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2b47d88576159c92b425e2b18bde1e9a2399299c0209f0092d0fa3551519b34d | [2017] EWCA Crim 1734 | EWCA_Crim_1734 | 2017-11-01 | crown_court | Case No: 201704321 B5 & 201704322 B5 Neutral Citation Number: [2017] EWCA Crim 1734 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT HIS HONOUR JUDGE STATMAN Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/11/2017 Before: LORD JUSTICE DAVIS MR JUSTICE LAVENDER and SIR NICHOLAS BLAKE - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - DEAN MALCOLM LEWIS and JAMES MARSHALL-GUNN Respondents - - - - - - - - - - - - - - - - - - - - - - | Case No: 201704321 B5 & 201704322 B5
Neutral Citation Number:
[2017] EWCA Crim 1734
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE STATMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/11/2017
Before:
LORD JUSTICE DAVIS
MR JUSTICE LAVENDER
and
SIR NICHOLAS BLAKE
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Appellant
- and -
DEAN MALCOLM LEWIS
and
JAMES MARSHALL-GUNN
Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
P Bennetts QC
for the Crown
F Gerry QC and J Bloomer
for the 1
st
Respondent
P Sinclair
for the 2
nd
Respondent
Hearing date: 17 October 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Davis:
Introduction
1.
This is an application for leave to appeal, brought by the prosecution under s. 58 of the Criminal Justice Act 2003, against a terminating ruling. The relevant undertakings have been given and it is agreed that this court has jurisdiction in the matter.
2.
The ruling was given by HHJ Statman in the Crown Court at Maidstone on 22 September 2017. By his ruling the judge accepted the submission of no case to answer made, at the close of the prosecution case, on behalf of each of the two defendants, who were standing trial on a count of murder. The Crown indicated that it proposed to appeal against such ruling. The jury have been discharged.
3.
The essential ground on which the appeal is based is that the ruling was a ruling that it was not reasonable for the judge to have made: see s. 67 of the 2003 Act. Given the nature of the proposed appeal and given the circumstances we have decided to grant leave.
The background facts
4.
The position was this.
5.
On 7 March 2017 Giles Metcalf died as a result of a fire at Torrington Road car park in Tunbridge Wells. He was 43 years old.
6.
At that time he was living a disordered life. He was separated from his wife. He was homeless. He on occasion would drink to excess. The evidence was that he was planning that night to sleep in the car park, which was in the centre of Tunbridge Wells. Previously he had been, from 9 February 2017, in a shelter in Tunbridge Wells. It was said that, whilst there, he was polite and never gave rise to any issues, apart from returning inebriated on occasion. The defendants also had on occasion stayed at this shelter, although there was no evidence that they were particularly friendly with each other.
7.
There was agreed medical evidence indicating that Mr Metcalf had in the past suffered from stress and had periodically been prescribed Citalopram (an anti-depressant drug): most recently on 6 February 2017. There was, however, no evidence of him having threatened to self-harm.
8.
The defendants had been in each other’s company for, it seems, much of 6 March 2017. A CCTV camera shows the two together in the evening at 9.13 pm. They had met up with Giles Metcalf at some stages during the day and in the evening: in fact a CCTV camera shows all three present at 10.19 pm in a nearby Sainsbury’s store when a bottle of Scotch whisky was purchased. There had also been telephone contact between the first defendant and Mr Metcalf.
9.
Shortly before midnight a woman called Katherine Domanski went to the car park. Her evidence was that she saw five people – three men and two women – in the lobby area at Level 1 of the car park. It was accepted that the three men were Mr Metcalf and the two defendants (Ms Domanski in fact recognised the first defendant). The two women were Michelle Sharp and Vivien Martin. Ms Martin was at the time in a relationship with the first defendant. Ms Domanski noticed no signs of animosity or friction between the members of the group.
10.
Ms Sharp was to give evidence at trial. (A statement had also been obtained by the prosecution from Ms Martin, which was disclosed to the defence as unused material. We were told that the view was taken by the prosecution that her evidence was not such as to be capable of being relied on.) As it emerged at trial, there were problems with Ms Sharp’s evidence.
11.
