time of Greenfield's arrest. The judge found that that consignment of heroin was being returned by Emmingham because of its low purity and that the normal purity of drugs supplied was significantly higher than that. Furthermore, that was a supply of heroin by the Lincolnshire group to one of its customers which was further down the supply chain from the drugs being supplied to the Lincolnshire group, which are the relevant drugs for this purpose, and which it was reasonable for the judge to infer were of higher purity. In our view, the judge cannot be faulted for proceeding on the basis that the heroin supplied to the group headed by Peters should not be regarded as either of high purity or low purity for the purpose of the sentencing guideline and was therefore neither an aggravating nor a mitigating factor.
38.
For those reasons, we are not persuaded that any of the grounds renewed on behalf of Peters would have any realistic prospect of success on an appeal and we accordingly refuse his application.
39.
We turn now to the position of Laher, who has been represented before us today by Mr Taylor QC. Mr Taylor has also sought to focus in his submissions on the findings as to quantities of drugs made by the judge for the purpose of sentencing. Essentially, Mr Taylor makes two submissions in his most helpful skeleton argument which he has developed orally. The first is that no reasonable judge could properly have reached the findings as to quantities that the judge did on the basis of the evidence as to quantities relied on by the prosecution. The second is that the judge erred in failing to make findings as to the specific quantity of drugs involved in each of the three conspiracy counts, and for that reason, even if the findings that he made were themselves valid, the result was that there was no reasonable basis on which to determine to what degree the quantities of drugs exceeded the Category 1 threshold. This, Mr Taylor submitted, was a fundamental error which rendered the starting point of 25 years which the judge took arbitrary and caused the sentence which flowed from that figure to be manifestly excessive.
40.
In relation to the first of those arguments, the judge's findings which we have quoted earlier were based, as regards the first heroin conspiracy, on the findings about quantities of heroin supplied to which we have already referred. Those were reasonably specific findings. In relation to the second heroin and crack cocaine conspiracies, the judge's findings were based primarily at least on the list found on an iPad which he was sure belonged to Laher and that Laher had compiled. Mr Taylor sought to argue that the judge could not properly have concluded on the basis of that dealer list that the quantities of drugs supplied by Laher's West Yorkshire group were in the level of multiple kilograms and involved either the payment or receipt of what the judge described as 'eye-watering' amounts of money.
41.
It is not for the Court of Appeal to undertake an analysis of the evidence of the kind which the judge had the opportunity to do and did at a seven-day
Newton
hearing; but it is relevant to note that, on the court's own calculation of the numbers included on the list, disregarding sums of money which are said to be running totals rather than separate entries and disregarding sums of money which are identified as relating to rent or wages, the total amount is of the order of £640,000. If Mr Laher had an explanation to give which would displace the inference that that was the financial level of drug dealing in which he was involved, he had the opportunity to give it at the
Newton
hearing, but he did not. In the circumstances, the judge was, in our view, fully entitled to conclude, as he did, that the amounts of drugs being supplied were in the order of many kilos and involved what he reasonably described as 'eye-watering sums of money'.
42.
On that basis we turn to Mr Taylor's second submission that the judge was obliged to make more specific findings of fact about the quantities supplied and that his omission or inability to do so resulted in the sentence being arbitrary and for that reason manifestly excessive. We cannot accept that sentencing for offences such as these involves a mathematical exercise or determination which requires precision of that level. True it is that for the purpose of placing on offender within a category within the sentencing guideline it may be necessary to make a finding, with some degree of precision, of the minimum quantity of drugs which the judge can be sure was supplied. But when one is considering sentencing for a quantity of drugs which is significantly higher than the guideline categories, the exercise in our view becomes a much more evaluative one in which the quantity of drugs is only one relevant factor, albeit an important one. Sometimes it is possible for a judge to determine with some precision what that quantity of drugs was or can safely be taken to be; but on other occasions this may not be possible.
43.
We do not consider that the judge in this case can properly be criticised for not making a more specific finding than the finding he made that the quantities of drugs supplied pursuant to the three conspiracies in which Laher participated were way in excess of Category 1 by some distance. On the contrary, to have done so would in our view have given a false impression of accuracy when this was all that could safely be concluded on the basis of the iPad list. That does not make the sentence arrived at arbitrary. In the case of large commercial operations such as this which fall outside and well above the guideline categories, the judge has to weigh up a variety of factors, including the quantity supplied as best he can determine it, but also the particular role of the offender in the conspiracy, how far up the supply chain he was, the geographical scope of the operation, the length of time for which it continued, the number of different drugs involved and the number of separate conspiracies in which the offender participated. That is, as we say, an evaluative rather than a scientific exercise and it cannot, we consider, realistically be argued that the judge in this case reached a conclusion which no reasonable judge in his position could have reached or which was wrong in principle. He was plainly entitled to find and to sentence Laher on the basis that he was at the top of the Yorkshire organisation which was supplying on a wide geographical basis, that was he was involved in three separate conspiracies and that the period of the conspiracies covered a substantial period of time; furthermore, that he was making what were clearly very substantial gains from his involvement.
44.
In relation to the period of time, Mr Taylor QC raised a specific point whether the judge sentenced Mr Laher on the basis that he was involved in the conspiracy during a period of time when he was in prison, contrary to findings which the judge had himself made. The relevant findings on that point were these. Mr Laher's evidence was that he had started working for the organised crime group when he was released from prison which was on 14 October 2016. He initially said that his work did not begin until his tag came off, which was in early March 2017. He then changed that to December 2016 or January 2017. He then said he may have been working in November 2016 but he could not remember. He later said that, from his release, he was not involved in the drugs trade for about two or three weeks. He started chasing one debt initially, that owed by Greenfield, but a few weeks later he started chasing other debts. In the light of that most unsatisfactory evidence and other evidence which the judge took into account, the judge found in his ruling following the
Newton
hearing as follows:
“It is clear to me that when he [that is Laher] was picked up by his friend Hussain he was expecting to get back to work as soon as possible. He had, in fact, been working whilst in prison but now his work could carry on in earnest.” The judge further said when sentencing Laher:
“You resumed your drug trafficking immediately upon your release from prison, which suggests to me that the business was still operating whilst you were in prison.” And then later in his sentencing remarks:
“I do not sentence you on the basis that you were directing this operation from prison, unlike one of your co-accused, but it is quite clear that it carried on whilst you were in prison.”
45.
In our view, the reasonable reading of those findings, taken together, is that Laher had continued to participate in drug dealing and had participated in this conspiracy whilst in prison, albeit the judge could not be sure that he was directing the operation from prison and did not sentence him on that basis, but on the basis that he resumed his role as the head of the organisation immediately upon his release.
46.
On those findings and the other findings made by the judge, we do not consider it to be reasonably arguable that the judge sentenced Laher on a wrong factual basis or made any error of principle or arrived at a sentence which was manifestly excessive. Accordingly, we also refuse his application for leave to appeal.
Greenfield
(There followed oral submissions on behalf of Neil Greenfield)
47.
We have heard submissions from Mr Martin Elwick on behalf of Neil Greenfield who appeals with leave of the single judge against his sentence of 18 years and nine months' imprisonment imposed in the Crown Court at Birmingham on
16 November 2018. Greenfield was found to have played a leading role in what have
been referred to as the cocaine and first heroin conspiracies for which he received concurrent sentences of 18 years and nine months. He received a further concurrent sentence of nine years' imprisonment for a separate offence of possession with intent to supply. This last offence related to half a kilogram of heroin found in his vehicle when he was stopped and arrested on 22 February 2017.
48.
The judge found that Greenfield was the head of the Lincolnshire organised crime group and that he directed and co-ordinated others and organised sales and distribution to dealers whom the group supplied. The judge was satisfied that, whatever the precise quantities of drugs involved, they were significantly in excess of Category 1.
49.
For Greenfield, the judge's starting point was 25 years' imprisonment, which was reduced by 25 per cent for his guilty pleas.
50.
The leave to appeal given by the single judge was confined to the ground that the judge was wrong not to afford Greenfield a full one-third reduction for pleading guilty at what was contended to be the first reasonable opportunity. Leave to appeal on two further grounds was refused. One of those grounds has been renewed before this court and it is convenient to deal with it first before turning to the ground for which leave to appeal was granted.
51.
The further ground is that the judge failed to give proper credit to Greenfield for factors that mitigated his offences. In his sentencing remarks the judge said this:
“There is mitigation. You have no relevant previous convictions, nothing since 2009. This will be your first prison sentence. I have read references on your behalf, including one from a prison officer. I am alive to the fact that you have been waiting since August 2017 to be sentenced. But, of course, you have not been wasting your time because in actual fact you have been serving the sentence that you are about to receive. The effect upon your family will be significant. But I am afraid you knew that during the months that you were dealing in class A drugs and did not consider that at the time. You understood the risks that you were taking and what would happen to you and your family should you be caught. I am afraid I ignore the submission about no hidden assets nor little financial gain. That will become apparent one way or another in due course.”
52.
The judge manifestly took account of all those factors in reaching his starting point of 25 years' imprisonment.
53.
Mr Elwick's submission is that the judge was wrong not to make a reduction from that starting point on the basis of the mitigating factors relied on. We do not regard that as a tenable argument. None of the matters relied on as mitigating factors on behalf of Greenfield represented strong mitigation, particularly in a case of this kind where, as we mentioned in an earlier judgment today, it has been said by this court on several occasions, including in the case of
R v Cuni
[2018] EWCA Crim 600
, that for very serious drugs offences such as these many factors which might otherwise mitigate sentence are less important. Indeed, it may be said that the judge was quite generous
to Greenfield in not holding against him the fact that he had two previous convictions for drugs offences, albeit that the most recent one, which was for possession of cannabis, was in 2009. We therefore refuse the application for permission to appeal on this further ground.
54.
Turning to the ground on which Greenfield was given permission to appeal, the relevant chronology is that he was initially accused only in relation to the possession of heroin with intent to supply based on the quantity of half a kilogram found in his possession upon his arrest. At his first interview he gave a prepared statement denying that allegation. On 24 February 2017 he appeared at Nottingham Magistrates' Court. At that stage he made no admission and indeed denied the offence with which he was charged, standing by the prepared statement which he had previously given. He was sent to the Crown Court on 7 April 2017. His first appearance in the Crown Court was later in April. At that stage he was represented for the first time by Mr Elwick and we are told and take it from him that there was an indication given at that hearing of his intention to plead guilty to the offences of conspiracy with which it was by then clear that he would be charged. He subsequently entered a guilty plea at the next hearing on 7 August 2017.
55.
Greenfield, unlike other defendants with whom we have been dealing today, did not tender any basis of plea - in other words, he accepted that he should be sentenced on the basis of the prosecution evidence. He attended the
Newton
hearing which subsequently took place in relation to other defendants but that was not because he was seeking to contest any part of the prosecution case against him, but only because other defendants were seeking to put blame on him and it was considered that he ought to be given the opportunity to answer their allegations against him. In fact, he did not avail himself of that opportunity but sat silently whilst those allegations were made.
56.
In dealing with credit for plea in sentencing Greenfield, the judge said this:
“I give you credit, significant credit, one of only two defendants in front of me [we interpose that there were actually three] who pleaded guilty in August 2017 without a basis of plea. It was not the first opportunity that you had to plead guilty, but it was close to it. But no basis, no
Newton
hearing and you have extraordinarily, in my view, sat calmly and quietly, whilst others such as Peters in particular, have attempted to make your position worse while trying to diminish his and you took it all. You are entitled to 25 per cent credit, in my view.”
57.
Mr Elwick's submissions are essentially two-fold. First, he submits that on the facts of this case and applying the guideline issued by the Sentencing Council for reduction in sentence for a guilty plea that was applicable in this case, the pleas that Greenfield entered should be taken to have been indicated at the first reasonable opportunity. Mr Elwick submits, as must be right, that what represents the first reasonable opportunity depends on the circumstances of the case. He argues that in this case, particularly in circumstances where the major offences of conspiracy were only alleged against Greenfield very shortly before the first hearing in the Crown Court, the indication that he gave at that hearing that he intended to plead guilty ought to
have been taken as an indication at the first reasonable opportunity. Secondly, Mr Elwick submits that, when comparison is made with the amounts of credit given to other defendants, Mr Greenfield was treated unfairly by receiving credit of only 25 per cent. His position can be contrasted with that of Laher who did not indicate any plea of guilty, despite participating in a number of hearings in the Crown Court. On the contrary, Laher gave notice of an intention to make an application to have the charges dismissed, which was only withdrawn at the last moment when the dealer list (which we have referred to in dealing with his application for leave to appeal) was found on his iPad. Laher then took part in the
Newton
hearing where he was found to have given false evidence. Nevertheless, the judge gave in his case an initial credit of one third for pleading guilty, which was only reduced to 25 per cent because of the
Newton
hearing.
58.
In other circumstances, and as for example in the case of Emmingham which we have already considered this morning, it might well be said – and indeed had this been the only point made on Greenfield's behalf it would, in our view, reasonably have been said – that the fact that he did not at the outset plead guilty to the offence of possession with intent to supply, but indeed denied that offence until he was sent to the Crown Court, entitled the judge to take the view that a one-third discount for plea was not appropriate.
59.
However, we do consider that there is force in the submission that Mr Elwick has eloquently made on Greenfield's behalf that there would be a justifiable sense of grievance on the part of Greenfield if he receives at the end of the day only the same discount as Laher. We consider that Laher was generously dealt with by the judge, as regards the discount made for his plea. Nevertheless, taking the position in the round, and in particular taking into account the fact that Greenfield, unlike other defendants who received similar credit, did not seek to dispute in any way the prosecution case in relation to the major conspiracy charges from immediately after the point when he was first notified of those charges, we consider that in the circumstances of this case the judge was wrong not to give full credit for plea.
60.
For those reasons, and on that narrow basis, we allow Greenfield's appeal. The sentence imposed in the Crown Court will be set aside and replaced by a sentence of 16 years and eight months.
Needham
(There followed oral submissions on behalf of Peter Needham)
61.
We have heard submissions from Mr Beck, who has appeared
pro bono
for the applicant Peter Needham in support of his renewed application for leave to appeal against sentence. We are grateful to him for those submissions which he has made concisely and well.
62.
Needham was sentenced on 16 November 2018 to a total of 16 years nine months' imprisonment imposed for what the judge found to have been his leading roles in two conspiracies which have been referred to and described in earlier judgments as the cocaine conspiracy and the first heroin conspiracy. He received a concurrent sentence of three months for possession of cannabis. Further sentences of, respectively, 16 months' imprisonment for an offence of dangerous driving and nine months' imprisonment for fraudulent use of a registration mark were also made concurrent.
63.
Needham was a member of the Lincolnshire organised crime group and worked closely with Greenfield. He was described by the judge as "Greenfield's trusted lieutenant, an important ally and confidante of his who organised onward supply once drugs were received." The judge found that he was "in it for substantial gain" and "comfortably within a leading role" for the purpose of the sentencing guideline. It was accepted on his behalf that the quantity of drugs supplied pursuant to the conspiracies in which he participated was in excess of Category 1.
64.
The dangerous driving offence was committed at the time of his arrest on 2 November 2016. He had stopped in a layby when he was approached by police officers. Police vehicles had attempted to box him in. He tried to get away by mounting the pavement and driving straight towards a police officer who was unable to jump out of the way in time and was struck a glancing blow on the arm and leg as the vehicle drove off. The car that Needham was driving was pursued by a police vehicle which managed to push it onto a verge. He was then arrested. Two kilograms of cocaine was found in the vehicle that he had been driving. The vehicle was also found to have been stolen and bearing false number plates.
65.
The judge in sentencing Needham took as a starting point for the drugs offences 22 years' imprisonment, which he uplifted by three years on account of the driving offences and a relevant previous conviction for class A drug trafficking for which he had been sentenced to six years' imprisonment in 2003. Needham was given a full one-third discount for his early guilty pleas, which resulted in the total sentence of 16 years nine months' imprisonment.
66.
Mr Beck, on his behalf, has renewed all Needham’s grounds of appeal before us but has put at the forefront of his argument a submission that the judge was unjustified in characterising Needham as comfortably within a leading role. Mr Beck has submitted that that was an assessment not reasonably open to the judge. Mr Beck described Needham's role as that of what he called a 'super courier' – someone who collected drugs and delivered drugs and cash. He submitted that there was no evidence that Needham had played any part in organising distribution, as the judge had found.
67.
Mr Beck further submitted that, when Needham's role was compared with that of Greenfield, for whom the judge found that Needham acted as a trusted lieutenant, the starting point of 22 years was too high. Mr Beck accepted that, when consideration was also given to the driving offence and Needham’s previous drug trafficking conviction, an uplift for those matters was justified. But he submitted that, even when those matters were taken into account, the overall sentence which the judge arrived at in Needham's case was manifestly excessive.
68.
Had this been a sentencing hearing, there are points that could be made in support of Mr Beck's arguments. There was scope for debate about exactly how Needham’s role should be characterised within the relevant hierarchy of these conspiracies. The prosecution’s note for sentence described him as playing a lower leading or upper significant role on the basis that he was Greenfield's right-hand man and trusted lieutenant, he was responsible for much of the day-to-day operation of the network, and his involvement demonstrated characteristics of both leading and significant
roles. The judge plainly made a somewhat different assessment and considered that Needham's role was more important than that, such as to be described as comfortably within a leading role.
69.
We have already emphasised today the approach of the Court of Appeal in dealing in cases of this kind with attempts to challenge assessments of the role and extent of involvement of particular individuals who have taken part in major drugs conspiracies where numerous defendants who have played different roles within those conspiracies are before the court and being sentenced by the same judge. As we have already noted, this court last year in
R v Williams
[2019] EWCA Crim. 279 at paragraphs 3 to 4 pointed out that the sentencing judge is uniquely well placed in cases of this kind to consider the different roles of the various conspirators and the nature and extent of their involvement and to calibrate the sentences accordingly. It was also made clear that the Court of Appeal, which lacks those advantages, will not interfere with an assessment of that kind which the sentencing judge has made unless it can be shown that the judge sentenced on a factual basis which is obviously mistaken or that the judge made an error of principle or that in assessing the weight to be given to one or more relevant factors the judge formed a view that no reasonable judge acting reasonably could have formed. We consider it impossible to say that that test is met in the present case. In our view, on the facts which have been found, it was well open to the judge to form the assessment that he did of the extent of Needham's role and involvement, and this court is in no position to say that he was wrong in that assessment.
70.
As for the point about comparison with Greenfield, that is again pre-eminently a matter for the judge who is comparing the roles and relative levels of responsibility of different individuals. But it is plain to us that the judge did take into account and make significant allowance for the difference in their respective roles. In Greenfield's case the starting point taken was one of 25 years, three years therefore above the starting point taken for Needham. Particularly given the point which has been made about the fact that differences in sentence inevitably get compressed in the case of crimes of this degree of seriousness in drugs cases, it is quite impossible to say that the level of disparity between the sentences imposed on Greenfield and Needham was inappropriate, let alone such that no reasonable judge could have come to that conclusion.
71.
In our view, the judge was entirely justified for uplifting the total sentence on account of the offence of dangerous driving that we have described and the highly significant previous conviction which Needham had.
72.
Accordingly, we do not consider that the grounds of appeal have any reasonable prospect of success and we dismiss the application.
73.
Mr Beck, that leaves us only with the matter on which leave to appeal has been given. I do not think that that was a matter on which you were invited to address the court. It is simply a matter of sorting out the calculation.
74.
MR BECK: My Lord is absolutely right. I am more than glad that I am not asked to address the Court on that point.
75.
LORD JUSTICE LEGGATT: Very good. Thank you for the help you have given. I shall ask my Lady, Cheema-Grubb J, to give the court's judgment on the driving disqualification appeal.
76.
MRS JUSTICE CHEEMA-GRUBB: Peter Needham appeals with leave from the single judge against the imposition of disqualification from driving for a total period of eight years. Permission was given for a correction of the order on the papers.
77.
The obligation to impose disqualification from driving for a minimum of 12 months arises from
section 34
of the
Road Traffic Offenders Act 1988
upon conviction for a variety of offences, one of which is dangerous driving, contrary to
section 2
of the
Road Traffic Act 1988
. The appellant pleaded guilty to dangerous driving and fraudulent use of a registration mark, contrary to
section 44
of the
Vehicle Excise and Registration Act 1994
on 13 November 2018.
78.
On 16 November, His Honour Judge Mukherjee sitting at Birmingham Crown Court imposed a sentence of 16 months' imprisonment for dangerous driving and nine months for the fraudulent use of the registration mark. Both sentences were concurrent with each other, but also concurrent to a sentence of 16 years and nine months for two offences of conspiracy to supply controlled drugs (cocaine and heroin) contrary to
section 1(1)
of the
Criminal Law Act 1977
.
79.
In the circumstances, and as there is no challenge to the sentence imposed for the driving matters, the facts of the dangerous driving can be summarised very briefly. This appellant was under observation during a drugs operation. On 2 November 2016 he was seen meeting another man and he had two kilograms of high purity cocaine in his car when police officers tried to stop him on the A46 south of Newark. He was driving a stolen car bearing cloned number plates. He drove that car into a layby and appeared to be prepared to cooperate, but when an officer approached the vehicle he reversed away from him and then drove suddenly forwards hitting the man's right arm, knee and thigh. The appellant then drove over a footpath and down a grass verge. Other officers acted swiftly to pen the appellant's vehicle in so that he could not escape.
80.
Having passed the sentence of 16 months' imprisonment concurrent for this offence, the judge said this:
“You will be disqualified for one year and six months, but I am obliged to extend that pursuant to section 35 of the Road Traffic Offenders Act by half the term of your custodial sentence, which would amount to eight years and six months. But I take off the two years that you have spent on remand, so the extension is of six years and six months which means you will be disqualified from driving for eight years and you will be obliged to take an extended retest before you drive again.”
81.
Disqualification runs from its imposition and there had been no interim disqualification in this appellant's case. Disqualification pending an extended retest is also an obligatory requirement for those convicted of dangerous driving, pursuant to
section 36
of the
Road Traffic Offenders Act 1988
. It is clear that the judge intended to apply the spirit of section 35A and 35B of the Road Traffic Offenders Act, which
were inserted by
section 137
of schedule 16 of the
Coroners and Justice Act 2009
and brought into effect by the time this judge was passing sentence. The purpose of this legislation is to avoid offenders who have been disqualified from driving and sentenced to custody at the same time serving all or part of their disqualification while in custody. The clear intention of Parliament, is this court said in
R v Needham and
others
[2016] EWCA Crim. 455, was that periods of disqualification should be served by an offender while he is at liberty in the community. This is what the judge tried to achieve by imposing a disqualification well in excess of the 18 months he attributed to the offence of dangerous driving. The scheme of sections 35A and 35B is that section 35A applies where an offender is convicted of an offence for which the court imposes a custodial sentence and a disqualification. In those circumstances, the order of disqualification should comprise the discretionary disqualification (here the 18 months) and the appropriate extension period, which is equivalent to the period before he will be released from the custodial sentence. Section 35B comes into play when the offender is sentenced at the same time for other offences which attract a custodial element. The appropriate period by which to increase the disqualification under this head is called "the uplift". In
R v Needham
the court concluded that the effect of disqualification diminishes in the case of an offender who has to serve punitive sentences in custody and there is a greater discretion available to the judge who has to include a section 35B uplift element. There is no requirement for any or any precise account to be taken of periods served on remand before sentence, but the important sentencing principle of proportionate punishment must be observed.
82.
At paragraph 31 of that guideline authority, the court set out a checklist of steps which organises the approach to be taken. Unfortunately, the judge failed to follow that guidance and we must remedy that situation without offending against the rule that no more severe punishment must thereby be imposed. The period under section 35A is 18 months with an extension of eight months. This comes to 26 months. The period under section 35B will be half of 16 years and nine months, but as the sentence for dangerous driving was ordered to be served concurrently with the sentences for the conspiracies, allowance must be made for that feature too.
83.
Accordingly, the uplift period should have been no more than half of 15 years and five months. We will say seven years eight months. Although he did not have to do so, the judge plainly intended to allow a reduction for time on remand, and we will do the same. Accordingly, a systematic application of the law would lead to a disqualification of 16 months, with an extension of eight months pursuant to section 35A, plus five years eight months’ uplift under section 35B, making a total disqualification period of seven years and 10 months.
84.
This restructuring of the disqualification will not offend against
section 11(3)
of the
Criminal Appeal Act 1968
as it is a slightly shorter total disqualification than that imposed by the judge. We direct therefore that in accordance with the limited permission given by the single judge, the period of disqualification is to be recorded as we have set out and reduced thereby from eight years to seven years and 10 months. To that extent only, this appeal succeeds. | [
"His Honour Judge Mukherjee",
"LORD JUSTICE LEGGATT",
"MRS JUSTICE CHEEMA",
"HER HONOUR JUDGE ROBINSON"
] | 2020_02_13-4832.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/459/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/459 | 791 |
acdec9a426d143df6b6365edfb53725643c2bb41ee9afd902030ef7e574885d9 | [2023] EWCA Crim 1626 | EWCA_Crim_1626 | 2023-12-13 | 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.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/00958/B3
[2023] EWCA Crim 1626
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 13
th
December 2023
B e f o r e:
VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MR JUSTICE TURNER
SIR ROBIN SPENCER
____________________
R E X
- v -
HARRY TURNER
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr A Ford KC
appeared on behalf of the Appellant
Mr M McKone KC
appeared on behalf of the Crown
____________________
J U D G M E N T
(
Approved
)
____________________
Wednesday 13
th
December 2023
LORD JUSTICE HOLROYDE:
1.
On 22
nd
February 2023, following a trial in Crown Court at Teesside before His Honour Judge Adkin and a jury, the appellant was convicted of the murder of his wife, Sally Turner. He was sentenced to life imprisonment, with a minimum term of 17 years and 120 days.
2.
He now appeals against his conviction by leave of the single judge.
3.
As in the court below, we shall refer to the deceased as Sally. We recognise at the outset the grief suffered by all those bereaved by her death. We are very conscious of the human realities of this case, but we are sure that all concerned will understand that we must reach our decision dispassionately and in accordance with the law.
4.
The appellant and Sally came together in 2016 and married in 2017. They were then aged in their late forties or early fifties. Each had adult children by previous relationships. One of Sally's daughters, to whom we shall refer as Ronnie, lived nearby. Ronnie was herself the mother of two young children, who were aged about four and a half and nearly three at the time of Sally's death. We shall refer to them collectively as "the children".
5.
The elder child unfortunately suffers from serious medical problems, as a result of which she requires a high level of constant care. Concerns arose about Ronnie's ability to care for the children. In about 2019 the Social Services Department of the local authority made a Special Guardianship Order ("SGO"), which entrusted the care of both children to the appellant and Sally as a couple, though Ronnie continued to have contact with the children.
6.
As part of the care arrangements for the children, two taxi drivers regularly attended at the matrimonial home and drove the older child to and from her school. We shall refer to them simply as "Phil" and "Malcolm".
7.
It appears that strains developed in the marriage. The appellant's case was that the causes of these strains included his concerns about the care of the children, his concerns about Sally's use of some of the funding provided by the local authority under the SGO, and his belief that Sally was having an affair with one of the taxi drivers.
8.
The prosecution evidence included many text messages, including in particular messages passing between the appellant and Sally, and between Sally and Phil. The prosecution case was that the text messages showed that the appellant had an obsession with Sally and her sex life. Sally's text messages provided evidence, and the respondent accepted, that she was in a sexual relationship with Phil. The content of some of the messages passing between them was highly sexualised.
9.
Around Easter 2022 the relationship between the appellant and Sally was at a very low ebb. On Good Friday Sally returned her wedding rings to the appellant and told him that their marriage was over. The appellant subsequently told a friend that he and Sally were splitting up as she was having an affair with one of the taxi drivers. The appellant said that he was devastated by this development and was having suicidal thoughts. At around this time the appellant also sent messages to other friends in which he spoke of beginning to hate his wife, though his evidence at trial was that he did not mean it and had always loved her. He also asked friends to assist him in his attempts to note Sally and Phil's movements and to record what was happening in the house when he was not there.
10.
The appellant nonetheless continued to live in the matrimonial home, albeit that he slept in a different room, and he and Sally continued to have a sexual relationship.
11.
In early June 2022 the appellant went to the offices of the local authority to report his concerns about Sally. He left the younger child alone in the house whilst he did so. As a result of that neglect, the local authority required the appellant's contact with the children to be supervised. For a time he moved out of the matrimonial home, and Ronnie moved in to help with the children.
12.
Later in June, however, the relationship between the appellant and Sally improved, and in the days preceding the murder Sally's text messages showed that she was committed to the appellant as his wife and was looking towards their future together. Unbeknown to the appellant, the evidence showed that she was during the same period exchanging sexualised messages with Phil.
13.
On the morning of 22
nd
June 2022 the appellant and Sally went together to a café. CCTV captured them holding hands as they went. At exactly the same time, Phil was sending a sexual message to Sally.
14.
From the café, the appellant and Sally went to the matrimonial home. All appears to have been well between them. Sally trimmed the appellant's beard for him. A witness who spoke to Sally on the telephone around 10 am described her as sounding normal and not distressed.
15.
Just before 11 am, the next door neighbour heard a woman's voice screaming very loudly for several seconds. The neighbour then heard footsteps within the house, followed about a minute later by another scream. The house then went quiet. It was the prosecution case that the screaming marked the time of the appellant's fatal attack on Sally. The appellant's evidence was that the killing occurred about an hour later.
16.
The appellant's case was that at the house he and Sally had sat together in the sitting room and had kissed. Sally then prepared to leave to meet the older child, but she then whispered in the appellant's ear that he would never see the children again. The appellant said that this took him by surprise and that he did not know why she said it: it came out of nowhere. He said that he could not remember what happened then. He said the next thing he remembered was that he was standing over Sally's body, not knowing whether she was dead or alive. He did not remember anything about a knife, although he accepted from the evidence that he must have stabbed Sally repeatedly. Nor did he remember ever taking off his wedding ring. He changed his clothes, washed his hands and left the house to meet Ronnie nearby. He rang the police.
17.
Police officers quickly attended the scene. Shortly afterwards Sally was declared dead.
18.
Post-mortem examination of Sally's body showed that her death was caused by stab wounds to the face and neck and to the front and back of her torso. There were also wounds to her upper limbs, including defensive wounds. The pathologist identified a total of 78 incised wounds caused by at least 68 separate uses of a knife or knives. On the pathological evidence, all the wounds could have been caused by the same knife. Some of the wounds had broken or damaged bones, and must therefore have been inflicted with severe force. The jugular vein and trachea had been damaged, as had the lungs, the spleen and a kidney, resulting in fatal blood loss. The evidence indicted that there had been a slash wound across the throat which must have occurred at or near the end of the attack.
19.
Examination of the scene showed that Sally had first been attacked in two different areas of the living room, and then further attacked as she moved into the hallway and towards the front door. A bloodstained knife, the blade of which was bent by impact on a hard object, was found in the kitchen. A second knife, which had also been used to injure Sally, was found underneath her body. The appellant's wedding ring was found on the floor beside the body.
20.
The appellant was arrested and interviewed under caution. On the advice of his solicitor, he made no comment throughout.
21.
As the trial date approached, the appellant served a defence statement in which he admitted inflicting the fatal injuries, but raised the partial defence of loss of control. He asserted that Sally had told him that he would never see the children again.
22.
At the start of the trial, the indictment was amended by adding a count of manslaughter. The appellant pleaded guilty to that count. The plea was not accepted, and the trial proceeded on the charge of murder. The fact that the appellant had admitted manslaughter was before the jury.
23.
The appellant had been seen by psychiatrists instructed by both prosecution and defence. No medical issues were raised at trial, but there were agreed facts before the jury which included the fact that the appellant had said to both psychiatrists, when each had asked why he might have stabbed his wife, that "maybe she said something". The appellant accepted in cross-examination that he had not told either psychiatrist that Sally had told him he would never see the children again.
24.
Further agreed facts stated that the appellant had described to both psychiatrists the importance to him of caring for the children. It was also an agreed fact that the appellant had no previous convictions or formal cautions.
25.
At the conclusion of all the evidence, including the evidence given by the appellant, the judge gave a detailed ruling in which he held that insufficient evidence had been adduced to make out the partial defence of loss of control, because in his opinion the jury, properly directed, could not reasonably conclude that the defence might apply. The judge considered in turn each of the three elements of the partial defence, taking account of submissions made to him by both counsel. Having concluded in relation to the first element that there was insufficient evidence of a loss of control, the judge acknowledged that he was not required to say more. Nonetheless, he went on to indicate his conclusions on the second and third elements. In relation to each, he similarly concluded that there was insufficient evidence to go to the jury.
26.
Thus the only issue which the jury had to decide was whether, at the time of the repeated stabbing, the appellant intended to kill or at least to cause grievous bodily harm to Sally.
27.
The judge declined to give any direction to the jury about the fact that the appellant had no previous convictions.
28.
As we have said, the jury convicted the appellant of murder.
29.
We have had the considerable assistance of written and oral submissions from both leading counsel who appeared at the trial. On behalf of the appellant, Mr Ford KC argues two grounds of appeal: first, that the judge was wrong to withdrew from the jury the partial defence of loss of control; and secondly, that the judge was wrong not to give any form of good character direction.
30.
As to the first of those grounds, Mr Ford submits respectfully that the judge fell into error at each stage of his ruling. Mr Ford emphasises very properly that he seeks only to argue that there was sufficient evidence for the partial defence to be left to the jury for their consideration, not to argue that it would be bound to succeed. He points out that there was no evidence of any history of violence between the couple, save for one row between them. The appellant was a quiet man, described by witnesses who knew him as "unflappable" and a "gentle giant". Given those facts, and the evidence that the appellant and Sally had been on good terms only a short time earlier that morning, Mr Ford submits that the circumstances pointed to a loss of control as the explanation for the fatal attack. He further submits that, in giving his ruling, the judge made findings and drew inferences in relation to matters which should have been decided by the jury. Moreover, he submits that the judge's ruling was an inappropriate dismantling of the appellant's case of loss of control, rather than a rigorous evaluation of what findings a jury might properly make on the evidence.
31.
Mr Ford goes on to argue that the result of the judge's ruling was that the appellant was deprived of the only defence which he had put forward. Given the nature of the attack upon Sally, he suggests that it was highly likely, if not inevitable, that the jury would find the necessary intent proved.
32.
As to ground 2, Mr Ford submits that the judge was further in error in refusing, in relation to that remaining issue for the jury, to give any direction about the approach the jury should take to the appellant's previous good character, even in relation to its relevance to his credibility as a witness. Given that the appellant had been of positive good character up to the moment when he began the fatal attack, and that he had given evidence and been cross-examined at considerable length, it is submitted that there should at the very least have been a direction that good character was relevant to the credibility of his account of the relevant events.
33.
On behalf of the respondent, Mr McKone KC opposes both grounds of appeal. As to ground 1, he submits that the judge was plainly correct to rule as he did, and that this was an obvious case for withdrawing the partial defence of loss of control from the jury. He submits that all the evidence pointed to the true trigger for the appellant's acts being his wife's sexual infidelity, which cannot be a qualifying trigger. Moreover, Mr McKone submits that the statutory provisions, using terminology such as "extremely grave" and "seriously wronged", set a very high bar which the appellant could not surmount. He further submits that the appellant's reaction to anything Sally may have said plainly went far beyond the way in which a person with a normal degree of tolerance and self-restraint, and in the circumstances of the appellant, might have reacted.
34.
As to ground 2, McKone submits that it would have been artificial to give any good character direction in relation to a man who had admittedly killed his wife by stabbing her so many times. The admission of unlawful killing, he submits, impacted both credibility and propensity. He acknowledges, however, that it would have been open to the judge to give at least a direction regarding the relevance of good character to credibility.
35.
We are grateful to counsel for their assistance. We have summarised their submissions extremely briefly, but we have in mind all of the points which each has made.
36.
The relevant statutory provisions are contained in
sections 54
and 55 of the
Coroners and Justice Act 2009
:
"54.
Partial defence to murder: loss of control
(1)
Where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if—
(a)
D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b)
the loss of self-control had a qualifying trigger, and
(c)
a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
(2)
For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3)
In subsection (1)(c) the reference to 'the circumstances of D' is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.
(4)
Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
(5)
On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6)
For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
(7)
A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
…
55.
Meaning of 'qualifying trigger'
(1)
This section applies for the purposes of
section 54
.
(2)
A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3)
This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.
(4)
This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which —
(a)
constituted circumstances of an extremely grave character, and
(b)
caused D to have a justifiable sense of being seriously wronged.
(5)
This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6)
In determining whether a loss of self-control had a qualifying trigger —
(a)
D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b)
a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c)
the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(7)
In this section references to 'D' and 'V' are to be construed in accordance with
section 54
."
37.
There are thus three stages to be considered. Although sexual infidelity cannot itself provide a qualifying trigger for a loss of control, it may, and in an appropriate case should, be taken into account as part of the context when considering the second and third elements of the partial defence: see
R v Clinton
[2012] EWCA Crim 2
, at [31] and [39].
38.
The overall effect of the statutory provisions was explained as follows by the Lord Chief Justice, giving the judgment of the court in
R v Dawes
[2013] EWCA Crim 322
at [49]:
"When a person kills or is party to the killing of another person, unless he has acted in a considered desire for revenge, he is not to be convicted of murder, but of manslaughter, if each of three distinct ingredients which comprise the defence may be present. If evidence sufficient to raise an issue in relation to all three ingredients is adduced, the prosecution must disprove the defence. But the evidence is not sufficient for this purpose unless, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. If so, the defence must be left to the jury and the prosecution must disprove it. …"
39.
It is therefore clear that there must be sufficient evidence (not merely some evidence) to raise an issue in respect of each of the three elements of the partial defence. Under these provisions the court must take a stricter approach than was the case under the former partial defence of provocation under the
Homicide Act 1957
. A trial judge must perform a gatekeeping role involving what Lord Thomas CJ described in
R v Gurpinar
[2015] EWCA Crim 178
as "a much more rigorous evaluation of the evidence" to determine whether or not there is an issue which can properly be left to the jury, and must set out his conclusion in a reasoned judgment. Provided that is done, this court will not readily interfere with the judgment of the trial judge who had the advantage of seeing and hearing the witnesses: see
Gurpinar
at [16].
40.
The role which the statute requires a judge to perform can be a difficult one. The nature of the judge's duty was explained by Davis LJ giving the judgment of the court in
R v Goodwin
[2018] EWCA Crim 2287
at [33]:
"(1)
The required opinion is to be formed as a common sense judgment based on an analysis of all the evidence.
(2)
If there is sufficient evidence to raise an issue with respect to the defence of loss of control, then it is to be left the jury whether or not the issue had been expressly advanced as part of the defence case at trial.
(3)
The appellate court will give due weight to the evaluation ('the opinion') of the trial judge, who will have had the considerable advantage of conducting the trial and hearing all the evidence and having the feel of the case. As has been said, the appellate court 'will not readily interfere with that judgment'.
(4)
However, that evaluation is not to be equated with an exercise of discretion such that the appellate court is only concerned with whether the decision was within a reasonable range of responses on the part of the trial judge. Rather, the judge's evaluation has to be appraised as either being right or wrong: it is a 'yes' or 'no' matter.
(5)
The 2009 Act
is specific by
section 54(5)
and (6) that the evidence must be 'sufficient' to raise an issue. It is not enough if there is simply some evidence falling short of sufficient evidence.
(6)
The existence of a qualifying trigger does not necessarily connote that there will have been a loss of control.
(7)
For the purpose of forming his or her opinion, the trial judge, whilst of course entitled to assess the quality and weight of the evidence, ordinarily should not reject evidence which the jury could reasonably accept. It must be recognised that a jury may accept the evidence which is most favourable to a defendant.
(8)
The statutory defence of loss of control is significantly different from and more restrictive than the previous defence of provocation which it has entirely superseded.
(9)
Perhaps in consequence of all the foregoing, 'a much more rigorous evaluation' on the part of the trial judge is called for than might have been the case under the previous law of provocation.
(10)
The statutory components of the defence are to be appraised sequentially and separately; and
(11)
And not least, each case is to be assessed by reference to its own particular facts and circumstances."
41.
To that, if we may respectfully say so, masterful analysis of the earlier case law, we would add only one point. In a circumstantial case, the second sentence of Davis LJ's seventh point should be understood as recognising also that a jury may draw or decline to draw inferences in the way which is most favourable to a defendant.
42.
Further useful guidance as to the nature of the judge's task is to be found in the judgment of the court very recently given by McGowan J in
R v Drake
[2023] EWCA Crim 1454
.
43.
In the present case, the judge, having briefly stated the law, summarised the evidence as to the relationship between the appellant and Sally, the build up of events leading to 22
nd
June 2022 and the evidence – including the appellant’s evidence – relating to that day. In doing so, he stated at [21] that two knives were used in the attack and continued :
"A reasonable inference is that he selected a second knife from the block that was used to continue the attack on [Sally]. [The appellant's] account that he took the second knife back into the kitchen and put it on the work surface does not explain how or why a second knife had been selected. The second knife was selected because the first knife broke."
44.
The judge's analysis of the first element of the partial defence can be summarised as follows:
(1)
The appellant's case depended on an inference being drawn that he had lost his self control. The appellant himself said that he had no memory of what happened during the attack and there was therefore no evidence from him of a loss of control. That was a powerful point against the partial defence arising: see
Goodwin
at [40].
(2)
The fact that the attack was "frenzied" did not necessarily prove a loss of control. The number of blows here suggested that there was, in truth, no loss of control, because, said the judge:
"… the ready inference is that [the appellant] was in control enough to leave the lounge with the coffee cups, arm himself with a large knife, pause the attack when that knife stopped working, go back to the kitchen, select a second weapon from the knife block and then recommence stabbing her as [Sally] tried to escape."
(3)
Although the defence relied on the contrast between the events of 22
nd
June 2022 and the evidence of workmates that the appellant was "a gentle giant", there were limitations to that evidence and some of the text messages "could suggest that [the appellant] planned to harm" Sally. Text messages also showed him to have "an obsession bordering on paranoia" with Sally.
(4)
The judge also found it
"… reasonable to infer that [the appellant] targeted [Sally's] throat towards the end of the attack with a slashing injury which cut her windpipe. Individuals who have lost control are unlikely to be able to target vulnerable parts of the body."
(5)
The appellant could not explain why his wedding ring had been placed beside Sally's body and, the judge said:
"The inference is that [the appellant] was making it clear that the marriage was over, he had finished it by killing her, and he wanted to make that known to whoever would discover the body. Careful thinking about what he had done and about leaving a sign to others is not consistent with loss of control".
(6)
After the killing the appellant left the house calmly, without checking whether Sally was alive and without calling an ambulance.
45.
With all respect to the judge, we see force in the criticisms made of some of his reasons. Later in his ruling, the judge acknowledged that the jury might properly find that Sally had said words to the effect that the appellant would never see the children again. We have no doubt that he was correct so to acknowledge. In the reasoning which we have just summarised, however, the judge may have lost sight of that point when considering what inferences the jury might properly draw: for example, as to the frenzied nature of the attack. Further, it seems to us that in a number of his findings, the judge, in seeking to make the necessary rigorous evaluation of the evidence, fell into the error of focusing on his own assessment of the evidence rather than on the findings which it would properly be open to the jury to make. It seems to us that the jury could quite properly have differed from the judge's views in their conclusions as to whether the appellant had paused in his attack to collect a second knife after the first had been damaged, rather than having had both knives in his hands from the outset; or as to whether the cutting of Sally's throat had been a targeted blow rather than one of the many wounds inflicted to various parts of Sally's body during the attack; or as to whether the appellant's wedding ring had been symbolically positioned rather than simply discarded; or as to whether the appellant’s demeanour after the attack may have been explained by the fact that he had suffered a loss of control and did not fully appreciate what he had done. Those were all matters which in our view the jury should have been able to consider, whatever their ultimate decisions may have been.
46.
Turning to the second element, the judge understandably placed emphasis on the fact that the appellant had not mentioned Sally's alleged remark about the children to either of the two psychiatrists. That is true; but it is of limited relevance for present purposes, because the judge went on to accept that the jury might properly find that the words may have been spoken. The basis of his ruling that there was no qualifying trigger was that, although there was no doubt that the appellant had great affection for the children, Sally's words were not of an extremely grave character and could not produce a justifiable sense of being seriously wronged. The judge's reasons for reaching that conclusion were, in summary, as follows:
(1)
The appellant knew that Sally could not prohibit him from seeing the children because that was up to the local authority; it was therefore a hollow threat.
(2)
The appellant's evidence was that Sally had made a similar threat on Good Friday, but that had had little impact. It was therefore difficult to see how a similar remark on 22
nd
June 2022 could be of an extremely grave character.
(3)
The appellant's own act of reporting Sally to the local authority could have had the result of his not seeing the children again;
(4)
The appellant had accepted in cross-examination that he would have applied to the local authority to care for the children, which was inconsistent with any thought that he would not see them again; and
(5)
The evidence strongly pointed to the trigger being anger about infidelity – a non-qualifying trigger under
the Act
– particularly bearing in mind what the appellant had said to Dr Barlow and the position of the wedding ring at the scene.
47.
Again, with respect to the judge, we see force in the criticisms which Mr Ford makes of this part of the ruling. The jury were entitled to accept that the threat was uttered by Sally to a man who was very fond of the children, who felt it very important to be able to care for them, and who understood that if he and Sally were to separate the SGO would come to an end and different arrangements would be made for the care of the children. The jury were entitled to take the view that such a man, in the heat of the moment, might not be able to engage in the cool rationalisation of the judge's reasoning. In all the circumstances of this case, and having regard to the older child's needs and the appellant's previously expressed concerns as to Sally's priorities, the jury were also entitled to view the threat that he would not see the children again as constituting circumstances of an extremely grave character and causing the appellant to have a justifiable sense of being seriously wronged.
48.
As to the judge's emphasis on what the appellant had said to Dr Barlow, it seems to us that the relevant agreed fact on that point was equivocal in its terms, and the judge's ruling did not take into account that in cross-examination the appellant had specifically denied that the agreed fact should be interpreted in the way the prosecution, and here the judge, interpreted it. Again, those are matters which should in our view have been considered by the jury, whatever findings they might have made.
49.
As to the third element of the partial defence, the judge said that if a man of the appellant's age, with a normal degree of tolerance and self-restraint, and in the circumstances of the appellant, had heard the words which the appellant attributed to Sally: "… he might respond by a short-lived loss of temper or by saying 'See you in court'. They would not stab their partner 68 times".
50.
We recognise that at this stage of his ruling, the judge was deliberately dealing only briefly with a matter which he felt it was unnecessary to mention at all because of his earlier conclusions. We make every allowance for that when considering the judge's economy of expression. We do, though, think it important to note the specific words of
section 54(1)
(c) of
the 2009 Act
, which in the context of this case required consideration of whether a jury could properly find that a man in his early 50s, with a normal degree of tolerance and self-restraint and in the circumstances of the appellant,
might
have reacted in the same or
in a similar
way to the appellant by stabbing his wife. We also think it important to note that, in addressing this third element, the judge appears not to have taken into account, as part of the appellant's circumstances, Sally's infidelity, the older child's needs, and the importance of the SGO. With all respect to the judge, who understandably felt that this third element needed only brief mention in view of his conclusion as to the first element, the statute required a careful consideration of all the circumstances and of the findings which were properly open to a jury in the light of all those circumstances.
51.
After careful reflection, we have concluded that the judge fell into error in his ruling on this third element, and ruled against the appellant on matters which ought properly to have been considered by the jury, again whatever findings they might have made.
52.
It follows that we accept the submission that the judge reached a wrong decision in ruling that sufficient evidence had not been adduced to raise an issue with respect to the partial defence of loss of control. The conviction is, accordingly, unsafe.
53.
We can address ground 2 briefly. In our judgment, the judge should have given a good character direction, albeit one limited to the relevance of good character to the appellant's credibility, and suitably tailored to the circumstances of this case. We think it unsatisfactory that there was an agreed fact before the jury to the effect that the appellant had no previous convictions, and that Mr Ford properly addressed the jury about that fact and about evidence of the appellant's good character, but the jury were not assisted by any judicial direction as to how they should approach that evidence. Given our decision on the first ground of appeal, we need not say more, and in particular need not consider whether ground 2 alone would have been sufficient to cause us to allow the appeal.
54.
For those reasons, this appeal succeeds and the conviction must be quashed.
(
The Crown applied for a retrial on the charge of murder
)
(
The court retired to confer
)
LORD JUSTICE HOLROYDE:
55.
We thank counsel for their assistance. We are not persuaded that there is such a substantial risk to the administration of justice in a retrial as would justify our making any order under section 4(2) of the Contempt of Court Act. Accordingly, this appeal may be reported. We think that, in truth, it is highly unlikely that any juror would be perusing it between now and the date of any retrial.
56.
We make the following orders:
1.
We allow the appeal.
2.
We quash the conviction of murder.
3.
We order a retrial on the charge of murder.
4.
We direct that a fresh indictment be served in accordance with rule 10.8(2) of the Criminal Procedure Rules, which requires the prosecutor to serve a draft indictment on the Crown Court officer not more than 28 days after this order.
5.
We direct that the appellant be rearraigned on that fresh indictment within two months after this order.
6.
We direct that the venue for retrial and the judge to whom it is allocated should be determined by the Presiding Judges for the North Eastern Circuit.
7.
We direct that the appellant be held in custody; any bail application to be made on notice in the usual way to the Crown Court.
8.
We direct that a transcript of the sentencing remarks must be provided by the prosecution to the judge conducting any sentencing hearing after the retrial.
57.
That, we think, covers everything, gentlemen, unless either of you has spotted anything we have omitted?
58.
MR McKONE:
No, thank you, my Lord.
59.
MR FORD:
No, my Lord, thank you.
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______________________________ | [
"MR JUSTICE TURNER",
"SIR ROBIN SPENCER"
] | 2023_12_13-5956.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1626/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1626 | 792 |
c1ea2848f827b47ca3b0cd6e140224cd9e15f89ce5dd8be00a31dca012b5c351 | [2011] EWCA Crim 1777 | EWCA_Crim_1777 | 2011-07-21 | crown_court | Neutral Citation Number: [2011] EWCA Crim 1777 Case No: 201003353 B4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HHJ BATES CAMBRIDGE CROWN COURT – T20087048 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2011 Before: THE RT. HONOURABLE LADY JUSTICE HALLETT DBE THE HONOURABLE MR JUSTICE MACKAY and THE RECORDER OF CHESTER HHJ ELGAN EDWARDS DL (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Bet | Neutral Citation Number:
[2011] EWCA Crim 1777
Case No:
201003353 B4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ BATES
CAMBRIDGE CROWN COURT – T20087048
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/07/2011
Before:
THE RT. HONOURABLE LADY JUSTICE HALLETT DBE
THE HONOURABLE MR JUSTICE MACKAY
and
THE RECORDER OF CHESTER HHJ ELGAN EDWARDS DL
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between:
R
- and -
Addison Michelin George
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M Ganesan
for the Appellant
Mr S Wilshire
for the Respondent
Hearing date: 15 June 2011
- - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Mackay:
1.
After a 19 day trial in the Crown Court at Cambridge before HHJ Bate this appellant was convicted by the jury of conspiring between 1 August and 10 September 2007 to supply a class A drug (cocaine) and on 15 August he was sentenced to 12 years imprisonment by the judge.
2.
He attempted to appeal his conviction but his renewed application for leave was dismissed by the full court (Hallett LJ, Ouseley J and Sharp J) on 26 February 2010, the court directing that six weeks of the time spent in custody would not count towards the sentence.
3.
On 7 May 2010 at the same court and before the same judge he was ordered to pay a confiscation order under the
Proceeds of Crime Act 2002
in the amount of £70,800 within six months or serve 18 months imprisonment in default. This appeal lies against that order.
4.
Indicted with him were Matthew Coles, who pleaded guilty and was sentenced to eight years imprisonment, and Robert Lee, who was acquitted by the jury.
5.
On 6 September 2007 police followed the co-accused Cole who was carrying a black pilot case and approached a taxi driven by the acquitted co-defendant Lee. The taxi was stopped and searched in due course and in the case were parcels of uncut cocaine of an aggregate weight of 8kg and purity ranging between 69% and 85%. Also in the bag was documentation relating to a light aircraft part-owned by the appellant, which he kept at North Weald airfield in Kent, a passport belonging to the appellant and a sales receipt dated 25 August relating to the purchase of the pilot case by him.
6.
Enquiries made at the airfield indicated that the appellant had made three trips in this aeroplane to Le Touquet and back on 26 August, 1 September and 6 September. The prosecution said that these were trips to further the conspiracy to supply cocaine.
7.
The prosecution also relied on observations carried out on the co-defendant Cole and an analysis of mobile telephone calls passing between the appellant Cole and another male known as “Peter”, the pattern of which in relation to the known flights to Le Touquet were, said the prosecution, evidence of the conspiracy in action.
8.
The customary confiscation statements had been exchanged in accordance with the provisions of the
Proceeds of Crime Act 2002
. There then followed a hearing on 7 May 2010 before the trial judge at which there was considerable discussion about the entitlement to confiscation and the amount in which any such order if made should be made.
9.
The stance of the appellant at that time, not then represented by his trial counsel or by counsel who has appeared for him in this appeal, was simply to maintain that he had no involvement whatever with the purchase of the drugs that had been found and had never benefited at all from any of the alleged criminal activity. Counsel appearing for him at the confiscation hearing explained this to the judge and said that in the light of that position taken by the appellant he was not sure that he could put forward any submissions in relation to the question of benefit. He said he had explained to his client how benefit was assessed but the appellant remained in the position that he was not guilty of the charge.
10.
The issue in this appeal is whether the prosecution had proved in the confiscation proceedings on a balance of probabilities that the appellant had obtained benefit in connection with this criminal conduct in the sense that he had obtained property. The property obtained was alleged by the prosecution to be the drugs themselves which on the most conservative wholesale valuation were valued at £222,000, a figure which is not challenged as a figure in this appeal, nor is the amount of the available assets which was agreed at £70,800. The judge, as will be seen, clearly made a finding that the appellant’s role was at the heart of this conspiracy; the real issue in the appeal is whether he was entitled so to do, whether there was evidence to support that finding, and if so whether he gave adequate reasons explaining how he had reached that finding
11.
Prosecuting counsel, then as now Mr Wilshire, offered to take the judge to the well known leading case of
May
[2008] UKHL 28
;
[2008] 1 AC 1028
which dealt, as he put it, with “what is the appropriate approach in relation to those who have a part in the chain…in a case such as this it is still in the crown’s submission good law that each person is responsible for the total benefit”. To this the judge replied “Yes. A joint and several liability”. The discussion then contrasted the position of somebody who played a more subsidiary role where it might be “unjust to fix them with liability for the whole”. The judge pointed out that the appellant’s difficulty in that regard was that due to his stance of maintaining his innocence he could not seek to mitigate his role in the conspiracy in this way.
12.
There being no further submissions or evidence from the appellant the judge moved on to make his key findings which we should set out in full.
13.
After a summary of the facts similar to that which we have set out above he continued: -
“I am sure that [the jury’s] verdict was a right one and I can draw from it the following sure conclusions as to the facts for the purpose of the benefit assessment. Firstly that the cocaine consignment in question came into Mr George’s possession in France and when it did so he knew it to be controlled drugs. Secondly he then took the drugs in the pilot case in his private plane into this country and knowingly smuggled them into the jurisdiction, and, thereafter, he drove the drugs to the Warmley area and thereon passed them either directly to Mr Cole or through an unknown intermediary down the chain in that way. I was quite satisfied when I sentenced Mr George that he had become willingly involved in this dishonest distribution chain for gain, and by its very nature he was near the top of the distribution chain, well above it reaching street level”
14.
He therefore came, as he put it, unhesitatingly to the conclusion as a matter of fact and law that the figure of £220,000 – the undisputed wholesale value of the drugs - was properly to be regarded as the benefit obtained by the defendant’s particular criminal conduct in this case.
15.
The reference to the judge’s sentencing remarks is important. As part of the sentencing process the judge had, of course, to state what he considered the appellant’s role in the conspiracy was, in order to assess his culpability. On that occasion the judge had summarised the facts in relation to the discovery of the drugs in the bag and the enquiries that followed and gave his conclusions in these terms:-
“ … on the basis of the jury’s verdict I am satisfied you collected the cocaine in France having returned to this country that afternoon, drove it in a hired car from North Weald airfield to Warmley where you passed it on either to Mr Cole or an unknown intermediary on that estate just off the old A10. You were a frequent cross channel flyer and your comings and goings aroused no suspicion either at the small North Weald or the larger Le Touquet airport”
16.
At the outset of the hearing before us Mr Ganeson conceded that three courses were open to us on the hearing of this appeal, in which the real thrust of his argument was that the judge had failed to identify the appellant’s role in the conspiracy or his place in the hierarchy of conspirators.
i)
If we considered the reasons for the judge’s finding inadequate we could allow the appeal and refer the matter back to the same judge for him to give full reasons for his decision.
ii)
In the alternative to i) we could uphold the judges finding and ourselves state what we consider to be the available reasons for it and if so whether they supported the finding.
iii)
Alternatively we could quash the order made and apportion the benefit figure between the appellant and other apparent members of the conspiracy.
17.
Mr Ganeson accepted that a trial judge in such a case is entitled to make inferences from the evidence he has heard which he considers found proved, consistent with the verdict of the jury. These can be and often are robust inferences in cases of this class.
18.
But his central argument is that the findings of the judge in this case are not justified or explained in any way and betray an absence of any consideration having been given to the appellant’s place in the hierarchy of this conspiracy, the capacity in which he handled the drugs and his ability to control the direction of them. Though his written grounds state that the appellant was no more than a “mere courier”, to use the language of
May
, he did not develop that in oral submissions, and it is an argument which, in the absence of evidence from the appellant himself, is impossible to sustain, even though the burden lies on the respondent to prove benefit to the civil standard.
19.
The law in this area is now well known. It was summarised by Lord Bingham in the Endnote to the case of
May
, so far as relevant to this case, in this way:-
1) “The legislation is intended to deprive the defendants of the benefit they
have gained from relevant criminal conduct, whether or not they have
retained such benefit… the benefit gained is the total value of the property or advantage obtained, not the defendant’s net profit after deduction of expenses or any amounts payable to co-conspirators.
2)
The court should proceed by asking the … questions posed above:
i)
Has the defendant…benefited from a relevant criminal
conduct…?
3) In addressing these questions the court must first establish the facts as best it can on the material available…in very many cases the factual findings made will be decisive…
6) D ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily connote a power of disposition or control, as where a person directs a payment…to someone else. …mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property”
The judge was plainly aware of this case and said so (see para 11 above). The case of
Sivaraman [2008]
EWCA Crim 1736;
[2009] 1 Cr App R (S) 80
referred to by the single judge when granting permission was an example, on different facts, of applying to its own particular circumstances the principles outlined in
May
and the other leading cases of
Jennings v CPS
[2008] UKHL 29
;
[2008] 1 AC 1046
and
Green [2008]
UKHL 30;
[2008] 1 AC 1053
. The particular fraud in operation in
Sivaraman
had run its course and yielded its proceeds, as a result of which its consequences were more transparent than the conspiracy which we are considering. The role of the appellant as a recipient of a stated number of deliveries of fuel on which the full duty had not been paid was established by direct evidence. With respect to the single judge we do not regard it as a casting any particularly helpful light on the task faced by the judge in this case.
20.
Absent a plea of guilty on a specified and agreed basis, or compelling evidence given by the defendant (neither of which applied here) there will seldom be direct evidence of the precise terms of a drugs conspiracy such as this and in particular whether the conspirators agreed a particular division of the spoils. As Mr Ganesan accepted the court’s frequent response to such conspiracies is to find by inference that all the main conspirators are jointly in possession of the fruits of their agreement in the sense defined in the case of
May.
21.
It is perfectly possible to see from the way the case was opened, the summing up and most particularly the judge’s remarks on sentencing the factors that he had in mind when making the finding that he did make, namely that this appellant was involved near the top of this particular conspiracy. We therefore consider that his decision should properly be upheld on the basis that it was a finding open to him to make, based on the following facts which were either proved or found by him:-
i)
The appellant flew his aeroplane to and from France on 6 September, returning with the drugs in question, and then drove them to Wormley where they were transferred to his co-conspirator Cole.
ii)
He used a hired car for this journey, despite the fact that he had available for use the family car, no doubt to cover his tracks.
iii)
The case in which the drugs were found was his and contained his passport, his flight documents and a receipt showing that the case had been purchased on 25 August.
iv)
This was his third such flight in just over two weeks.
v)
The drugs were of high purity, suggesting they were freshly imported and at an early stage of their introduction into this country before the customary cutting and adulteration had been carried out.
vi)
The pattern of telephone contact between the appellant, the admitted conspirator Cole and the man known as “Peter” in relation to the three flights from Kent to France was consistent with the operation of this conspiracy.
22.
All this in our view fully justifies the rejection of any suggestion that the appellant was someone who merited categorisation as a “mere courier” or a “very minor contributor” being paid a fee for his services, to use Lord Bingham’s words. There being in our judgment no doubt as to what it was that moved the judge to make the finding that he did make, namely that the whole of the drugs consignment was properly to be regarded as a benefit to the defendant from his particular criminal conduct, there seems to us to be no warrant for quashing this decision and referring the matter back to the judge, as might have been necessary if we were in any real doubt as to how or why he had reached the conclusion that he did reach.
23.
For these reasons we dismiss this appeal. | [
"IN THE HIGH COURT OF JUSTICE",
"HHJ BATES",
"THE RT. HONOURABLE LADY JUSTICE HALLETT DBE",
"THE HONOURABLE MR JUSTICE MACKAYand",
"THE RECORDER OF CHESTER HHJ ELGAN EDWARDS DL"
] | 2011_07_21-2796.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1777/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1777 | 793 |
9b53fd61035b9fe1d0c48f82ee4212d710e8cf6feb40c577bc952f5582b80b6f | [2005] EWCA Crim 2717 | EWCA_Crim_2717 | 2005-11-01 | supreme_court | Neutral Citation Number: [2005] EWCA Crim 2717 Case No: 2003/06402/C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE FINGRET Royal Courts of Justice Strand, London, WC2A 2LL Date: 1 November 2005 Before : LORD JUSTICE PILL MR JUSTICE DAVID STEEL and MR JUSTICE PITCHFORD - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - MICHAEL RICHARD STANNARD Appellant - - - - - - - - - - - - - - | Neutral Citation Number:
[2005] EWCA Crim 2717
Case No:
2003/06402/C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HIS HONOUR JUDGE FINGRET
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
1 November 2005
Before :
LORD JUSTICE PILL
MR JUSTICE DAVID STEEL
and
MR JUSTICE PITCHFORD
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
MICHAEL RICHARD STANNARD
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR D PERRY & MR M LUCRAFT
for the Respondent
MR J FISHER QC
for the Appellant
Hearing date: 26 September 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill:
1.
On the 25 January 2001 at the Crown Court at Southwark before His Honour Judge Fingret and a jury Michael Richard Stannard was convicted, and on 9 February 2001 was sentenced, to two offences of cheating the public revenue (Counts 3 and 4). He was sentenced to four and a half years imprisonment concurrent on each count and was disqualified under
Section 2 of the Company Directors Disqualification Act 1986
for nine years. On 17 October 2003, before the same judge, a confiscation order was made under
Section 71 of the Criminal Justice Act 1988
(“
the 1988 Act
”) in the sum of £1,678,954. A sentence of four years imprisonment consecutive was imposed in default of payment.
2.
An appeal against conviction was dismissed and an application for leave to appeal against the sentences of imprisonment and disqualification was refused. A co-defendant Robert Charles Nelson was acquitted on Counts 3 and 4 and on other counts in the original indictment. Stannard was also found not guilty of other counts and still other counts were left on the file. Stannard appeals against the confiscation order by leave of the single judge.
3.
The fraud operated by way of a ‘company purchase scheme’. A company would be targeted for acquisition when it had an unpaid corporation tax liability and funds available to meet that liability. Steps would then be taken to reduce the corporation tax liability by false debenture documents which purported to show that debentures in substantial sums had been subscribed for and interest paid in advance. By extinguishing or reducing the corporation tax liability, the purchaser of the company would obtain a financial advantage. A company controlled by the appellant acquired the target company for its balance sheet value plus a proportion of the corporation tax liability.
4.
The offence was charged as “Cheating the Public Revenue” and the particulars of offence in Counts 3 and 4 were as follows:
“Count 3.
MICHAEL RICHARD STANNARD
between the 1
st
January 1993 and the 31
st
October 1997 with intent to defraud cheated Her Majesty the Queen and the Commissioners of Inland Revenue of public revenue, namely corporation tax, by claiming or causing to be claimed a deduction against profits for interest paid including debenture interest paid in advance by Bonnington Shipping Limited to Anglo Austrian Finance Limited when in truth and in fact no such transaction had taken place.
Count 4.
MICHAEL RICHARD STANNARD
between the 1
st
October 1992 and the 31
st
October 1997 with intent to defraud cheated Her Majesty the Queen and the Commissioners of Inland Revenue of public revenue, namely corporation tax, by claiming or causing to be claimed a deduction against profits for interest paid including debenture interest paid in advance by Fairflight Leasing Limited to Anglo Austrian Finance Limited when in truth and in fact no such transaction had taken place.”
5.
In his judgment, Judge Fingret stated the facts succinctly:
“The offences involved the purchase of subsidiaries of UK companies which had unpaid corporation tax liabilities and the funds to meet such liabilities. The defendant’s company acquired the two target companies named in the indictment for their balance sheet value plus an amount equal to approximately half of the corporation tax liability. Having acquired these two companies the defendant arranged for the creation of false documents designed to give the impression that Anglo Austrian Finance Ltd had subscribed for bearer debenture bonds on which interest would be payable in advance.
This interest created a deduction against profits thus extinguishing any charge to Corporation Tax. Thus it was possible for the cash held in the purchased companies to be extracted. It is this cash or the tax evaded which forms the basis of this Confiscation Hearing.
The Crown say that the benefit is the cash withdrawn from the two companies namely:
Bonnington Shipping £3,516,299 to which should be added interest based on RPI to July 2001 of £805,232 totalling £4,321,521.
Fairflight Leasing Ltd £2,325,000 and interest of £518.475 totalling £2,843,475.
This figure of £7,165,006 would, say the Crown, be the total value of the benefit if CJA 1988 s.71(4) applies, ie. if the defendant obtained property as a result of or in connection with the commission of the offences.
Alternatively, if s71(5) applies, in that the defendant derived a pecuniary advantage as a result of or in connection with the commission of the offences, the total value of the benefit would be £3,099,030 being the tax evaded by the scheme made up as follows:
Bonnington Shipping Ltd £1,199,670 together with interest to 30
th
July 2001 of £542,047 which totals £1,741,717.
Fairflight Leasing £929,979 and interest of £427,334 totalling £1,357,313.”
6.
The judge went on to hold that “any benefit derived from the fraud could not relate to the acquisition of Bonnington and Fairflight as these were both arms length transactions with the vendors, although they were both purchased in connection with the commission of the offences”. The judge held that those transactions in themselves did not form part of the cheat so that there was no relevant benefit to which
Section 71(4)
of
the 1988 Act
could attach. The judge stated that the issue was whether the appellant derived a pecuniary advantage within the meaning of
Section 71(5)
as a result of or in connection with the commission of the offence.
Section 71(5)
provides:
“Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purpose of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.”
7.
It is conceded that the court had jurisdiction to make a confiscation order and that an “offence” within the meaning of
Section 71(5)
had been committed.
8.
Section 71(6)
provides:
“The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed –
(a) the benefit in respect of which it is made; or
(b) the amount appearing to the court to be the amount that might be realised at the time the order is made.”
By virtue of
Section 71(7)
the minimum amount was £10,000.
9.
Section 74
(1) provides:
“(1) In this Part of this Act, “realisable property” means, subject to subsection (2) below –
(a) any property held by the defendant; and
(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of the Act.”
Section 74(2)
has no application in this case.
10.
Section 74(10)
provides:
“A gift (including a gift made before the commencement of this Part of this Act) is caught by this Part of this Act if –
(a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and
(b) the court considers it appropriate in all the circumstances to take the gift into account.”
11.
It is common ground that it is
the 1988 Act
, as amended by the Criminal Justice Act 1993, which applies because of the dates when the offences are alleged to have been committed. The amendments provided by the
Proceeds of Crime Act 1995
do not apply in this case.
12.
The judge held that the benefit obtained by the appellant as a result of the commission of the two offences of which he was found guilty was the sum of £3,099,030 identified earlier. The judge went on to hold that the realisable property within the meaning of Section 71(6)(b) and
Section 74(1)
was the sum of £1,678,954.
13.
On behalf of the appellant, it is submitted by Mr Fisher QC, first, that the confiscation order should be quashed because the appellant has not benefited as a result of or in connection with the offences and, secondly, that in the light of the appellant’s actual realisable assets the order should be reduced substantially. Mr Fisher acknowledges that in his evidence at the confiscation hearing, the appellant substantially accepted that the scheme was designed to extinguish the tax liability in the target company and leave the cash resources of the target company for uses other than tax liability. The appellant had expressed broad agreement with the proposition that the whole structure was planned by him with a view to obtaining the cash sums held by the companies. As to realisation, Mr Fisher acknowledged that the burden was on the appellant to show that the amount to be realised was less than the benefit figure.
14.
It is submitted that no pecuniary advantage has been obtained by the appellant because he was merely the beneficiary of a discretionary trust. He was not a shareholder of any of the companies involved in the case and it was inappropriate to lift the corporate veil.
15.
The judge cited and applied the judgment of the Laws LJ in
Dimsey & Allen
[2000] 1 CAR(S) 497 at 502:
“However, it is plain from authorities cited by the Crown that the corporate veil may fall to be lifted where companies are used as a vehicle for fraud. Here the companies in question were the appellant’s alter ego”.
16.
The judge stated:
“It is equally clear in this case, from the evidence given at the trial that MS [the appellant] had a controlling interest in each of the companies involved in the acquisition of Bonnington and Fairflight, and the companies and Trusts used to ease the distribution of cash assets of those companies. More particularly he controlled the companies which enabled him to evade payment of the Corporation Tax liabilities of Bonnington and Fairflight. So, it is appropriate to lift the corporate veil.”
The judge had heard the evidence at the trial and at the confiscation hearing and was in a good position to make findings of fact. He was in our judgment entitled to make that finding on the evidence in this case.
17.
Reliance is placed by the appellant on the judge’s finding that the purchase of Bonnington and Fairflight were arms length transactions with the vendors. The judge has not found that the corporate veil should be removed with respect to those companies. In the absence of such a finding, it is submitted, the statutory requirements are not met on the facts of this case. In the absence of a finding in relation to those companies, no order should have been made.
18.
We see no merit in that submission. The entire series of transactions was under the control of the appellant and the fact that the first of them, the purchase of Bonnington and Fairflight, were genuine transactions at arms length does not preclude a finding that this was a fraudulent scheme devised by the appellant and entirely under his control. The corporate veil having been lifted, and subject to submissions about his alleged status as a beneficiary of a discretionary trust, the appellant was better off, as the judge found, in the sum of £3,099,030. The judge correctly applied to the facts the proposition stated by Laws LJ in
Dimsey
:
“Had these grave frauds succeeded then, in crude terms, Mr Allen would have been better off to the tune of £4m. That represents in our judgment the measure of his pecuniary advantage”.
19.
On the question of realisable assets (
Section 71(6)
of
the 1988 Act
), the judge correctly directed himself that it was for the appellant to show, on balance of probability, that the amount that might be realised in respect of property was less than the value of the proceeds of crime. (Dyson J in
Walbrook & Glasgow
[1994] Cr App R (S) 783 at 786). Considering an asset in the form of a debt, Dyson J added that, if a defendant is to satisfy the burden: “this he must do by producing clear and cogent evidence; vague and generalised assertion unsupported by evidence will rarely if ever be sufficient to discharge the burden on the defendant”. That statement was appropriately cited by the judge.
20.
The judge had before him carefully prepared statements of information under
Section 73
of
the 1988 Act
. They were prepared by Mr R A Neville, investigator employed by the Special Compliance Office of the Inland Revenue and were dated 20 February 2001 and 12 April 2002. Mr Neville also gave evidence. The appellant responded to the written statements and also gave evidence.
21.
In his judgment, the judge set out, item by item, the assets held to constitute the realisable property of the appellant. Detailed questions of valuation do not arise and it is acknowledged that the appellant has a right to seek a certificate of inadequacy at a later stage.
22.
Several of the alleged assets, Moulin de Beaufils (£113,000), a Cessna aircraft (£25,000), Gila Holdings (£96,620) and Aragon Finance Limited (£230,000) are claimed by the appellant to have been owned, not by him, but by the Rupert Trust, a discretionary trust under which he claimed to be only a potential beneficiary. He relies on the principle in
Gartside v
Inland Revenue Commissioners
[1968] AC 553
, and the statement of Lord Reid at page 606, that “no object of a discretionary trust has, as such, any legal right to or in the capital”. This argument also relates back to the question whether the appellant received benefit.
23.
In relation to the Trust the judge stated , at page 11:
“No Trust Deed has been produced and is clear that, although MS said that he can request money from the Trust but is not entitled to it, clearly he controls its activities. “Supposing you did want to write to the Rupert Trust, who would you write to?” asked Mr Lucraft. He replied “I would write to Anglo European Trustees. Q. “You would write to yourself in Gibraltar” A. “Yes”. These and similar replies are clear evidence that Rupert Trust is or was controlled by MS and that he was correct when he said that Moulin de Beaufils was his property.”
24.
At page 14, the judge stated:
“The role of the Rupert Trust in MS’s financial affairs became clear in his evidence on p116 of the transcript of evidence of 30
th
May when asked by Mr Lucraft “So what would happen, so I have this right, is that the property is sold and you, wearing your hat with the Rupert Trust, when it was sold, that would effectively say to the Trustee, which would again be yourself; just put the money back into the Rupert Trust for my daughter’s school fees. A. More or less yes.
He went on to say that the purpose of this and other trusts was to “put a barrier between any assets and myself”. He went on “if everything went wrong, and somebody tried to bankrupt me, I could say that these are discretionary trust assets, they are not mine for a bankruptcy
MS cannot hide behind the Rupert Trust in these proceedings and the assets of Gila will be included in the sum of £96,620.”
The judge added that he was satisfied that “this trust and its assets are under the total control of MS”.
25.
Mr Fisher submits that, by those findings, the judge accepted that there was a trust and also appeared to have accepted that the trust was created many years before the offence. If there was a trust, a detailed analysis of the legal and beneficial interests involved, including that of the appellant, was required, it is submitted. That analysis could be avoided only by a finding that the trust was a sham and the analysis required to make such a finding, in accordance with principles stated in
Snook v London and West Riding Investments Limited
[1967] 1 QB 786
at page 802 per Diplock LJ and in
Stone v Hitch & Ors
[2001] EWCA Civ 63
per Arden LJ at paragraphs 62 to 69, was not undertaken. Moreover, there was evidence that the trust had been set up for a reason other than money laundering.
26.
We do not accept that analysis. The judge did not spell out the stages of his reasoning but in substance he held, having referred to evidence, that there was no trust. He did refer to the “role of the Rupert Trust” but in substance he was holding that there was no trust. The property was controlled by, and only by, the appellant, a conclusion amply supported by the appellant’s evidence at the hearing. The concept of control, as expressed by the judge, is inconsistent with the concept of trust. Nor does the evidence that the appellant may have had another purpose in mind when first using the expression Rupert Trust affect that conclusion.
27.
In relation to Aragon Finance, the further point is made that the proceeds were used to pay school fees. On the evidence, that would require a finding that the sum of £230,000 was expended for that purpose, and the judge was entitled not to make such a finding.
28.
The judge was also justified in making the finding he did about Chalet Verseau Verbier (£270,000) on the evidence. The judge relied on the fact that, in his evidence at the trial, the appellant referred “my flat at Verbier”. In a letter to his bank on 27 July 1995, providing a “rough statement of affairs” for the bank, he stated that he owned a “flat in Switzerland worth about £300,000, with a remaining mortgage of £40,000.” The appellant claims that the letter was an informal one but that claimed informality did not prevent the judge making the finding he did.
29.
The Crown’s case on Cotswold Stone Quarries (£524,334) (“Cotswold”) was put in the supplementary statement of information and the somewhat complicated arithmetic by which the sum of £524,334 is reached is not challenged, as arithmetic. Substantial sums were paid to Cotswold in the early 1990’s from funds, it is submitted which, to the extent of the sum calculated, were controlled by the appellant. Further sums were paid over from funds under Mrs Stannard’s control. There was evidence, including a letter written by the appellant to the Royal Bank of Scotland on 31 December 1991 from which it could be concluded that funds under the control of the appellant were paid to Cotswold. The judge held that a vehicle used in the transaction, Severn Industrial Limited (“Severn”), was a company then under the control of the appellant.
30.
The appellant’s case is that money was loaned to Cotswold by a company owned by the Victoria Trust. It is common ground that the appellant has no interest in that Trust, described as Mrs Stannard’s trust fund. Repayments at the time of the confiscation hearing were being made to that trust. The loans were in any event part of an arms length commercial transaction, it is submitted.
31.
The judge held that the loan was to be treated as a gift within the meaning of
Section 74(10)
of
the 1988 Act
and was, to the extent of the sum claimed, a realisable asset of the appellant. In support of that finding, the Crown rely on an acknowledgement made by the appellant in an order made in matrimonial proceedings on 5 November 1999 that the appellant “has no interest in any shares in [Severn] or the business of Cotswold and that no monies are owing to him or the Rupert Trust from that company or business”. Repayments under the loan, increased to £4,100 per month, were paid into an account of Severn until March 2001 and after that date to the Victoria Trust. The loan by the appellant was converted into a gift.
32.
The judge held property at 5 Markenhorn, Godalming to be the appellant’s realisable property (£395,000). The property was acquired by Ms Joan Ashton, the mother of the appellant’s youngest child, in 1995. It was acquired with money transferred on 11 October 1993 from the bank account of IBEUS (Investment Bank of Europe and the United States) held at Anglo Irish Bankcorp under the control of the appellant. Funds in the IBEUS account had come from the transactions relating to Bonnington and Fairflight. Reference was made to the appellant’s responsibility for his child. The appellant’s case, rejected by the judge, was that consideration was given for the payment to Ms Ashton, the transfer of funds being in settlement of all future liabilities in relation to the daughter, except for the payment of school fees. The judge noted that the payment was voluntary and not pursuant to a court order and that the appellant had not discharged the evidential burden on him. The judge was, in our view, entitled to reach that conclusion and hold the payment to have been a gift.
33.
The point is taken in relation to both transactions the judge held to be gifts that the judge did not expressly exercise the discretion conferred on him in
Section 74(10)(b)
of
the 1988 Act
, as to whether the gift should be taken into account. It is clear that submissions were made to the judge in relation to his discretion and we do not doubt that he had regard to this discretion. In both cases, the appellant divested himself of very substantial sums of money, and in the Godalming case, only shortly after receipt of that money from Bonnington and Fairflight transactions. In the context of this statute, the circumstances were far from favourable to an exercise of discretion in the appellant’s favour. The absence of an express reference to discretion in the judgment does not invalidate the judge’s finding.
34.
In relation to both transactions, the circumstances in
HM Customs v MCA & Anr
[2002] EWHC 611 (Munby J) and
[2002] EWCA Civ 1039
(Court of Appeal), where family considerations prevailed, were very different from those in the present case. In the Court of Appeal, Wall J stated, at paragraph 101, that “there can be no question of the
Matrimonial Causes Act 1973
being used as a means to circumvent the provisions of the
Drug Trafficking Act 1994
”.
35.