She confirmed that the five had been together in the lobby, socialising. She said that at one stage Mr Metcalf had said to Ms Martin: “Are you married? If not, come in here” – indicating his sleeping bag, which she said was green. According to Ms Sharp, the first defendant did not appear to take notice of the comment, although she gave evidence to the effect that she observed a facial look on the part of the first defendant suggestive of some form of displeasure at the comment made by Mr Metcalf.
12.
She also gave evidence to the effect that at some stage it was said that Mr Metcalf was someone interested in taking out school children (nothing at all indicates that that was in fact any proclivity of his): as the judge found, to the extent anyone made such a comment at some time then, on Ms Sharp’s own evidence, it was not the first defendant but Ms Martin.
13.
Ms Sharp was further to say that she and Ms Martin and the first defendant went by car that night to a nearby Shell garage to buy cigarettes and alcohol. In her statement she said that when she and Ms Martin came out of the garage shop the first defendant was having an argument with another man, the first defendant saying in an angry way: “I will burn you out”. However, this all fell apart in the course of her oral evidence. At the time, Ms Sharp was a cocaine addict. She frankly accepted that she was not to be regarded as a reliable witness. CCTV evidence obtained from the garage, whilst showing the presence of the two women, does not show the presence of the first defendant at all, let alone him having an altercation with another man. Thus if he had gone to the garage he had remained in the car. Ms Sharp, when this was put to her, was then to say that maybe it was some other garage or some other occasion. In the result Mr Bennetts QC (appearing for the Crown below and before us) very fairly accepted before us that no aspect of this part of her evidence could be relied on. At all events, her evidence was that they then returned in the car to the car park, where the two women left the first defendant.
14.
It appears that Mr Metcalf had remained in the car park lobby throughout. At 10.38 pm he had sent a text to his wife, from whom he was separated, saying: “Settling down for the night. It’s all good xx.” In the event, of course, he thereafter had been in contact with the two defendants and Ms Sharp and Ms Martin.
15.
At 1.20 am on the morning of 7 March 2017 CCTV cameras capture the two defendants together in the stairwell of the car park. They then leave the car park.
16.
At 2.07 am the defendants are captured on the CCTV cameras returning to the car park. They carry three bags between them. They are walking, with the first defendant in front of the second defendant. A statement read to the jury made by a Ms O’Donnell, who was sleeping rough under the stairwell and who was awake at the time, stated that she heard two men talking. One said: “That’s the lady down there, we look out for her.” She heard footsteps going up the stairs. A few seconds after that she heard some noises above and about 15 minutes after that she heard a fire alarm go off.
17.
At 2.13 am the defendants are shown on CCTV leaving the car park area. They are walking at ordinary speed, the one in front of the other, and with three bags.
18.
Subsequent reconstruction of events indicated that a time of between 1 minute 42 seconds and 1 minute 58 seconds would be taken to get from the lobby area by the exit route taken by the defendants that night and around 1 minute 4 seconds to get to the lobby area by the entry route taken. Although total precision was not possible the Crown’s case, not really challenged, was that the two defendants on that basis would have been in the lobby area itself for just under two and a half minutes (2 minutes 29 seconds) at the relevant time.
19.
Close study of the CCTV evidence indicated reflections of a flash from the first floor area of the car park timed at 02.12.54. A fire alarm was activated at 02.27.52. The fire service was notified shortly thereafter. Staff of an adjoining store attended at around 3 am, to investigate. The area was completely full of smoke. The body of Mr Metcalf was then observed lying in the lobby area of the first floor. Police were summoned at 3.52 am.
Examination of scene, clothing and body
20.
The body and clothing of Mr Metcalf were badly burnt. The burnt remains of a pink, floral-patterned sleeping bag and of a mat were also found. An open bottle of barbeque lighting fluid, with some fluid left in the bottle, was found near the body. Also found near the body were two disposable lighters, one red and one neutral–coloured. Numerous cigarette stubs were noted in the vicinity. (It seems that Mr Metcalf and the first defendant were both smokers, as no doubt were others who frequented the lobby.)
21.
The clothing that Mr Metcalf was wearing was forensically examined. His jeans, upper body clothing and socks contained traces of paraffin (kerosene). The barbeque lighting fluid contained kerosene.
22.
Pathological evidence was to the effect that the cause of death was a combination of inhalation of fumes and burns. There was no evidence of any bruising or defensive injuries. Examination of Mr Metcalf’s blood alcohol level revealed 278 mg per 100 ml (around 3½ times the drink driving limit). It was said that examination of the liver did not suggest consumption of large amounts of alcohol on a daily basis; and it was suggested that “the deceased may have been asleep and relatively oblivious to the presence of anyone around him….”