The further point is taken in relation to Cotswold and 5 Markenhorn, a point not taken before the judge, that the transactions held to constitute gifts were not made at “any time after the commission of the offence” within the meaning of
Section 74(10)(a)
of
the 1988 Act
. It is submitted that the offences were not committed until tax returns were submitted by the companies whose funds were taken, in the case of Bonnington on 25 May 1995, and in the case of Fairflight on 4 March 1996. The particulars of offence in each case stated that the cheat was “by claiming or causing to be claimed a deduction against profits for interest paid…”
36.
The point does not on the evidence apply to Cotswold because, in the absence of evidence to the contrary, what is for this purpose assumed to be a loan was converted into a gift at the time repayments were first made to Victoria Trust, in which the appellant had no interest. That was in April 2001, well after the dates in the indictment. In relation to 5 Markenhorn, payment was made on 11 October 1993, that is shortly after the receipt of funds from Bonnington and Fairflight. In the case of Fairflight, the false debenture was signed on 9 October 1993. The date was earlier in the case of Bonnington. It is accepted by the Crown that the earliest date stated in the indictment (1 October 1992) is not, as the judge, in the absence of argument to the contrary assumed, the relevant date for this purpose.
37.
For the Crown, Mr Perry submits that the offence of cheating the public revenue had been committed by the time the false documents were prepared and the money extracted from Bonnington and Fairflight. Because accounts were submitted to the revenue subsequently, the particulars of indictment referred to the claim made in them. Although the particulars of offence would have been put differently had accounts not been submitted, offences of cheating the public revenue were committed before the gift was made, it is submitted. For this purpose, the court is not confined to the particulars, drafted in the light of subsequent events, in the indictment.
38.
The offence of cheating the revenue was considered in this court in
The Queen v Mavji
[1987] 84 Cr. App R 34. The issue was whether the common law offence of cheating the revenue necessarily required a false representation, either by words or conduct. The appellant had failed to make VAT returns or to pay the VAT due. The court held that cheating could include any form of fraudulent conduct which resulted in diverting money from the revenue and depriving the revenue of money to which it was entitled. Giving the judgment of the court, Michael Davies J stated, at page 38:
“In our judgment, “cheating the revenue” can take place without any positive act of deceit or, to adopt and respectfully endorse the words of Drake J when ruling on this matter in the appellant’s first trial: “The common law offence of cheating does not necessarily require a false representation, either by words or conduct. Cheating can include any form of fraudulent conduct which results in diverting money away from the Revenue and in depriving the Revenue of money to which it is entitled.” This appellant was in circumstances in which he had a statutory duty to make the VAT returns and to pay over to the Crown the VAT due. He dishonestly failed to do either. Accordingly he was guilty of cheating Her Majesty the Queen and the Public Revenue. No further act or omission required to be alleged or proved.”
39.
In
R v Redford
[1989] 89 Cr App R 1
, this court, Lord Lane CJ presiding, approved that approach. Lord Lane cited, at page 7, that part of the judgment of Michael Davies J which immediately preceded that cited above:
“Mr Ashe-Lincoln candidly conceded that if no distinction can be drawn in this context between an act and an omission, to use convenient shorthand, then this appeal fails. His submission was that this, as he would say, crucial, distinction did not fall to be considered in
Hudson
[1956] 40 Cr App R 55
or indeed in the case of
Tonner
[1985] 80 Cr.App.R.170
[1985] 1 W.L.R. 344 to which we were referred by counsel for the Crown. No doubt that is right except that in the opinion of this Court the distinction is not crucial and, where it exists, as in the instant case, does not justify a departure from the conclusions reached by the Court of Criminal Appeal in
Hudson
(
supra)
. In coming to this decision we are influenced by the fact that in none of the cases or authorities such as
Hawkins
is the distinction between “deceit” involving an act and “non-deceit” involving no more than an omission canvassed or regarded as vital or indeed relevant. The distinction has always been and in our view remains between “frauds affecting the Crown and public at large,” to repeat the words of
Hawkins
, and those which affect only individuals.”
40.
In
R v Hunt
[1994] Crim LR 747, a conviction of conspiracy to cheat the Inland Revenue was challenged on grounds which included the fact that the prosecution was unable to show that the appellant had benefited from the proceeds of the fraud. The court, Stuart-Smith LJ presiding, held that notwithstanding some expressions of opinion in the old cases, there was ample authority to show the offence of cheating the Revenue is “a conduct offence”. “A distinction is drawn between cheating the public or the King, in which the resultant loss does not have to be proved, and cheating a private individual where it must be”.
41.
The court cited the case of
Less
and Depalo
(unreported, transcript 2 March 1993) where the court had approved a summing-up in this form:
“The next direction I have to give you is what in law is cheating the Public Revenue. To cheat, members of the jury, is defined by the Concise Oxford Dictionary as: 'To deceive or trick a person into or out of a thing'. The common law offence of cheating the Public Revenue does not necessarily require a false representation either by words or conduct. Cheating can include any form of fraudulent conduct which results in diverting money from the Revenue and in depriving the Revenue of the money to which it is entitled. It has, of course, to be fraudulent conduct. That is to say, deliberate conduct by the defendant to prejudice, or take the risk of prejudicing, the Revenue's right to the tax in question knowing that it has no right to do so.”
42.
Thus it is established:
(a) The offence can be proved on the basis of an omission.
(b) It can be constituted by deliberate conduct prejudicing the Revenue’s right to the tax in question.
(c) The offence can be established without loss resulting from the cheat having been proved.
43.
The substance of the cheat in the present cases was the creation of the false debenture documents and the extraction of money from Bonnington and Fairflight on the strength of those false documents. On the basis of that conduct, offences of cheating the public revenue could have been laid and the jury asked to infer that the purpose of the transactions was to defraud the Revenue. Either no tax returns would be submitted or false ones would be submitted. It is difficult to find any other purpose with which these transactions were performed.
44.
In the event, returns were submitted to the Revenue and, not surprisingly, the particulars of offence in the indictment took into account those subsequent events. While those events were further evidence of the cheat, they were not an essential ingredient. The substance of the offence was in the earlier transactions, which preceded the relevant gifts. That was deliberate conduct prejudicing the Revenue’s right to the tax in question. The subsequent submission of the tax return was both a further fraudulent act and evidence of the earlier fraud.
45.
One of the purposes of
the 1988 Act
was to prevent dissipation of the proceeds of crime of the kind which occurred in this case. It should be construed in a manner consistent with that purpose (
Soneji
[2005] UKHL 49
[2005] 3 WLR 303
per Lord Steyn at paragraph 24, Lord Carswell at paragraph 64). Provided the conduct constituting the substance of the offence occurred before the gift was made, the requirement in
Section 74(10)
that a gift is caught, if made by the defendant at any time after the commission of the offence, is satisfied. Further, for present purposes, the court is not confined to a consideration of the wording of the particulars of offence in the indictment which, for evidential reasons, referred to the claim subsequently made in the tax return. The charge comprehended the earlier conduct which constituted the cheat.
46.
The other sums included in the confiscation order: cars (£15,000), bank accounts (£8,000) and shares (£2,000) have not been challenged in this appeal.
47.
The appeal is dismissed | [
"LORD JUSTICE PILL",
"MR JUSTICE PITCHFORD"
] | 2005_11_01-623.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2717/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2717 | 794 |
113eef948d2ffaafa9f998f16cd61b98d160283fb08a142d81dc30e7f6b371ab | [2009] EWCA Crim 2848 | EWCA_Crim_2848 | 2009-12-01 | crown_court | Case No: 200906162/D5 Neutral Citation Number: [2009] EWCA Crim 2848 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 1st December 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE IRWIN MR JUSTICE EDWARD-STUART - - - - - - - - - - - - - - - - - - - - - R E G I N A v M & T PROSECUTION APPLICATION FOR LEAVE TO APPEAL AGAINST A TERMINATING RULING UNDER S 58 CRIMINAL JUSTICE ACT 2003 - - - - - - - - - - - - - - - - - - - - - Computer Aided Trans | Case No:
200906162/D5
Neutral Citation Number:
[2009] EWCA Crim 2848
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 1st December 2009
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE IRWIN
MR JUSTICE EDWARD-STUART
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
M & T
PROSECUTION APPLICATION FOR LEAVE TO APPEAL AGAINST A TERMINATING RULING UNDER S 58 CRIMINAL JUSTICE ACT 2003
- - - - - - - - - - - - - - - - - - - - -
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 T Bayliss QC & Mr E Patel
appeared on behalf of the
Applicant
Mr G Cole, Mr R Wigglesworth QC & Mr M Rhind & Mr S Csoka
appeared on behalf of the
Respondents
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: After a six week trial in the Crown Court at Bradford, on 19th November 2009, His Honour Judge Moss QC ruled, at the close of the prosecution case, that there was no case to answer in respect of a number of defendants, all of whom were charged that together with a man named Bell, they had murdered the victim on 3rd August 2008 in a nightclub in Bradford, known as the Icon Nightclub, in the early hours of the morning.
2.
The prosecution case against all the defendants was that they had arrived in two separate motorcars, one a BMW, driven by the defendant, Bell, with three others in the car, McIntosh, who is the subject matter of the application for permission to appeal, Riley and an unknown man, and a blue Audi motor car, driven by Thompson, another of the defendants the subject matter of this application, with three other defendants, Salmon, Nelson and Robinson, arriving outside the club in very close proximity in time and parking next to each other as they went into the nightclub.
3.
Whilst they were in the nightclub the victim arrived and was then shot, it is alleged, by the defendant, Bell, and, as was put to the jury, with the knowledge of those others with him in a cohesive group, that Bell had a gun, and with their active encouragement.
4.
The deceased managed to get down the stairs, the exit of the club but collapsed and died shortly after. The others, including Bell left the club immediately. The two cars went in convoy, the second car driven by Thompson, going through red lights but subsequently separated. Bell, it is alleged, disposed of the gun in Huddersfield. There was evidence of contact between the two cars both going to the club and returning after the shooting.
5.
The judge gave a ruling in advance that there was a sufficient case against all the defendants charged. But, on 19th November 2009 he determined that against all the defendants, save for the defendant, Bell, the evidence was such that no reasonable jury, properly directed, could convict. In so ruling he accepted that there were a number of features of the evidence on which the jury would be entitled to rely. There has been no dispute about that view, and it is therefore necessary to identify those features. Firstly, that the defendants came together with Bell, from Manchester, to the Icon club in Bradford. Secondly, that before the journey or en route to Huddersfield, Bell had armed himself with a loaded firearm. Thirdly, that the defendants remained largely in each others company in the club and appeared to form a cohesive group of which the man said to be Bell was clearly the leader. That, we add, seems likely since Bell was 34 at the time. Fourthly, that the deceased arrived at the club at around 3.00 am, and there was a confrontation between him and Bell, which would have been witnessed by these defendants. Fifthly, that Thompson at least would have understood enmity between the deceased and Bell since Thompson was himself involved in the event some years previously which gave rise to that enmity. We add that there was also evidence that the defendant, McKintosh, had gone to a club where the deceased was, on 20th July 2008, in the company of Bell. The evidence was that other club, the Conica Club in Bradford, was a club which the deceased had visited. Sixthly, Bell, in the company of some members of the group, who could not be safely identified, moved to the area of the entrance doors.
6.
That sixth factual proposition, was evidence, so the judge ruled on which the jury could act, requires some amplification. Immediately after the altercation, the deceased had taken a bottle and smashed it and those within the club had ejected him. To do so they moved him through a pair of swing doors which would have taken him out onto the landing, above a row of stairs leading downwards to the pavement.
7.
The two who had approached the deceased, as he was being ejected, or just after he had been ejected, could not be identified. But the close proximity of the defendant, Thompson, immediately after, in circumstances we shall describe immediately, is some evidence that he was one of those two who had moved towards the swing doors, just before the next factual feature which the judge identified as evidence on which the jury could rely. Immediately after the deceased was ejected and as a group of three moved to the swing doors, Bell took out, probably from a pouch or bag slung over his shoulder, a gun and fired through a gap in the entrance doors and one of the bullets left a mark of firing on the rim of the door. It is plain that some, if not all of the group would have seen that shot. It hit the deceased but did not kill him. It hit him in the back. Not content with that one shot, Bell then pursued the deceased, down the stairs towards the street. Bell was closely followed by the defendants, must have witnessed Bell firing a second shot. It was that shot which was fatal. It struck the deceased in the back. The deceased managed to stay on his feet as he left the club on the pavement, having descended the steps. He turned left and then appears to have collapsed and signs of blood on the pavement shows his position just behind the front elevation of the building adjoining the club. He thus might not have been visible collapsed but certainly the direction in which he went could have been seen.
8.
Events from the time of the shooting were recorded on CCTV cameras and the jury, the judge and we have had the opportunity to examine them and the timing. It is clear that one of gunshots could be heard at 3.25.26 in the early hours of the morning because two women immediately outside are seen to react to the sound of gunshots. One of the witnesses leaves shortly after, and moments later, at 3.26.02, the deceased can be seen running from the club. At .07 of a second later, the defendant, Bell, emerges from the club and .1 of a second after that, Thompson emerges. That is 44 seconds after the two women are seen to react to the sound of the gun shots.
9.
There can be seen an incident on which the prosecution are entitled to rely. Closely following the defendant, Bell, who is alleged to have fired the shots, was, Thompson, and they are seen together, sauntering away from the club to the edge of the pavement. They could not cross the road, because of an approaching vehicle, whose headlights can first be seen and then the car can be seen passing. They can both be seen together then dodging the cars and from another camera, breaking into a run. They then went to the two cars which had been parked nearby. It is that incident of the two together on which the prosecution relies, in relation to the case against Thompson.
10.
After Thompson emerged, the other defendants emerged, firstly, a man called Edwards, then McIntosh, the subject matter of this application, Salmon and then Riley. Both vehicles then left in the manner we have described, the blue Audi following the BMW driven by Bell, closely behind and going through a red light. The cars separated, but it appears that Bell drove to Huddersfield, where he disposed, so it is alleged, of the gun. There was telephone conversation between the two cars.
11.
One day after this shooting a young girl in care, Danielle Higginson, met, so she said, the defendant, McIntosh, and went to the cinema with another young man. A conversation then took place to which we shall shortly turn which, so the prosecution says, demonstrates that McIntosh knew that Bell had a gun and was a party to the joint enterprise which was alleged.
12.
The prosecution case was that Bell had fired the two shots including the fatal shot. The prosecution case against the others was recorded accurately by the judge as being that each of these defendants had joined in the pursuit or attack upon the deceased in the knowledge that Bell was armed with a gun, which he might use with murderous intent and that the defendant whose case the prosecution was considering, intended, if only by his presence, to encourage Bell in the commission of the offence. Either the prosecution could prove that or could prove that it was the intention of each of those in the cohesive group that the victim should be shot, as a result of the enmity of which Thompson was aware.
13.
The judge, as we have indicated, ruled that there was no evidence against any of those defendants upon which a reasonable jury, properly directing itself, could convict, save in the case of Bell. He ruled that the evidence against all the other defendants, save for McKintosh, was the same and they fell to be considered together. He relied upon the close proximity between two shots which the prosecution accepted was a matter of seconds. That probably is a figure of speech, it was certainly a very short time. He said:
"These young men may have been proved to have witnessed what occurred so far as the shooting is concerned, but I cannot now regard it as safe for a jury to concluded that they can be taken by their continued association with Bell, to have been involved with him in a joint enterprise to pursue the deceased, still less on the evidence available, to be fixed with certain knowledge of the presence of a firearm before the shooting took place."
He continued:
"They cannot be safely fixed with the necessary prior knowledge of the presence of a gun, nor can it safely be said that they joined in with any pursuit, in common with the principle of the deceased as opposed to simply making themselves scarce, in the realisation that something extraordinary and unlawful had occurred."
He then turned to the evidence of Danielle Higginson.
14.
Let us then, with that introduction, turn to the application on behalf of the prosecution. The prosecution does not pursue this application in respect of any of the other defendants save for Thompson and McIntosh. It pursues the case against Thompson on a specific and significant ground. It contends that his behaviour, immediately after the shooting, is evidence upon which a reasonable jury could infer prior knowledge of possession of the gun and participation in its use.
15.
What then is that evidence? Firstly, the first of those to leave the club behind Bell was Thompson. As we have demonstrated from the timing shown on the CCTV, very closely after he emerges. He is not running. He looks to the left, without any apparent reaction, such as one might expect, in the direction in which the deceased went, and then walks at no speed in a way that might properly be described as sauntering to the kerb.
16.
Against that, however, must be acknowledged the fact that neither of those two men could run away across the road because of an oncoming vehicle. But, submits Mr Bayliss QC on behalf of the Crown, his behaviour is so lacking in any reaction to what, on the defence case, would have been the surprise shooting of the victim that the jury could infer not only prior knowledge of possession of the gun, but also his participation as one of the two who approached the deceased before the shooting just outside the exit swing doors.
17.
The judge did not agree. We take the view that the judge was entitled to disagree with the significance of that behaviour. Particularly the judge was required to take into account that there was no evidence of any prior planning or pursuit of the man against whom Bell had a grievance to the knowledge of Thompson. On the contrary, the appearance of the deceased at the nightclub, some 20 minutes or so before the shooting, must have come as a surprise to the members of that group. It cannot have been known in the advance. The evidence, indeed arguably, went further. Had there been any advance intention to attack, or possibly to kill the victim, because of the previous enmity, the group led by Bell had gone to the wrong club. The evidence seems to have demonstrated that, if they were searching for him, he was more likely to have been in the Conica, where McIntosh and Bell had gone on 20th July than to the Icon. Further, there was powerful evidence and no evidence to the contrary, that the shooting was spontaneous. No one else in the club saw any gun before it was produced by Bell. It appears to have been produced on the shooting and not before, according to the eye witness, a witness called by a pseudonym "Benjamin". The gun was produced as a matter of spontaneous act and not as a matter of fulfilment of an advance plan.
18.
In those circumstances, the suggestion that the judge should have left to the jury the inference that the apparently unconcerned behaviour of Thompson after, was evidence of prior knowledge and participation in the act of shooting was a proposition that the judge was entitled to reject.
19.
Let us turn then to the case of McKintosh. As we have indicated, he met the young girl, Danielle Higginson, the day after and had a conversation about the shooting. It is important in considering his evidence the advantage that the judge had, which is not available to this court. Not only did he hear 6 weeks of evidence, but he was peculiarly well placed to assess that young witness, 14 or 15 at the time. She appears to have been an unfortunate girl, against whom no criticism is meant, but she clearly had a troubled life. There was plenty of evidence of that.
20.
So fearful was she of giving live evidence that the judge listened to evidence from her by way of a video link and ruled, pursuant to section 116 of the 2003 Act that she need not give live evidence and that her evidence was to be read. It was in the form of a lengthy interview with two police officers. Moreover, so concerned was he, that he adopted a wholly laudable process, whereby, immediately after her evidence was read, the defence on behalf of McIntosh was allowed to identify a number of points, not only in relation to the subject matter of what she said but in relation to her background, so that the jury could set those against the evidence that appeared to emerge from her interview.
21.
During the course of that interview she was describing, as we have said, events one day after the shooting, describing those events on 31st October that is over 3 months after the events that she was describing. She had left the care home on 4th August, to go to the cinema and was going to be picked up by those working there after the film. During the course of the film she observed the defendant, Dylan McIntosh, talking with another friend and appearing nervous. It appeared to her he was talking about what had happened the night before. That conversation appears to have taken place during the film although she did have a conversation with McIntosh whilst the film was going on but when she went outside to smoke a cigarette. She said:
"... I could hear Dylan saying to Michael oh he's been locked up, he's been locked up [by that we interpose it appears she meant McIntosh] ... was dead fidgety and looking behind him all the time so we were half way thorough the Batman film and I said I'm going out for a cig and Dylan said I'll come with you and then, so, I was like what's wrong with you when I was outside, he's like oh something bad's happened, and I was like why what's happened he goes erm I was, I went Bradford and then I seen a boy that had done something to my Dad or other relations I'm not very sure about that, but it was something relations with and then he had a gun, then erm he told me that he's seen him, seen the guy - cos this guy, the one that got shot has, had done something to Dylan's dad or relation and err obviously he wanted to go and do something back to him and then - so him and his friend, I don't know his friend's name, and then him and his friend have gone after him and then they've been outside somewhere and because Dylan didn't have the guts to shoot him, his friend took the gun off him and shot him and then - well obviously they probably got off then and then erm he said, this is what I remembered from last night when the police officers had finished he told me that he needed, he'd burnt some clothes and that they were talking about loads of CCTV that was in the area. And then he said that erm Dylan's friend that shot this guy, his brother got locked up for mistaken identity or something and then I didn't believe him and then that's when we went back in the cinema and that's all I know." She was then during a lengthy conversation asked further questions about that long passage. She was asked that McIntosh had said to her: "Well that one of his friends has shot something, and well I don't you've got it written down. She said again, he went down to Bradford some guy, they see some, with his friend, some guy that done something to his dad, or his relation was there, so they he gone after, and then he had a gun and then didn't have the guts to shoot him so his friend took the gun off him and then he was going on then he got off and going on he had to burn some cloths and there was CCTV I heard something about footprints."
She was asked later: "Who had the gun?" She said: "It was him who had it", referring to Danielle. She said:
"That's all I know -- "[The other person] had done something to one of his family relations... He's, this guy that the one that's been shot and died, that erm I think he, I, err, I think it is his dad or step dad and he's, he'd battered him and left him in hospital."
Later, she recorded being told:
"And his friend said well, 'go get him now' ... and erm they went chasing him and then Dylan didn't have the guts, sorry I'll just put it down ... Yeah, so his friend done it."
Immediately after that passage, she said.
"Right cross the bit that Dylan had the gun cos one of them had the gun, his friend said to Dylan go on pull the trigger, so Dylan said no I don't like basically cos he's too scared to, so his friend done it, so it was either one of em cos I don't really want to like say that it was him when I'm really not... That one of e, one of em had the gun and then his, his friend said pull the trigger, pull the trigger. He didn't have the guts, I don't know what he said to his friend but he probably didn't have the guts so his friend's done it."
Then she repeated the evidence that he had said he was going to burn his clothes including some trainers and she thought he was obviously scared. He thought that he was going to be locked up. Later she said so far as she knew the shooting happened outside and his friend had pulled the trigger.
22.
That evidence obviously is in stark contrast to what eyewitnesses said happened in the club. There was no shooting outside. There was no advance preparation to attack and kill the victim. There was, however, some evidence of those within the cohesive group shuffling around inside the club, and so, it might have been possible to take the view, that the conversation between Dylan, that is McIntosh and Bell, took place immediately before the shooting, as they were milling around within a cohesive group. But nobody outside the group heard it or saw the gun being produced save at the moment before the shooting. Whatever view might have been interpreted or drawn from that interview taken as a whole, it is important that this court bears in mind that the judge was peculiarly well placed to assess the cogency of the evidence in the context of the six weeks' evidence taken as a whole. True it is that the prosecution could rely upon certain features of what she said, that might make it curious if she had made them up or was merely reciting what she had heard others say. He had accepted in interview that he had gone to the cinema with her and spoken to others about the shooting, possibly in her presence. But the features upon which the defence relied also had to be taken into account, particularly her reluctance that what she said should be recorded as accurate, namely, "cross that bit" and indeed further comments by her on Facebook in which she seemed to resile from what she had told the police.
23.
We reiterate she was a troubled witness that the judge had to assess. That he did. He described her evidence in the ruling as being evidence which was equivocal to the extent that it is tenuous. He took the view that her evidence was not such as to fix McIntosh with responsibility for what had occurred, as he put it, either as a principal or as a secondary party. The evidence, at its highest, would have entitled the jury to conclude that McIntosh was told to fire a gun at the deceased and was unable and unwilling to do so, whereupon it was taken from him and fired by another. That is the evidence at its highest, but the judge was clearly reluctant, and he was in the best position to feel that reluctance to allow a case to go before the jury, based solely upon the evidence of that witness, evidence which we emphasise was only read to the jury.
24.
In those circumstances we do not think that it would be right for this court to interfere with that judgment of the judge, placed, as he was, in the best position to assess the significance of that evidence and its source.
25.
This brings us, in a sense, to the nub of the appeal. As we have said, this is an application by the prosecution in which it seeks leave to appeal against a terminating ruling of the trial judge. The position of a trial judge, particularly one as experienced as His Honour Judge Moss QC, in cases of this sort, a shooting in which a gang is said to have participated, must be acknowledged and respected. That acknowledgement finds it expression in the principle that this court will not interfere with such a terminating ruling unless the conclusion of the judge, refusing to let the case go before the jury, is outwith the range of reasonable conclusion. That high hurdle, which a prosecution must overcome is because this court is so much worse placed to make the sort of assessments and judgments this judge had to make when he was asked to stop the case against the defendants including these two, Thompson and McIntosh. If authority is needed for such a proposition, it can be found in the decision of the President of the Queen's Bench Division, Sir Igor Judge (as he then was) in
R v B
[2008] EWCA Crim 1144
at paragraph 19. He suggested that unless the decision was outwith the range of reasonable response, no leave to appeal pursuant to section 67 of the 2003 Act should be given.
26.
We take the view that in this case leave should be given, because there clearly was evidence which distinguished these two from the other defendants against whom the prosecution have not pursued the application. So we shall grant leave in respect of both their cases but, for the reasons we have given, it is not right that this court should interfere with the judgment of the judge, even if one or more of us might have reached a different conclusion. In those circumstances the appeal in respect of both those defendants is dismissed.
27.
MR COLE: The Act does provide for what should happen next. In section 61, the determination of appeal by the Court of Appeal. Subsection (7) simply says this court should order the acquittal of the two defendants.
28.
LORD JUSTICE MOSES: Yes, we shall do so. Thank you all very much. What is happening about the jury?
29.
MR BAYLISS: I have already sent an email whilst in court to the judge, I hope that was not--
30.
LORD JUSTICE MOSES: I make an order that nothing in this case is to be reported in a way which might indicate what is happening in this trial until the trial is concluded.
31.
MR BAYLISS: Yes, please.
32.
LORD JUSTICE MOSES: Then the judge can make a further order on acquittal or retrial, if necessary. So we leave it to the judge to vary the order that we make. That is the best way of dealing with it.
33.
MR COLE: They are still in charge, the Bradford jury. I think judge has to deal with it.
34.
LORD JUSTICE MOSES: He has to deal with it. We make an order that nothing is to be reported of this case by which I mean this appeal. I think it was obvious.
35.
MR BAYLISS: We need guidance as whether or not these accused appear before Bradford now they have been acquitted.
36.
LORD JUSTICE MOSES: They probably should.
37.
MR COLE: They should appear before the Bradford Crown Court.
38.
LORD JUSTICE MOSES: They are still in the charge of the jury. But they are acquitted. We have the power to acquit them and we had that.
39.
MR BAYLISS: Further, not strictly speaking, in charge of the jury.
40.
LORD JUSTICE MOSES: I do not know what happens but probably better they do, just in case. Got out of prison.
41.
MR BAYLISS: On bail.
42.
LORD JUSTICE MOSES: Why should they have to go back?
43.
MR BAYLISS: I do not think they should. Why should they?
44.
MR COLE: The jury have not been made aware.
45.
LORD JUSTICE MOSES: The judge can tell them what happened, they have been acquitted and that is not going to have to, going to have to say, you must not think more in the case against Bell.
46.
MR COLE: In that case could I ask for a defence costs order for Thompson's travel to the Bradford Crown Court, during the trial. The trial in Bradford. Simply travel.
47.
LORD JUSTICE MOSES: He has already incurred or for the future?
48.
MR COLE: No.
49.
LORD JUSTICE MOSES: Just for tomorrow?
50.
MR COLE: He has already incurred.
51.
LORD JUSTICE MOSES: Not sure, you are going to have to develop that. As we have said, there was and we have given permission to appeal in this case, and his behaviour after might be said to have been brought on himself. Develop it if you like, at the moment, speaking for entirely myself, I am not terribly sympathetic.
52.
MR COLE: I am duty bound to make the application and I do.
53.
LORD JUSTICE MOSES: Why cannot the trial judge make the order if you want to go back in front of him?
54.
MR COLE: We will do it in that way.
55.
LORD JUSTICE MOSES: He is in a much better position. Thank you all very much. | [
"LORD JUSTICE MOSES",
"MR JUSTICE IRWIN",
"MR JUSTICE EDWARD-STUART"
] | 2009_12_01-2174.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2848/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2848 | 795 |
0db53bc7a315d4e91888d683dd042b325e40c5f3df81de00068cc54b63dc91e1 | [2012] EWCA Crim 19 | EWCA_Crim_19 | 2012-01-26 | crown_court | Neutral Citation Number: [2012] EWCA Crim 19 Case No: 2009/6143/C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE INNER LONDON CROWN COURT His Honour Judge Roberts T20087711 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/01/2012 Before: LORD JUSTICE MOSES MR JUSTICE BURNETT HIS HONOUR JUDGE SCOTT-GALL - - - - - - - - - - - - - - - - Between: The Crown Appellant - and - PD Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Hearnden (instructe | Neutral Citation Number:
[2012] EWCA Crim 19
Case No:
2009/6143/C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
His Honour Judge Roberts
T20087711
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/01/2012
Before:
LORD JUSTICE MOSES
MR JUSTICE BURNETT
HIS HONOUR JUDGE SCOTT-GALL
- - - - - - - - - - - - - - - -
Between:
The Crown
Appellant
- and -
PD
Respondent
- - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -
Mr R Hearnden
(instructed by
Mordi & Co
) for the
Appellant
Ms Neena Crinnion
(instructed by
The Crown Prosecution Service
) for the
Respondent
Hearing dates: 16
th
December, 2011
- - - - - - - - - - - - - - - -
Judgment
Lord Justice Moses:
1.
This appeal raises the question as to whether the failure of the trial judge to give a modified direction as to the appellant’s character rendered his conviction of anal rape against his wife unsafe. It also raises an issue as to whether the appellant was deprived of a fair trial because of a late change of the dates when the offences were alleged to have been committed.
2.
The prosecution alleged that during the course of their marriage the appellant had treated his wife with violence. There were four counts alleging assault occasioning actual bodily harm between August 1999 and December 2006. The jury convicted the appellant of all four. His wife alleged that he had pulled her hair, screamed at her and head-butted her on the nose (Count 1), pulled her hair with such force that a patch fell out (Count 2), pulled her downstairs by her hair, punched and kicked her and squeezed her throat (Count 3) and when she refused to have sex with him, kicked her in the back and forcibly took her upstairs (Count 4).
3.
But by far the most serious allegations, which are central to this appeal, arose when the appellant told his wife that he had had an affair or “a one-stand stand” with a Russian doctor. Apparently his wife responded by telling him that she herself had had an affair. On hearing that admission, the appellant told her that her that she must be punished, by forcing her to have anal sex. When she protested and refused and offered to have normal sexual intercourse with him, he penetrated her anus with his penis. He behaved in the same way for the following six nights. After the seventh occasion he said that she would be forgiven and that they could resume their live on a normal basis. The jury convicted the appellant of those anal rapes alleged in Counts 5-11 of the indictment.
4.
It is relevant to this appeal to record that the appellant was also convicted of intimidation. After the rape the complainant and her children moved into a refuge where her hat disappeared. It was later returned to her by post in a parcel addressed to the refuge. The appellant confessed that he was responsible and that he wanted to prove that he could “get to” the complainant if he wanted to.
5.
The allegations only came to light when, in February 2008, the complainant reported to the police that the appellant had sexually assaulted their daughter. She made no reference at that stage to the rapes but subsequently disclosed that she had been raped in October 2007. The appellant was acquitted of the sexual assault on his 7 year-old daughter.
6.
Part of the prosecution disclosure consisted of a psychiatric report describing the history given by the complainant when she visited the psychiatrist in January 2007. During the consultation with the psychiatrist she referred to her husband’s anger following her confession of an affair. Since it was her allegation that the anal rapes were punishment for her affair it appeared that she was mistaken in suggesting that the rapes had occurred in October 2007. If they occurred, it seemed it must have been in 2006.
7.
The defendant denied that he had anal sex with his wife during October 2007, although he did admit that he had consensual anal sex with her at the end of 2006, as part of the process of reconciliation. The statement continued to assert that he had been travelling abroad to Kenya, Tanzania and Uganda without his wife in early October 2007. He said that he had injured his knee in Uganda, returned to this country in severe pain, and had had a minor operation in November 2007, with a more major operation in February 2008. The Crown had the appellant’s passport and was, therefore, in a position to confirm those dates. They were not disputed. No application was made to amend the indictment before the trial began.
8.
It was only during cross-examination that the complainant was prepared to accept that the anal rapes she alleged must have occurred in October 2006.
Directions as to Character
9.
In his directions to the jury, His Honour Judge Roberts gave no directions at all in relation to the appellant’s character. The appellant was a man, at that time, of 46, who had no previous convictions. Before counsel addressed the jury, counsel then acting for this appellant, sought what she described as “a hybrid direction on good character” because, during the course of the evidence, the defendant had admitted violence in the course of the marriage. She pointed out that apart from that admitted violence the appellant had no previous convictions for sexual matters. The judge replied:-
“Yes, I am entitled to remind the jury that he has no previous convictions for sexual offences. It purely goes to propensity, it cannot go towards anything else.”
No response is recorded from the prosecution. It is apparent that both counsel expected the judge to direct the jury as to the absence of any previous conviction for a sexual offence but not to direct the jury in relation to credibility. But, as we have recalled, the judge gave no direction whatever.
10.
It is necessary to identify the reasons why counsel suggested that the character direction should be qualified. In his interview, the defendant had described himself as “a man of non-violence”. The prosecution suggested that that was untrue. The appellant sought to describe his religious belief in non-violence, but said he was a human being and sometimes, when the marriage was stressful, there was a limited use of violence. But he denied that it was to the degree alleged by the prosecution. He did however admit physical violence after the birth of his three children “when my wife basically was out of her mind”. He said there were occasions of slapping and when it was suggested that he had punched and kicked her he said that he had not used a weapon. He admitted pulling her hair and that his sister-in-law may have seen marks after he had put his hand around his wife’s neck.
11.
The defendant also gave evidence about the use of charitable money to pay for him and his family to stay at the Holiday Inn, although it was apparently intended that he and his wife should travel to South Africa to work as missionaries. It also emerged that he had sub-let rooms in his house to raise cash to fund his travel whilst claiming benefits. For those reasons, coupled with his limited admissions as to violence, his counsel and the judge agreed that he was not entitled to directions relating to credibility. However, it was intended that some directions should be given in relation to the absence of any previous conviction for sexual offences. This, so the judge appeared to have agreed, was relevant to the question as to whether he had any propensity to commit the anal rape and whether the absence of any evidence of propensity demonstrated that it was less likely that he would have committed it on the consecutive nights as alleged by his wife.
12.
Mr Hearnden, who did not appear below, now contends that the judge ought to have given directions in favour of the appellant, both in relation to propensity, and credibility. In careful and cogent submissions he rejects the proposition that this was a rare case where the judge was entitled to exercise his residual discretion to decline to give any character directions. On the contrary, he should have directed the jury as follows:-
“The defendant is 46 years old and has no previous convictions for any crime. The defendant also told you about how he had risked protesting against the Apartheid government in South Africa, and that he had to leave his homeland as a result. He also told you about his charitable and voluntary work.
However, you have heard that he used violence on occasions against Mrs D during their marriage and that, once he may have given her a black eye. However, he also points out that he has never been accused of or convicted of a sexual offence before now. When considering the counts of rape, you should take this into account in his favour in the following way. The fact that he has never offended before may make it less likely that he would have committed the offences of rape. Second, the fact that he has no convictions for any offence is something you should take into account when assessing whether you believe he has told you the truth. Good character cannot, of course, amount to a defence.”
The principles which should be applied are those set out in The Crown v Vye
[1993] 97 Cr App R 134
, in R v Aziz
[1996] AC 41
, R v Doncaster
[2008] EWCA Crim 5
and R v Gray
[2004] EWCA Crim 1074
. The judge is not required to give a meaningless or absurd direction. He is not required to go through the charade of giving directions in accordance with Vye where the defendant’s claim to good character is spurious (see per Lord Steyn in Aziz at page 53). Even where he has been shown to be guilty of criminal conduct and thus cannot pray in aid absolutely good character, the “prima facie” rule of practice is to qualify the Vye direction rather than withhold it (see R v Gray paragraph 57(4)).
13.
The essential argument advanced by the Crown is that the appellant was neither entitled to a direction relating to the absence of previous convictions for sexual offences nor any directions as to his credibility. It is plain, Miss Crinnion submits, that the purpose of the rapes was not sexual gratification but rather to treat the complainant with violence by way of punishment. This submission she supports by reference to a curious feature of the evidence. In August 2008 the appellant published on the internet a description of anal rape written on 7 August 2008 which was exhibited before the jury. He wrote of a husband being anally raped and described it as “the ultimate punishment for somebody”. This article was written before his wife reported the rape to the police. In cross-examination the appellant suggested that his wife would have had a chance to read it before she made her statement to the police in October 2008. The article does demonstrate a belief by the appellant that anal rape was a punishment. It is consistent with the allegation made by his wife. It is a curious coincidence that he should choose to write such an article before his wife had made any complaint to the police and before, accordingly, he could have had any idea that she might do so, false or not.
14.
Nonetheless, whilst it is powerful evidence that the complainant is telling the truth, it does not seem to us to justify a failure to point out to the jury that the appellant had no previous convictions for sexual offences and that that was a factor to be taken into account in his favour in considering whether it was likely that he would, for the first time in his life, have committed these offences for rape. It is true that the fact that he was writing of rape as a punishment, and that his wife alleged that the rape was a punishment for her confession to adultery, undermined any reliance the defendant might place upon his absence of conviction for previous sexual offences. But the fact that the effect of a good character direction might be undermined by the facts of a particular case provides no warrant for declining to give any such direction. There will be many cases where a defendant is entitled to a good character direction but the weight to be given to it is diminished by the facts or circumstances of the particular case. There is no principle that a judge is justified in declining to give a good character direction merely because he foresees that the prosecution may be able to diminish its fact. It was for the jury, not the judge, to decide what weight to give the absence of previous convictions.
15.
Moreover, it is clear that the judge took the view that the appellant was entitled to and intended to give a modified character direction. The prosecution did not demur. Defence counsel expected such direction to be given and herself relied upon the absence of previous convictions of sexual offences in her final address to the jury. Neither counsel reminded the judge of his omission.
16.
Prosecuting counsel now says that the judge’s failure to give such a direction was correct. But if the judge changed his mind and had decided not to give any such direction then he should at least have warned defence counsel and sought further submissions, rather than leaving her with the impression that he agreed with her proposal. In our view, the appellant was entitled to a modified character direction to the jury that it should take into account, in the defendant’s favour, the absence of any previous convictions for sexual offences as indicating that it was less likely that he would have committed the offences of rape. His failure to do so was a serious misdirection.
17.
Accordingly, we have to consider whether the convictions for anal rape were safe. Counsel for the appellant was not able to identify any case where, in the face of a failure to give any character direction, this court nonetheless has reached the conclusion that the verdict was safe. It may be possible to envisage such a case where the character of the appellant casts no light upon the defendant’s guilt or innocence. But this is not such a case. Ultimately, the dispute turned on the complainant’s word against that of this appellant. This court has said on a number of occasions (for example, in Doncaster and in R v M
[2009] 2 Cr App R 3
) that the character directions are of particular importance where the verdict turns on whether a complainant or a defendant is believed.
18.
This was, in our view, a strong case. The emergence on the internet of an article describing anal rape as a punishment written by the appellant was powerful evidence of his use of anal rape as a punishment, as his wife alleged. But we are quite unable to say that the verdicts are safe despite the omission of the judge. He thought that a character direction could be given without absurdity and without indulging in a charade. This court from time to time has emphasised the importance of a trial judge’s own assessment of what fairness in a trial demands. It would be inconsistent with the importance attached to a trial judge’s “feel for a case” to take the view that a modified character direction was unnecessary and would have made no difference in the light of the judge’s own view that he ought to give such assistance to the jury. For those reasons, we take the view, reluctantly, that the verdicts of anal rape in this case were unsafe. We say we do so reluctantly because the conclusion we have reached does not reflect upon the credibility of the complainant from whom, of course, we have not heard. The failure of the judge, and for that matter, of counsel on both sides, to make good the omission, was no fault of the complainant. It is most unfortunate that, subject to any submissions, she may be compelled to go through the ordeal of revisiting events of violence yet again.