Forensic evidence
23.
The barbeque lighting fuel bottle was forensically examined. At the base of the bottle there were indications, from the DNA recovered, of at least four individual contributors, with no apparent major contributor. The DNA evidence was consistent with the proposition that the second defendant could be one of those contributors, albeit no full statistical examination was feasible. In addition, a low-level and incomplete DNA result was obtained from the top of the bottle. That indicated the presence of two contributors: many of Mr Metcalf’s DNA components were represented within this result, indicating that he may have been a potential contributor.
24.
The lighters were also examined. The result with regard to the red lighter was such that it was said that Mr Metcalf could have contributed to most of the DNA found to be present. The result with regard to the clear lighter was such that many of Mr Metcalf’s components were also represented, such that he could not be excluded as a potential contributor. With regard to these lighters, the presence of DNA from at least three individuals was indicated. No evidence was found to link either of the defendants to either of the lighters, however.
25.
Examination of a Scotch whisky bottle found in the lobby area showed fingerprints or marks attributable to each of the defendants.
26.
The expert evidence also was to the effect that in liquid form at normal temperature kerosene such as was present in the barbeque lighting fluid cannot readily be ignited by a naked flame. However when added to combustible material (for example, clothing) the material can act as a wick and so be ignited by the application of a naked flame within a few seconds. Once alight the fire may develop slowly but eventually the rate and extent of the fire would be accelerated. Although the expert could not totally exclude the possibility of accidental ignition of combustible materials by careless use of smoking materials such as cigarettes, the view was expressed that the most likely cause was application of a naked flame to combustible materials, most probably the sleeping bag.
Arrest and interviews
27.
The first defendant was arrested at Ms Martin’s home the following day. Her and his mobile phones were seized. The SIM card from his phone was missing. Examination of her phone indicated frequent telephone contact between her and the first defendant that night until 2.04 am. However the content of those calls was never ascertained.
28.
Various items of the first defendant’s clothing were seized and examined. Traces of kerosene of the same generic type as contained in the bottle of barbeque lighting fluid were found on shoes of the description shown in the CCTV footage as being worn by him that night. No such traces were found on any of the other examined clothing.
29.
When interviewed, the first defendant declined to answer questions. However, he had first put in a prepared statement. Amongst other things, he indicated in that statement that the three men had been together after returning from Sainsbury’s. He said that he had provided Mr Metcalf with a sleeping bag. He further said this in the course of the prepared statement:
“Giles then started saying loads of really weird stuff… the other guy was still there. Giles then poured lighter fluid all over himself. This freaked me out and I left. I left and went back to my girlfriend’s…”
There was no mention in the prepared statement of being with the two women earlier: no mention of being with the second defendant at 1.20 am (as shown on CCTV); no mention of the two returning to the car park area at 2.07 am (as shown on CCTV) or the reason for doing so.
30.
It might be added that the subsequent Defence Case Statement of the first defendant provided a rather different version of events, including a statement that Mr Metcalf “squirted the barbeque fluid around… In seconds he had a cigarette in his hand and the sleeping bag caught fire.” But of course the Defence Case Statement was not in evidence before the jury at the close of the prosecution case.
31.
As for the second defendant he was not immediately arrested. He was eventually located in the Charing Cross area of London (where he habitually went when not in Tunbridge Wells). He was arrested on 12 March 2017. It appears that he not only had serious alcohol issues but also has significant mental health issues. He was not fit to be interviewed when arrested. It was nevertheless decided to charge him that same day. When cautioned he indicated that he was not guilty.
The prosecution case
32.
The Crown’s case thus was entirely a circumstantial one.
33.
That case (necessarily a cumulative one) had the following elements:
1)
First and foremost, the movements and timings derived from the CCTV evidence, showing the arrival and departure of the defendants together before and after the time the fire was evident at 02.12.54 (and consistent with the actual lighting preceding that). “In, fire, out” was the refrain adopted by the prosecution.
2)
Evidence of motive: in the light of the collapse of much of Ms Sharp’s evidence, this essentially rested on the evidence she gave of the first defendant apparently not liking the proposition said to have been made by Mr Metcalf to Ms Martin.
3)
The forensic evidence suggestive of a DNA link of the second defendant to the barbeque lighting fluid bottle.
4)
So far as the first defendant was concerned, the admission in his prepared statement that he was present when the barbeque lighting fluid was poured; coupled with what were said to be lies in the prepared statement.
5)
So far as the first defendant was concerned, the failure to answer questions in interview.
6)
The presence of kerosene on the first defendant’s shoes and the presence of the finger marks of each defendant on the whisky bottle.
7)
The apparent disposal by the first defendant of the SIM card.
8)
The expert evidence as to the likely mechanism being the application of a naked flame to combustible materials such as the sleeping bag.
9)
The presence of kerosene on the deceased’s clothing.
34.
The opening speech of Mr Bennetts at trial, as evidenced by his opening note, was not at all specific as to just how, precisely, the case was being put against each defendant. However, as we were told, each defendant had renewed, at the first day of trial, an application to dismiss (previous such applications which had been made much earlier had been refused). The judge rejected such applications made at that stage. However in the course of discussions at that time, in the absence of the jury, Mr Bennetts made clear that the prosecution case was that the defendants were both liable as joint principals. The case was
not
put against them on the footing of this being a joint enterprise involving encouragement or assistance by one or the other. As recorded by the judge, that remained the prosecution’s case when the submission of no case was being debated. It remained the prosecution’s case before us.
The judge’s ruling
35.
The judge’s ruling was notably thorough and fully reasoned.
36.
He reminded himself in detail of the principles of
Galbraith
(1981) 73 Cr App R 124
. He reviewed very carefully the evidence thus far presented. He noted the weaknesses and concessions in the evidence of Ms Sharp. He reviewed the forensic evidence very thoroughly. He also recorded, saying that it was “one of the matters that troubled me”, that the Crown’s case specifically was not put on the basis of joint enterprise and that questions of encouragement and of the application of the principles of
Jogee
[2016] 1 Cr. App R 31
were not relied on. The case was that they were joint principals.
37.
The judge accordingly directed himself as to the unlawful act constituting the actus reus and the mens rea with regard to each defendant separately. Doing that, the judge considered that there was “no evidence here as to who threw the liquid, if it was thrown, or who set the fire.” He later said: “There is evidence, of course there is, of presence. There are surrounding circumstances…. Association is not enough. Suspicion is not enough. There must be an actus reus, there must be a mens rea of intent to kill or cause really serious bodily harm.” The judge went on to hold that this was not a case which ought properly to be left to a jury. “There simply just is not enough” was his conclusion.
Submissions
38. In essence, Mr Bennetts repeated before this court the arguments advanced below. He carefully reviewed the evidence, in writing and orally. His submission was that the judge simply got it wrong: there was enough here whereby a reasonable jury, properly directed, could properly infer the guilt of both defendants.
39. For the first defendant, Miss Gerry QC, leading Mr Bloomer, submitted that the judge was right for the reasons he gave. She further and if necessary said that his conclusion was correct even had the case been put on a joint enterprise basis (which it was not). Mr Sinclair likewise submitted that the judge's reasoning and evaluation of the evidence was entirely justified, Mr Sinclair understandably focusing on the case as advanced to the judge below. Both Miss Gerry and Mr Sinclair also said that suspicion or even probability could not suffice of themselves in a context such as this.
Disposition
40.
Having carefully considered the matter we conclude that this appeal must be dismissed. There was no error of law or principle in the judge's approach: he correctly directed himself. Thus we are concerned to ask ourselves whether the judge's ruling was one which it was not reasonable for him to make. We cannot so conclude. This was a ruling which, on the evidence, was one which it was reasonable for him to make.
41. For this purpose it does no harm, and perhaps does some good, first to focus on the position of the second defendant.
42. The Crown's case was, among other things, that the two men returned to the car park together at 2.07 am having the shared intent to kill, or seriously injure, Mr Metcalf. If that was the plan, what was the reason for it? The evidence of motive relating to the first defendant was exiguous enough: based on Ms Sharp's perception that the first defendant may not have liked the suggestive proposition made to Ms Martin. But the evidence was that the group thereafter stayed together, seemingly amicably; and the conversation overheard by Ms O'Donnell as the two returned also was not indicative of a shared nefarious intent. But the point remains, so far as the second defendant was concerned, that he himself had no obvious reason to hold any nefarious intent against Mr Metcalf at all: other than, perhaps, support of the first defendant.