19.
Since we have allowed the appeal on the first ground, there is no need to consider the second. This related to the amendment of the indictment to enlarge the period relating to the allegations of rape so as to include October 2006 when, finally, the complainant appeared to accept that the anal rapes must have occurred. Counsel for the appellant was criticised for her failure to seek an adjournment. She has explained why she did not do so and, in our view, no unfairness whatever resulted from the amendment after the complainant had given her evidence. We do not deal with the matter in greater detail because it is unnecessary to do so. For the reasons we have given, we shall allow the appeal and await written submissions as to whether there should be a re-trial on those counts alleging rape. | [
"LORD JUSTICE MOSES",
"MR JUSTICE BURNETT",
"HIS HONOUR JUDGE SCOTT-GALL"
] | 2012_01_26-2922.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/19/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/19 | 796 |
20fa05896250841736356918f7d13ae4c0573567a162b8a7fc5bd62a88c0d60d | [2009] EWCA Crim 469 | EWCA_Crim_469 | 2009-03-18 | supreme_court | Neutral Citation Number: [2009] EWCA Crim 469 Case No: 2008/2553/D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BLACKFRIARS CROWN COURT His Honour Judge Hillen QC T20070523 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18 March 2009 Before : LORD JUSTICE MOSES MR JUSTICE HEDLEY and HIS HONOUR JUDGE RUSSELL, RECORDER OF PRESTON - - - - - - - - - - - - - - - - - - - - - Between : Nadia Anne Harvey Appellant - and - The Crown Respondent - - - - - - | Neutral Citation Number:
[2009] EWCA Crim 469
Case No:
2008/2553/D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BLACKFRIARS CROWN COURT
His Honour Judge Hillen QC
T20070523
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18 March 2009
Before :
LORD JUSTICE MOSES
MR JUSTICE HEDLEY
and
HIS HONOUR JUDGE RUSSELL, RECORDER OF PRESTON
- - - - - - - - - - - - - - - - - - - - -
Between :
Nadia Anne Harvey
Appellant
- and -
The Crown
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss R Zentler-Munro
(instructed by
Rustem Guardian Solicitors
) for the
Appellant
Miss R Harris
(instructed by
the Crown Prosecution Service
) for the
Crown
Hearing date: 11
th
February 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Moses :
1.
This is an appeal which demonstrates the importance of fashioning directions to a jury to the issues of the case. The grounds of appeal are focussed on the directions which the judge gave in relation to self-defence.
2.
On 14 April 2008 at Blackfriars Crown Court the appellant was convicted by a majority of an offence of assault occasioning actual bodily harm. She was acquitted of a racially aggravated assault. There was no dispute but that the appellant had bitten the nose of the complainant, Malika Assaouci, during the course of a drunken fight in the road outside the Hammersmith Palais. The real issue was at what stage she did so.
3.
The accounts of what occurred were, inevitably, confusing. Malika Assaouci and others suggested that the appellant started the trouble in a cab office near the Hammersmith Palais by swearing and using insulting language.
4.
After Malika Assaouci and others left the cab office a picture of events can be seen on a CCTV film. Unusually, the film is informative. Malika Assaouci and friends can be seen walking across the road and starting to climb inside a minicab. The time was about 3.00 a.m. The appellant can then be seen approaching that group either gesticulating or shouting towards them from the middle of the road. It is then clear that the complainant and the appellant started to fight, pulling each other’s hair.
5.
When giving evidence the complainant said that the appellant pulled her down to the ground, there were people on top of her and she was scared. She said that the appellant was screaming at her and that it was at that stage the appellant bit her on the nose. Thus, the prosecution case, based on that evidence, was that the bite occurred when the appellant was on top of the complainant. But it did contend, in the alternative, that even if the defendant was, as she said, pinned to the ground, to bite in self-defence was to use excessive force. This alternative was founded on the defendant’s own version of events.
6.
The defendant, when giving evidence, said that the complainant had lunged at her in the road and grabbed her hair. She had fallen and at some stage both had hold of each other’s hair. She continued:-
“At the last stage my arms were being held and my legs were freer, but I couldn’t lift them. Malika was on top of me with her hair covering my face. I was on my back on the ground.”
She felt pressure on her chest and abdomen, she was finding it difficult to breathe, she was trying to wriggle and it was at that stage she bit the complainant’s nose to get the complainant off her; it had the desired effect.
7.
The film does not show when the appellant bit Malika Assaouci. But the film does show that both she and appellant went to the ground in the middle of the road. It shows both Malika Assaouci and the appellant within a confused mêlée which moved onto the pavement on the opposite side of the road. Once on the pavement Malika Assaouci can be seen on her feet continuing to involve herself in the fight. But thereafter, the appellant can be seen on the ground with a man in a red top, apparently on top of her.
8.
As we have indicated, the grounds of appeal, with leave of the full court presided over by Hooper LJ, are directed at the summing up. The judge directed the jury as to the meaning of assault, referring to
the Offences Against the Persons Act 1861
. Since there was no dispute but that the appellant had deliberately bitten the complainant on the nose we query whether it was necessary to take over two pages of transcript in defining assault to the jury. But the judge then turned to the only issue in the case, self-defence. He pointed out that an assault in revenge is never capable of being self-defence. He said:-
“…if you are sure that the accused, Nadia Harvey, was either the aggressor or had deliberately provoked the attack upon her by words and actions with the intention of assaulting the alleged victim, then self-defence does not arise unless the violence offered by the victim, or in this case the group to which she belonged, was or may have been so out of proportion to the accused aggressor’s attack or the provocative words and actions that she honestly believed she was in immediate danger and had no other means of escape.
The reason for the words following ‘unless’ is because in that case she would not have continued to be the aggressor. To use Ms Zentler-Munro’s words that she used during her speech: ‘the tables would have been turned’.”
9.
The judge repeated those directions down to the reference to “no other means of escape”. He then directed the jury that one of the factors it should take into account was whether if the appellant was or might have been under unlawful attack it was possible and safe for her to retreat. He told the jury that if the appellant did not honestly believe that it was necessary to use force to defend herself, she cannot have been acting in self-defence. He continued:-
“Were you to think that she did or may have believed honestly that it was necessary to use force to defend herself then you ask yourself a second question, which is whether the type and amount of force she used was reasonable.
A person who is under attack may react on the spur of the moment and cannot be expected to work out exactly how much force she needs to defend herself.”
He then gave the conventional extreme example of shooting someone who had raised their fist and continued:-
“You have got to ask yourselves therefore if whether the type and amount of force she used was reasonable. If she goes over the top and uses force out of all proportion to the anticipated attack on her or more force than is really necessary to defend herself then the force would not be reasonable, and in making that judgment, as I say I have given you an extreme example, you will not be surprised to know that juries have to deal with situations where it is not so extreme, so maybe that judgment, coming from that decision, you have got to take into account the nature of the attacking; you find it to be on her, and what she actually did.
If you are sure that the force that she used was unreasonable then she cannot be acting in lawful self-defence but if it was or may have been reasonable she would be entitled to be acquitted.”
10.
Thus far, the directions dealt with the law of self-defence without any reference to the factual conflict in the case. But the judge did then turn to applying those directions of law to the factual issues:-
“The prosecution say that she (the defendant) was the aggressor and knew that she did not need to resort to violence. They say that she did not honestly believe that it was necessary to use force to defend herself and that the reasonableness of the force does not arise. But the prosecution say that if you thought it was or might be the case that she believed honestly that it was necessary to use force to defend herself, then the biting of the alleged victim’s nose with such force as to cause the injuries you can in the photograph, was disproportionate to the level of attack upon her,
which consisted, they say, of hair-pulling and holding at the time of the bite,
and therefore they say self-defence, if you have got to this question, is disproved because as Mr Coxhill opined to you a few days ago that the accused, Miss Nadia Harvey, went over the top.
On the other hand, the defence say that at the point at which she bit Malika Assaouci she was unable to move her arms, she tried but failed to move her legs, she could not breathe and was under attack. She believed not only by the alleged victim, Malika Assaouci, but also by the large group of Malika Assaouci’s friends, and, the defence say, not being able to judge the precise degree of force necessary, did the only thing she could and bit the alleged victim.
If you are sure the force she used was unreasonable then she cannot have been acting in lawful self-defence, but if it was or may have been reasonable she is entitled to be acquitted.” (Our emphasis).
11.
The judge reminded the jury of the evidence. At the request of the jury, at the end of his summing up, he repeated many of the legal directions we have identified without further summarising the factual issues in the case.
12.
In careful and forceful submissions Ms Zentler-Munro advances three criticisms of the passages in the judge’s directions which we have already cited. Firstly, that in directing the jury that self-defence does not apply unless the victim’s actions were so out of proportion that the defendant honestly believed she was in immediate danger the judge reversed the burden of proof. Secondly, she contends, as an associated ground, that read as a whole the directions were confused and confusing. They were unnecessarily lengthy and convoluted. Finally, as a third ground, she contends that the judge failed to direct the jury that they were required to assess the reasonableness of the appellant’s actions in biting the complainant’s nose on the basis of the facts as the appellant honestly believed them to be.
13.
Although distinct grounds were advanced, their merits can only be judged by consideration of the summing up as a whole. The sense of the directions must be judged by the thrust of the summing up as a whole and not by analysis of isolated extracts. Did the judge adequately explain that the burden remained on the prosecution throughout to disprove self-defence? Did he make sufficiently clear the essential elements of the law as to self-defence as applicable to the factual issues of the case?
14.
The law of self-defence has now been codified for the purposes of clarification and not reform (see
s.76(9)
of the
Criminal Justice and Immigration Act 2008
). The provisions of
s.76
were not in force at the time of trial.
15.
Prosecution counsel, who was not counsel instructed in this appeal, suggested that the jury ought to consider whether the appellant had been the instigator of the violence. This led to submissions as to the law of self-defence when applied to a situation in which the tables are turned on an initial aggressor.
16.
There was no dispute as to the law either before the judge or before us, although Hooper LJ, in giving permission, seems to have believed that the law needed to be revisited. In
R v Rashford
[2005] EWCA Crim 377
this court applied the Scottish authority of
Burns v HM Advocate
[1995] SLT 1090 at 1093H in the which the Lord Advocate General said:-
“It is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it, or entering into it willingly, cannot plead self-defence if his victim then retaliates. The question whether the plea of self-defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself. That depends on whether the violence offered by the victim was so out of proportion to the accused’s own actings as to give rise to the reasonable apprehension that he was in immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury.”
17.
This court said that that passage accurately represents English law and should be more widely known. Dyson LJ, giving the judgment of the court, said:-
“There may be a temptation whenever it is open to a jury to conclude that the defendant went to an incident out of revenge or was the aggressor to direct the jury that if they reached that conclusion then self-defence cannot avail the defendant. If the judge wishes to give a direction along these lines the facts will usually require something rather more sophisticated where the possibility exists that the initial aggression may have resulted in a response by the victim which is so out of proportion to that aggression as to give rise to an honest belief in the aggressor that it was necessary for him to defend himself and the amount of force that he used was reasonable.” (§21)
No reference to that authority or to the situation in which the tables are turned upon an initial aggressor was to be found in the Crown Court Bench Book available to the judge. Indeed, there is no reference in the current guidance either to
Rashford
or to
Burns
.
18.
The judge faithfully tried to follow
Rashford
. In our view he was not guilty of reversing the burden of proof. He explained to the jury why he used the word “unless”, namely, to steer the jury away from the erroneous belief that if the appellant was the initial aggressor she could not thereafter rely upon self-defence at all. He used the word “unless” to emphasise that in circumstances where the tables had been turned, the defendant could nonetheless rely upon the defence of self-defence. Accordingly, we reject the first ground of appeal.
19.
But we do question whether it was necessary to deal with the law relating to reliance by an initial aggressor on self-defence. Whilst the appellant’s alleged initial abuse in the cab office might have provoked the complainant, there was no violence until both ladies approached each other in the middle of the road and started to pull each other’s hair. The real issue was not who started the fight but the circumstances in which the appellant bit Malika Assaouci’s nose.
20.
The length of the directions founds the second ground of appeal in which Ms Zentler-Munro suggests that they were confused. She says that it would have been sufficient for the judge to follow her invitation to direct the jury that it:-
“…must consider whether the defendant honestly believed she had to defend herself and whether her response was reasonable. If the Crown has made you sure that she was the initial aggressor and that she remained the aggressor throughout, then you may think that she did not honestly believe she needed to defend herself.”
She bases that suggestion on Dyson LJ’s judgment in
Rashford
at §21. In that case, the judge’s error, which did not affect the safety of the verdict, lay in failing to direct the jury that they could only reject the defence assertion that he honestly believed that it was necessary to defend himself if they concluded that he was the aggressor throughout.
21.
But such a direction would not have fitted the factual dispute in the case. It was plain from the CCTV that the start of the violence was when both ladies approached each other in the middle of the street. Whoever had provoked the fight in the first place, at the stage actual violence started the only fair view was that both ladies were equally responsible as they pulled each other’s hair. The real question was not whether the appellant had provoked the fight by shouting abuse but the circumstances in which she bit her opponent’s nose. If the jury were sure it had happened, as the prosecution suggested as Malika Assaouci was lying on the ground underneath the appellant, then the appellant was guilty. The defence did not suggest otherwise.
22.
If, on the other hand, the defendant may only have bitten Malika Assaouci when pinned to the ground with one or more on top of her, then the only reasonable conclusion would have been that she may have honestly believed it was necessary to use force to free herself. In that event, the only question was whether the prosecution could prove that a bite in those circumstances amounted to a disproportionate act of violence.
23.
We acknowledge that a confused and confusing direction is an oxymoron. If a judge is unclear he cannot be said to be directing the jury at all. We also recognise that it is the prime function of a judge’s directions to a jury to spare the jury from the law and not to inflict it upon them. No disquisition on the 19
th
century statutory provisions was necessary. Nor was it necessary to give general directions on the law of self-defence without reference to the factual issues in the case.
24.
If the jury was sure that Malika Assaouci’s account was correct then the appellant could not be said to have honestly believed it was necessary to bite her. Neither the defendant nor her counsel had suggested that if that was the jury’s conclusion, the defendant was not guilty.
25.
On the other hand, if the jury reached the conclusion that the appellant may have bitten the complainant only when the man in the red top was above her as she lay pinned to the ground on her back, and when Malika Assaouci’s nose was near enough to be bitten, then the prosecution had not disproved the defendant’s account. The only issue was the amount of force used by the defendant to free herself. We suggest that on the facts of this case the directions to the jury could have been confined to the consequences of the rival factual versions of the circumstances in which the appellant bit her opponent, either the prosecution could prove the defendant was on top or it could not. If it could not, may it have been reasonable to bite her opponent’s nose, even allowing for stress and urgency at the moment of decision?
26.
But although we suggest that the direction could have been far simpler and confined to the factual dispute it does not follow that we accept that the jury was misled by the confusing nature of the summing up. It was, perhaps, too long but it was not confusing nor was it confused. We reject that second ground of appeal.
27.
The alternative way in which the prosecution put its case leads to the third ground of appeal. The final ground relates to the undisputed proposition of law that the jury must assess the reasonableness of the degree of force used on the basis of the defendant’s perception of the events and of the danger he believes he faces (see e.g.
R Shaw –v- The Queen
[2001] UKPC 26
§ 19 and the commentary on
Rashford
by Professor Ormerod [2006] Crim LR 547-549).
28.
In his directions the judge did not direct the jury to assess the reasonableness of the bite in the circumstances as the appellant honestly believed them to be. But the issue in this case had little, if anything to do with the appellant’s own perception. The essential factual issue was whether the appellant bit her opponent, when she was on top of her... If she did, she cannot honestly have believed it was necessary to do so. But if she bit her when she was pinned to the ground, she may well have believed it was necessary to do so to free herself and the only question was whether the bite was excessive, disproportionate force. Since the CCTV showed both the ladies pulling each other’s hair and the later stage, when the defendant was pinned on the pavement, but not the bite, the jury’s decision did not require any conclusion as to the defendant’s honest belief but rather a decision as to the circumstances of the bite. Either the defendant was on top or she may not have been.
29.
If she may have bitten Malika Assaouci, when pinned to the ground, there was no difference between the circumstances in reality and the circumstances as she honestly believed them to be. Absent any difference between reality and perception, it could make no difference to ask whether the bite was reasonable in the circumstances as they may have been and the circumstances as the defendant may have believed them to be. Any assessment of whether the degree of force used was proportionate would be the same. It had to be judged on the basis that the defendant was pinned to the ground. In those circumstances the asserted omission made no difference.
30.
The argument advanced in the third ground demonstrates the erroneous belief that in every case of self-defence all the elements are always relevant and must be mechanically recited to the jury. In any event in the passage we have cited at §10 the judge did make it clear that the defence was based upon the circumstances as the defendant honestly believed them to be.
31.
As the Privy Council said in
Shaw
(§20) the rudiments of self-defence must be stated in clear and simple terms. The Privy Council was doing no more than repeating what has been said so many times before:
“The directions must be tailored to the factual dispute.”
The directions in law needed do no more than to guide the jury as to what the essential factual dispute was and the conclusions to be drawn from the different findings open to them on the evidence.
32.
We have little doubt that both ladies regret the incident, induced, as it was, by drink. But the jury must have been sure, in the light of the way the judge identified the issues of fact, either that the bite had occurred at a stage when not even the defendant contended she honestly believed it was necessary to use force of that nature or that, despite the fact that the defendant may have been pinned to the ground, she used excessive force. In those circumstances, whilst we wish to emphasise that it is plain that the offence was wholly out of character in one described as “loyal, loving, kind, bright and intelligent”, we are driven to the conclusion that the verdict was safe and we dismiss this appeal. | [
"LORD JUSTICE MOSES",
"HIS HONOUR JUDGE RUSSELL, RECORDER OF PRESTON"
] | 2009_03_18-1873.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/469/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/469 | 797 |
40349569462077da8fb0eec52ff8e0294ac72f0cd1e03c60495fe01cf00504bb | [2007] EWCA Crim 2757 | EWCA_Crim_2757 | 2007-10-15 | crown_court | No: 200701502/B3 Neutral Citation Number: [2007] EWCA Crim 2757 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 15th October 2007 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GIBBS HIS HONOUR JUDGE WIDE QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CASIM SCOTT - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill C | No:
200701502/B3
Neutral Citation Number:
[2007] EWCA Crim 2757
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 15th October 2007
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE GIBBS
HIS HONOUR JUDGE WIDE QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
CASIM SCOTT
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr N Rudolf
appeared on behalf of the
Appellant
Miss G Ong
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON: The appellant arrived at court over an half-an-hour late for surrendering to custody. The reason he was late was that he had overslept.
2.
On those simple facts the questions of law raised by this appeal are whether he was guilty of an offence under
section 6 of the Bail Act 1976
and whether the judge was wrong in requiring that the matter be put to him.
3.
The appellant had been charged with a firearm offence and three drug offences. He had been committed on bail to appear at Snaresbrook Crown Court at 10.00 am on 29th January 2007. The matter was listed for a plea and case management hearing.
4.
The case was called on at 10.15 but the appellant was not there. For practical reasons the case was transferred to the list of another judge, His Honour Zeidman QC. When the matter was called on before him, there was still no sign of the appellant. The judge was on the point of issuing a bench warrant when the appellant walked in. The judge put the case back until later in the morning and refused bail in the meantime.
5.
When the case came back before him it was argued on the appellant's behalf that half-an-hour's late was a de minimis failure to comply with the conditions of his bail and that no Bail Act offence should be put to him. The judge rejected that argument. The Bail Act offence was then put to the appellant and he pleaded guilty. He also pleaded guilty to the other offences with which he was charged. He was remanded on conditional bail until sentence. As a matter of record, when he appeared for sentence he received a community penalty for the substantive offences and no separate penalty in respect of the Bail Act offence. The reason why the appellant is concerned to challenge the judge's decision to put the matter to him was that he now has, on his record, a conviction for failure to surrender, albeit that the record will also show that no penalty was imposed.
6.
That is the background. The first issue is whether the appellant had a defence to the charge of failing to surrender. That involves a question of construction.
Section 6(1) of the Bail Act 1976
provides:
"If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody, he shall be guilty of an offence."
The expression "surrender to custody" is defined in section 2(2) as meaning "surrendering himself into the custody of the court ... at the time and place for the time being appointed for him to do so."
7.
The question of construction is whether those words are to be interpreted as meaning literally 'at the appointed time' or whether there is some flexibility to be implied so that the words should be interpreted as meaning "at or about the appointed time" and, if so, what is the permitted margin.
8.
In the 2007 edition of Archbold the following note appears at paragraph 3-30:
"Although 'surrender to custody' means surrender 'at the time and place for the time being appointed for him to do so' (see s 2(2))..., it appears that the
de minimis
principle should be applied if a defendant is only marginally late. In
R v Gateshead Justice ex parte Usher
[1981] Crim LR 491 DC, it was held that being seven minutes late did not constitute the offence..."
The editorial note adds "sed quaere, if this occurred more than once (let alone deliberately) without excuse."
9.
Mr Rudolf, on behalf of the appellant, relied on that passage in his argument before the judge. We do not have a full transcript of the judgment in
Ex parte Usher
, and the report in the Crim LR is brief. It reads as follows:
"The applicants, with others, were bailed by police to appear on August 15, 1980 before justices for an offence under
section 25 of the Theft Act 1968
. The applicants did not appear at court at the appointed time so warrants were issued. When the applicants arrived they were seven minutes late but the warrants were not withdrawn so they were required to attend the police station to be bailed. On September 19 the justices' clerk put a charge to the applicants for absconding while on bail, contrary to
section 6 of the Bail Act 1976
. The desire to enter a not guilty plea was refused and the proceedings adjourned to October 24. On that day the clerk opened with the charge and then entered the witness box and gave evidence that the applicants had not been present on August 15, he then returned to his seat and conducted legal argument with the applicants. The justices convicted the applicants and they were fined."
10.
On an application to the Division Court for an order of certiorari to quash the justices' order, it was held as follows:
"Held, allowing the applications, that
section 6
made it an offence to fail without reasonable cause to surrender to custody, and that a delay of seven minutes could not be said to amount to such an offence; that section 1 of the Magistrates' Courts Rules 1968 provided which persons may lay an information and that did not include justices' clerks, to do so would mean that the clerk became the prosecutor which was wrong. Accordingly, because of these and other irregularities the convictions would be quashed."
11.
The court seems therefore to have been influenced in that case by a combination of factors. For that reason, and because we do not have a full transcript, we consider, with respect, that it is not a very satisfactorily authority and should not be taken as establishing any general principle.
12.
Mr Rudolf properly drew to our attention this morning a brief report of a decision of this Court in the case of
R v Jordan
(4th October 1988) in which it was held that a defendant who arrived 20 minutes late could not be said to be de minimis in answer to a charge under
section 6 of the Bail Act 1976
.
13.
Looking at the matter as one of statutory construction, in our view, the proper construction of the Act is that surrender to custody must mean, as the Act provides, "at the appointed time and place" and does not admit by any permissible process of statutory interpretation some additional gloss to allow some unidentified further margin.
14.
It was submitted by Mr Rudolf that there is a general principle of the criminal law, which can be described as a de minimis principle, so that where a statute regulates behaviour by reference to a limit whether in time or amount, a minor transgression would afford a defence in law. On this argument, the haulier who uses on the road a lorry which is overladden by only a small amount would have a defence in law to a charge of breach of a traffic regulation governing the maximum permitted loading of vehicles; a person who exceeded the speed limit by only a small amount would have a defence in law to the charge of speeding; a person who drove with only a small amount of excess of alcohol in his blood would have defence in law to a drink driving charge, and so on. Unsurprisingly Mr Rudolf was not able to cite any authority to support such a broad submission, and we reject it. If the proper interpretation of
section 6
of the Bail Act is as we consider it to be, it follows that the mere fact that a defendant is only slightly late cannot afford him a defence.
15.
There was, however, a second stage to the appellant's argument. It does not follow that because a defendant is in breach of
section 6
of the Bail Act, the court must necessarily put the offence to him; the court plainly has a discretion. It was submitted that it is a reviewable discretion and the exercise of that discretion by the judge in this case was Wednesbury unreasonable. The judge gave these reasons for requiring the matter to be put to the appellant and for distinguishing
ex parte Usher
:
"Two points need to be made. First of all, half an hour is considerably longer than seven minutes and, secondly, times have moved on since 1981. There are far more reasons now to apply case management to criminal proceedings. We have criminal procedure rules, the whole atmosphere has changed and for a defendant once granted bail not to turn up on time is a serious matter. He was granted bail on the footing that he would be here. What sentence is justified if he were to plead guilty or to be found guilty is an entirely different matter and I will deal with that in a proper way, but there is a real public interest in putting these matters when defendants do not turn up on time so that, for example, it is on their record so that a future court when deciding whether to grant bail has an opportunity of taking into account the fact that on a previous occasion he was late. That is a relevant circumstance and if it is not on his record, if the matter has not be put to him, it may well be a court in the future would have no knowledge as to his previous bail history."
We are prepared for the sake of argument to accept the possibility that there could be circumstances where a defendant's late arrival at court was so truly marginal that it would be
Wednesbury
unreasonable to pursue it but it would be a rare case. In this case the judge cannot, in our view, possibly be considered to have acted unreasonably, let alone in the
Wednesbury
sense, in the view that he took.
16.
The Practice Direction on failure to surrender to bail
[2004] 1 WLR 589
states as follows:
"The failure of the defendants to comply with the terms of their bail by not surrendering can undermine the administration of justice. It can disrupt proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant's failure to surrender affects not only the case with which he is concerned, but also the courts' ability to administer justice more generally by damaging the confidence of victims, witnesses and the public in effectiveness of the court system and the judiciary. It is, therefore, most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action if they fail to do so."
Even if a delay is small it can still cause inconvenience and waste of time. If a culture of lateness is tolerated the results can be cumulative and bad for the administration of justice. If the message given to this appellant had been that being half-an-hour late did not really matter, it would have been the wrong message to him and to other people.
17.
Mr Rudolf has put before us a number of points which were frankly mitigation points. They were factors which no doubt led to the decision not to impose a penalty on him. They did not afford any good reason why the judge could be said to have acted unreasonably in requiring a charge to be put. It was submitted that it was disproportionate and draconian that it should now be on his record that he failed to surrender at the appointed time. Why so? It is a matter of fact he did fail to attend at the appointed time. It was submitted that this could have an unduly harsh effect in the future because another court might refuse him bail. If the message received by defendants is that a failure to answer to their bail on time may have an adverse effect on obtaining bail in future, we cannot see this as a cause for complaint. In our judgment this is an appeal with no merit at all; it is dismissed.
18.
MR RUDOLF: May I address just one point because the judgment has altered significantly, in one sense, the law, because effectively you have overturned
Usher
, or what people thought
Usher
at least meant. I have not discussed this with my learned friend, it has occurred to me now. Would you be prepared to certify to their Lordships' House a question based upon the application of the de minimus principle, bearing in mind, as your Lordship pointed out, how many statutes with limbs and constraints that create offences there are, so that this can be considered, and I have formulated something. It simply says: "Can the de minimus principle afford a defence to the charge of
section 6(1) of the Bail Act 1976
?"
19.
LORD JUSTICE TOULSON: For my part alone, I would be wholly unwilling to certify a question in such terms, it would be to invite their Lordships' House to consider writing an essay on the criminal law.
20.
MR RUDOLF: So be it.
21.
LORD JUSTICE TOULSON: If you wish this Court to consider some more merrily formulated question, we will consider it but I am not encouraging you to do so.
22.
MR RUDOLF: Thank you.
(The Bench Conferred)
23.
LORD JUSTICE TOULSON: We are not giving you encouragement, but we think that the fair and appropriate thing is that you should have an opportunity to consider what you really want to say; it is not easy drafting when on your feet. If you want us to consider certifying some question of importance, it will be for you I think to formulate it in writing, send it to us and we will deal with the matter on paper.
24.
MR RUDOLF: Certainly, thank you. | [
"LORD JUSTICE TOULSON",
"MR JUSTICE GIBBS",
"HIS HONOUR JUDGE WIDE QC"
] | 2007_10_15-1239.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2757/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2757 | 798 |
6200d33ed6499e361a2da29f10bac64bf9902db4cc7d132ba745780aec2c8db3 | [2009] EWCA Crim 2610 | EWCA_Crim_2610 | 2009-11-26 | crown_court | No. 2009/05708/A4 Neutral Citation Number: [2009] EWCA Crim 2610 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Thursday 26 November 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE SIMON and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 90 of 2009 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - STEVEN ROSS - - - - - - - - - - - - - - - - Compute | No.
2009/05708/A4
Neutral Citation Number:
[2009] EWCA Crim 2610
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Thursday 26 November 2009
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE SIMON
and
MR JUSTICE ROYCE
- - - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE No. 90 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
STEVEN ROSS
- - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr B Altman QC
appeared on behalf of the Attorney General
Mr R Jones
appeared on behalf of the Offender
- - - - - - - - - - - - - - - -
J U D G M E N T
Thursday 26 November 2009
THE LORD CHIEF JUSTICE:
1. This is an application by Her Majesty's Attorney General under
section 36 of the Criminal Justice Act 1988
for leave to refer to this court a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Steven Ross. He was born in April 1973. He has many previous convictions.
3. On 2 October 2009, following a trial in the Crown Court at Blackfriars, before His Honour Judge Martineau and a jury, the offender was convicted of an offence of rape and an offence of assault by penetration. Before those verdicts were returned, and at the close of the case for the prosecution at trial, he pleaded guilty to an offence of inflicting grievous bodily harm as an alternative to the allegation of causing grievous bodily harm with intent. He was sentenced to ten years' imprisonment for the offence of rape, to ten years' imprisonment for the offence of assault by penetration, and to four years' imprisonment for the offence of inflicting grievous bodily harm. All those sentences were ordered to run concurrently, making ten years' imprisonment in all. The offender was ordered to comply with notification requirements.
4. The victim of the three offences was the offender's partner. There was a history of domestic violence.
5. In the early hours of 20 December 2008, while in the victim's home, the offender threatened to, and cut the victim with a knife. He then punched her with such force that she fell backwards and suffered a blow to her head. The immediate effect of that was to cause, among other injuries, a fracture in the region of the neck which produced complete paralysis from the neck downwards. Although she said to him that she was unable to move, the offender demanded sex. He picked her up, placed her over the bed, raped her anally and then inserted a deodorant spray canister into her rectum with sufficient force to cause internal injuries. For a period of about thirty hours he refused to heed her pleas that an ambulance should be called. He wanted her to agree, and she did eventually agree, to give the authorities a wholly untruthful account of how she had come by her injuries in a way which would exonerate him and implicate a completely fictitious taxi driver as the perpetrator.
6. The offender is 6ft 4in tall, a strong, well-built man. He weighed about 18 stones. The victim is 27 years old, 5ft 7in in height and 7 and a half stones in weight. She is a citizen of the Czech Republic. She has been in this country for five years studying English and working part-time. The owners of the place where she worked developed a loving and caring relationship towards her. They regarded her as a conscientious employee, reliable and popular.
7. The ground floor of their premises is used as a gym. One of its patrons was the offender. Gradually a relationship developed between the offender and the victim.
8. In August 2007 someone in the gym informed the owners of the premises that the victim was being assaulted. The victim had a split lip. The police were called and the offender was arrested. In March 2008 he pleaded guilty to common assault. A community order was imposed with a supervision requirement of twelve months' duration, together with an order for costs and compensation. At the time the victim complained that she had been assaulted five or six times during their relationship. After this incident she told her employer that she had ended her relationship with the offender. The employer did not believe her. Thereafter the victim turned up for work with different injuries. She gave "improbable accounts" of how she had come by them.
9. The victim's mother lived in the Czech Republic. She came to England to see her daughter. She first met the offender in May 2007 in London. Between the end of 2007 and the beginning of 2008 the offender and the victim visited her mother's family in the Czech Republic. In October 2008 the victims' parents visited her in London. On both occasions the victim's mother witnessed acts of violence by the offender towards her daughter. Her parents described an occasion in October 2008 when the offender became angry and threatened the victim with a knife.
10. At about 1pm on Sunday 21 December 2008, nursing staff at Hammersmith Hospital reported to the police that a female patient had just been admitted to the Accident and Emergency Department. The patient was this victim. She had been delivered to hospital in a private taxi. She was accompanied by the offender. He gave the name Steven James. The report to the police was that the victim had injuries to her face and her ribs. She complained of pain in her back and extremities. Police officers who attended the hospital observed that she had scratch marks over her face and a black eye, and that she was unable to move.
11. When the victim first spoke to the police she gave them a detailed, but untruthful, account of what had happened. There can be no doubt that she did so in an effort to cover up what the offender had done, almost certainly because she was terrified. Her explanation was that she had been working in a bar on the evening of Friday 19 December. She had left at about 3am on 20 December. She was unable to catch a cab from a local minicab firm and got into a minicab which pulled up at the side of the road. When the cab arrived a few doors away from her home, the driver stopped the car, locked the doors, jumped into the back of the vehicle, kissed her neck and produced a knife which he placed against her forehead and her neck. She managed to escape, but she was followed by the driver who kicked her in the back.
12. A second police officer spoke to the offender. He provided a story which dove-tailed with that offered to the police by the victim. He said that he found her outside on the pavement, a few doors away from her home. She could not get up, so he carried her to the house. She did not want an ambulance but wanted to go to bed. Later that day, although she was still unable to move, she had refused to go to hospital. On the Sunday he insisted that he would take her to hospital. He ordered a taxi which took them both to the Accident and Emergency Department.
13. Later that evening the victim was transferred by ambulance to Charing Cross Hospital for specialist treatment.
14. We must go back. On the night of Friday 19 December the victim went to work as usual. She was in good spirits. She left work just after 3am on the Saturday. Later that day, about half an hour before she was due to start work, one of the owners of her place of employment received a text message from a number that she did not recognise. That message gave the information that the victim was in hospital, having twisted her ankle, and thus provided an excuse for her inability to arrive at work. At about 4.30pm the co-owner of the premises received a text message in similar terms. In fact, the text messages were sent by the offender at the behest of the victim, who sent them in the hope that the very fact that she was sending text messages rather than telephoning her employers (which is what she would normally have done) and their content might alert them to her plight.
15. At 2.15pm on the Saturday afternoon a text message was sent to the victim's telephone enquiring after her. The offender telephoned one of the victim's employers. He was crying. He gave the false account which was later to be given to the police of an assault and an attempted rape by a taxi driver.
16. None of this was sufficient to fool very sceptical, inquiring police officers. On the Sunday, in Charing Cross Hospital, the victim was re-interviewed. Although she gave an untruthful account, some discrepancies had emerged.
17. The offender was seen again. He confirmed his earlier account in broad terms. The officers then accompanied the offender to the victim's flat in order to obtain some clothing for her. There they found a significant amount of blood on the bedroom floor, on the bed sheets and on some items of furniture. The offender claimed that he had cut his finger on a knife and that was why the blood was there to be seen in the bedroom. After the departure of the officers, he attempted to clean the flat and he disposed of the items of bloodstained clothing that the victim had been wearing. He was arrested later that day outside Charing Cross Hospital on suspicion of causing grievous bodily harm. In interview he declined to answer questions. He provided a prepared statement in which he denied any assault on the victim.
18. Thereafter, a specialist search was conducted of the flat and the surrounding area. Among other items the police recovered from a metal bin several doors away from the victim's home, and in the opposite direction to where the offender claimed to have found the victim on the pavement, a bra and three ladies' tops. The victim later identified them as items of clothing she had been wearing on the Friday and Saturday.
19. From inside the victim's home the police recovered a deodorant spray canister measuring 4cm in diameter and 7cm in length. The spray head of the canister carried blood and faecal material. Scientific analysis confirmed that the DNA from both the blood and the faecal material matched the DNA profile of the victim.
20. In the meantime the victim's mother arrived in this country. She immediately went to see her daughter, who was in a critical condition. Her condition had deteriorated after her admission to hospital. At this stage she still supported the offender's false story. However, she gradually revealed to her mother that it was the offender who had been responsible for her injuries. In a short interview a few days later she confirmed that she had been punched by the offender in the eye. That was consistent with her black eye, which was there to be seen.
21. The offender was re-interviewed under caution. He declined to answer questions. He provided a second prepared statement in which he expressed concern that the victim was being put under pressure when she was unfit for interview.
22. The victim was interviewed again at her own request, and then again later. The interviews were conducted under ABE conditions. They were admitted as her evidence in-chief at the subsequent trial and she was cross-examined unscreened.
23. She told the jury that after leaving work she had collected the offender by cab. The offender had been angry. He was still angry when she met him. The offender had struck her. This had caused her to fall backwards and to strike her head on a portable electrical plug assembly. She added that, before striking her, the offender had armed himself with a knife with which he had threatened her and that he had cut her face with it. It was the blow and the fall that had caused her to suffer a heavily bruised eye, a collapsed lung and a cervical spine fracture which produced complete paralysis from the neck downwards. Unsurprisingly, the victim feared that she was seriously injured. She begged the offender to pick her up and put her on the bed. He disbelieved her. She complained that she was immobile. He demanded sex. He placed her onto her knees beside the bed with the top of her body leaning over the bed. She was unable to feel anything, but she was aware that he was behind her. She could feel him moving. It did not hurt because of the damage she had already suffered. She was unaware of how her trousers and knickers had been removed, but they were never recovered. It was clear from the scientific findings that the canister had been inserted by the offender into her rectum, causing bleeding.
24. Thereafter, the offender must have known of the pain and catastrophic condition of the victim. At one stage he carried her and placed her in a bath, fully clothed. She was incapable of getting out of the bath. During the rest of the Saturday and into the Sunday she pleaded with him to call for an ambulance. He would not do so until he secured her agrement that she would give the hospital and the police the untruthful, agreed account of how she had received her injuries, which she eventually offered to the police.
25. In evidence at trial the offender was asked why he had not called for an ambulance and had called instead for a taxi when he eventually called for assistance. He said that if he had called an ambulance, the ambulance staff would have been alerted and the police would have come to the conclusion that the explanation given to them was untrue. That would have led to his arrest and possible prosecution.
26. At one point in this ordeal the offender told the victim that he proposed to leave her unattended but would leave a mobile phone by her side. She told him that she was frightened that if he carried out this threat she would die because she was quite incapable of operating a mobile phone. This was one of the reasons why she agreed to tell the false story to the police.
27. For a period of about thirty hours the offender did absolutely nothing to assist the victim. All he was interested in was saving his own skin and getting her to agree to a false story.
28. On 24 February 2009 the offender was arrested on suspicion of rape. He was interviewed under caution. A prepared statement was produced. The allegation of rape was denied. He denied having had sexual intercourse with the victim. However, he made certain assertions about the nature of their sexual relationship. He claimed that they had regular consensual vaginal intercourse and regular consensual anal intercourse. When the victim was told of this assertion she strenuously denied any regular consensual anal intercourse. She said that on one previous occasion the offender, who was very keen to have such intercourse, attempted anal sex with her. She found it painful and repugnant, and had refused any repetition. On that basis the occasion of anal intercourse at the time of this rape was forced on her when the offender knew perfectly well that that was a form of sexual activity which she disliked intensely.
29. In evidence at trial, the offender admitted that he knew that the victim had been unable to move following the assault. He accepted that she had told him so. He claimed that he did not believe her. He denied any sexual activity. He admitted disposing of her clothing. He admitted failing to call an ambulance. He asserted that during their relationship the victim regularly inserted objects into her anal passage for her own sexual gratification. That, too, was a falsehood.
30. In hospital the victim was intubated and placed on a ventilator. Scans and X-rays were performed. Her left lung had collapsed. Air was discovered in the tissues under the skin in the lower neck, upper chest, in the mid-part of the chest and in the abdominal cavity. There were multiple pockets of free air in the pelvis, which suggested vaginal or rectal injury consequent on the insertion of the canister into her anus. There was a cervical spine fracture at level C5 to C6 (the lower part of the neck). This resulted in complete paralysis from the neck downwards, as well as all the consequent indignities in relation to bowel and bladder movements. Further description of the injuries to her genitalia and rectum is unnecessary. She developed deep vein thrombosis which led to blood clotting in the lungs.
31. Three rib fractures were discovered on X-ray. These were healing fractures, probably two months old. In her evidence the victim said that they had been caused by the offender when he had assaulted her. However, she also said that she had been persuaded by him to say that the injuries had been caused accidentally in a fall in the bathroom. The radiologist who gave evidence at trial expressed the view that the earlier rib fractures might have caused the lung to collapse during the fall from the blows on 20 December. An alternative explanation for the collapsed lung was the insertion of a tracheostomy tube on her arrival at the Accident and Emergency Department.
32. The injuries suffered by the victim are of a permanent and significantly disabling nature. She has been undergoing a rehabilitation programme delivered by a multi-disciplinary team. Although there has been progress in the movement of her upper limbs, the prognosis is that the victim will never walk again and will have to spend the rest of her life in a wheelchair.
33. The judge took the view that there was insufficient evidence to justify leaving to the jury the count of causing grievous bodily harm with intent. Accordingly, the only direct offence of which the offender was convicted was inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861
, for which the maximum sentence is five years' imprisonment. However, we must examine, as the judge had to examine, this case in its overall context. Even if the section 18 offence was not established, the fact was that the victim was subjected to these awful indignities at a time when she was helpless as a result of the violence meted out to her by the offender.
34. In addition to his conviction for common assault to which reference was made much earlier in this judgment, the offender has a number of relevant previous convictions. In total there are a total of 78 offences in the course of 38 appearances over a period of about twenty years. It is true, as the judge observed, that none was for sexual crime. The most significant are that in 1989 he was convicted of robbery; 1990, assault on the police and possessing an offensive weapon; 1996, affray; 1997, having a bladed article in a public place; 2002, possessing an imitation firearm with intent to cause fear of violence; 2004, disorderly behaviour; 2005, assault on the police; and 2007, assault.
35. In his sentencing remarks the judge analysed the way in which the offence had occurred. He noted the victim's paralysis and her helplessness when the offender "decided to indulge in anal sexual intercourse" -- something he enjoyed but she hated. After that, by way of sexual gratification or as punishment for her, the deodorant can had been inserted. He said:
"Your self-regard and total lack of humanity is astounding and utterly deplorable."
With that observation we entirely agree.
36. The question is not whether that observation is accurate, but whether the sentencing decision which followed the judge's analysis of the crucial facts in the case was unduly lenient. We have no doubt that it was.
37. The aggravating features of these offences are self-evident from our description of what happened to this young woman. We propose to summarise them again. There is the background history of violence by the offender towards the woman with whom he had an intimate relationship. In March 2008 he was convicted of common assault on her. He has the other previous convictions which we have recently narrated. On the occasion with which we are concerned, he struck her with such force that she fell to the floor. That produced the grave and disabling injuries which in the context of the rape offence rendered her completely defenceless. Before he struck her, he had been armed with a knife which he had used to threaten her and to cut her face. Knowing that the consequences of the violent blow he had administered and her resulting fall had been paralysis, he raped her anally. He then degraded her further by using a deodorant canister to penetrate her anus, in turn causing serious internal injuries. These offences were a grave breach of trust, not merely in the context of their personal relationship, but also because he knew that the victim found anal sex painful, distasteful and unacceptable to her. He carried out the attack when she could do nothing. He was completely merciless. He showed her no mercy whatever. Afterwards he refused to call an ambulance in order to see if something could be done to help her in her physical condition. Instead, he concocted a story which he required her to join so as to avoid any possible link between him as the man responsible for her injuries and passing that over to some unknown stranger. This young woman has been left seriously and permanently disabled as a result of the attack. The injuries are catastrophic.
38. When we look for any elements of mitigation, as to the offences of rape and sexual assault there is none. In relation to the offence of violence, there is the limited mitigation that the offender pleaded guilty.
39. We have read a letter written by the offender and we have looked at some of the qualifications he is seeking to achieve while in custody.
40. Anyone listening to this judgment will regard this as a truly appalling case of heartless brutality. These were offences of the utmost gravity. The evidence clearly demonstrated that the offender is dangerous and that he will continue to represent a long-term danger for the indefinite future. A sentence of imprisonment for public protection is the least possible sentence that is consistent with the safety of the public. That order is now made.
41. We turn to consider the period which must expire before the Parole Board can even begin to consider the possibility of release on the basis that the offender has ceased to be a danger. There are some cases, and this is one of them, in which the culpability and criminality of the offender are beyond the ambit of any guideline case or definitive guideline issued by the Sentencing Guidelines Council. It is not possible to cater for a crime like this.
42. The offender showed no mercy to this young woman. He merits none from this court. We shall assess the determinate sentence as 18 years' imprisonment. It follows from that that under statute the minimum prescribed period will be nine years. The time spent in custody on remand will count towards sentence.
43. The end result is that the offender must be kept in custody until it is safe for him to be released.
________________________________________ | [
"MR JUSTICE SIMON",
"MR JUSTICE ROYCE",
"THE CRIMINAL JUSTICE ACT 1988"
] | 2009_11_26-2171.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2610/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2610 | 799 |
ebd05fe6e678cf3f652898171f368bc4669648a1b154974a548d4fd28e185825 | [2008] EWCA Crim 2559 | EWCA_Crim_2559 | 2008-10-24 | martial_court | Case Nos: 2008 01091, 2008 01313 Neutral Citation Number: [2008] EWCA Crim 2559 IN THE COURTS MARTIAL APPEAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/10/2008 Before: LORD JUSTICE LATHAM MR JUSTICE MACKAY and MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - Between: Times Newspapers Ltd and Guardian News & Media Ltd (Appellants) and Soldier B -v- Regina and Soldiers A, C. D, E and F (Respondents) and Secretary of State for Defence (Interested Party) - - - - | Case Nos: 2008 01091, 2008 01313
Neutral Citation Number:
[2008] EWCA Crim 2559
IN THE COURTS MARTIAL APPEAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24/10/2008
Before:
LORD JUSTICE LATHAM
MR JUSTICE MACKAY
and
MR JUSTICE KING
- - - - - - - - - - - - - - - - - - - - -
Between:
Times Newspapers Ltd and
Guardian News & Media Ltd (Appellants)
and
Soldier B
-v-
Regina
and
Soldiers A, C. D, E and F (Respondents)
and
Secretary of State for Defence (Interested Party)
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Hugh Tomlinson QC and Paul Bennett (Solicitor Advocate) on behalf of soldiers A, C, D, E and F
John McKenzie (Solicitor Advocate) and Stuart Lindsay on behalf of soldier B
Gavin Millar QC and Anthony Hudson on behalf of The Times Newspapers Ltd and Guardian News & Media Ltd
Jonathan Glasson on behalf of The Secretary of State for the Defence
Nadim Bashir on behalf of the Crown
Hearing dates: 6 & 7 August 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Latham :
1.
These are appeals by the media, and by one of the defendant soldiers, from an order made on the 4
th
February 2008 by His Honour Judge Blackett, Judge Advocate General (the JAG) pursuant to
s. 11 of the Contempt of Court Act 1981
and
s. 94 (2) of the Army Act 1955
. The order related to proceedings brought against 6 soldiers charged with a conspiracy to defraud involving a sum in total of about £3,000. In essence the judge ordered that the proceedings should be held in camera in their entirety, and that no reports of the proceedings should be published save for the fact the six soldiers were so charged.
2.
The appellants appeal under s. 103 (2) (nn) of the
Army Act 1955
and paragraph 90 (1) (2) of the
Courts Martial (Army) Rules 2007
. At the hearing of the application for leave to appeal on the 17
th
March 2008, this court ordered that in the absence of any rules of procedure in this court, the procedure under
s. 159 of the Criminal Justice Act 1988
was to be adopted. As far as procedure was concerned, the court ultimately ordered that there should be argument in open court as to the principles to be followed when the court is considering making any orders affecting public access to or reporting of criminal proceedings. The court would then sit in camera to consider any material put before it which could justify any such orders. And finally there was to be an open hearing at which the court would have the opportunity to indicate its views on the material it had heard in camera, before any further argument. This is accordingly the procedure we adopted. We gave our decision on the 7
th
August 2008. We allowed the appeals, but ordered that the names of five of the six soldiers should be anonymised, and made consequential orders to secure the effectiveness of the main order. These are our reasons.
3.
The order made the JAG was made after he had adopted a somewhat similar procedure. The judgment he gave was in the following terms:
“Clearly as we all agree the fundamental principle is that unless the circumstances are highly exceptional justice must be administered in public. And this fundamental principle is subject to a number of recognised exceptions under common law. If there are to be any restrictions they must be the minimum necessary, and the burden is on those seeking the order to show that there is a substantial risk of prejudice to national security and to the administration of justice without an in camera hearing. A court cannot sit in private purely because it believes that to sit in public would be prejudicial to national security. However, if the fact of national safety appears to endanger the true administration of justice, for example by deterring the crown from prosecuting cases where it should do so, the court may sit in private. Those are all quotations from the jurisprudence which has been placed before me.
But we have also discussed
s. 94 (2) of The Army Act 1955
. But I have found no case where this has been tested in the Court of Appeal, and no authority has been brought to my attention. However, I agree with Mr Hudson that this section must be construed in a way which is compatible with the European Convention on Human Rights, and a judge should only exercise his discretion to exclude the public were absolutely necessary for the interests of national security. This construction means that the hurdle over which an applicant must jump before this fundamental principle of open justice is affected is a very high one. So there must be material made known to the court upon which it can reasonably, or which the court can reasonably reach its conclusions. Now I have examined a bundle of evidence produced by the Crown, and the defence relating to the defendants, their former and current activities, their fears for the integrity of future operations involving them, and their colleagues, and their fears for the physical safety of themselves and their families. I also heard evidence that these subjective fears could be objectively justified. This evidence also includes assertions about the way the defence is to be conducted by reference to dates, locations and other colleagues. Having all that evidence I am satisfied that there would be a substantial risk of prejudice to national security, both in terms of safety of individuals, and the adverse effect it would have on operational effectiveness and therefore providing a n advantage to potential enemies. And I am also satisfied there would be a substantial risk of prejudice to the administration of justice because the defence would not be able to pursue certain lines of questions and enquiries, and therefore the defendant may not receive a fair hearing. And I have listened to what Mr Hudson has said about the way that that can be addressed, but given the evidence that I have heard I do not think that that is a practical suggestion. Therefore in the exercise of my discretion under
s. 94 (2) of The Army Act 1955
, and in line with common law exceptions to the fundamental principle of open justice, I am going to order that all proceedings in this case will be in camera”.
4.
Mr Millar on behalf of the media, supported by Mr McKenzie on behalf of Staff Sergeant McKay, submits that this order was wrong in principle, could not be justified on the material before the JAG and is in any event far more restrictive than is necessary on any proper evaluation of the authorities and the evidence. The basic principle is set out in the speeches in the House of Lords in
Scott v Scott
[1913] AC 417
, namely that justice requires proceedings in court to be held in public, with all the consequences that that entails. It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted. An example given by Earl Loreburn was where parties might reasonably be deterred from seeking justice. It is therefore only where it is strictly necessary for the attainment of justice that the court can hear proceedings in camera.
5.
In
Attorney-General v Leveller
[1979] AC 440
, Lord Diplock stated at page 450:
“… since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from the statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.”
6.
Lord Scarman said this, which is particularly relevant in the present context at page 471:
“… the basis of the modern law is as Viscount Haldane declared it was in
Scott v Scott.
It follows: (1) that, in the absence of express statutory provision (e.g. s.8 (4) of the Act of 1920), a court cannot sit in private merely because it believes that to sit in public would be prejudicial to national safety, (2) that, if the fact of national safety appears to endanger the true administration of justice, e.g. by deterring the crown from prosecuting in cases where it should do so, a court may sit in private, (3) that there must be material (not necessarily formally adduced evidence) made known to the court upon which it can reasonably reach its conclusion.”
7.
There is, in fact, no dispute about these principles. And it is now clear from the submissions of the Army Prosecuting Authority, from counsel acting on behalf of all the defendants apart from Staff Sergeant McKay and from the Secretary of State for Defence, who has been given leave to intervene, that they accept that the order made by the JAG was wider than was necessary in the interests of justice. They also accept that it was not justified by s. 94 of The Army Act, which provides as follows:
“(1) Subject to the provisions of this section, a court-martial shall sit in open court and in the presence of the accused.
(2) Nothing in the last foregoing sub-section shall affect the power of a court-martial to sit in camera on the ground that it is necessary or expedient in the interests of the administration of justice to do so; and without prejudice to that power a court-martial may order that, subject to any exemptions the court may specify, the public should be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy.”
8.
The Army Prosecuting Authority has, in its submissions, put forward a modified form of order which would, it was said, have been effective in ensuring that the public would only be excluded where matters engaging national security were truly in issue in the evidence or the argument. On that basis they do not oppose the appeal, which, accordingly, is allowed.
9.
The position, however, is now very different from the position at the time of the original order. At that time the JAG was concerned about controlling a trial in which a substantial body of evidence both for the prosecution and for the defence would be led. The Army Prosecuting Authority has now informed this court that, for reasons which do not concern us, it has decided to offer no evidence when the matter comes back to the court-martial. The question therefore is what orders, if any, should this court make in place of the order made by the JAG in the light of the new situation.
10.
Mr Millar submits that, having allowed the appeals, we should revisit the previous hearings and make such orders as are appropriate enabling the material placed before the court at those hearings to be made publicly available, at least to the extent that we consider appropriate. He further submits that we should consider whether or not there is any further justification in maintaining the anonymity of the six soldiers, particularly bearing in mind the fact that, as Mr McKenzie confirmed, Staff Sergeant McKay did not want anonymity. He has, in fact, recently been acquitted at a court-martial trial in which he was named.
11.
As to the first, we consider that the application is misconceived. The press is entitled to report whatever has transpired in open court. In so far as the hearings were in camera, there was therefore nothing that the press was entitled to publish. The parts of the hearings which were in camera were those where the court was considering evidence and argument as to the extent to which evidence or other material should be made public. It was clearly in the interest of justice that those hearings should be in camera. We cannot turn the clock back. In any event, having considered the material in question, it is quite clear that none of it should be in the public domain.
12.
That leaves the question of anonymity. That has been the essential subject matter of the proceedings before us. It is clearly an important aspect of open justice that defendants’ names should be made public. This has recently been underlined by the House of Lords in
In re S (A Child) Identification: Restrictions on Public
Publication
[2005] 1 AC 593
and by this court in
In re Trinity Mirror plc
[2008] 3 WLR 51
. But there is no doubt that a court may, in appropriate circumstances, order that the identity of a defendant can be protected from publicity by withholding his or her name. This is recognised by
s. 11 of the Contempt of Court Act 1981
, which provides:
“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purposed for which it was so held.”
13.
But the critical words for our purposes are the words “having power to do so”. S. 11 does not, of itself, give any such power.
14.
In
R v Evesham Justices, ex parte McDonnagh
[1988] 1 Q.B. 553
, the Divisional Court recognised the existence of the power, but said at page 562:
“But, s. 11 was not enacted for the benefit of the comfort and feelings of defendants. The general rule enunciated in the passage I have quoted from
Attorney-General v Leveller Magazine Limited
[1979] A.C. 440
, 450, may not, as is there stated, be departed from save where the nature or the circumstances of proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice.”
15.
In
R v Reigate Justices ex p Argus Newspapers
and
Larcombe
(1983) 5 Cr App R (S) 181, the Divisional Court indicated that a defendant who was in danger of being identified as a “supergrass” could be granted anonymity but only if that was the only way to protect him.
16.
In common law, there is therefore no authority for the proposition that anonymity can be ordered for any purpose which is not connected to, or does not have an effect on, the administration of justice, or is not provided for in any statutory exception. In
Re Officer L
[2007] 1 WLR 2135
, the House of Lords considered the question of anonymity, albeit witness anonymity, in the context of the
Human Rights Act 1998
, and in particular Article 2 of the European Convention on Human Rights. In that case it was held that two police officer witnesses to an affray in which a man died were not entitled, on the facts, to anonymity in an inquiry into a death. The House of Lords accepted that Article 2 would be engaged if there was a “real and immediate” risk to the life of either officer, so that the State’s obligation to take reasonable steps towards preventing loss of life could justify the grant of anonymity. The claim to anonymity failed essentially on the basis that calling the officers by name to the inquiry would not materially increase the risk to their lives, which was acknowledged to exist, but, arising form the fact that they were serving police officers in Northern Ireland, and from their being called to the inquiry.
17.
In order therefore for us to be entitled to make any order for anonymity for all or any of the soldiers we must be satisfied either that the administration of justice would be seriously affected were we not to grant anonymity, or that there is a “real and immediate” risk to the life of any of the soldiers were anonymity not granted. The only other route would be by statute. But s.94 (2) is not worded in a way which could justify an order for anonymity. It is concerned with protecting information given in evidence which might affect the national interest. As there is to be no trial, there is no evidence upon which s. 94(2) could bite.
18.
We have considered the evidence put before us in camera in the light of those principles. That evidence consisted of statements from the soldiers and statements and oral evidence from a senior officer in the Special Forces. That evidence satisfies us that, in general, the Special Forces have a justifiable policy of not disclosing the names of personnel whether they are active, that is badged members of the Special Forces, or ancillary staff. But that policy cannot of itself justify the court granting anonymity. In the present case the claim to anonymity rest fairly and squarely on the risk to the lives of two of the soldiers, and the service history makes it clear that they would be at a real and immediate risk if they were identified. As far as the other three are concerned, they do not fall into the same category. But we are satisfied from the evidence that we have heard that there is a real risk that if they were identified, the other two could be identified. Granting them anonymity is, in our view, a reasonable and proportionate precaution to take in order to provide the protection to which the other two are entitled. So far as Staff Sergeant McKay is concerned, he has asserted his Article 6 rights to an open hearing. Although there must be some risk of the disclosure of his name undermining the integrity of the order in respect of the others, we have come to the conclusion that his rights must be accommodated at least to the extent of enabling him to be identified. And this would be consistent with the fact that he was identified in the earlier trial.
19.
It is for these reasons that we have ordered that the names of the soldiers apart from Staff Sergeant McKay should be withheld, and have granted orders under s. 11 of the Contempt of Court Act accordingly. We should say for completeness that Mr Bashir on behalf of the Army Prosecuting Authority submitted that future prosecutions would be inhibited if any failure to grant anonymity. He did so clearly by assertion. We do not consider that this could be a sufficient basis for granting anonymity in this case even though, as Lord Scarman recognised in
Attorney General v Leveller
, material short of admissible evidence may well be sufficient in other cases. | [
"LORD JUSTICE LATHAM",
"MR JUSTICE KING"
] | 2008_10_24-1691.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2559/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2559 | 800 |
da6859a103d82e5c9854bf96211e06958060753c2f312da424f494a658097069 | [2013] EWCA Crim 1433 | EWCA_Crim_1433 | 2013-07-11 | crown_court | No: 201202515 C1 Neutral Citation Number: [2013] EWCA Crim 1433 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 11th July 2013 B e f o r e : LORD JUSTICE LAWS MR JUSTICE IRWIN MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - R E G I N A v AMEEN HASSAN JOGEE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY | No:
201202515 C1
Neutral Citation Number:
[2013] EWCA Crim 1433
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 11th July 2013
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE IRWIN
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - - -
R E G I N A
v
AMEEN HASSAN JOGEE
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7422 6138
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mrs F Oldham QC & Miss F Gerry
appeared on behalf of the
Appellant
Mr A Edis QC & Mr L Blackburn
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LAWS: On 28th March 2012, before Dobbs J at the Leicester Crown Court, this appellant was convicted of murder and sentenced to imprisonment for life with a specified minimum term of 20 years less 289 days spent in custody on remand. His co-defendant, Mohammed Hirsi, was also convicted of murder and sentenced to life imprisonment with a minimum term of 22 years less 289 days.
2.
The appellant now appeals against his conviction by leave of the full court (Davis LJ, Andrew Smith and Jeremy Baker JJ) granted on 16th April 2013. Leave was granted on grounds 1 to 3, which are all concerned with aspects of the fact that the case against the appellant was one of joint enterprise. The court adjourned the application for leave on ground 4. That concerned an issue relating to disclosure. It was originally the purpose of Mrs Oldham QC for the appellant to pursue it at this hearing, but she has told us that it is abandoned and it is not therefore necessary to say anything more about it. The court on 16th April also stood over the applicant's application for leave to appeal against the length of the minimum prison term.
3.
This is the court's judgment on the grounds relating to conviction.
4.
At 2.23 am on 10th June 2011, the appellant and his co-defendant Hirsi went, not for the first time that night, to the home of a woman called Naomi Reid on the Rowlatts Hill estate in Leicester. They knew that Miss Reid and a man called Paul Fyfe, with whom Reid was in a sexual relationship, were at the premises. Hirsi entered the house unasked. The appellant remained near the front door. Hirsi confronted Fyfe. He took a knife from the kitchen block and stabbed Fyfe in the chest. Fyfe was pronounced dead at 2.15 am. The appellant had remained outside the front door.
5.
The appellant was a 22-year-old man who used and dealt in drugs. There was evidence of earlier bad feeling between him and Fyfe. Hirsi, aged 25, was a friend of the appellant. Fyfe, who worked as a paralegal, had on previous occasions represented both him and the appellant. He had also represented Reid's partner and the father of her children, who was known as Sunny, in the criminal proceedings in 2010, which had seen Sunny sentenced to a long prison term for drugs offences. Reid's relationship with Fyfe was concealed from Sunny and from her children.
6.
The appellant and Hirsi spent over eight hours together on the evening of 9th/10th June 2011. The longest period in which they were apart appears to be from about 1.15 am to 2.02 am, or possibly just after. They got increasingly drunk and intoxicated by cocaine and their behaviour became more aggressive. There was evidence, admitted without objection, of a number of instances showing that that is what happened.
7.
At length, at 11.42 pm they were dropped off at the Rowlatts Hill estate by a man called Harper. They woke up someone called Rana. He told them to "fuck off". Hirsi threatened to beat him up. At 11.56 they headed for Reid's flat. There had been text messages between the appellant and Reid about drugs. Reid let the appellant into the premises on his own. Once inside the appellant texted Hirsi, saying "Come back in two minutes". Hirsi duly turned up. Reid said the appellant seemed drunk. He told her about the encounter with the man Rana and was angry and aggressive as he did so. The appellant picked up a large knife from the kitchen block. He said that they should go and "shank" (that is stab) Rana and waved the knife about. Hirsi tried to calm him down and he returned the knife to the block. Then the appellant shared some cocaine with Reid. Reid knew that Fyfe would not like them being present. She said he would be back soon. The appellant said, what could Fyfe do about it. The appellant and Hirsi began to encourage each other, saying they could take Fyfe out. They talked about having a session and staying all night. Hirsi in particular spoke about not giving a shit and boasting about how he could be a rapist, robber, knock someone out or even kill someone.
8.
At 1 am the man Harper sent the appellant another text about more cocaine and they agreed to meet. The appellant and Hirsi left but they said they might come back. Reid told them not to bother because Fyfe would be coming and she was going to bed.
9.
Hirsi returned to Reid's home after 1 am, still drinking, and said the appellant would be returning shortly. Reid tried to get him to go before Fyfe arrived but he would not. Fyfe got there at 1.51 am. Hirsi started to taunt him, saying he had spent the evening with his, Fyfe's, girlfriend. Fyfe told him to go.
10.
At 2.02 am Reid phoned the appellant, telling him to take Hirsi away. The appellant, who had been taking cocaine, collected Hirsi. They left Reid's address at about 2.04. At 2.21 Reid sent the appellant a text. It read:
"Safe Ameen. Don't bring that guy to my house again, otherwise I'll tell Sunny you're bringing guys round my house. See you tomorrow yeah x."
But the two of them returned to her place at 2.23. It is a fair inference that the appellant had shown the text to Hirsi, though that was denied.
11.
Hirsi went in to the house. The appellant stayed near the front door. He was shouting about Sunny, Reid's partner. Fyfe came downstairs in his boxer shorts. There was an angry exchange between him and Hirsi. Fyfe went back upstairs to put on his jeans. Hirsi went to the kitchen. Then Reid saw that the knife block was empty. Reid was telling Hirsi and the appellant to leave. Fyfe was now back downstairs. This is how the judge summarised Reid's evidence as to what happened next:
"'Ameen [that is the appellant] was outside the house smashing the car. I can't remember what they were saying but they were both irate and angry and shouting things. Ameen was egging Nelly [that is Hirsi] on to do something to Paul [that is Fyfe]. Ameen had a brandy bottle in his hand and at one stage he came right to the front door, ready to hit the bottle over Paul's head, but he didn't. He just threatened him with it. I saw him with his right hand raised. He was standing on the ledge of the front door and he was saying that he wanted to smash it over Paul's head as he lent forward past Nelly. He wouldn't have been able to reach Paul from there. Paul was trying to tell Nelly and Ameen to leave and Nelly said he wasn't going anywhere, as did Ameen. I was still in between them as it seemed like they were going to end up fighting. I told Nelly to leave the house as it wasn't worth it to get into trouble, and then I said I was going to call the police and then he pulled out the knife. I didn't manage to phone the police. He pulled out the knife from somewhere around the back, pointed it up against my chest whilst holding me by the throat. I think he had the knife in his right hand. I backed off and went into the kitchen to lock myself in there, and for a brief second the kitchen door was shut. As I opened the kitchen door I saw the back of Paul near the front door. He was facing the front door which was open. Nelly was in front of him, an arm's length away from Paul. Paul was standing in the passage where the washing machine was'. You have got photographs, members of the jury, of the washing machine. 'Nelly was inside the front door. Ameen was outside near the car. There was stuff being said but I can't remember exactly what was said, but Ameen was egging Nelly on to do something to Paul. Paul was trying to calm the situation and get them out of the house and asked Nelly, "What are you going to do? You going to stab me with it?" and Nelly stabbed him and I heard Paul say "You stabbed me". Paul was in front of me with his back to me and I saw Hirsi make a stabbing motion with the knife towards Paul, towards his chest. I didn't see the blade enter him'."
Then later this:
"Paul went upstairs and put his jeans on. She said that it happened very quickly and that it took longer to describe the events than the events themselves. Ameen was still outside and the door was not fully open because of the washing machine. When Nelly went into the kitchen he did not say anything about a knife and he came in and out very quickly, and Ameen was not saying anything at that time. Paul was at the bottom of the stairs. She was in the middle with Nelly facing her and from outside he would have his back to anyone outside. Ameen was outside the house smashing the car at that stage. Ameen came to the door, put a foot on the ledge, egging Nelly on. She denied that he was raising the bottle and saying, 'Come on' to Hirsi, as if 'Come on, leave the house'. She said: 'I couldn't hear what Ameen was saying when he leant forward. It was threatening, as if he was being aggressive with it, but he was not within reach of Paul and he didn't remain there. She said it was a matter of seconds before Nelly drew the knife out and stabbed Paul."
12.
The learned judge rejected a submission advanced on behalf of the appellant at the close of the prosecution case that there was no case to go to the jury. The court granting leave on 16th April 2013 thought that the judge had given no reasons for that ruling. In fact, we now have a transcript showing she gave a fully reasoned decision.
13.
Neither defendant gave evidence at the trial.
14.
There were originally four grounds against conviction. Only three remain live. The fourth has been abandoned, as we have indicated. The three live grounds are these. As set out in the grounds:
"(i) The learned judge wrongly rejected a submission of no case to answer as there was no evidence upon which a properly directed jury could infer encouragement of joint enterprise murder.
(ii) The learned Judge directed the jury that they could only convict this Appellant as a secondary party if he foresaw that a knife 'might' be used. This was in accordance with authority in relation to group attacks but, in this case, such a direction was insufficiently precise and invited assumption/speculation.
(iii) In a case such as this where 'encouragement' to joint enterprise is concerned, a jury should be directed not to convict unless they are sure that the defendant knew there was a weapon or use of a fatal weapon was a 'real probability'. The language of risk and possibility disregards the standard of proof. The direction should have been 'realised Hirsi would' use a weapon not 'realised Hirsi might'."
15.
It is convenient first to deal briefly with the complaint advanced both in the submission of no case and in counsel's advice and grounds which is that the Crown shifted its ground. Whereas it is submitted the case was opened on the basis that the appellant had actively encouraged Hirsi to commit the fatal assault, when it came to the half-time submission the case was being put on the basis of the appellant's continued association with Hirsi that night, knowing there was a real risk that he might act as in fact he did.
16.
There is, with respect to Mrs Oldham, nothing in this. Even if there were a shift of ground or at least of emphasis, it could not avail the appellant in the absence of demonstrated unfairness of the trial process, and there is none. But there was in substance no shift of ground. The Crown's written argument in response to the no case submission included this:
"The prosecution opening as a whole made it clear that the Crown case against Jogee is put on the basis of continued association
and
encouragement. Both are relied on as part of the factual matrix upon which joint enterprise in this case is founded."
We have seen nothing to refute this as a proposition. The judge dealing with the no case submission effectively reached the same conclusion: see the transcript of the ruling at page 15A.
17.
We turn to the substantive points on grounds 1 to 3. There is first a submission, no doubt embraced within the first ground at paragraph 19 of the written skeleton argument for the appellant, that the evidence of Reid, the sole witness to the killing, was so undermined in cross-examination that no reasonable jury could have relied on it, and it for that reason the case should have been withdrawn at the end of the Crown case. This is part and parcel though not the whole of ground 1. As a freestanding point, however, it goes nowhere. Inconsistencies in Reid's evidence were addressed by the judge carefully and properly at 47A and following of the summing-up. It was manifestly for the jury to decide whether they believed her or not.
18.
The appellant's real case on grounds 1 to 3, and the argument emphasised by Mrs Oldham QC this morning, is that the appellant could only be convicted of murder if it were shown that he knew that Hirsi was in possession of a weapon -- on the facts the knife from the kitchen -- and appreciated that Hirsi might use it to inflict grievous bodily harm or worse. Here, it is said there was no evidence to demonstrate such knowledge on the part of the appellant and the judge directed the jury in a manner inconsistent with the proposition that proof of Hirsi's possession of the knife was required.
19.
Rejecting the no case submission, the judge answered a question she posed herself: was there sufficient evidence on which a reasonable jury properly directed could convict? This is how she answered it:
"In my judgment, there is. If there was no evidence of the former incident involving the knife in the kitchen, then the prosecution would have a problem, but given the knowledge of both Defendants of the existence and availability of the knife in the kitchen, set against the other background evidence relied on by the Crown, it is open to the jury to find that Jogee realised that Hirsi might use a knife, intending to cause at least serious bodily harm and participated by encouragement and that Hirsi killed with the requisite intent. Whether they do so is another matter, and the points raised by the defence are matters to which the jury will need to pay close attention."
20.
Summing-up to the jury, the learned judge said this, first at page 7C in the summing-up transcript:
"In this case the Prosecution allege that both defendants are responsible for the death of Paul Fyfe, Hirsi by stabbing him and Jogee by encouraging Hirsi."
Then at page 8E:
"What is the position in law of the other person, in this case Jogee, where a potentially lethal weapon is used by the other? Let me break that down for you. If A during the course of a fight pulls out a knife and uses it to kill and when he did so he intended to kill or cause grievous bodily harm A will be guilty of murder if the victim dies. If another, B, participates by encouragement he will be guilty of murder if he (a) knew A had the knife and (b) shared A's intention to kill or do really serious bodily harm, and A, with the requisite intent, kills X. Or if, although he did not share A's intention to kill or do serious bodily harm, B realised that A might use the knife with the intention to kill or cause serious bodily harm and he nevertheless took part by encouraging A and A, with the requisite intent, kills X. So here a degree of foresight is required.
The Prosecution say that Jogee knew that Hirsi could get hold of a knife at the house and that he realised that Hirsi might use the knife with intent to kill or cause Paul Fyfe serious bodily harm, and nevertheless, with that knowledge, participated in the attack on Paul Fyfe by encouraging Hirsi. That encouragement took the form of verbal encouragement to harm Paul Fyfe; threatening serious violence towards Paul Fyfe himself when threatening to smash a brandy bottle over Paul Fyfe's head; deliberately damaging Paul Fyfe's car in close proximity to where Hirsi was attacking Paul Fyfe, and being close at hand to lend support."
Then a little later there is this further direction, at page 11E and following:
"So far as Mr Jogee is concerned, you can only convict him of murder if you have already found Hirsi guilty of murder. If you find Hirsi guilty of murder ask yourselves Question 1: Are you sure that Jogee participated in the attack on Paul Fyfe by encouraging Hirsi by the means relied on by the Prosecution which I have already set out? If you are not sure that Jogee participated in the attack on Paul Fyfe then that is the end of the matter and he is not guilty. If the answer is 'yes', move on to Question 2: Are you sure that when he participated he realised that Hirsi might use the kitchen knife to stab Paul Fyfe with intent to cause Paul Fyfe serious bodily harm. If, for instance, you think it may be the case that by taking and using the knife Hirsi was acting outside the scope of the joint enterprise, in other words that he had gone on a frolic of his own, and it was not something that Jogee could have contemplated, then your verdict will be not guilty. However, if your answer is 'yes', then Jogee would be guilty of murder."
21.
The appellant by Mrs Oldham submits that the approach adopted by the judge is appropriate for cases of joint enterprise by participation, but not for cases of joint enterprise by encouragement.
22.
In our judgment, the law would take a step backwards if it endorsed such a distinction. In
Rahman
[2009] 1 AC 129
, Lord Brown stated:
"If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B."
23.
There is no principled basis on which this reasoning should be applied only to cases of participation and not to cases of encouragement. Indeed, the distinction between the two is, to say the least, permeable. Encouragement is a form of participation; that is why it is enough to convict a secondary party. The actus reus of the secondary party's crime is lending support to the primary actor, whether by active participation or encouragement or both. The mental element, the mens rea, of the secondary party's crime is an appreciation that the primary actor might inflict grievous bodily harm and a willingness to lend his support notwithstanding.
24.
This, in essence, was the approach followed by the learned judge both in rejecting the no case submission and in directing the jury, and it is consistent with earlier authority, including not only
Rahman
but also this court's recent decision in
Carpenter
[2012] 1 Cr App R 11
.
25.
There is nothing in the circumstances of Mrs Oldham's rhetorical question upon the judge's comment at page C7-D which we have read: what is it, she asks, that Jogee was supposed to be encouraging? The summing-up clearly directs the jury as to the circumstances obtaining at the critical moments.
26.
There is, in our judgment, nothing in this appeal against conviction which will be dismissed.
(Submissions on appeal against sentence followed)
27.
LORD JUSTICE LAWS: We turn now to the application for leave to appeal against sentence which was adjourned, as we have said, by the full court in April. We do not repeat the facts of the case which are given in our judgment on the conviction appeal.
28.
The appellant is 22. He has previous convictions for common assault in 2002 and 2003, possession of an offensive weapon in 2003, possession of a prohibited weapon in 2003, 2004 and 2006, battery in 2009 and aggravated vehicle taking in 2010. There are also some drugs convictions. There is no previous conviction however, as Mrs Oldham has sought to emphasise, for an offence that involved this degree of violence.
29.
The learned single judge refusing leave to appeal against sentence said this:
"As to sentence, a 20 year minimum term was not excessive for your participation in a stabbing with a large knife applied with severe force in the early hours of the morning at Naomi's house (which you had entered, uninvited, about an hour before the killing and then returned to again) in front of the victim's partner, carried out with a view to sorting the victim out over a text message you had received, and when you:
I. were under the influence of alcohol;
II. knew that Hirsi was drunk and dangerous;
III. encouraged him to attack the victim when you realised he was going for a knife and, later, when he had it; and
IV. had a substantial criminal record, including for drugs and violence.
The judge made appropriate allowance for the fact that it was not you who wielded the knife."
30.
We have considered this very carefully. The correct starting point was 15 years. It falls to be reduced because, as the judge found, there was no intention to kill. However, it falls to be increased again having to the aggravating features in the case. They are essentially the fact it was committed at the victim's home, or his girlfriend's home, the use of the knife and its later disposal and the antecedent history which we have recited. There was, on the other hand, no planning, and what has moved us is that there was here no very great distinction between the minimum terms passed in relation to the primary offender Hirsi and this applicant.
31.
In all those circumstances we consider that the appropriate minimum term here was certainly significantly above the starting point of 15. It should have been 18 years, rather than 20. We will grant leave to appeal and allow the appeal to the extent that we substitute that minimum term for the 20 years imposed by the learned trial judge. | [
"LORD JUSTICE LAWS",
"MR JUSTICE IRWIN",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2013_07_11-3220.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1433/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1433 | 801 |
64b50790c35dd6f1d299b7f50a7ce3a514ba35af133fe2c130279d8092a9722b | [2006] EWCA Crim 1650 | EWCA_Crim_1650 | 2006-06-07 | crown_court | No: 200504793 C4 Neutral Citation Number: [2006] EWCA Crim 1650 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 7 June 2006 B E F O R E: LORD JUSTICE MOSES MR JUSTICE BEATSON HIS HONOUR JUDGE GORDON (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - R E G I N A -v- JOHN WILLIAMS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1 | No:
200504793 C4
Neutral Citation Number:
[2006] EWCA Crim 1650
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 7 June 2006
B E F O R E:
LORD JUSTICE MOSES
MR JUSTICE BEATSON
HIS HONOUR JUDGE GORDON
(Sitting as a Judge of the Court of Appeal, Criminal Division)
- - - - - - -
R E G I N A
-v-
JOHN WILLIAMS
- - - - - - -
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 HAROUNOFF
appeared on behalf of the APPELLANT
MR J GOLD QC
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: This is a reference by the Criminal Cases Review Commission in relation to a plea of guilty by this appellant to an offence of carrying an imitation firearm with intent to commit an indictable offence, contrary to
section 18 of the Firearms Act 1968
("
the 1968 Act
"). The appellant pleaded guilty to that offence and to an offence of robbery on 12 July 1999 at Lewes Crown Court. Because of the nature of the offence of carrying an imitation firearm with intent to commit an indictable offence, this had a draconian effect on the sentence which was passed in relation to the robbery offence because the judge was compelled to sentence him to a period of imprisonment for life, pursuant to
section 2 of the Crime (Sentences) Act 1997
. He specified the period of two years, pursuant to
section 28 of the Crime (Sentences) Act 1997
, and passed two and a half years' imprisonment concurrently for the offence of carrying an imitation firearm with intent under count 2.
2.
We mention those facts because we ought to record that, although this appellant had a somewhat dispiriting career as a criminal, affected as he was by alcoholism, we now learn that he is at liberty (although of course subject to license) and has done well in a manner that merits congratulation. But, of course, these proceedings are of importance to him since he remains subject to the life sentence.
3.
There had been a series of appeals, a refusal of leave to appeal, an application granted and an appeal dismissed back in 1999 and 2000. But this reference arises out of a more recent decision, namely that of the House of Lords in
R v Bentham
[2005] UKHL 18
. The issue in this appeal is whether a bottle, which the Crown alleged and the appellant admitted was hidden in a plastic bag, had been held in such a way as to give an appearance of a firearm within the meaning of
section 18
of the 1960 Act, read with the definition sections (sections 57(1) and (4)).
4.
The facts are that this appellant committed a robbery at a supermarket in Lewes in March 1999, at about 4.15 in the morning. He approached a hatch holding a white plastic carrier bag and tapped on the window. The lady behind the counter recognised the appellant and opened the hatch to serve him. He asked for two bottles of vodka. He was told that alcohol would not be served because of the hour, and again he asked for alcohol. He then told the shop assistant that he had a gun. She moved away from the hatch and asked a male assistant to call the police. The appellant, according to her, tapped the plastic bag on the hatch and it made a metallic sound.
5.