43.
Further, the second defendant had (unlike the first defendant) not made a seemingly false prepared statement at interview. Nor could any inference arise in his case from any failure to answer questions in interview. There was no forensic evidence linking him to either of the lighters. The fingerprint on the whisky bottle was not of itself of any obvious importance, given that it had clearly been jointly purchased and consumed.
44. In truth, the Crown's case against the second defendant rested heavily on the DNA attributable (albeit not on a statistical basis) to him, as found on the base of the barbeque lighting fluid bottle. But, as the judge pointed out, the difficulty with that was that there was simply no evidence as to when or by whom this bottle was purchased or when or by whom it was brought to the scene. Indeed, it had DNA on it potentially attributable to a number of others, including, at the top of the bottle, Mr Metcalf himself. Thus (potential) presence of the second defendant's DNA on the bottle was scarcely of the significance for which the prosecution contended. Moreover, there was in any event the possibility of secondary transfer (as recorded in paragraph 11 of the Agreed Facts).
45. There were here a number of potential scenarios:
(1) The two defendants acted as joint principals, each having the necessary intent, in setting light to Mr Metcalf - the prosecution case.
(2) The first defendant set light to Mr Metcalf with the necessary intent, the second defendant playing no part.
(3) The second defendant set light to Mr Metcalf with the necessary intent, the first defendant playing no part.
(4) One of the two set light to Mr Metcalf encouraged and/or assisted by the other who did not actually set Mr Metcalf alight: each having the necessary intent.
(5) What happened was caused by Mr Metcalf himself, either accidentally or deliberately.
46.
On the fourth scenario - the joint enterprise scenario - it would not be necessary to identify which of the two men was the actual principal and which the actual accessory, so long as the jury were made sure that each defendant was one or the other. That is not an unfamiliar scenario in joint enterprise cases: for example, where a group of men together attack a man who dies from a single knife wound. As stated in
Jogee
at paragraph 88: "In some cases the prosecution may not be able to prove whether a defendant was principal or accessory, but it is sufficient to be able to prove that he participated in the crime in one way or another" - provided, we would also add, he has the requisite knowledge and intent. But we need not discuss that scenario further, as that has never been the Crown's case in these present proceedings.
47. Reverting to the first scenario - which was the Crown's case - the judge was, in our judgment, entitled to conclude that the evidence thus far adduced was not such that a reasonable jury could draw the required inference. Indeed it is difficult to see the basis on which that scenario, on the evidence, could safely be accepted whilst safely rejecting the second and third (quite apart from the fourth) scenarios. At all events, the law has always had to be - unattractively but necessarily - that if the jury are sure that either A or B must have committed a particular crime but cannot be sure which then both must be acquitted: see
Bellman
[1989] 1 Cr. App. R 252 at p 259 A (per Lord Griffiths, referring to
Lane and Lane
(1986) 82 Cr. App. R 5).
48. We were referred, in this context, to the case of
Banfield
[2013] EWCA Crim 1394
, where this principle was applied. We agree with Mr Bennetts that that was a decision on its own facts (it was also, we note, in part put as a joint enterprise case): in particular the presence of either of the two accused at the time of the (presumed) killing could not, in that case, be established: which is potentially in contrast to the present case. But the difficulty remains here that the prosecution were not able to adduce a sufficient case entitling a reasonable jury to infer that both defendants participated as principals with the necessary intent.
49.
Whilst, as indicated above, in respect of the case against the first defendant there certainly were points available to the prosecution which were not available with regard to the second defendant, ultimately the same difficulty arises for each. At all events, the trial judge was in our judgment entitled, having assessed the evidence, to conclude that no case to answer was made out with regard to either.
50. Miss Gerry further submitted that there was no case to answer on a basis wider than the judge thought it necessary to adopt. She submitted, for example, that the prosecution had failed to raise a sufficient case, by the close of the prosecution evidence, to rebut the possibility of self-harm or accident on the part of Mr Metcalf; she correspondingly said that a case based on joint enterprise, had it been advanced, should also have been rejected on the footing that there was insufficient evidence to permit the jury to infer the necessary shared intent or assistance or encouragement. We do not need to address these points further (and Mr Sinclair did not think it necessary to advance such points himself). It is sufficient for us to say, as we do, that the judge was entitled, on the evidence, to accede to the respective submissions of no case to answer on the basis that he did in the light of the prosecution case being advanced.