Her evidence in a statement, untested of course in cross-examination because the appellant pleaded guilty, was that although she did not see the appellant's left hand and did not see the item he was holding, he appeared to be holding a long straight item, with his left hand, inside the carrier bag. The only other evidence relevant to the appearance of that bottle within the bag was the appellant's own admission when he was arrested at his home address. He had been given a bottle of whisky and had left the premises that night. He was still drunk the following day, but he admitted that what he had done was wrong and said that he had pretended that he had a gun inside the bag, but it was in fact a bottle, and he handed over a bottle to the police.
6.
He pleaded guilty to robbery and, as we have said, to this offence. The question then arises as to whether he was guilty of an offence pursuant to
section 18
of
the 1968 Act
.
Section 18(1)
of
the 1968 Act
provides:
"It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence ... while he has a firearm or imitation firearm with him."
7.
Section 57(1) provides:
"... "firearm" is a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes-
(a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not ..."
8.
Section 57(4) is of key importance in this appeal. It defines "imitation firearm" as follows:
"Anything which has the appearance of being a firearm, whether or not it is capable of discharging any shot, bullet or other missile."
9.
There is no difference between the definition of "firearm" and "imitation firearm" either under
section 17(2)
or
section 18
of
the 1968 Act
. That is of significance because the case which led to this reference, namely
Bentham
, was a case concerning
section 17(2)
.
Section 17(2)
prohibits the possession of an imitation firearm.
Section 18
is more limited. It does not refer to possession, but rather to the narrower concept of having a firearm or imitation firearm with him, a concept connoting greater propinquity than possession. But, as we have said, the definition remains the same. The question is therefore whether the reasoning of the House of Lords in
Bentham
has anything to do with this case.
10.
In that case, a defendant held his hand inside a zipped-up jacket, forcing the material out so as to give the impression that he had a gun. The House of Lords concluded that a hand or fingers were not things which it is possible to possess. What is possessed must be a thing (see paragraph 8 of the leading speech of Lord Bingham of Cornhill). Fingers and hands are part of the body and cannot be possessed. One does not own one own's limbs, said Lord Rodger, in Latin.
11.
In our judgment, this decision of the House of Lords has nothing to do with this case. The statute, as well as the decision of the House of Lords in
Bentham
, are authority for the proposition that a defendant must be proved to have with him a thing which, absent a plea of guilty, the jury is sure has the appearance of a lethal barrelled weapon of any description. In the instant appeal, the appellant admitted he had a "thing" with him, namely a bottle, independent of his own body. Whether it had the appearance of a firearm was a question of fact to be judged not by the words he used, but by the appearance of the thing.
12.
There was no warrant, in our judgment, for the suggestion of Mr Harounoff, on behalf of this appellant, that the thing had to be adapted or altered to be made to look like a firearm, like the metal pipes bound together, in
R v Morris and King
[1984] 79 Cr App R 104. A stick or table leg within a bag might have the appearance of a firearm. The question of whether the jury is persuaded that the thing a defendant has with him has the appearance of a firearm is to be determined on all the evidence, including the evidence of witnesses at the time. But their evidence, whilst it is material in order to illustrate to the jury what appearance the thing had at the time, is not dispositive. It is a matter for a jury, on the evidence, to judge what appearance the thing had at the material time.
13.
Mr Harounoff contended that the decision of this court in
Morris and King
(q.v. supra), following, as it did, the decision of this court in
Debreli
[1964] Crim LR 53, was no longer good law. He submitted that what was required by the statute was that it was proved that a defendant had with him, with the necessary intent, what Mr Harounoff described as a replica firearm. The difficulty with that submission is that it finds no basis in the language of the statute.
14.
In
Morris and King
the Court of Appeal concluded that the question was:
"Does the thing look like a firearm? ... In the view of this court, the material time for the jury to consider is the time when the accused actually had the thing with him ... In considering whether or not the thing looked like a firearm at that time, the jury are entitled to have regard to the evidence of any witnesses who actually saw the thing at the time, together with their own observations of the thing itself, if they have seen it, which in this case the jury did and there was also a reconstruction of the incident."
15.
In our judgment, the decision of the House of Lords in
Bentham
leaves those propositions entirely unaffected. They still amount to good law. The essential question for a jury is whether the prosecution has made them sure that the thing carried by the defendant has the appearance of a firearm as defined in section 57(1).
16.
We do not rule out as being irrelevant the words used or other pretence adopted by a defendant to demonstrate to the victim that he is indeed carrying a firearm as being inadmissible. They may, in certain circumstances, be admissible to lend force to the proposition that the thing itself did have the appearance of a firearm. But caution must be exercised and a jury must be warned that it is not the words used or actions of the appellant in pretending that he has a firearm that they must focus upon, but rather on what appearance the thing he is carrying actually had at the material time. That is the crucial question.
17.
In the instant appeal there was of course no judgment by the jury because this appellant pleaded guilty. But since the decision in
Bentham
was not in existence, he must have pleaded guilty, advised as he was by counsel, on the basis of the law as apparent in the plain words of the statute, coupled with the relevant authorities, in particular
Morris and King
. In other words, he admitted that that which he carried and the way in which he carried it within the bag had the appearance of a firearm. There is, in our judgment, no basis for allowing him, merely because of the happenstance of the decision of
Bentham
in relation to parts of the body, to allow him another go in raising the issue as to whether the bottle inside the bag did in fact have the appearance of a firearm.
18.
In those circumstances, we find that there is no basis for upsetting this conviction, based as it was on his own admission, and this appeal is dismissed.
19.
MR HAROUNOFF: My Lord, I took the liberty of drafting a question overnight.
20.
LORD JUSTICE MOSES: Thank you very much. We will read it. Is there anything you want to add?
21.
MR HAROUNOFF: No, my Lord.
22.
LORD JUSTICE MOSES: No, we will not certify. Thank you both very much indeed for your very helpful written arguments and your oral argument as well, Mr Harounoff. | [
"LORD JUSTICE MOSES",
"MR JUSTICE BEATSON",
"HIS HONOUR JUDGE GORDON"
] | 2006_06_07-822.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1650/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1650 | 802 |
3cb4595b8fe49f4da3ecc9c192b87300f1b631a66d9260cf2aa9a1592472c4ab | [2019] EWCA Crim 190 | EWCA_Crim_190 | 2019-01-31 | crown_court | Neutral Citation Number: [2019] EWCA Crim 190 No: 201704209 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 31 January 2019 B e f o r e : LORD JUSTICE DAVIS MRS JUSTICE CHEEMA-GRUBB DBE SIR ALISTAIR MACDUFF R E G I N A v CHRISTOPHER MARTIN WALL 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 t | Neutral Citation Number:
[2019] EWCA Crim 190
No: 201704209 B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 31 January 2019
B e f o r e
:
LORD JUSTICE DAVIS
MRS JUSTICE CHEEMA-GRUBB DBE
SIR ALISTAIR MACDUFF
R E G I N A
v
CHRISTOPHER MARTIN WALL
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Mr N Haggan QC
appeared on behalf of the
Applicant
Mr K Maylin
appeared on behalf of the
Crown
J U D G M E N T
(As Approved by the Court)
1.
LORD JUSTICE DAVIS: The applicant is a man now aged 59. On 31 August 2017, after a trial in the Crown Court at Winchester before the Recorder of Winchester and a jury, he was convicted on a count of murder. In due course he was sentenced as required by law to a term of life imprisonment.
2.
He now renews his application for leave to appeal against conviction, leave having been refused by the single judge.
3.
That renewed application in fact came before the Full Court on a previous occasion and the application was adjourned to this present occasion with a direction that counsel for the Crown attend and also with a suggestion that perhaps the grounds, two in number at the time, might be supplemented by a further ground. That in the event the applicant through counsel has sought to do and we have already given leave to add the third ground to the proposed appeal.
4.
We will not, we stress, set out in detail the background facts of this case. They are fully set out in the summing-up and they are recorded in the Criminal Appeal Office summary. Therefore our own summary will, we stress, be brief. But in order to make sense of our ruling we will briefly state the position as follows.
5.
The applicant had been in an intimate relationship with Hayley Wall. She was 25 years of age at the time. They lived together in a flat at 221 Shelbourne Road in Bournemouth in a property in which there were a number of other occupants.
6.
On 13 December 2016, the deceased, Hayley Wall, sustained a significant head injury that resulted in a subdural hematoma. She died on 22 December 2016.
7.
It was the prosecution case that the applicant had inflicted the fatal blow to the deceased with the necessary intent. The defence case statement, as in due course served, put the defence as being self-defence and a lack of any relevant intent.
8.
There was no doubt but that on 13 December 2016, earlier in the evening, the applicant and the deceased, Hayley, had been drinking at a particular bar. There was evidence that both were regular and heavy drinkers. The two left the bar at different times. There was some evidence that the applicant had been annoyed with the deceased because she had not responded as he wished to some of his advances in the bar.
9.
There was evidence in particular from a lodger in the building called Adrian Bassett that the two arrived home separately. Bassett was to say that he had spoken to Hayley, who said she was unhappy because of arguments between her and the applicant. Bassett was to say that she had obviously been drinking but was not, in his view, drunk. When the applicant arrived home he appeared to be tipsy and angry and the two then were up in the flat above that of Mr Bassett. According to Mr Bassett, he heard shouting and indications of violence emanating from upstairs. According to him, Hayley then appeared in his room and asked him some questions and she then went back upstairs, at that stage having no visible injuries. He then was to say that he heard sounds of the door being kicked in and shouting and arguing. He said that he heard the applicant hitting the deceased, saying, "Is this how you want to be treated?" and the deceased begging him to stop and crying in pain. He said that he heard something that sounded like him bludgeoning her head or using something to bludgeon and this happened four or more times.
10.
It is right to say that Mr Bassett's evidence was the subject of strong attack at trial.
11.
At all events, some 40 minutes passed before Hayley reappeared at his room, as he was to say. On this occasion he saw that her head was covered in blood and that blood was pouring down from her face. She appeared to be disorientated, not from drink but from pain and shock. He told her to go to "the shop" and call the police. She left the house and, according to him, although this was challenged at trial, he saw her turn left to walk up towards Charminster Road.
12.
Other neighbours in the building, a couple called Kalinowska, also had heard a man shouting and loud thuds from the applicant's property. The wife heard somebody hitting something three times and somebody throwing something. She also said she heard sounds of a person being dragged on the floor. She said that she also heard a woman crying and moaning in pain. This could be timed at around 8.57 pm.
13.
There is no doubt but that Hayley Wall did go out of 221 Shelbourne Road. A witness called Lee Turner was standing on the road opposite number 221, diagonally opposite albeit a couple of houses further down. He saw her coming up the road and she asked him if she could use his telephone. There was conversation between them but he declined to offer it to her. He said that she seemed unsteady on her feet and was distressed and crying and he saw blood dripping down her head. He walked away and when he looked back he saw her leaning against a wall but then standing up and walking towards Charminster Road. Shortly thereafter she entered the Charminster Supermarket and was provided by an assistant with a tissue which she asked for, for her blood. Her movements in Charminster Road were caught on CCTV footage. That evidence showed her holding her hand to her face or head area.
14.
A little further down Charminster Road, Hayley then encountered three female foreign students. They gave evidence at trial. One of them was to describe her as walking as if she were drunk, that her hair was wet and she had blood in her face and mouth region. That student. Ms Hernandez, asked Hayley what had happened to her. She told her that she had fallen down. Owning to the nature and extent of the injuries which she observed, the student did not believe her. She summoned an ambulance. During that call, the student told the operator that she thought the deceased was under the influence of drink or drugs. The operator spoke to the deceased and the deceased told her that she had fallen over. An ambulance was dispatched.
15.
Whilst they were waiting for the ambulance to arrive (and this took time) the student asked Hayley what had happened. She then said hat her partner had hit her. She also was to describe how she had been in a pub earlier with her partner and made other statements and also gave accounts of her personal background and life which were accurate. She described how she had returned home, that her partner was angry and aggressive, had grabbed her to the hair and pushed her to the floor and when she had tried to escape he had continued physically to abuse her.
16.
The other student was to say that Hayley had eventually told them that her partner had punched her. That particular student was to say that the first student, Ms Hernandez, had in fact directly asked Hayley, "Did your partner do this to you?": that is to say, in legal terms, in the form of a leading question.
17.
Further contact was made with the emergency services to hasten the arrival of the ambulance. During that time Hayley's telephone received calls from her ex-partner, Oliver Powell. Such a call was at 9.47 pm. In that, she told Mr Powell that she had just been beaten up.
18.
In a further call to the emergency services, Hayley told one of the students that her partner had hit her and also spoke to the operator, saying that she had had a fight with someone.
19.
Two paramedics arrived and treated Hayley. She told them that she had been drinking and had also taken methadone that morning. The paramedics noted that she had obvious bruising to the left side of her face and ear and there was blood around her mouth, and lacerations. One paramedic asked her what had happened and Hayley said, "My partner smashed a TV over my head". She went on to say to the paramedic that she had then run out of the house and down the road, where she had fallen over.
20.
In her oral evidence, the paramedic went on to say that Hayley had also said that she had put her hands down to cushion her fall and in fact grazes on her hands had been noted. In her statement, that paramedic had said that Hayley had said she had fallen over, landing on her face.
21.
The deceased was taken to Poole General Hospital and later transferred to Southampton General Hospital. On that evening, when she was taken to hospital, among other things, grazing was observed to the left side of her face. It was identified that she had sustained a severe brain injury and she died from her injuries a few days thereafter, as we have said.
22.
One of the witnesses called by the prosecution was Dr Purdue, an experienced pathologist, who had conducted the postmortem examination. He said that the most likely explanation for the right-sided subdural haematoma that had been identified was a fall to the left side of the deceased's head, there being a contrecoup injury. But he had noted no grazing or laceration to her skull to suggest that her head had struck the ground. No injuries were identified on the right side of Hayley's head.
23.
In essence, the Crown relied upon the evidence of the lodger Adrian Bassett and of the husband and wife neighbours to show that Hayley had been attacked by the applicant and had sustained injuries whilst in the property in Shelbourne Road.
24.
Further, there was the evidence of Lee Turner, who had noted that she had blood dripping down her face and who had not himself observed her fall over in the street.
25.
Further reliance was placed upon the evidence of the foreign students and what the deceased had said to them and on the evidence of the paramedics and on what they observed and on what the deceased had said to them as well: as what was said in the telephone conversation with Mr Powell.
26.
Further, there was forensic evidence of blood spatter found at the flat indicating that Hayley had been bleeding whilst in the property and possibly when she was lying down on the floor.
27.
Additional forensic evidence was to the effect that hairs likely to have belonged to Hayley were found on the door in such a position which indicated that her head had made forcible contact with the door that was found off its hinges. There was further evidence from a scene of crimes investigation officer that the door had in fact been beaten open outwards from inside. There was also evidence to demonstrate that the applicant had been in some contact with the base and underside of a silver television set in the flat.
28.
The applicant himself had shortly thereafter made videos but had deleted them from his telephone but these were recovered. These videos were consistent with the case that the applicant had struck Hayley but also made the case that the applicant had been acting in self-defence and that Hayley had stabbed him. There was evidence of injuries to the applicant.
29.
The pathologist, Dr Purdue, the Crown also pointed out, had found no grazing or lacerations to the deceased's face or ear consistent with her having fallen and hitting her head on a road surface.
30.
In a nutshell, the defence case was that it was Hayley who had attacked him and she had done so with a pair of scissors and had stabbed at him. She had been under the influence of drink and/or drugs and he had acted in reasonable self-defence. Furthermore, he denied intent.
31.
One issue which was pursued at trial was the issue of causation. It was suggested on behalf of the defence that the Crown could not exclude the possibility that the deceased, Hayley, may have fallen and hit her head after leaving the flat and that particular fall may have caused the fatal haematoma.
32.
In that regard, there was evidence from the students and from Ms Watkins, the
paramedic, that the deceased had stated that she had at one stage fallen. In particular, it was noted that the pathologist, Dr Purdue, had in his evidence thought it entirely possible that she had fallen and hit her head; and indeed Dr Purdue's view was that the identified haematoma was more likely to have resulted from a fall rather than a blow, although he did not by any means exclude the blow as being the potential cause of the haematoma.
33.
The applicant gave evidence at trial. It is clear that the jury by its verdict must have rejected his evidence as untrue.
34.
There are three grounds of appeal now advanced. The first ground is that the trial judge erred in permitting the Crown to adduce as hearsay evidence the statements made by the deceased to others after she had come out of 221 Shelbourne Road. In particular, objection was made as to the admissibility of statements made by the deceased to the group of students as to how Hayley said she had come to be injured; although Mr Haggan QC, appearing for the applicant today, as he did at trial, made clear to us that in fact he had objected to the admissibility of
all
the statements made by Hayley after she came out of the flat: that is to say the entirety of what she had said to the three students, the entirety of what she said to Mr Powell on the phone and the entirety of what she said to Ms Watkins, the paramedic.
35.
We have to say that we found, and find, the whole approach to this issue of admissibility to be puzzling. In the first place, the Crown had seen fit in its hearsay application to invoke the provisions of section 114(1)(d) of the Criminal Justice Act 2003. That is puzzling, because these statements had been made at the time by a person who is now deceased. Accordingly, they were admissible without more by reason of section 114(1)(a) and section 116(2)(a) of the Criminal Justice Act 2003. The gateway of admissibility contained in section 114(1)(d) simply did not need to be opened. Thus, the application got off to a bad start.
36.
However, overall we agree with Mr Haggan that ultimately the question was and is whether it was fair that such hearsay evidence should be placed before the jury; and no doubt for the purpose of assessing the fairness of admitting that evidence, or, more strictly, whether or not it should be excluded, it could be considered appropriate to have regard to the matters set out in section 114(2). At all events, the approach taken by the judge was in fact favourable to the applicant.
37.
The judge started his ruling by saying:
"Right, this is a ruling that I've been asked to make concerning the admissibility of statements of three witnesses whose names are Mantika, Hernandez and Panchal. These are the three students who spoke to the deceased after the incident ..."
38.
It seems that by this stage the judge had understood that the only question of admissibility related to the statements of the student witnesses; but Mr Haggan has assured us that his application - certainly in writing it had been - was to exclude all the statements made to all the witnesses after the incident in the flat.
39.
One only has to stand back and consider the position to see how wrong it would have been to have excluded this evidence as statements made by the deceased. In truth, using old-fashioned language, this was all part of the res gestae. What the deceased was to say as to what had happened to her in the flat according to her was material which the jury ought properly to have heard. To have denied the jury the benefit of hearing what the deceased allegedly said about what had happened would have been utterly wrong. Of course there were potential weaknesses in that evidence, as was much stressed: for example the deceased had been drinking and perhaps was coming through the effects of taking methadone, she would have been in a total upset state of
mind on any view by what had happened to her, perhaps also exacerbated by the effect of the physical injuries and so on. But there was no unfairness in allowing that evidence to go in as hearsay. After all, it was open to the defendant, as indeed he did, to give evidence explaining his own position and disputing the correctness of what Hayley had said had occurred in the flat.
40.
Indeed, we have to say that we are rather surprised that the application by the defence was to exclude the entirety of the evidence: because, on the face of it, one would have positively thought that the defence would have wanted in before the jury the evidence of Hayley's statements to various people that she had fallen over in the street. Indeed, in the absence of such evidence of her statements, it is difficult to see, notwithstanding Mr Haggan's assertions to the contrary, that there could have been any evidential basis at all for saying that Hayley had fallen over in the street.
41.
But, be that as it may, insofar as the argument was directed to excluding the entirety of these hearsay statements, we are in no doubt whatsoever that, even if the judge's approach was in some respects rather surprising and indeed surprising in favour of the defence, his ultimate conclusion was unquestionably correct. It was right and just that this hearsay evidence went before the jury and the defence were not unduly prejudiced by that happening.
42.
Moreover, not only did the statements go to a very important matter in issue, it also cannot be said that these hearsay statements were in any way the sole or decisive evidence against the applicant. Indeed, as the judge was later to point out, there was an entirely sufficient case against the applicant even in the absence of these hearsay statements.
43.
Moreover, the prosecution case, quite apart from the direct evidence, had further support from the forensic evidence.
44.
Mr Haggan explained to us that he felt unable to seek to exclude the statements made by Hayley with regard to the applicant having hit her but at the same time seeking to maintain inclusion of the statements that she had made that she had fallen over. We entirely understand that. We think Mr Haggan was right to say that he was not in a position to cherry pick the hearsay evidence in this way. But that simply goes to confirm that the totality of such evidence was properly before the jury.
45.
Thus, although, in our view, with all respect, the judge made unnecessarily heavy weather of this application, his conclusion was amply justified; indeed we would say it was clearly correct.
46.
The second ground of appeal was to challenge the judge's refusal to accede to the submission of no case to answer made at the halfway mark. Mr Haggan says that the submission was based, essentially, on the issue of causation: in particular based on Dr Purdue's evidence that the subdural hematoma was caused either by a blow or by a fall and where Dr Purdue himself considered the latter scenario, that is to say a fall, was the more likely.
47.
It was said, and is said, that a reasonable jury properly directed could not be sure that it was the alleged assault by the applicant in the flat that had caused the fatal injury: that fatal injury in the form of the subdural haematoma may well have been caused by a fall and the jury could not properly discount that, it would be speculation if they were to.
48.
The judge's ruling on the submission of no case to answer, as it happens, focuses almost entirely on the issue of whether there was sufficient evidence that the applicant had violently struck the deceased (undoubtedly there was ample evidence in that regard before the jury) and on the issue of whether the Crown had adduced sufficient evidence to rebut the defence of self-defence (undoubtedly it had).
49.
It is not, however, obvious from the judge's ruling that the defence had much, if at all, pressed the proposition that there was insufficient evidence on causation; and we also note that causation is not positively put in issue in the defence case statement. But Mr Haggan assures us that he did press that causation point before the judge in the course of his submission. Indeed one of his complaints is that the judge did not properly confront that issue of causation in his ruling in rejecting the submission of no case to answer.
50.
In our view, the judge was fully justified in rejecting the submission of no case to answer. In particular, there was sufficient evidence on causation to justify the matter being left to the jury. Whilst the prosecution case seems primarily to have been based on there being a blow, whereas Dr Purdue thought that the most likely mechanism was a fall, the point remained a jury matter. Indeed, the defence argument based on a fall seems to presume that any relevant fall would have occurred in the street. But there was evidence that the deceased had in fact - as the jury may have thought - fallen in the flat and there was evidence which the jury could accept that her head had come into violent contact with the door. There was also the forensic evidence about blood spatters and so on.
51.
So it is difficult to understand why the relevant fall in question, if there was one, had to be in the street outside as the defence case presumed. Moreover, Dr Purdue, it is to be repeated, had found no signs of the head having come into contact with gravel or a road surface and nor had he identified any signs of grazing and lacerations, which one might have expected had there been a fall in the road to the left side of the head in such a situation.
52.
It is, in fact, as we see it, almost impossible to see how the point about the alleged fall in the street could even have come into play without the hearsay statements of the deceased made to the students and Ms Watkins. Certainly no-one had actually seen Hayley fall in the street. We accept Mr Haggan's point that Hayley had not been seen at every stage after she walked out of 221 Shelbourne Road; but the window of opportunity for her to fall in the way asserted was very, very limited and the jury may well have thought, and would have been entitled to think, that it strained reality and incredulity beyond acceptable limits to say that she had happened to have fallen in the very short moments when no-one had seen her and when the CCTV had not captured her. At all events, this was clearly a jury matter.
53.
In the circumstances, there clearly was a case to answer on the issue of causation. We repeat that whilst Dr Purdue had favoured the mechanism of a fall, he had never excluded the mechanism of a blow and, moreover, his evidence had to be placed into the context of all the other evidence taken as a whole. Thus, there was sufficient evidence on causation, in our judgment, to justify this matter being left to the jury. Indeed, it would have been a surprising conclusion had it been otherwise.
54.
We have to say that in legal terms, even if it could be said that the deceased had fallen in the street and even if it could be said that such an asserted fall in the street may have been causative of the subdural hematoma, it is difficult to see how that could give rise to any defence to the applicant For the deceased was only in the street because she was trying to get away from the flat and contact the emergency services. That is to say, it would appear that what happened in the flat was a substantial cause of her being in the street and would have been a substantial cause of her falling over and striking her head, if that is what she did. Thus, in point of law, that scenario would seem to have afforded no ground of defence in any event to the applicant. However, for reasons we do not fully comprehend, the Crown never took that point as an alternative point. At all events we think Mr Haggan is justified in saying that the defence could only be expected to deal with the case that was being presented at trial. We thus simply raise this point as a matter of concern. It should not have happened, without at least debate before the judge on this asserted issue of causation.
55.
The final ground relates to the alleged inadequacy of the summing-up on causation. Put shortly, it is said that the judge should specifically have instructed the jury that they could not convict unless they were sure that the deceased had not fallen at some point after she had left number 221.
56.
If this was indeed a crucial direction that was required, then it is regrettable that no-one at trial ever asked the judge to supplement his summing-up accordingly, either when he gave his initial legal directions, this being a split summing-up, or when he thereafter gave his summing-up on the evidence and recapitulated the issues.
57.
It is also perhaps a point of comment that such a criticism was not raised in the original grounds of appeal, by which time the defence team would have seen the transcripts, but only was raised as a result of a prompt from the Full Court on the previous occasion.
58.
In our view, the judge gave perfectly sufficient instructions to the jury on this issue. In his legal directions, he, amongst other things, said this:
"Firstly, he caused her death, namely he injured her on the 13 December 2016 by causing her to suffer the subdural hematoma from which she
later died ..."
59.
He then went on to say that it is very important that the three elements, that is to say causation, attack and unlawfulness, had to be proved.
60.
The judge then went on to say:
"The issue of causation is quite a central issue in this case ... But how did
she suffer the trauma which caused that haematoma? Dr Purdue ... gives the opinion that such a brain injury was caused by a blow or trauma to the head, which could have been either from a fall or a blow to the head ... So that's causation. That's the first element. Did Christopher Wall cause, was he responsible for a blow to the head of Hayley Wall which caused that subdural haematoma."
That was entirely correct as a direction.
61.
The judge then, in dealing with the matter in the route to verdict, again set out the matter correctly in law, posing the question:
"Has the Prosecution proved so that you are sure the Defendant caused the death of Hayley Wall?"
62.
The judge fully summarised the evidence of Dr Purdue and furthermore he fully set out the defence case on this matter. He said this:
"The Defence say, well, that may be the case, but we cannot rule out the fact that she may have fallen over on the road or somewhere else during that time, how she herself said so, Hayley Wall said so. Others reported so. And so therefore you cannot rule out that that injury, or she may have had other injuries from Mr Wall, but the injury which was the fatal injury may have occurred not with anything to do with Mr Wall ..."
63.
That again entirely and fairly encapsulates the issue as raised by the defence.
64.
The judge went on at a further stage in his summing-up to give further instruction to the jury to like effect.
65.
Overall, we can see no error in the summing-up taken overall, both in its legal directions and in the summing-up on the evidence, at the end of which summing-up on the evidence the judge yet again recapitulated the point about causation. There is no substance whatsoever in the challenge to the summing-up.
66.
We should say that we have also endeavoured to stand back and consider this case as a whole. Our impression has been, and indeed it has only been confirmed by what happened before us, that the wood seems to have been lost for the trees. The focus before us has been on the issue of causation and of course we accept that that was made into a major issue at trial. But one must not overlook the fact that much of the trial also was devoted to the issue of self-defence and intent and the issue of the credibility of the defendant when he denied the prosecution case against him. Indeed, in many ways the defence case on causation had very obvious potential weaknesses. At all events, it was for the jury to decide whether they had doubts on that issue and their verdict shows that they did not.
67.
We take the grounds both individually and cumulatively. We are of the clear view that they afford no arguable appeal. The single judge was quite right in his ruling to reject the two grounds then advanced as he did and the third ground has no validity either.
68.
We refuse this application.
69.
LORD JUSTICE DAVIS: Any other points?
70.
MR HAGGAN: No, thank you, my Lord.
71.
LORD JUSTICE DAVIS: Thank you both very much indeed for your helpful submissions.
72.
Ms Maylin, we would like to repeat that it is the responsibility of the Crown to assess the prosecution case as a whole and not simply respond to the way the defence choose to run their own argument.
73.
Thank you both very much.
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Email: [email protected] | [
"LORD JUSTICE DAVIS",
"MRS JUSTICE CHEEMA-GRUBB DBE",
"SIR ALISTAIR MACDUFF"
] | 2019_01_31-4485.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/190/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/190 | 803 |
e47c5ffdedf052f2fe053bb2a319c6fcacdcf3c0e5999b53b3391f0ca6eda28c | [2014] EWCA Crim 1973 | EWCA_Crim_1973 | 2014-10-17 | crown_court | Case Nos: 201302555 C4 & 201302556 C4 Neutral Citation Number: [2014] EWCA Crim 1973 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE GOYMER T2008-7708 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/10/2014 Before : LORD JUSTICE ELIAS MRS JUSTICE COX and MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Between : (1) STEPHEN CLARK (2) JULIE CLARK Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - | Case Nos: 201302555 C4 & 201302556 C4
Neutral Citation Number:
[2014] EWCA Crim 1973
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HIS HONOUR JUDGE GOYMER
T2008-7708
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
17/10/2014
Before :
LORD JUSTICE ELIAS
MRS JUSTICE COX
and
MR JUSTICE WILKIE
- - - - - - - - - - - - - - - - - - - - -
Between :
(1)
STEPHEN CLARK
(2)
JULIE CLARK
Appellants
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Michael Bromley-Martin QC
and
Peter Caldwell
(instructed by
Messrs Edward Fail, Bradshaw & Waterson
) for the
Appellants
James Dawes
(instructed by
The Crown Prosecution Service
) for the
Respondent
Hearing date : 25 September 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Elias :
1.
This is a renewed application for permission to appeal against sentence, but only with respect to a confiscation order that was made following the conviction of these two applicants on two counts of conspiracy to defraud contrary to section 1 of the Criminal Law Act 1977 (counts 14 and 15 on the indictment) and one count of attempting to convert criminal property, contrary to section 1(1) of the Criminal Attempts Act 1981 (count 16).
2.
Each of the applicants received a sentence of 12 months’ imprisonment suspended for 12 months, together with certain restrictions which are not relevant to this application. They were sentenced on 28 February 2011 and confiscation proceedings pursuant to the Proceeds of Crime Act were heard by His Honour Judge Goymer on 19 April 2013. The delay was because it was thought appropriate to defer the hearing until after the decision of the Supreme Court in
Waya
[2012] UKSC 51
a case which considered the proper application of the relevant legal principles in this area and dealt specifically with mortgage frauds. The judge held that each of the applicants had benefited in the sum of £375,000. This was in fact an agreed figure reached in the light of certain findings made by the judge. Their realisable assets were deemed to exceed that amount and thus confiscation orders were made in that sum, to be paid within 3 months or with 2 years imprisonment to be served in default.
3.
The background to this application lies in a series of fraudulent mortgage applications from late 2000 until 2006, as a result of which mortgage companies were induced to grant loans they might otherwise have refused. In all some 19 people were tried in relation to the whole series of transactions, The applicants were convicted in the third of a series of five trials.
4.
There were three transactions in particular in which these applicants were involved. The first involved the purchase of Canister Hall by Julie Clark on 23 June 2003. A mortgage had been obtained from Kensington Mortgage Limited. The application contained false personal details relating to Mrs Clark and the seller, Kelly Mitchell. Kelly had in fact contributed to the purchase price. This gave rise to Count 10 on the Indictment, which was a charge of obtaining a money transfer by deception. Julie Clark, however, was acquitted; the jury could not have been sure that she was a party to the making of the false representations. Stephen Clark was never charged on that Count.
5.
The second transaction concerned the sale of the property in October 2005 by Julie Clark. Birmingham Midshires (‘BMS’) advanced £611,951 towards the purchase of the property. The prosecution said that the mortgage application was made in a false name by one Michael Sadler, acting on instructions from Warren Mitchell, who was a leading figure in these deceptions. It was represented to BMS that the purchase price was £715,000 but there was, in fact, an undisclosed private allowance of £27,093, so that sum had to be deducted to find the true price, which was £687,907. Furthermore, BMS was not informed that the difference between the mortgage advance and the purchase monies was not, in fact, paid by the purchaser as it was asserted would be the case, but by a payment of £110,000 from another co-accused, Danny Downs. Those monies in turn had come from a dishonest re-mortgage of Downs’ own property. Julie Clark received £608,907 on 21 October 2005 and shortly thereafter transferred £110,000 from her solicitors’ client account to Danny Downs. Later, on 23 November 2005 Downs paid £110,000 back into Julie Clark’s Halifax account.
6.
The original mortgage from Kensington Mortgage Limited was redeemed and the remaining sum of £189,500 was paid into Julie Clark’s Halifax bank account. Her husband was a party to the dishonesty. The deception in relation to this sale gave rise to the conviction on count 14.
7.
The third transaction was the purchase by Julie Clark in January 2006 of Mitchell Hall from Kelly Mitchell, the party who had originally sold her Canister Hall. The sale of Canister Hall and the purchase of Mitchell Hall were, as the judge found, back to back transactions; the money from the sale of Canister Hall being used to purchase Mitchell Hall. BMS advanced £549,951 in respect of a mortgage application by Julie Clark. Again, there were false particulars, in this case involving details of Julie Clark’s income and employment. In this case too, there was an undisclosed private allowance of £28,000 so although the price was represented at being £900,000 it was, in fact, £872,000. The difference between the mortgage advanced and the purchase price was £362,475, which was paid into Julie Clark’s Halifax bank account. As with the sale of Canister Hall, this was not an open market transaction but a private agreement. The deceptions involved here were the subject of count 15.
8.
In June 2007 the applicants tried to sell Mitchell Hall by advertising the property for sale on the open market, but they were restrained by legal proceedings before they were able to do that. This was the subject of the money laundering count - attempting to convert criminal property - in count 16. It is accepted that in fact no benefit was obtained from this transaction.
The relevant law
9.
The issue before the court was whether, and to what extent, the defendants had benefited from their general criminal conduct or the particular transactions. It is not disputed that by virtue of their conviction on count 16 they fell within the definition of criminal lifestyle offences as defined in section 75(2) of POCA. The significance of the offences falling under those provisions is that certain assumptions automatically come into play in accordance with section 10, subsections (2) to (5) of POCA. The important assumption in play here was the first assumption in subsection (2):
“The first assumption is that any property transferred to the defendants at any time after the relevant day was obtained by him –
as a result of general criminal conduct; and
at the earliest time he appears to have held it.”
Subsection 10(6) then provides as follows:
“But the court must not make a required assumption in relation to a particular property or expenditure if –
(a) the assumption is shown to be incorrect, or
(b) there would be a risk of serious injustice if the assumption were made.”
10.
Section 76(4) provides:
“A person benefits from conduct if he obtains property as a result of or in connection with the conduct.”
11.
The first assumption, namely that any property transferred to a defendant at any time after the relevant day was obtained as a result of his general criminal conduct, is highly relevant here.
The confiscation hearing
12.
There was a single hearing in relation to 5 defendants – the Clarks, Warren Mitchell, Kelly Mitchell and Danny Downs. The hearing was over some 5 days in April 2013. The issues before the judge involved disputed findings of fact, and one matter of law with regards to Mr and Mrs Clark. The legal issue was not in the event disputed. It was accepted that so far as count 15 was concerned, the benefit was the increased value in the property resulting from the use of unlawful funds to be calculated in accordance with the principles enunciated in
Waya
.
13.
The three factual disputes were these:
First, what should be the calculation of benefit in respect of count 14; that is the sale of Canister Hall?
Second, should payments made to Mrs Clark from a company called Parasolar be considered as a benefit?
Third, should a payment from Kelly Mitchell to Mrs Clark of £16,000 be considered as a benefit?
14.
The judge found in the applicants’ favour in relation to the second two points and we need say no more about them. In relation to the calculation of benefit in respect of Canister Hall, the judge was faced with a situation where Julie Clark as the seller of Canister Hall was involved in a conspiracy to defraud a lender, that is Birmingham Midshires, but their contractual relationship was not with her but was with the purchaser. The approach adopted to calculate the benefit in count 15 would not therefore appear to be apposite here.
15.
Applying the first assumption with respect to count 14, the judge had to have regard to property transferred to Julie Clark after the relevant day. Neither of these two applicants gave evidence before the judge to assist him in relation to solving these factual issues. The judge considered that he had to look at the documents relating to the sale of Canister Hall, which gave rise to count 14, and those relating to the purchase of Mitchell Hall, which gave rise to count 15, together because they were in effect back to back transactions.
16.
He was satisfied that the payments of £187,000 paid into the account of Mrs Clarke, which represented the outstanding sum after the mortgage and other payments had been met and the £110,000 paid into the account by Danny Downes, both constituted criminal benefit. He rejected a submission that the assumption should not apply because, it was alleged, count 16 had been included solely to trigger the criminal lifestyle provisions. He also rejected a contention that it could not be her benefit, or at least not wholly hers, because Mitchell also derived a benefit from the deception. The case of
May
[2008] AC 1028
in the Supreme Court shows that this is not a legitimate objection. And he rejected a submission that this was in effect her own money because she had equity of some £304,000 in the property which had not been obtained unlawfully as her acquittal on count 10 showed.
17.
The judge considered, as the case of
Waya
requires him to do, whether it was disproportionate to treat these sums as part of the proceeds of crime and concluded that it was not.
18.
As to count 15, he concluded that again following
Waya
, where property has been obtained in a mortgage fraud of this kind, the benefit is the increased value in the property that has resulted from the defendant’s dishonesty. This was left to the parties to determine and they agreed the figure of £750,000 as the relevant benefit. In order to avoid double counting, the £297,500 benefit derived from the sale which was paid towards the purchase of Mitchell Hall was treated as tainted money when calculating the benefit obtained under count 15. It was not included again as a benefit gained from the offence committed under count 14.
The grounds of appeal
19.
The applicants’ principal argument repeats one of the submissions advanced and rejected below. They contend that the judge erred in his approach to the calculation of benefit. Mrs Clark had used legitimate funds to purchase Canister Hall. Consequently she had a beneficial interest in the proceeds of sale after paying off the mortgage and other matters. At the point of sale she retained that interest. The sale was for the market price and therefore the sum of £189,500 which remained after the repayment of the mortgage, stamp duty and so forth was her own money. The judge was wrong to treat it as a benefit derived from criminal activity. She would have made precisely the same profit even had she sold the property to a third party since the house was sold for market value.
20.
Counsel for the applicants conceded, as of course he had to in the light of the convictions on count 14, that these applicants, had been involved in a criminal conspiracy in relation to the sale of the property. The submission was that they had not in fact benefited from it.
21.
Counsel submitted that a careful analysis of the relevant statutory provisions did not justify the judge treating these funds as tainted. As we understood the argument, it was this. The assumptions do not say that any money transferred to a defendant after the relevant day is a benefit; they merely provide that such moneys must be treated as having been obtained by the defendant as a result of his criminal conduct. They are only relevant when the source of the funds is unknown. Here the source was known and the only issue was whether it was properly to be considered a benefit. When asking that question the court should adopt an analysis similar to that adopted in
Waya
and ask what proportion of the increase in value resulted from illegality. Here the sums which the judge found to be benefit ought not to have been so treated because Mrs Clark would have obtained them even had the sale been legal. The point is at least arguable, submits counsel, and therefore we should give permission to appeal.
22.
We reject that submission. In our view it fails to give effect to the statutory principles. The concept of benefit is a very specific one and has to be determined by applying the language which Parliament has adopted. It is not determined by looking at benefit in the ordinary way, as Lord Walker pointed out in
Waya
(para 26). The applicants had been involved in this conspiracy and but for the conspiracy, they would not necessarily have received the mortgage they did. The profits made by the sale of the house were the direct consequence of the criminal activity. The fact that the applicants would have no doubt made a substantial (perhaps even the same) profit on the sale even had there been no criminal conduct is not to the point. Once it is established that property has been obtained from criminal conduct – and section 76(4) shows that this includes property obtained “in connection with” that conduct – then it is a relevant benefit. The assumptions must not be applied where it is shown to be incorrect or where it would be unjust (section 10(6)). And as
Waya
shows, the confiscation must be proportionate.
23.
In this case it is clear without in fact needing to resort to the first assumption that the two sums identified by the judge as criminal benefit were obtained as a result of, and certainly in connection with, criminal activity. In any event, the applicants were not able to gainsay that.
24.
A subsidiary argument was that the applicants were not involved in Danny Downs’ separate conspiracy. But that is irrelevant. That money was still obtained in connection with criminal activity. This would have been so even had the £110,000 obtained from Danny Downs not been unlawfully obtained by him. Thereafter section 76(4) requires the sum to be treated as a benefit. The fact, if it be a fact, that the same benefit or something like it might have been legally obtained had the applicants chosen not to involve themselves in criminal activity is nothing to the point. The fact is that these sums were gained from criminal activities.
25.
The only issue was whether it was disproportionate and an infringement of the rights in A1P1 for the confiscation order to be assessed by reference to these sums. The judge held that it was not and he was manifestly right so to conclude.
Waya
(para 21) emphasises that it will be unusual for orders giving effect to the severe regime to be disproportionate. The legitimate aim is to remove the pecuniary proceeds of crime. That is what was done here.
26.
It follows that, in our view the applications have no real prospect of success and we refuse permission. | [
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"MRS JUSTICE COX",
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] | 2014_10_17-3489.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1973/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1973 | 804 |
15cc47b3413d67373a2979f6924fa328ecff3c06779b45268698c80f942d712f | [2018] EWCA Crim 1336 | EWCA_Crim_1336 | 2018-05-09 | crown_court | No. 2018/01090/A3 Neutral Citation Number: [2018] EWCA Crim 1336 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 9 th May 2018 B e f o r e: LORD JUSTICE TREACY MR JUSTICE EDIS and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - OWEN PETER SCOTT - - | No.
2018/01090/A3
Neutral Citation Number:
[2018] EWCA Crim 1336
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 9
th
May 2018
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE EDIS
and
HER HONOUR JUDGE MUNRO QC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
OWEN PETER SCOTT
- - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd trading as Epiq
165 Fleet Street, London EC4A 2DY
Telephone 020-7404 1400
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - -
Mr R Buckland QC (Solicitor General) and Mr J Smith
appeared to make the Application
Miss D Colborne QC
appeared on behalf of the Offender
- - - - - - - - - - - - - - - - - -
J U D G M E N T
Wednesday 9
th
May 2018
LORD JUSTICE TREACY:
1. This is an application by the Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court a sentence he considers to be unduly lenient. We grant leave.
2. On 29
th
January 2018, in the Crown Court at Sheffield, the offender pleaded guilty to four counts of attempted murder and one count of dangerous driving. He had previously, on 22
nd
September 2017, entered not guilty pleas to all counts. Guilty pleas were only entered on the day of trial. However, it is right to note that those guilty pleas had been notified on the last working day before the trial was due to take place, so that no witnesses actually attended court for the purpose of giving evidence.
3. Sentencing took place on 15
th
February 2018. For the four attempted murder counts, a sentence of life imprisonment was imposed, with a minimum term of fourteen years (less time spent in custody on remand). That sentence was to be served concurrently on each count of attempted murder. It is expressed as thirteen years and 188 days.
4. On the count alleging dangerous driving the sentence passed in open court was one of two years' imprisonment, to run concurrently.
5. The judge had indicated an intention to grant a reduction of twenty per cent for the offence of dangerous driving to represent a guilty plea, without making express its application to that charge. Following the hearing, the matter was raised with the judge in chambers through her clerk. She confirmed her intention to pass a term of nineteen months' imprisonment on that count, but did not require the matter to be mentioned in open court. That period is recorded as the sentence in the Crown Court record. There is no issue that that was what was intended and understood by the parties, and there is no application of any sort before this court. Nonetheless, good practice required that the matter be dealt with in open court, rather than less formally, even if it did not affect the overall period to be served.
6. The facts of this case are truly shocking. The victims are four small children of whom the offender is the father. At the time of the incident they were aged nine months, 21 months and seven years. The fourth victim was his stepdaughter, who was aged eight at the time.
7. In December 2016 the offender and his former partner (the children's mother) split up and moved on to new relationships. The mother was the primary carer for the children, although the offender had access and occasionally cared for them.
8. In the weeks prior to the offence, the offender had stopped attending work. Those close to him noticed a change in his behaviour. He became convinced that his new partner was having an affair and told others that people were going to harm his children. Over the weekend of 19
th
/20
th
August he argued with his partner and behaved strangely. On 20
th
August he was due to care for his two sons and again behaved irrationally. He told their mother of his concerns for their safety. He ended up taking her and the two boys to a nearby hotel. He repeated that people were after him. On the following day he seemed calm and collected and he apologised for his behaviour on the previous night. With the ex-partner's consent, he collected all four children with a view to visiting his mother or going shopping. There seems to have been at least an element of planning and abduction in the way he then behaved thereafter.
9. Over the following day and a half, the offender travelled with the children from Southampton to the Isle of Wight and then to Liverpool and Greater Manchester before being captured on CCTV in the Huddersfield area at about 9.30pm on 22
nd
August 2017. Shortly after midnight on 23
rd
August, whilst still in the same general area, he drove his vehicle at over 90mph and, making no attempt to brake, he deliberately collided with the boundary wall of a public house. This was a deliberate attempt to kill all four children.
10. In the intervening two and a half hour period he had attacked each of the children with a hammer. He struck them about the head on a number of occasions and caused very serious injury to each of them.
11. After the collision the offender was found by the car. He had not sustained any serious injury, but the children had suffered further injuries. When tested at the roadside, the offender was negative for alcohol, but positive for cocaine. The hammer was found in the front footwell of the car.
12. "A", aged 8, suffered four separate depressed fractures of the skull caused by the hammer. There was bleeding in and around the brain. She sustained pelvic, wrist and hand fractures, a laceration to the pancreas and bleeding into the gut. By the time of sentence she was still seriously affected. She had become angry, emotional and lacking in confidence. She had regular nightmares and blackouts. She also suffered from a loss of balance which caused her to fall from time to time. She requires extra help at school. It is too early to say whether she will suffer specific cognitive defects. She is, however, at a high risk of difficulties affecting executive functioning. Her speech has been affected. She suffers from headaches and mood swings. There is cognitive and behavioural impairment and a high risk that they will persist. She is at a higher risk of developing epilepsy.
13. "L", aged 7, suffered five separate depressed skull fractures which cause bleeding of the brain. The skull bone had been shattered into multiple fragments. She was still in hospital at the time of sentence, having by then undergone thirteen operations. In addition, she had sustained fractures of a rib and the left femur, as well as injuries to her spleen and kidney. She is partly paralysed and has lost much of her left field of vision. She has been left with a significant learning difficulty and extremely poor memory and concentration. She will suffer from life-long disability and will be wheelchair dependent for the rest of her life. She will not be able to use her left arm and will have limited use of her right hand. She will suffer from speech and language difficulties. Her life expectancy has been reduced by fifteen to twenty per cent.
14. "L", aged 21 months, suffered two depressed skull fractures which also involved an injury to the brain. His speech has been affected and he will need to see a speech therapist. He was left with a hole in his skull, which it is hoped will eventually heal. It is too early for a full neuro-psychological assessment, but those treating him consider that he now suffers from significant cognitive impairment, with a risk of further cognitive difficulties. Some of those may not become apparent until his teenage years.
15. "T", aged nine months, suffered a complex comminuted fracture of the left frontal part of the skull, with associated bleeding and bruising of the brain. He is missing a large part of the left side of his skull and is scarred. He will need surgery to deal with the skull defect, as at present his frontal lobe protrudes through the defect. There has not yet been a neuro-psychological assessment. At present there no evidence of intellectual impairment, although there is a risk of cognitive and behavioural impairments which could prevent significant difficulties in the future and which may not become apparent until later in his teenage years.
16. Those matters are described in medical reports and also in a Victim Person Statement from the children's mother. The mother herself has been seriously emotionally affected by what has happened.
17. The Solicitor General has submitted that the sentence imposed was unduly lenient. He argued that the sentence failed to take proper account of the nature of the offences, together with their multiple aggravating features. In particular, emphasis was placed on the number of victims, the consequences of the offending, the vulnerability and age of the victims and the gross breach of trust involved. It was submitted that, in assessing the minimum term, the judge should have gone beyond the highest levels set out in the Sentencing Guidelines Council's Attempted Murder Definitive Guideline. In addition, it was submitted that the judge erred in affording the offender a twenty per cent reduction in the notional determinate sentence so as to reflect the guilty pleas.
18. On behalf of the offender, Miss Colborne QC argued that the sentence passed was not unduly lenient. The judge had been well-placed to assess the appropriate sentence, having considered detailed information. It was argued that the Reference had failed to take sufficient account of mitigating features. First, the offender was suffering from a mental disorder at the time of the commission of the offence. Reliance in this respect was placed upon the opinion of Dr Mendelson, a Consultant Psychiatrist, whose view was that the offender was probably suffering from a drug-induced psychosis which would have impaired his facility for rational judgment and self-control. There was no history of psychiatric problems or signs of mental illness, and the offender's cognitive function was normal. However, there had been long-term cannabis and cocaine abuse which had continued up to the time of the offending. Dr Mendelson's view was that the offender had suffered from an acute drug-induced psychosis so that he became convinced that there was a gang who wanted to harm him and his children. After his arrest and his remand in custody, the offender had made a rapid recovery. Miss Colborne submitted that his conduct was at odds with other evidence as to his attitude and conduct towards his children and their bond with him.
19. A second factor relied on was the plea of guilty. Ordinarily, credit of ten per cent would be due, but the judge had accepted counsel's submissions that the gravity of the offences and shock required the offender to take time to acknowledge his wrongdoing and for appropriate reports to be obtained. In addition, it was submitted that the offender was now remorseful, having recognised what he had done.
20. When interviewed after his arrest, the offender denied driving into the wall of the public house deliberately or even dangerously. He denied any intention to harm the children and he denied hitting the children with a hammer. He maintained that stance during the course of interviews with Dr Mendelson. Accordingly, in his final report of 18
th
December 2017, Dr Mendelson records that the offender remains adamant that he did not assault the children or in any way intentionally try to harm them.
21. We first consider the attempted murder guideline. This case would, if it had resulted in death, have fallen within paragraph 4 or 5 of Schedule 21 to the Criminal Justice Act 2003. Thus, for the purposes of the guideline, the case falls into level 1 (the top level). Within that level a case involving serious and long-term physical or psychological harm would start with 30 years' custody and have a range of 27 to 35 years. Those figures of course relate to determinate terms, not minimum terms where, as here, a life sentence has been imposed.
22. The victims in this case were four very young children. They were particularly vulnerable because of their age and circumstances. Each of the four victims has suffered dreadful injuries with long-term consequences as a result of the hammer attack which preceded the final collision. There was a gross breach of trust in relation to each of them. There had been an extremely serious attack on each of them with a deadly weapon. It had been committed in the presence of their siblings and had resulted in the serious injuries and suffering already described. It is clear that some of the children were old enough to understand what the offender was doing whilst those attacks were taking place. Those are all very significant aggravating factors which must increase the level of sentence. Paragraph 15 of the guideline states that the particular circumstances of offending may make it appropriate for a sentence, prior to taking account of the mitigation and the guilty plea, to fall outside the range. At page 7 the guideline indicates that exceptionally serious aggravating features will move the case up to the next level. There is, of course, no level beyond level 1 in the guideline. Therefore, the guideline must be read as permitting the court to go beyond the range set in level 1.
23. In
Attorney General's Reference No 123 of 2014 (R v Spence)
[2015] 1 Cr App R(S) 67
, this court indicated by its disposal of that case that where the offending is sufficiently serious, sentences for attempted murder outside the scope of the guideline are appropriate. The guideline is premised on sentences appropriate to a first time offender who has contested the case.
24. This offender is 29 years old. He has no previous convictions, although there are cautions for matters which we do not think materially affect the position.
25. In passing sentence the judge below arrived at a figure of 35 years as a determinate sentence, before giving credit for the guilty plea. That represented her assessment of all the circumstances, including aggravation and mitigation, up to that point. That figure is at the top of the available sentencing range for level 1. It must mean that the judge went above level 1 before making allowance for the guilty plea.
26. We next turn to consider the mitigation. Mental disorder can be a factor which lowers an offender's degree of culpability. However, the evidence in this case showed that the offender's state was an acute drug-induced psychosis as a result of voluntary consumption of unlawful drugs. In these circumstances, where an offender's state arises as a result of voluntary abuse of drugs, little or no weight should be attached to this factor. It cannot significantly diminish the offender's culpability.
27. As to credit for a guilty plea, the Sentencing Council's guideline indicates a maximum of ten per cent reduction for a guilty plea tendered on the day of trial. The offender's guilty pleas were notified immediately before that stage. We are not persuaded that the reasons given by the judge for granting a reduction of twenty per cent are justified. We note from Dr Mendelson's report of 11
th
September 2017 that the offender was fit to plead, able to understand the charges against him, able to instruct lawyers and capable of giving evidence if need be. Dr Mendelson's assessment was that the relatively transient psychosis from which the offender was suffering would not have significantly have impaired his ability to know the nature and quality of his acts. He said that if the offender had intended to assault the children, he would have known that this would be legally wrong. He would have been capable of forming an intent.
28. The assessment of 11
th
September was about one month after the commission of these offences and more than four months prior to the guilty pleas being tendered. A partial defence of diminished responsibility is not available for an offence of attempted murder. Further psychiatric reports after September 2017 could only go to the issue of mitigation and disposal of the case after a guilty plea. We further note that the offender continued to deny any criminal responsibility for what had happened in interviews which succeeded the September interview.
29. For these reasons we do not consider that there was any justification for granting almost double the level of reduction for the offender's late guilty pleas. We consider that ten per cent is the correct level of reduction.
30. Stepping back and examining all the circumstances, it is our clear conclusion that this was a case where the case should have gone significantly beyond the upper range of the guideline. In our judgment the facts of this case demonstrate offending of particular gravity which justifies this course. There is an accumulation of significantly aggravating factors. Four young lives have been grievously affected. Their mother's life has been blighted. The level of harm which has been caused is very high indeed. Culpability is also very high: there was an intention to kill; there was breach of trust; and there were the earlier attacks with the hammer to be taken into account.
31. In our judgment a determinate term of at least 48 years should have been reached after giving ten per cent credit for the guilty pleas. When that figure is halved in order to give the minimum term equivalent, the appropriate figure is 24 years.
32. It follows from that analysis that the sentence imposed below was unduly lenient. We give effect to our conclusion by substituting on each of counts 1 to 4 a sentence of life imprisonment with a minimum term of 24 years (less 177 days spent in custody on remand). That results in concurrent terms of 23 years and 188 days. For the avoidance of doubt, we stress that this is a minimum term which must expire before the Parole Board can consider whether it is safe for the offender to be released.
33. There has been no application made by the Solicitor General in relation to the two year period of disqualification imposed below, adjusted to take account of sections 35A and B of the Road Traffic Offenders Act 1988. As a result of our decision, that period will now be a period of two years, plus an overall adjustment of 24 years, giving a total of 26 years' disqualification. The requirement to take an extended retest remains in place. | [
"LORD JUSTICE TREACY",
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] | 2018_05_09-4301.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1336/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1336 | 805 |
d5eefa5f14523967464371aaa55014813f6d3a88151056ee77b78cb99f2b03ff | [2004] EWCA Crim 3215 | EWCA_Crim_3215 | 2004-11-08 | crown_court | No. 2004/04597/B2 Neutral Citation Number: [2004] EWCA Crim 3215 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday, 8 November 2004 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE HUNT and MR JUSTICE WILKIE - - - - - - - - - - - - R E G I N A - v - JIMMY C - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - M | No.
2004/04597/B2
Neutral Citation Number:
[2004] EWCA Crim 3215
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday, 8 November 2004
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE HUNT
and
MR JUSTICE WILKIE
- - - - - - - - - - - -
R E G I N A
- v -
JIMMY C
- - - - - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MISS A FAUL
appeared on behalf of
THE APPELLANT
MR B GUMPERT
appeared on behalf of
THE CROWN
- - - - - - - - - - - -
J U D G M E N T
Monday 8 November 2004
LORD JUSTICE HOOPER:
1. On 23 July 2004, in the Crown Court at Luton, before His Honour Judge Breen and a jury, the appellant was convicted of a single count of indecent assault. He appeals against that conviction by leave of the single judge, who ordered that the matter should be expedited. He granted leave having regard to
R v Turner
[2004] 1 Cr App R 24
and the judge's adverse inference direction under
section 34 of the Criminal Justice and Public Order Act 1994
. He also granted leave on the basis that this court should consider the way in which the judge dealt with the evidence in his summing-up and whether it was fair to the appellant.
2. On Monday 12 January 2004, the complainant, who was aged 16, went to a gym in Stevenage. There came a time when she and the appellant were alone in a room. According to her evidence the appellant propositioned her and touched her vagina, both inside and outside her bikini. Another male who had been there previously opened the door. The appellant left the room very shortly thereafter. In addition to seeing the appellant in the reception area, the victim later saw him outside in his van. There was a brief conversation between them; it lasted for about two minutes. On her return home she immediately told her mother about the incident. The police were called. She subsequently identified the appellant in a video identification procedure.
3. The appellant was arrested and interviewed. At that time the appellant was aged 17 years and two months. He could neither read nor write. He was given an opportunity to speak to his legal representative, a Miss N Jenkins. At the beginning of the interview Miss Jenkins read out a short statement on the appellant's behalf. That statement reads:
"I, Jimmy Cash, DOB 24.11.1986, wish to make the following statement: I am a member of Fitness First Gym and I was in Fitness First in Stevenage on Monday 12 January from about 6.30 to 7pm, to about 8.30 to 9pm. Whilst there, I did speak to a female in the sauna. We had a short conversation during which she sat beside me. I then left the sauna, had a shower and left the gym. I did see the girl again outside and she asked me where the train station was. I told her and then I left. At no time was there any physical contact between myself and the female and at no time did I prevent her leaving."
The appellant was of good character; he had no previous convictions and had received no cautions. We are told that the trial proceeded on the assumption that he had never before been to a police station in these kind of circumstances.
4. Following the reading out of that prepared statement a number of questions were asked both at this interview and a subsequent interview. In the admissions the questions were summarised for the jury in the following way:
"After this the defendant was asked a series of questions about the indecent assault alleged against him by [the complainant]. In summary he was asked: whether he was at Fitness First with anyone else; what the female he spoke to looked like;
what they had talked about
; whether he had assaulted her in the aromatherapy room; whether he had prevented her from leaving that room; what he was wearing in the sauna area; whether he had said anything to upset her; whether he had asked her if she wanted to have sex with him in there; whether he had touched her vagina through her bikini bottoms; whether he had then put his hand inside her bikini bottoms and touched her vagina again; and whether he had left Fitness First in a yellow van. To all these questions the defendant answered 'no comment'." (emphasis added)
It is clear that the advice not to answer the questions was given to the appellant by the solicitor. In the appellant's words, "I gave no comment to the questions because I was advised to give a prepared statement". In answer to a question from the judge the appellant said:
"I did not answer questions because of my legal advice. They get paid for that."
5. The first ground of appeal relates to the manner in which the trial judge summed up the issue of
section 34
and the adverse inference that can be drawn from a failure to mention a fact relied on in his defence in the proceedings. The judge reminded the jury of the caution and went on to say:
"As his defence he has relied on an account which goes very considerably beyond the prepared statement that was read to you and which again you will have a copy of and can refer to. During the course of the interview he was given the opportunity to give further details; indeed, he was correctly asked about a number of matters which, if he had answered the questions, would have brought those matters out. Again they are set out. I read them to you earlier on in the admission and you will be able to refer to that during the course of your deliberation. But the point is this: the defendant admits that he failed to answer those questions or to mention these matters during the course of the interview, and this failure may count against him."
Mr Gumpert (who was not prosecuting counsel at the trial and for whose assistance this court is grateful) accepts that there was a misdirection in this passage. The trial judge failed to identify the facts the omission to mention which could found the basis of an adverse inference. Mr Gumpert submitted that the jury must have known that the judge was there referring to part of the evidence given by the appellant about what had been said by the complainant to him and how he had replied during the period when they were alone together in the room. Mr Gumpert further submitted that the jury must have known that the judge was referring also to the appellant's evidence about what he thought the complainant was doing when she spoke to another man outside the fitness centre. Thus Mr Gumpert submits that this court should not allow the appeal because the jury would have known to what he was referring.
6. Unfortunately, the judge did not summarise the appellant's evidence, although at one point (page 13, line 11) he made reference to a "chat-up line". The judge not having summarised the evidence of the appellant, nor indeed of the complainant, we have to rely on the notes of evidence prepared by the solicitor for the appellant. Given the fact that the appellant was subsequently sentenced to a custodial sentence, and given his age, it was vital that this appeal was expedited. That explains the lack of a transcript. We would not have needed a transcript if the trial judge had set out the evidence in his summing-up. According to the appellant's evidence the complainant had asked him whilst in the room to go out with her at the weekend. To that, so the appellant said, he responded that his wife was pregnant and having a baby and that he could not go out with her. He continued: "I can't remember what was said much between us. She sat down beside me just after she said about the weekend". There is then reference to his conclusion (we do not know whether he reached that conclusion at the time or later) that when she was asking the man outside about where the train station was, she must have been "chatting up" the man.
7. In cross-examination he said:
"She asked me if I went out at the weekend and I said I do not go out at weekends because my wife was pregnant and she had had a miscarriage before."
He went on to say:
"She was coming on to me because of what she first said to me."
Later he said:
"I thought she was coming on to me -- hitting on to me."
He then referred again to the issue about the man outside the fitness centre. One further passage from his cross-examination to which we refer reads:
"I had nothing to hide about the girl. I wanted to answer the questions but my representative said not to me."
8. It is submitted on the appellant's behalf that the trial judge, by approaching
section 34
in the manner in which he did, did not make it clear to the jury that it was not the failure to answer questions which could lead to an adverse inference, but the failure to mention a specific fact subsequently relied upon. The trial judge ought to have identified the fact or facts. If he had done so, we suspect that the only fact he would properly have identified was the appellant's evidence about the complainant having asked him out, to which he said "No". We doubt whether anything that he said in evidence about the man outside the fitness centre would have satisfied the necessary test. The judge left it in the plural. We find that the failure to identify the fact or facts is a fatal flaw in his summing-up.
9. The matter does not end there. The judge went on to direct the jury as follows:
"That is because you may draw the conclusion from that failure that he had no answer then, or none that he believed would stand up to cross-examination, and that he has since tailored his account to fit the prosecution case."
That is the formula to be found in the Judicial Studies Board ("JSB") specimen direction, designed particularly for cases in which the defendant has refused to answer any material questions. That is not this case. If the judge was minded to identify as the only fact the one that we have already identified, what conclusion might the jury reach from a failure to have mentioned it at the time of questioning? The question which he was asked by the police was: what had they talked about? Having been asked that question and declined to answer it, what conclusions could properly be drawn from the failure? It is very difficult, if not impossible, to see how it could be concluded that "he had no answer". He had given his account; what he had omitted by refusing to answer the question was part of the detail. Nor, it seems to us, could it be properly concluded that he had tailored his account to fit the prosecution case following the interview. Nor does it seem likely that a 17 year old unable to read or write had decided to omit the detail because he believed that if he gave the detail "it would not stand up to cross-examination".
10. If the jury were to draw any adverse conclusion from the appellant's failure, the only possible conclusion could be that he had made up this detail later. Importantly there appears to have been no cross-examination of the appellant about why he had not mentioned the conversation during the interview. If, for example, it had been suggested that he had fabricated the detail after the interview, then it may be that he could have rebutted that allegation or given an explanation about which the jury would need to be reminded.
11. If he lied in evidence about the detail, could it properly be concluded that this was a pointer towards his guilt? The appellant had from the outset denied the commission of any indecent assault. The judge told the jury that the failure could count against the appellant, but now how, on the facts of this case, it could count. We do not say that it was impossible to prepare a direction which dealt with these issues, but the judge certainly did not do so. The JSB direction had to be tailored to the facts of the case -- it could not just be read out in a formulaic manner. The judge should have considered (with counsel) how failure to mention the detail could properly assist the jury in their deliberations.
12. The judge then went on to say:
".... you [are only entitled to draw the conclusion] if you think it is fair and proper to do so and you are satisfied about three things: the first is that when he was questioned he could reasonably have been expected to mention the facts on which he now relied; secondly, that the only sensible explanation for his failure to do so is that he had no answer at the time, or none that would stand up to scrutiny; ...."
As to the first of those "things", a proper answer to the question requires the identification of the relevant fact. As to the second of those "things", we repeat what we have just said.
13. The judge then turned to that part of the JSB direction dealing with the advice of the solicitor. The judge said:
"Now he has given evidence that he did not answer questions on the advice of his solicitor, and, if you accept that, then that is obviously an important consideration, but it does not automatically prevent you from drawing any conclusion from his silence."
There was no dispute, as we understand the case, that the solicitor had given him the advice. The judge went on to say that a person given legal advice has the choice to accept it or to reject it, and that the appellant was clearly warned that any failure to mention facts might harm his defence. The judge continued:
"By all means take into account his defence and by all means take into account his evidence about that, that if you have got a solicitor and the solicitor gives you certain advice, well, you should take it perhaps, especially if you are seventeen years old. But you saw the defendant in the witness box and you will judge for yourselves whether he would have had any difficulty in holding his own in an interview and speaking his mind to his solicitor."
We have some doubt, albeit we have reached no firm conclusion, whether it was appropriate to give any
section 34
adverse inference direction given that the appellant was just 17 at the time, could neither read nor write, had given a statement, had been advised not to answer the questions and did not have any "criminal sophistication" (to use the words of Mr Gumpert). If we are wrong about that, the facts of this case required the trial judge to give careful directions to the jury about whether or not they were entitled to conclude that the appellant could reasonably have been expected to answer the question which related to what they had talked about. The only point made is a point against the appellant, namely: would he have any difficulty holding his own in interview and speaking his mind given his demeanour in the witness box? We do not find that to be a helpful guide to the jury in this case.
14. The judge then said:
"If you consider that he had or may have had an answer to give but relied on legal advice to remain silent, do not draw any conclusions against him."
It is very difficult to see how that would help the jury without identifying the question to which he had or may have had an answer. The judge continued:
"But if, for example, you were sure that he had no answer and merely latched on to the legal advice he was given as a convenient shield behind which to hide, you would be entitled, subject to the direction I have given you, to draw a conclusion against him."
This again was inappropriate on the facts of this case. The appellant did have an answer. The
section 34
issue was whether the jury could draw some conclusion from his failure to tell the officers when asked what it was they had talked about.
15. We are sorry to say that this was a completely inadequate way of dealing with the difficult problems which
section 34
raises and the conviction must therefore be quashed.
16. We turn very briefly to other grounds of appeal. The trial judge did not summarise the evidence given by the complainant, nor did he summarise the evidence given by the appellant or that of the witnesses he called. He chose simply to highlight what he said were a number of issues. He then gave in effect his conclusions on six issues, five of which, as Mr Gumpert accepts, were unfavourable to the appellant. One of the issues was whether or not the appellant had swimming trunks on under his shorts. The complainant had said that he had taken off his shorts to reveal swimming trunks. The appellant said that that was not right because he was not wearing anything under his shorts. The judge said of the complainant's evidence:
"Why make up a detail like that, do you think, members of the jury, if it did not happen, if there is no substance in it?"
With that comment the judge was undermining the defence case that the complainant had made up the whole story and had been caught out in the detail. If the prosecution had made this point, then at the most the jury should have been reminded of the prosecution's submission.
17. In dealing with the same issue the judge then said:
"You will remember I drew attention to the fact that although it had been suggested that the defendant went out straight after his friend, there was, according to the tape counter, a delay of getting on for twenty seconds. How long do you think it would take to pick up a pair of shorts and put them on over swimming trunks? Could that explain the delay?"
The problem with the judge's conclusion which he was inviting the jury to accept is, as we understand the case from the material before us, that the CCTV camera which showed the appellant leaving the room showed that he could not have put on his shorts outside the room. If the judge's thesis is right, the appellant must therefore have put them on inside the room while alone with the girl at about the time the other male opened the door. If that is right then the jury would at least have needed some reminding of what the complainant had said. The complainant had not, as we understand it, given evidence of the appellant putting on his shorts. Could that be explained by the fact that she was looking away? We do not know because there is no summary of her evidence in the summing-up. On the face of it, if that point was going to be made, it should have been made as a prosecution point (assuming the prosecution ever made the point), and should have been balanced by looking at all of the evidence.
18. The judge then commented on the fact that the appellant's wife and mother had been called. The effect of their evidence was that the appellant would not have been wearing swimming trunks under his shorts. Whether that evidence was to be believed was a matter for the jury. But the judge said:
"He is a very lucky chap to have all that done for him, is he not? I am sure the gentlemen will agree; perhaps the ladies will not -- I do not know -- that they do that for him."
Mr Gumpert accepts that that comment ought not to have been made. Viewed on its own perhaps it adds little, but against the background of the way in which this judge approached his summing-up, we find that he was wrong to have expressed his personal views in that way.
19. There are other passages about which complaint could be made, but we turn on to one which particularly concerns us. In reviewing the evidence of the complainant, the judge said:
"And was she acting when she gave her evidence in this court? If so, you may think, I do not know, it is a matter for you, but you may think it was a veritable command performance, but that is something for you to consider."
We take the view that the trial judge ought not to have expressed his personal view in that way.
20. The fact that he had earlier said that the jury were to ignore his views if they did not agree with them did not entitle the judge (in this case) to express his views in this way. The use of the phrase "It is a matter for you" does not necessarily make the comment justifiable (see
R v Goodman
CACD, Dyson LJ, Silber J and HHJ Ann Goddard QC, unreported 12 July 2002, No 2000/05645/Z4).
21. In all these circumstances we consider that this conviction is unsafe. We quash it. This appeal is allowed.
22. The prosecution has been asked whether they seek a retrial. Mr Gumpert has indicated that they do not. | [
"LORD JUSTICE HOOPER",
"MR JUSTICE HUNT",
"MR JUSTICE WILKIE"
] | 2004_11_08-369.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/3215/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/3215 | 806 |
7ccfc51388b754d72dd5171553a6a3d2ed0b72b0448540fb4f8977482fba7a8a | [2008] EWCA Crim 2187 | EWCA_Crim_2187 | 2008-10-02 | crown_court | No: 200803419/A4 Neutral Citation Number: [2008] EWCA Crim 2187 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 2 October 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v GUY'S AND ST THOMAS' NHS TRUST - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the S | No:
200803419/A4
Neutral Citation Number:
[2008] EWCA Crim 2187
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 2 October 2008
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF WINCHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
GUY'S AND ST THOMAS' NHS TRUST
- - - - - - - - - - - - - - - - - - - - -
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 S Climie
appeared on behalf of the
Applicant
Mr A Bird
appeared on behalf of the
Crown
J U D G M E N T
1.
Lord Justice Toulson: This application for permission to appeal has been referred to the Full Court by the registrar. At the outset of the hearing we granted leave to appeal.
2.
On 13 March 2008 at the City of Westminster Magistrates' Court the appellant Trust pleaded guilty to supplying a medical product not of a nature or quality specified in a prescription contrary to
section 64(1) of the Medicines Act 1968
. The case was committed to the Crown Court for sentence. On 23 May 2008 at Southwark Crown Court the appellant was fined £75,000 and ordered to pay costs. The appeal is against the fine.
3.
On 24 April 2006 baby twins were born at the Chelsea and Westminster Hospital. The births were very premature and the male twin died shortly after birth. The female twin, Jada, survived initially but was in a poor condition and was transferred to the intensive care unit. In the course of the treatment that followed the Chelsea and Westminster Hospital ordered from the appellant Trust a product called TPN, which is short for "Total Parental Nutrition". The Chelsea and Westminster Trust did not have its own facilities for the production of this solution. The appellant Trust does and it produces such products both for its own use and also for use by other hospital trusts who are charged at cost.
4.
It is necessary to describe the way in which the solution is produced. The product is made up by a trained technician acting under supervision and using a machine called Automix. There were three major ingredients: vaminolact, which is a protein, glucose and water. The technician received the specification for the product which was particular to the needs of this child in the form of a computer generated worksheet. The software programme was written in such a way that on the worksheet the specified ingredients were shown in the order mentioned, that is vaminolact, glucose and water. In this instance the specification was for 27.4 mL vaminolact, 24.2 mL glucose and 111 mL water. The control unit on the Automix enables the technician to key in the required quantities and then press a pad which will result in them being dispensed from separate sources into a bag in which they are mixed and which is provided to the requesting hospital for administration to the patient.
5.
The columns on the Automix happened to be in a different order from the specification in the worksheet. On the Automix the left-hand column was for the vaminolact, the middle column for water and the right-hand column for glucose. The machine could not dispense less than 30 mL of any ingredient, so if the amount required in a particular case was less it would be inserted by syringe.
6.
It can be inferred from the tragic events which happened and from the detailed subsequent investigation of them that in the instant case the technician inserted the required quantities of vaminolact and glucose by syringe, each being less than 30 mL, but instead of adding 111 mL water he must, inadvertently, have keyed that requirement into the glucose column with the result that the solution prepared by him had 27.4 mL vaminolact and 135.2 mL glucose.
7.
This error on his part was compounded by error on the part of his supervisor who was responsible for checking the process. The system was such that no product could go out, or should go out, unless its compilation had been observed by the technician and his supervisor. In other words, recognising that where human affairs are concerned there is always a possibility of human error, the Trust's system was such that an off-spec solution, if it may be so described, could not be produced by a single error of one employee. There had to be two employees both at fault for such a default to occur.
8.
The solution was administered to Jada on 26 April 2006 at 11.00 pm. It was a massive glucose overdose. The baby died on the following day. The coroner at the inquest found that a number of factors contributed to her death, one of which was hyperglycemia caused by the glucose overdose.
9.
Section 64 of the Medicines Act 1968
provides as follows:
"(1) No person shall, to the prejudice of the purchaser, sell any medicinal product which is not of the nature or quality demanded by the purchaser.
...
(5) Where a medicinal product is sold or supplied in pursuance of a prescription given by a practitioner, the preceding provisions of this section shall have effect as if --
(a) in those provisions any reference to sale included a reference to supply and (except as provided by the following paragraph) any reference to the purchaser included a reference to the person (if any) for whom the product was prescribed by the practitioner, and
(b) in subsection (1) of this section, for the words 'demanded by the purchaser', there were substituted the words 'specified in the prescription'."
It is for practical purposes a strict liability offence.
10.
The background to this tragic event was that the appellant Trust had been producing solutions of this kind and in this way over a period of about 15 years using the same methodology and during that time had produced something in the order of 100,000 bags.
11.
There had been one previous occasion on which a similar mistake had been made and in the investigative process attention was properly directed to that previous incident. It has been referred to as the Green incident. It was fully investigated by the Trust at the time because it was recognised that any such incident could be extremely serious.
12.
The judge in his sentencing remarks said about it:
"In 2005, there was a similar incident, but one which had been detected before any damage could be caused. I am satisfied from what I have been shown today that that was thoroughly investigated and various options were considered for remedying the problem, but it was decided that the system as it stood should remain because altering it could in itself lead to mistakes being made and I am told that following the incident that I am dealing with here, the system was altered and mistakes were made during the initial period after the change."
13.
Although the judge does not say so in explicit terms, the clear implication of that passage is that he was satisfied that the Green incident had not only been thoroughly investigated, but that the Trust's response to it had been reasonable. We were nevertheless concerned to satisfy ourselves that we had fully understood the investigations on that occasion and this court has come to the same conclusion. We add that the prosecution are represented here today by Mr Bird, who, in response to enquiry from the court, has not sought to argue against that conclusion.
14.
In brief, after the Green incident an investigator suggested that three steps be taken to prevent such an error occurring again. The suggestions were: (1) change the order of the bulk solutions on the Automix; (2) investigate the purchase of a compounding system that would allow a different print-out of the solution and weights added to a TPN bag; (3) investigate the use of standard TPN bags to reduce the risks from bespoke compound for individual patients.
15.
We have seen the contemporaneous documentation which shows how each of these suggestions was evaluated. It was decided not to make the first change because on consulting the staff the point was made that technicians were very well used to the Automix as it was. They had been using it for many years. There had been this one isolated error. To change the Automix would in the view of the staff familiar with it be more likely to lead to error than avoid error, because of the familiarity which users had with the machine as it then was. On consideration those with responsibility for the matter concluded that this point was valid and that the balance of risk favoured not changing the Automix.
16.
Obtaining a different form of print-out was explored but proved to be not a viable proposition because the suppliers were not willing to provide a different formulation of print-out. The print-outs came from their software as written and the Trust had to accept the specification sheets as they received them. In truth, it was not a difficult matter for a technician to read down the specification and know what he had to key in.
17.
The third possibility of using standard bags would not have been relevant in the present case because standard bags are just that, they are standard bags. In many cases, of which this was one, the product was individually prescribed and a standard bag would have been inappropriate.
18.
We are satisfied that the response of the Trust to the previous incident was a reasonable one. Their system essentially depended upon staff being properly trained and properly supervised. As already explained, there had to be dual error for an event of this kind to occur.
19.
The judge was faced with a difficult sentencing exercise because there is a lack of case law in this area on which to draw. He said as follows:
"I have sought, but found no previous cases with facts of a similar type to this to assist me, so I have to sentence the Trust for this offence against the background of its excellent reputation, but recognising the awful truth, that their error was a contributing factor in the tragic death of a young baby. No fine can begin to reflect the value of that child's life and any fine that I do impose removes money that would otherwise be put to the Trust's primary purpose of healthcare."
20.
Mr Climie on behalf of the appellant makes a number of criticisms of the judge's approach of which the most important in our judgment are two. First, he submits that the judge has failed to give adequate recognition of the fact that this was not a case of a failure in management systems or any form of management negligence. This was a case where work was properly delegated to an employee, who was properly trained, and the Trust did all that it could reasonably be expected to do to provide a proper system of supervision. Nothing can ever wholly prevent the possibility of multiple human error, as occurred in this case, but the liability of the Trust is a purely vicarious liability for a default on the part of its staff without actual negligence on the part of the Trust.
21.
Secondly, Mr Climie submits that although the judge referred to the fact that any fine imposed would remove money that would otherwise be available for the Trust's primary purpose of healthcare, he failed to factor that consideration into account when setting the penalty.
22.
We accept that, as a matter of principle, where a not-for-profit organisation exists to carry out work for the public benefit and a failing occurs without actual fault on the part of that body, but through an act or default of an employee to whom the task has been properly delegated and who has been properly trained, the court ought not to punish such a body by the imposition of a financial penalty which would materially impact on its ability to discharge its public duty. The reason is that the public interest would not be served by so doing.
23.
If an organisation is run on a commercial basis the people who will stand to profit from it are the owners of the business, or shareholders in the case of a limited company. The result of the imposition of a fine may be to reduce the amount of their dividend, and, at least in theory, may cause shareholders to hold to account the managers of the company. But in the case of a body of a kind with which we are concerned there are no such financially interested parties who stand to profit from its gains. The beneficiaries of the trust are the general public for whom the service is provided and to impose a fine which reduces the ability of the trust to serve the beneficiaries in that way is not in the public interest. This is not a novel proposition. It was recognised by this court in
Milford Haven Port Authority
[2000] 2 Cr App R(S) 423 in substance if not exactly as we have stated it.
24.
Mr Climie has referred us also to the decision of this court in the case of
Southampton University Hospital NHS Trust
[2006] EWCA Crim 2971
. In that case a hospital patient died as a result of gross negligence on the part of two doctors who were subsequently convicted of manslaughter and received custodial sentences. The Trust itself pleaded guilty to an offence under
section 33(1)
of the
Health and Safety at Work Act 1974
. The charge against the Trust was that it had failed to conduct its undertaking in such a way that, so far as was reasonably practical, it implemented and maintained an adequate system of direction and supervision of senior house officers in the trauma and orthopaedic department of the hospital. There were in that case serious management errors. At first instance the court imposed a fine of £100,000. The sentence was reduced on appeal to £40,000, the court drawing particular attention to the observations of this court in the
Milford Haven
case.