Conclusion
51. Clearly there were highly suspicious circumstances here. But suspicion is not enough. In a case where the issue revolves around the inference that a reasonable jury may draw from evidence which is circumstantial the essential question is whether or not there is evidence, taking the prosecution case at its highest, upon which a reasonable jury, properly directed, could convict: see
Khan
[2013] EWCA Crim 1345
, which considers authorities such as
Goddard
[2012] EWCA Crim 1756
. For the reasons given, the judge's ruling to the effect that, on the particular facts of this case, there was not a case to answer was a reasonable ruling. That being so, we must confirm his ruling, dismiss the appeal and direct that both defendants be acquitted of the offence with which they were charged. | [
"LORD JUSTICE DAVIS",
"MR JUSTICE LAVENDER",
"SIR NICHOLAS BLAKE"
] | 2017_11_01-4093.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1734/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1734 | 812 |
182faadf2e5848e2204a0f49bbd04edfe8550aeeb9171e5e8516bdb5170f4b4c | [2009] EWCA Crim 2368 | EWCA_Crim_2368 | 2009-10-21 | crown_court | Neutral Citation Number: [2009] EWCA Crim 2368 Case Nos: 200803819/D5-200902850/D2-200803822/D5-200803821/D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 21st October 2009 B e f o r e : LORD JUSTICE HUGHES (Vice-President of the CACD) MR JUSTICE MACKAY MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - R E G I N A v AZIZ MIAH VABEESAN SHIVARAJAH KIRUSH NANTHAKUMAR ASIF KUMBAY - - - - - - - - - - - - - - - - - - - - - Computer A | Neutral Citation Number:
[2009] EWCA Crim 2368
Case Nos:
200803819/D5-200902850/D2-200803822/D5-200803821/D5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 21st October 2009
B e f o r e
:
LORD JUSTICE HUGHES
(Vice-President of the CACD)
MR JUSTICE MACKAY
MR JUSTICE DAVIS
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
AZIZ MIAH
VABEESAN SHIVARAJAH
KIRUSH NANTHAKUMAR
ASIF KUMBAY
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr M Birnbaum QC & Mr R Amarasinha
appeared on behalf of the
Appellant
Miah
Mrs R Poulet QC
appeared on behalf of the
Applicant Shivarajah
Mr A Evans QC
appeared on behalf of the
Appellant Nanthakumar
Miss S Woodley QC
appeared on behalf of the
Appellant Kumbay
Mr B Finucane QC & Miss S Whitehouse
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: The first part of this appeal involves the application of well-known principles of common enterprise to the particular facts of a murder committed in the course of a fight between rival groups of young men. The fight was the result of challenges, probably on either side, laid down and accepted. The defendants, who were part of one group, had travelled to the area of their rivals to seek them out for violence. They were armed and some masked for the purpose. At the end of the fight one of the rivals was dead and another badly wounded.
2.
These defendants were convicted, we should we are sure assume on the basis of common enterprise, of murder, of wounding with intent to do grievous bodily harm and of an assault occasioning actual bodily harm. They all appeal against the murder conviction and some against the other convictions also.
3.
The first and primary contention is that the judge ought to have withdrawn from the jury both the murder and its alternative manslaughter charges, and failing that, that his directions on common enterprise were, on the facts of this case, defective.
4.
The defendants, who are chiefly of Tamil origin lived in Croydon. Their rivals, also Tamils, lived in Tooting. There had been bad blood between the two groups which had led to a number of previous fights. In the run up to the incident with which the court was concerned there had been exchanges of telephone calls between the two groups involving challenges to fight on one side or the other.
5.
That evening the defendants and some of their friends had been gathered in Croydon drinking in a car park. Some time after 1.00 am a number of them set off from Croydon in two cars, to go to Tooting. The object was plainly to seek out their rivals in order to do them violence. There are known to have been five of them in a Vauxhall Astra and it looks as if there were about four more in a BMW motorcar. They, or at least some of them, were undoubtedly armed. Exactly who and with what was to an extent in dispute but there was certainly a cricket bat and not less than three bottles. Most of them had tops with hoods; some wore face masks. They arrived, so far as can be judged, a little after 1.30 am.