25.
Mr Climie makes the point that if £40,000 was an appropriate level of fine in a case where a hospital trust had been guilty of serious management error, the appropriate fine ought to have been significantly less in a case where there was no such management error. As a result of this latest incident the system has been changed but in ways which were not considered after the Green incident. Nor did the prosecution suggest that the subsequent measures ought to have been undertaken earlier.
26.
In our judgment, there is force in these points. We recognise the difficult position in which the judge was placed with a dearth of authorities. Nevertheless, we consider that the criticisms made of the judgment are sound in that the fine failed to give adequate recognition of the fact that this was a case of pure vicarious liability for the acts of two employees to whom work had been properly designated and for which they had been properly trained, and failed to recognise sufficiently the detriment to the public in imposing a fine which would seriously impact on the Trust's ability to serve the public. To put £75,000 into practical terms, we were told that the average staff cost of the hospital is £30,000 per head. That covers an average of the wage costs of all staff from the most junior probationary nurse or medical auxiliary to the most senior consultant. In other words, the fine was equivalent to the average staff costs for a year of two and a half members of staff. To impose a fine of that order is bound to have an adverse impact on the work of such a trust. Of course, the sum could be translated into other comparables, such as costs of medicines, but wage costs is a helpful way of seeing the impact of such a fine.
27.
It was suggested in argument below and before this court that the matter could have been appropriately dealt with by some form of discharge. We are not persuaded of that argument. In the first place, for all that the liability of the Trust is purely vicarious, this was still a serious matter and we do not think it would be adequately reflected by an order of discharge. Secondly, a fine may serve a public benefit, even where there has not been prior management negligence, in causing those responsible for running the operation to redouble efforts to ensure that staff recognise the importance of being kept up to the mark. But such theoretical or potential benefit to the public has to be balanced against the actual and immediate impact on the Trust of losing money which it would otherwise be using for medical purposes and a fair balance drawn. In our judgment, the fine of £75,000 was excessive. An appropriate figure would have been £15,000. We therefore quash the fine and substitute a fine of £15,000. | [
"LORD JUSTICE TOULSON",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2008_10_02-1653.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2187/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2187 | 807 |
606075b62de4575eb931e5b48dc843f195010ed9488cb245c2e817ad2e2fa4c9 | [2010] EWCA Crim 3284 | EWCA_Crim_3284 | 2010-12-20 | crown_court | No: 201004207/A2 Neutral Citation Number: [2010] EWCA Crim 3284 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 20th December 2010 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE TREACY MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - R E G I N A v MARTIN ALAN BODMAN - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2D | No:
201004207/A2
Neutral Citation Number:
[2010] EWCA Crim 3284
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Monday, 20th December 2010
B e f o r e
:
LORD JUSTICE THOMAS
MR JUSTICE TREACY
MRS JUSTICE SHARP DBE
- - - - - - - - - - - - - - - -
R E G I N A
v
MARTIN ALAN BODMAN
- - - - - - - - - - - - - - - -
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 Badger
appeared on behalf of the
Applicant
Mr R Salis
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE TREACY: We preface this judgment by thanking Mr Badger for his succinct and, in our view, accurate submissions. They are model of how the argument should be crystallised and put before the court, and we are grateful to him.
2.
This applicant is Martin Alan Bodman. His case comes before the court as an application for leave to appeal against sentence. This court grants leave.
3.
In 2009 the applicant pleaded guilty to five offences of burglary and five offences of burglary with intent. None of those burglaries was a dwelling-house burglary.
4.
Sentence was passed in September 2009, in the Crown Court at Reading by His Honour Judge John. The appellant was at that stage sentenced to an 18 month community order with a supervision requirement for 18 months and a drug rehabilitation requirement for 6 months. Unfortunately, the appellant went on to offend again and having admitted an offence of burglary with intent, before the Magistrates' Court, was committed to the Crown Court for sentence.
5.
On 5th July 2010, again in the Crown Court at Reading and again before the same judge, who had dealt with the matter in September 2009, the applicant was sentenced. In relation to the 2009 matters the community order was revoked and the appellant was resentenced to a term of 30 months to run concurrently on each of the 10 offences.
6.
In relation to the 2010 offence, which was a dwelling-house burglary, the appellant was sentenced to a term of 18 months' imprisonment to run consecutively. In addition, six offences were taken into consideration. The total sentence therefore was one of 4 years' imprisonment. The judge also made a direction pursuant to
section 240
of the
Criminal Justice Act 2003
that 72 days spent on remand should count towards sentence. Those days have accrued in relation to time spent on remand in relation to the 2010 offences.
7.
The circumstances are as follows. We begin with the 2010 matters. In April 2010 a householder returned home at about 9.00 pm. The alarm was sounding on his house and when he entered the property he found that patio doors had been smashed and a speaker was on its side. However no property had been taken and nothing else had been disturbed.
8.
About 10 days later, this applicant was arrested. That was because his blood had been found at the householder's premises; he had cut himself while gaining entry.
9.
The appellant was interviewed. He admitted the burglary but claimed that he had been operating as a result of threats made to him by three other men to whom he owed a drug debt. He claimed he had been dragged to the house and indeed been pushed in through the patio window when he had refused to enter. The judge rejected this account, the applicant having declined an oral hearing on that particular issue.
10.
As far as 2009 matters are concerned, the burglaries were, as we have said, non-residential burglaries. They were committed over the course of an evening. Property to the value of over £10,000 was taken and other damage was caused. The property consisted in the main of laptop computers.
11.
In passing sentence, in relation to the 2009 offences, the judge indicated that he had already taken account of time spent on remand. He said this in passing sentence upon the appellant and another man who was being sentenced on that occasion:
"...if either of you fall down on the orders which I am going to make you will be brought back before me and re-sentenced afresh for all these matters. Imprisonment will, inevitably, follow and the terms will be of considerable length.
In making the orders which I am about to do, I have already taken into account the fact that you have each spent 114 days on remand. That is one of the factors which enables me to take the step that I am going to, so that if you come back in front of me because you fall down on the orders I am going to make, that time will not count towards your sentence, you have already been credited for it because of the sentence I am going to impose today, so any term I impose, if you fall down on these orders, will start from that day."
12.
In passing sentence for the 2010 matters, the judge said he would take into consideration six further offences. Property to a value of at least £1200 had been stolen. One of those matters preceded the 2009 matters. Five of them were subsequent to the making of the community order in September 2009. All of them involved thefts of or from vehicles.
13.
This appellant is 33 years of age. He has a bad criminal record. There are 70 offences recorded against him, arising from 28 court appearances. In 1997 he was sentenced to three-and-a-half years for non dwelling-house burglaries. He was sentenced of 15 months in 2000 for two dwelling-house burglaries and 2002 he was sentenced to 5 years for robbery and in 2007, he was dealt with for attempted burglary, not of a dwelling-house.
14.
The pre-sentence report indicated, accurately, that this appellant had not stopped offending since he was 15.
15.
The reports before the judge at the final sentencing hearing, showed that the response to the community order was as follows. This appellant had successfully completed the drug rehabilitation requirement of the community order. He had also attended the supervision appointments. However his engagement and attitude was described as minimal and at times resistant.
16.
Grounds of appeal acknowledge that in relation to the 2010 dwelling-house burglary a sentence of 18 months imprisonment cannot be described as manifestly excessive, in the light of the decision of this court in
R v Saw
. This appellant's previous record, the fact that the offence was committed during the currency of a community order and the other offences to be taken into consideration combine to make that a realistic concession.
17.
However, it is argued that 30 months was too long in relation to the resentencing for the 10 non dwelling-house 2009 offences. It is said that giving some allowance for compliance with the community order, this equates to a 4-year sentence after a trial. It is pointed out that the relevant Sentencing Guidelines Council guideline has a starting point of 18 weeks custody and a range between a high community order and 12 months custody for burglary, not in a dwelling, where the property is valued between £2,000 and £20,000. For burglary involving goods worth over £20,000, the starting point is 2 years. The sentence passed in this case was after an early guilty plea and is said to be out of kilter with the guidelines.
18.
On the other side of the coin, the appellant was not of good character as the guideline presupposes. His previous record is a significant aggravating factor. In addition, we note that these 10 offences were committed on a single evening by a team of two men demonstrating a degree of planning and professionalism.
19.
It is further submitted that the total sentence was too wrong. After a trial it would represent a term of around 6 years.
20.
The appellant also submits that the judge should have given credit for the period of 114 days spent on remand prior to the making of the community order in September 2009. In resentencing, the judge expressly left those days out of account, having warned that he would do so when sentencing in September 2009, in the case of a future breach.
21.
He had said that that time spent on remand had contributed to his decision to make a community order. The appellant argues that the judge should have given such credit by reason of
section 240(3)
of the
Criminal Justice Act 2003
, and that he was wrong to exercise his power not do so, contained in
section 240(4)
(b). That subsection provides that
section 240(3)
does not apply, if in the opinion of the court it is just in all the circumstances not to make such allowance. Reliance is placed on the decision of a two judge constitution in
R v Stickley
[2008] 2 Cr App R(S) 33. At paragraph 6 of that decision, this court held that the judge was in error in saying that he did not have to apply
section 240(3)
in resentencing to custody, since the term spent on remand had been taken into account in exercising his discretion not to impose a custodial sentence on the first occasion.
22.
That decision was criticised by Dr David Thomas in the [2008] Crim LR 308. Dr Thomas's view was that the power to resentence, under paragraph 10(1)(b) Part II, Schedule 8 of the
Criminal Justice Act 2003
, which is in identical terms to Part 23Part 5, Schedule 8 of the
Criminal Justice Act 2003
, which is in play in this appeal, should not be interpreted as requiring the judge to indulge in the artificial exercise of turning the clock back to the day on which the original order was made and resentencing as if nothing had happened in the intervening period. The words of the relevant paragraph simply limit the power of the court to powers that would have been generally available. They do not require the court to ignore the reality of what has happened in the meantime, since the original community order was made.
23.
Those were the criticisms raised by Dr Thomas. In
R v Bell
[2010] EWCA Crim 1075
, David Clarke J expressed doubts about the correctness of Stickley
. He was in fact a member of the constitution in
Stickley
. Moreover a three judge court in
R v Whitehouse
EWCA Crim 1927 has also expressed doubts about the correctness of
Stickley
(see paragraphs 12 to 14 of that decision).
24.
We have come to the conclusion that the criticisms of
Stickley
are justified and that the court there took too narrow a view of the language used in Schedule 8. There is in fact nothing which appears in either paragraph 10 or paragraph 23, which requires this court to ignore what has happened since the original order was made. Moreover, it seems to us that the judge's attention on resentencing should be focussed on the language of
section 240
which requires him to give credit unless it would be unjust to do so in all the circumstances. That exercise must involve an evaluation of the situation as it confronts the judge at the time of resentencing. It should not be constrained or dictated by forcing the judge to act as if he were in precisely the same position as he had been at the point of sentencing first time. We therefore consider that
Stickley
was not correctly decided and that it should not be followed.
25.
In the circumstances of this case, where the judge had made the position, as to time spent on remand crystal clear at the time of the original sentencing, and where he had expressly taken it into account in deciding not to impose a custodial sentence, we do not consider that he was wrong to decline to give credit when re-sentencing.
26.
We return to the other points advanced by counsel. We think there is force in the criticism of the term imposed for the 2009 offences. Allowance had to be made for guilty plea and for some compliance with the community order. We think that having regard to the guideline, the sentence was too long. Having regard to that and overall totality, we think it appropriate to reduce that part of the sentence to one of 18 months concurrent on each matter in place of the 30 months concurrent on each matter imposed by the judge below. The effect of this is that the appellant's total sentence is now reduced from 4 years to 3 years. The 72 days already properly allowed for time spent on remand in 2010 will continue to be credited. To that extent this appeal is allowed. | [
"LORD JUSTICE THOMAS",
"MR JUSTICE TREACY",
"MRS JUSTICE SHARP DBE"
] | 2010_12_20-2586.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/3284/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/3284 | 808 |
b38f6b364d9c42c925856d2e9e2abd922e2af916c9032efe7956e7c619a59f49 | [2019] EWCA Crim 1156 | EWCA_Crim_1156 | 2019-07-05 | crown_court | Neutral Citation Number: [2019] EWCA Crim 1156 Case No: 201802368/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2019 Before : LORD JUSTICE HOLROYDE MR JUSTICE WARBY MR JUSTICE JULIAN KNOWLES - - - - - - - - - - - - - - - - - - - - - Between : NICHOLAS FOY Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Orlando Pownall QC (instructed by Bark & Co ) for the Appellan | Neutral Citation Number:
[2019] EWCA Crim 1156
Case No: 201802368/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/07/2019
Before
:
LORD JUSTICE HOLROYDE
MR JUSTICE WARBY
MR JUSTICE JULIAN KNOWLES
- - - - - - - - - - - - - - - - - - - - -
Between :
NICHOLAS FOY
Appellant
- and -
THE QUEEN
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Orlando Pownall QC
(instructed by
Bark & Co
) for the
Appellant
The Respondent did not appear and was not represented
Hearing dates: 27 June 2019
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Mr Justice Julian Knowles:
Introduction
1.
This is a renewed application for leave to appeal against conviction by the Appellant,
Nicholas Foy, following refusal by the single judge. He was convicted of murder at the Central Criminal Court on 12.2.18 and sentenced to life imprisonment with a minimum term of 17 years.
2.
The basis of the renewed application presented by Mr Pownall QC is a psychiatric report from Dr Joseph obtained after the Appellant’s conviction. Leave is sought to rely upon this as fresh evidence. It is said this shows that the Appellant was entitled to rely upon the defence of diminished responsibility pursuant to s 52 of the Coroners and Justice Act 2009. At the trial the Appellant did not rely on this defence. His defence at trial was lack of intent due to voluntary cocaine and alcohol intoxication.
3.
At the conclusion of the hearing we announced our decision to grant leave to appeal and we gave directions for the conduct of the appeal. We said we would give brief reasons in writing for our decision, and this we now do.
The facts
4.
The deceased man was a French national, Laurent Volpe, who was on holiday in London with his family. On 11 August 2017 they spent the day sightseeing, and then returned home to the address in south east London where they were staying. Mr Volpe went out to a supermarket to purchase food for their evening meal. On the way back he tragically encountered the Appellant in the street, who fatally stabbed him with a knife. They were total strangers to each other.
5.
The Appellant lived locally and ran a courier company. His evidence at trial was that he had spent the 10 and 11 August drinking and taking cocaine, more or less continuously. He said that by the afternoon of 11 August he was extremely paranoid and was having visual and auditory hallucinations as a consequence. In particular, he said that he saw a big lump in his foot. He therefore went to a kitchen drawer and took out a knife. He then went out into the road and ‘started digging out what I thought was a bomb in my foot’.
6.
A neighbour witnessed the attack. She saw the Appellant sitting on a wall in Greenvale Rd, gouging at his foot with the knife. The neighbour shouted at him, but he did not respond. He then ran at Mr Volpe, who was walking along carrying his shopping. The Appellant stabbed him once in the stomach. Despite emergency treatment and a liver transplant, Mr Volpe sadly died three days later.
7.
The judge described the neighbour’s description of the attack in her summing-up as follows:
“He ran very quickly towards Mr Volpe with the knife in his right hand and pointing outwards from his side towards the man he was running at. He ran very quickly, and it was obvious to me that he was going to stab the victim. He then did just that.” 8.
The Appellant’s account was as follows:
2
“I do not remember seeing the victim at all. I expect I ran towards him and was holding the knife in a running movement in my right hand. I cannot remember what I did when I made contact. I accept that the knife was in the position to cause the injury which it did.
I did not know that I had injured someone seriously with the knife. I cannot remember looking back or hearing sounds from the victim or seeing blood on the knife …
I accept that I used a deliberate stabbing motion, knowing that there was a human being in front of me and knowing that I had a knife in my hand and I understand that knives can cause serious and even fatal injuries and stabbing in front of someone is dangerous because you may hit vital organs.”
The medical issue
Dr Isaac’s report
9.
Dr Isaac prepared a medical psychiatric report on the Appellant. It is dated 14 December 2017. He thought the Appellant was floridly psychotic at the time of the offence. He considered both (a) substance-induced psychotic disorder with severe cocaine and concurrent moderate alcohol use disorder, and (b) schizophreniform disorder. In his initial report he offered both of these as alternative diagnoses but favoured the former as he did not think that the Appellant’s symptoms had persisted for long enough for a diagnosis of schizophreniform disorder (see at [105]). Dr Isaac commented that it would be ‘helpful’ to read the Appellant’s prison medical record.
10.
Shortly before the hearing we were supplied with junior counsel’s Second Advice on Psychiatric Evidence dated 3 January 2018. That recorded that Dr Isaac had seen notes from HMP Belmarsh about the Appellant and had also been supplied with information from his partner and son about his paranoid behaviour on holiday in Spain shortly before the killing.
11.
In an email appended to this Advice it was Dr Isaac’s view that the psychosis which caused an abnormality of mind resulted from a combination of alcohol and cocaine. He later said:
“It is therefore conceivable (and I cannot go to more likely than not) that at the time of the killing Mr Foy was suffering from an abnormality of mental function which arose from a recognised medical condition – paranoid psychosis – that (substantially ? not sure) impaired his ability to form a rational judgment or, as he had apparently shown in the past, to exercise self-control, but without the cocaine and alcohol he had been voluntarily ingesting pretty well continuously for many hours, I cannot see that in itself would have substantially impaired his responsibility.”
12.
In other words, it was Dr Isaac’s view that it was the voluntary ingestion of drugs and alcohol which had produced the psychosis. In light of that, Mr Pownall’s Advice on Appeal rightly accepted that the defence of diminished responsibility was not open to the Appellant: see
R v Kay; R v Joyce
[2017] 2 Cr App R 16
, [16].
13.
For these reasons the Appellant did not rely on Dr Isaac’s report and did not advance a defence of diminished responsibility. The defence was that, due to his voluntary drug and alcohol intoxication, he was incapable of forming the necessary specific intent for the crime of murder and he gave evidence to that effect. The judge so directed the jury: see her directions of law at p6 (‘If you think that the Defendant was or may have been so intoxicated that he did not form an intention to kill, or cause really serious injury, then you must find him Not Guilty’)
Dr Joseph’s report
14.
Within weeks of the Appellant’s conviction Dr Joseph was instructed on a private basis to prepare a report for the purposes of an application for leave to appeal. He interviewed the Appellant and also the Appellant’s partner and their son.
15.
The Appellant told Dr Joseph that he drank alcohol and took cocaine all day on the 10 and 11 August. He described thinking there was a bomb in his foot and trying to hack at it with the kitchen knife. He then gave an account of the killing, the relevant part of which was as follows:
“I then ran from the opposite side of the road to the side where my house was but I was not going into my house. As I ran past my house and then the dry cleaners, he was suddenly in front of me and I stabbed him as an automatic reaction. It was an instinctive reaction. I was feeling panic, terror and fear. Everyone was out to get me. He was out to kill me. I was hallucinating and did not know what was real. I did not think he was going to go into my house. I did not say anything to him …”
16.
Dr Joseph’s report is dated 19 April 2018. He disagrees with Dr Isaac and considers that the Appellant suffers from a different disorder. He noted a deterioration in the
Appellant’s mental state, and that on 18 December 2017 he was diagnosed by Dr Daley in prison as suffering from an acute transient psychotic disorder. He was reported as hallucinating in March 2018, following his conviction and his medication was increased.
17.
Dr Joseph’s conclusion at [34] was that as a result of adverse childhood experiences, the Appellant developed into an anxious, insecure, nervous, depressed and paranoid individual. As a result of his abnormal personality structure, he has suffered transient psychotic episodes, when not under the influence of alcohol or drugs, in which he has felt very paranoid and anxious about the intentions of others.
18.
Dr Joseph said at [37] that at the time of the killing the Appellant was clearly psychotic. He said that the Appellant’s account of consuming copious amounts of cocaine and alcohol on the 10 and 11 August was not borne out by the toxicology evidence and that ‘his account may not be reliable’.
19.
Overall, Dr Joseph said at [39] and [41] that, taking all matters into account:
“39. I conclude that at the time of the killing the defendant was suffering from an abnormality of mental functioning caused by recognised medical condition of an acute transient psychotic episode, possibly exacerbated by the abuse of cocaine. His abnormality of mental functioning was extremely severe and I am confident that it substantially impaired his ability to form a rational judgment and exercise self-control. It may also have impaired his ability to understand the nature of his conduct. The abnormality of mental functioning provides an explanation for his conduct at the time of the killing. If the effects of alcohol and cocaine are discounted, the remaining abnormality of mental functioning was in my opinion a significant contributory factor causing the appellant to carry out the killing.
…
41. In conclusion, I am of the opinion that despite probable intoxication with cocaine and to a lesser extent alcohol at the time of the killing, the defendant was suffering from an acute transient psychotic episode, independent of drug and alcohol abuse, which substantially impaired his mental responsibility for the killing. I conclude therefore that he has a defence to murder of manslaughter on the grounds of diminished responsibility”
Discussion
20.
Section 23(1) of the Criminal Appeal 1968 allows this court to receive what is often referred to as ‘fresh evidence’ if we think it necessary or expedient in the interests of justice to do so. In making that determination, we must have regard to the criteria in s 23(2).
21.
Many of the decisions relating to the admissibility of expert evidence on appeal relate to attempts to raise the issue of diminished responsibility on an appeal where it was not raised at trial. Many of these decisions were considered in
Erskine
[2009] 2 Cr App R 29
. We have borne this decision in mind and especially the point made at [39] that 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, the trial process would be subverted.
22.
We are conscious of the criticism that could be made that Dr Joseph has failed to take account of the differences in the account of the killing given to him by the Appellant, as compared with the Appellant’s evidence at trial. This was a point made by the single judge in refusing leave, and we see the force of it. We are also conscious that some of Dr Joseph’s reasoning appears to diverge from the Appellant’s case at trial. This was that having ingested copious amounts of drink and drugs he was so intoxicated that he could not form an intent. Dr Joseph suggests that the Appellant may not have been as intoxicated as he said that he was.
23.
Nonetheless, it seems to us arguable that there was, prior to the Appellant’s trial, a diagnosis of a mental health condition which was not alcohol or drug related which, in Dr Joseph’s view, substantially impaired the Appellant’s responsibility in a way which raised the defence of diminished responsibility. We acknowledge that the prison diagnosis was made some four months after the killing. However, it is arguable that Dr Isaac never considered this diagnosis, or the question whether it might have been operative at the time of the killing.
24.
It also seems to us arguable that this was not a case where there was a deliberate decision by a defendant whose decision-making faculties were unimpaired not to advance before the trial jury a defence known to be available.
25.
It was for these reasons that we granted leave. We consider it arguable that there is a diagnosis of a mental condition which may arguably have given rise to the defence of diminished responsibility had it been considered prior to trial. It will be for the court hearing the appeal to determine, having heard from Dr Joseph and any other witnesses called by the parties, whether to admit their evidence. We make clear that the effect of our decision is simply that the arguability threshold is passed. The Appellant will have much ground to cover before he will be in a position to persuade the Full Court that his conviction is unsafe.
26.
We also wish to make clear we are not giving a general licence to defendants to come to this court after conviction with ‘better’ psychiatric evidence advancing a different defence, or evidence that is an improved version of a failed diminished responsibility defence. For the reasons we have given they are likely to be given short shrift. Our decision is specific to the facts of this case; the decision whether to permit an appeal to go forward on the basis of fresh evidence is always fact dependent. This case has very particular facts which have led us to the conclusion we have reached.
Directions
27.
We make the following orders and directions:
(1)
Leave to appeal against conviction is granted.
.
(2)
The decision whether to receive any further evidence is reserved to the Full Court hearing the appeal.
(3)
Dr Joseph is to provide by 26 July 2019 a supplemental report, addressing:
(i)
The evidence, in fact, given at trial, including by the Appellant, as to the extent of his intoxication by drink and drugs at the time of the killing.
(ii)
The significance, if any, of that evidence for a diagnosis relying on past psychotic episodes when sober.
(iii)
The significance, if any, of the differences between the account given by Appellant at trial of the circumstances of the killing and (a) what he told Dr Isaac (b) what he told Dr Joseph in that regard.
(4)
The prosecution, if so advised, must respond to Dr Joseph’s evidence and serve any proposed fresh evidence by 13 September 2019.
(5)
Forms W and
Gogana
affidavits in respect of any witness on whose fresh evidence either party seeks to rely are to be filed and served by 27 September 2019.
(6)
The hearing is to be listed thereafter with a time estimate of 1 day.
(7)
The parties are to liaise to ensure the attendance at the hearing of any witness whom either side wishes to call and whose proposed evidence is not agreed.
(8)
The Appellant is to serve a Skeleton Argument not later than 14 days before the substantive hearing.
(9)
The prosecution is to respond within 7 days thereafter.
(10)
Agreed paginated bundles of any relevant documents and of authorities are to be lodged not later than 5 days before the hearing.
(11)
If either party seeks to vary this timetable they must apply in writing to Holroyde LJ.
(12)
A Representation Order is granted for Leading Counsel for the preparation and conduct of the appeal on behalf of the Appellant, and for a solicitor to the extent necessary to obtain and serve any further evidence. | [
"LORD JUSTICE HOLROYDE",
"MR JUSTICE WARBY",
"MR JUSTICE JULIAN KNOWLES"
] | 2019_07_05-4653.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1156/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1156 | 809 |
37eb6e27aab658dfdf4fd864300b38ed1998c3bb1be93fbe2dcf4a4cbda303d9 | [2013] EWCA Crim 1294 | EWCA_Crim_1294 | 2013-06-28 | crown_court | Neutral Citation Number: [2013] EWCA Crim 1294 Case No: 2012/5253/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 28 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE MACKAY SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBERT OGDEN - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street Lon | Neutral Citation Number:
[2013] EWCA Crim 1294
Case No:
2012/5253/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 28 June 2013
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE MACKAY
SIR RODERICK EVANS
- - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ROBERT OGDEN
- - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
Miss M O'Gunleye
appeared on behalf of the
Appellant
Mr M Hooper
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: On 1st August 2012 the defendant was convicted of one offence of burglary. He was sentenced by Mr Recorder Haar QC on the same day to 12 months' imprisonment suspended for two years with one requirement of a curfew for one month. He now appeals against conviction by leave of the single judge. The sole ground is that the judge wrongly rejected a half-time application for the case to be withdrawn from the jury on the grounds that there was insufficient evidence to sustain a conviction.
2.
The prosecution case at trial comprised a number of statements and a number of highly relevant admissions made pursuant to
section 10
of the
Criminal Justice Act 1967
. The background was this. Between 10.00 in the morning and 5.00 in the afternoon on 12th December 2011, a house was burgled at Gunner Lane, Woolwich. A number of electrical items were stolen. The burglar gained entry via a window. On the floor in front of the smashed window a scarf had been left. The scarf did not belong to either of the occupants and the only reasonable inference was that it must have belonged to the burglar.
3.
The scarf was examined by the prosecution. There were two small areas of blood, only one of which however was tested. It was accepted that the blood matched the profile of the defendant with a one in a billion probability of it belonging to someone else unrelated to him. There were a number of admissions before the jury in relation to this forensic evidence. They included the fact that it was not possible to date the DNA. It was therefore possible that another person had carried the scarf to the scene of the burglary, the defendant's DNA already being on it. It was not possible either to say how the DNA came to be on the scarf, whether it was by direct contact with somebody or by airborne droplets. There was no independent evidence that the burglar had cut himself on the window. It was agreed that the remainder of the scarf had not been tested and nor, as we have said, was the other patch of blood.
4.
Prior to the trial, defence counsel became aware that the scarf had in fact been accidentally destroyed and the officer in charge only found this out following a request from the defence to be allowed to test the scarf for DNA. Of course that meant that the defence was not able to follow up the possibility that there may have been the DNA of somebody else found on the scarf, or perhaps on the other blood sample.
5.
This DNA evidence was the only evidence against the appellant. At one point it was thought that his mother might come and give evidence against him for the prosecution, but that did not happen. He in fact gave a full account in interview without the assistance of a lawyer. He said he had no idea how the DNA came to be on this scarf. He did not believe the scarf belonged to him because he did not wear scarves. He said that he had been at home preparing for Christmas at the time in question. He remembered the occasion because certain relatives of his had failed to turn up for dinner. He did not, however, give evidence at the trial itself and there is no complaint about the learned judge's summing-up.
6.
At the close of the prosecution case a submission of no case had been made relying on the second limb in
Galbraith
. It was said that the evidence was insufficient in the absence of any other circumstantial evidence to justify a conviction of this defendant.
7.
The learned judge was not persuaded by that submission. He said this:
"It seems to me that the discovery of that scarf in the burgled premises with Mr Ogden's blood on it does in practical terms call for an explanation. Certainly a jury, if no further evidence is given, would be entitled to reach a verdict of guilty. Maybe some juries would, some juries would not but that is entirely within the domain of the jury and so the application is dismissed."
Counsel says that this ruling was wrong. She relies in particular upon two authorities. In
Lashley
[2000] EWCA Crim. 88 the sole evidence against an appellant was DNA found on a cigarette left at the scene of the crime. It was accepted that there would be between seven and ten males in the United Kingdom to whom this profile related. There was no other evidence before the jury linking the defendant to the crime. This court found that the judge ought to have acceded to submissions at the close of the prosecution case that the case should be withdrawn from the jury. In the course of giving judgment, the Vice President, Kennedy LJ, referred to certain observations of Phillips LJ (as he then was) in the case of
Doheny and Adams
[1997] 1 Cr. App. R. 369 where Phillips LJ had said this at page 372:
"The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the UK with a matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt."
Accordingly in an appropriate case the additional evidence need only be very limited, but there must be some independent evidence establishing a nexus between the defendant and the crime.
8.
The second authority relied upon was
R v Grant
[2008] EWCA Crim. 1890. This concerned DNA found on a Balaclava left at the scene of a robbery. Again, there was a probability of a one in a billion that it was DNA matching someone other than the appellant. In substance the argument advanced in that case was exactly the same as that advanced here. There was no other independent evidence which could be relied upon by the prosecution to establish guilt. The experts were unable to say how the DNA was deposited on the balaclava and as in this case it was possible that it had been taken to the scene by somebody else. The appeal against conviction was successful and it should be noted in that case in fact there had been a no comment interview. By contrast here the appellant had, as we have said, given a full interview.
9.
We have no doubt that in the light of those authorities the judge was wrong in this case not to accede to the half time application. The prosecution accept that that was the case. It was perhaps unfortunate that the judge was not referred to the authority of
Grant
in particular which is very similar to the facts of this case. There was no case that could properly have been left to the jury. Therefore the conviction has to be quashed. | [
"LORD JUSTICE ELIAS",
"MR JUSTICE MACKAY",
"SIR RODERICK EVANS"
] | 2013_06_28-3210.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1294/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1294 | 810 |
20faa8d53d26a356e388d4c7c29acb7bdcc04959fd34d173ba0d506b09be8d3f | [2009] EWCA Crim 103 | EWCA_Crim_103 | 2009-01-16 | crown_court | Neutral Citation Number: [2009] EWCA Crim 103 Case No: 200805266/D4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 16th January 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE PITCHFORD MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID HENRY PHILIP HEARNE - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communicat | Neutral Citation Number:
[2009] EWCA Crim 103
Case No:
200805266/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 16th January 2009
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE PITCHFORD
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
DAVID HENRY PHILIP HEARNE
- - - - - - - - - - - - - - - - - - - - -
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 M Wellfare
appeared on behalf of the
Appellant
Mr S Connolly
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: This is an appeal against conviction in a somewhat unusual case, unusual not only because of the facts but because this appellant is now aged 61 and of an age when one might have expected that he would not still be accused of committing burglaries.
2.
The conviction was on 8th September 2008 at Guildford Crown Court for one count of burglary. It was alleged against this appellant that he had gone in the middle of the night, with another man, on 21st March 2008, to an aviary owned by Mrs Geal and her husband. In that aviary she contained a number of valuable domestic birds. The allegation against this appellant was that he had gone there in order to steal those birds.
3.
His defence was that he had indeed gone there without permission but it was in order to release wild birds that she was unlawfully keeping in the aviary and that by the time he was caught, for he was caught with another man as the prosecution put it, red-handed, he had already managed to release wild birds. He was caught by the police still within the aviary and trying to get out by kicking or breaking a wall panel as the police arrived. There was another young man with him who was, for reasons we do wholly understand, tried separately and acquitted.
4.
As we have indicated, part of his defence was that he had gone there for an innocent purpose, to release the wild birds and had at least partly achieved that purpose by the time the police arrived. There were certain difficulties in that defence, in that the police and the victim of this burglary found that at least one nesting box had been moved and there was a screwdriver that did not, she said, come from her, in the nesting box. If that were true the removal of the nesting box would have been wholly inconsistent with his assertion that he was trying to free and had already freed some wild birds.
5.
The assertion that he was trying to free wild birds plainly amounted to an attack upon the character of one who, as part of a business, housed valuable birds for sale within the aviary. Accordingly the prosecution sought permission to admit two previous convictions of this appellant pursuant to
section 101(1)
(g) of the
Criminal Justice Act 2003
. We note in passing that the prosecution had also attempted to admit those convictions pursuant to
section 101(1)
(f). The judge had rightly denied admission of those previous convictions on that basis. Neither at the time nor now does Miss Wellfare, in her cogent and forthright submissions, suggest that the gateway identified was inapposite. However, she submits that the offences were so old and stale that they ought not to have been admitted as casting any light upon this man's character and in any event the court was required to refuse their admission because their admission would have an adverse affect on the fairness of the proceedings (see
section 101(3)
and (4))
6.
The offences were, it is true, old. The first was an offence of burglary, to which the appellant had pleaded guilty on 6th June 1987, some 20 years ago, when he was only 40. The other was 10 years later, on 8th December 1997, when he was 50, again an offence of burglary, to which he had pleaded guilty. It was submitted before the judge and persisted in by way of submission before us that these offences were too stale. The judge disagreed. It is trite that this court cannot interfere unless the response to the question of whether they should be admitted, or it was unfair to do so was outwith the range of reasonable responses. In our judgment, it was not. Plainly, as Miss Wellfare, fairly accepts, there had been an attack upon the character of Mrs Geal and it would have skewed the fairness of the trial had the jury been deprived of the knowledge that the source of those allegations was someone who, at a mature age, had committed burglary.
7.
The next question that arises on the appeal is how the judge directed the jury as to those two previous convictions. The judge said:
"The defence case is that Mrs Geal was illegally wild, native bird in captivity in that aviary and also, in effect, you may think, that she has fabricated evidence, such as the two birds in the nesting box. The law permits a jury to hear about the character of the person who is making an attack of that kind against a prosecution witness. This is a trial in which the truthfulness or otherwise of the evidence of Mrs Geal on the one hand and Mr Hearne on the other, is crucial and what really matters in this trial is the evidence that each of those witnesses gave as to the facts of this incident. So the evidence about Mr Hearne's previous convictions is no more than background. It is something that may assist you when you are assessing whether his evidence before you in this trial was truthful."
8.
Down to the anti penultimate sentence there is little criticism of that direction. One of the essential issues, although we query whether it was the only essential issue, was the truthfulness of Mrs Geal's denial that there were any wild birds unlawfully kept within her aviary, on the one hand, and the assertion of the appellant, unsupported by any evidence, either from the man he was with or from any other source, that it had come to his knowledge that there were wild birds within the aviary.
9.
But the submission by Miss Wellfare, on behalf of the appellant, is founded on the proposition that the words of those directions suggested to the jury that the previous convictions had been admitted, so as to demonstrate their propensity for untruthfulness. We do not agree. We do not think that there was anything in the wording of that direction which suggested anything other than the jury were hearing about those previous convictions as background because the appellant had chosen to make an attack upon the character of the prosecution witness. In those circumstances it was only fair that they should hear of the source of that allegation.
10.
These directions were no more than a reflection of the traditional and correct directions which used to be given to a jury and when convictions were admitted pursuant to the 1898 Act, when there had been an attack upon the character of a prosecution witness. We refer in particular to the basis for such admission, as explained by Lord Lane CJ in
R v Powell
[1985] 1 WLR 1364
at 1369, namely that where there has been an attack upon the character of a prosecution witness:
"... it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked..."
Such an approach was followed by this court in
R v McLeod
[1994] 1 WLR 1500
, where it was pointed out that the primary purpose of the cross-examination is to show that he is not worthy of belief:
"It should not be to show that he has a disposition to commit the type of offence with which he is charged."
It is that final thought, reinforced by subsequent passages in
McLeod
, that leads us to make one further comment. It is possible that the judge might have been wise to warn the jury that they should not deploy the previous convictions for burglary as any evidence of the propensity to commit burglary let alone a propensity for untruthfulness. Indeed the appellant was at pains to point out that he had pleaded guilty to those previous offences, lending force to the truth of his plea of not guilty in the instant case. But we do not think any harm was done by that failure, a failure which will no longer in future occur in the Crown Court in the light of the Judicial Studies Board guidance that either has been or is about to be promulgated on that issue. No harm was done because the judge made it clear that the only reason they were hearing of those previous convictions was as background. In those circumstances we disagree with the propositions advanced by Miss Wellfare. Since they were the only grounds on which the appeal against conviction was advanced, the appeal will be dismissed.
11.
We only say that we have not detailed with any particularity the facts of this offence. That is only merciful to this appellant, since they showed that he had no defence worthy of belief in any event.
(Submissions re: sentence)
12.
LORD JUSTICE MOSES: This is an appeal with leave of the single judge against a sentence of 18 months' imprisonment passed for the burglary, the details of which we have already outlined. As we have said, this appellant is 61 and has previous convictions for burglary. However, the impact of any custodial sentence will hit him and has hit him particularly hard because of his medical condition. We have no up-to-date medical report, not surprisingly, but there was before the court evidence from his general practitioner, in a report dated 23rd September 2008, that he suffers from diabetes, which causes him pain, cervical spondylosis, a duodenal ulcer and was undergoing investigation for problems of weakness, pain and paraesthesia in both his legs. The judge took those conditions into account but took the view that the offence was planned and akin to a domestic burglary.
13.
We agree with that view of this offence. The burden of the forceful submissions advanced by Miss Wellfare is that this was not a domestic burglary and it did not cross the custody threshold. There was no evidence of particularly high value of the birds within the aviary at the time and at least had the judge, as he ought to have done, taken into account the consultation guidelines for non-domestic burglary, a non-custodial sentence should have been passed. Moreover, even if this were to be regarded as a domestic burglary, the judge failed to take into account the thrust of
McInerney
, namely that custody should be avoided if possible and that it clearly was possible because it was recommended by the probation officer in the pre-sentence report in this case. As the facts indicate, this appellant is an alcoholic and he was drunk at the time that he committed these offences.
14.
But, in our judgment, the judge was perfectly correct to regard this offence as a domestic burglary. The aviaries were part of the victim's home. The aviaries were targeted by this appellant in a particularly mean offence. It was indeed, it appears, an offence committed for commercial reasons, namely to capture birds of sufficient value, to sell on the particular market.
15.
In those circumstances, we take the view that the custody threshold was crossed and the judge was entitled to pass a sentence of imprisonment, notwithstanding the particular impact upon this appellant. But we bear in mind that impact and we bear in mind the nature of this offence, and we do take the view that a sentence of 18 months' imprisonment was manifestly excessive.
16.
Having regard to the impact upon this appellant, although we reject any suggestion that he has exhibited signs of true remorse, we think that the appropriate sentence of imprisonment would be one of 8 months' imprisonment, which would ensure that he will be released in the comparatively near future. In those circumstances, we shall allow his appeal against sentence and reduce the sentence of 18 months' imprisonment to one of 8 months. | [
"LORD JUSTICE MOSES",
"MR JUSTICE PITCHFORD",
"MR JUSTICE GRIFFITH WILLIAMS"
] | 2009_01_16-1775.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/103/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/103 | 811 |
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