6.
In Tooting the rival group was on this occasion not organised. There turned out to be only three of them to be found on the High Street having just come out of an all night shop. When they were spotted the Croydon cars stopped and an uncertain number of the occupants spilled out and gave chase to the Tooting men. The three Tooting men ran away. On any view they were outnumbered.
7.
They ran into a fast foot restaurant called Chicken Cottage. The Croydon pursuers followed. The restaurant had an open plan kitchen behind a serving counter. The fleeing Tooting trio jumped over the counter. The pursuing Croydon men either did the same or got behind the counter through a door or hatch. From the back of the kitchen the pursued Tooting trio ran into a side lobby area, up some steps, through a staff area beyond that and then through a white door which led into a small store room. Beyond the store room, running along the back of the premises was a rear yard formed from what had originally plainly been an alley or entry to the back of the premises. Both the store room and the alley provided distinctly restricted space. The store room was about 6 metres by something less than 3 metres overall and the yard was 12 metres long by about 3 metres wide. Both were very heavily cluttered. There was metal shelving down one side of the store room and there were boxes and crates on the other, leaving a walkway between them, very significantly less than the overall width, perhaps about a couple of standard doorway widths or thereabouts. In the alley there were stacked crates, barrels, bins, a lean-to outhouse and a great deal of debris. The usable space varied along its length but again was significantly restricted. Both the store room and the yard were lit, the yard better at the store room end and perhaps not especially well.
8.
The pursued, and at least a number of the pursuers, reached this store room/alley area. They were shut in there by the restaurant manager who wedged shut the white door. Within a maximum of two minutes of having been seen to run down Tooting High Street on the way in, several of the pursuers had scaled either the gates or the fence at the end of the alley and got out into the side road from which they were seen running back towards the High Street. Either there or in the side street they got back into their cars and made off. Of the three Tooting men chased, one escaped, it would appear fairly early on, the same way. Another, Mylvaganam, got himself out of the alley but not before he had been quite seriously injured. The third, a man called Kannan, was left in the alley either dying or dead.
9.
The deceased, Kannan, had 31 separate identifiable injuries, all made with something sharp. Twenty of them were stab wounds, the rest were slashes or similar. Their combined effect was fatal loss of blood.
10.
The other badly injured man, Mylvaganam, had a number of bleeding wounds to the face and head. They were consistent with having been inflicted by repeated blows with a cricket bat and that is what he said he remembered so far as he remembered anything.
11.
Blood distribution suggested that there had been violence done to both those men, both in the store room and in the alley. It was, of course, impossible to say in what order events had occurred.
12.
By the close of the Crown case, it was accepted that the evidence suggested that as the three Tooting fugitives passed through the kitchen, they had between them collected two kitchen knives from a magnetic wall rack. Since they continued to run out through the building to the back, it followed that it was accepted that those two knives had passed with them out to the store room and alleyway area. The cricket bat was undoubtedly taken out there because it was found afterwards in the alley and had been used. There was evidence, if the jury accepted it, that also taken out there by the pursuing group had been a broken bottleneck in the hands of one of them. What else, if anything, had been carried out there, or for that matter picked up and used whilst there, was a matter of complete uncertainty.
13.
Of the two knives, one (stained with the blood of the deceased) was found in the alley not far from the body. The other was never recovered. There was, however, eyewitness evidence which, if the jury accepted it, and it was subject to hot dispute, showed that one of those running away afterwards was carrying a knife recognisable as similar to those used in the restaurant kitchen.
14.
The third Tooting man, Thanabalasingam, had been struck on the head by a bottle thrown at him at an early stage whilst still in the kitchen. At the time he was behind the counter and the thrower, who was wearing a face mask, had been on the public side of it. This was the Tooting man who had escaped, it may well be comparatively early, from the rear alley. At all events he had escaped without being further injured and had, he said, gone to hide in a side road.
15.
Having regained their cars, the whole of the Croydon party made off afterwards. The registration number of the Vauxhall Astra had been taken by a public-spirited cab driver and that car was stopped by the time it got to Clapham South. In that car were all the present defendants except for Shivarajah. The other car, the BMW, got away. Shivarajah, who was of its occupants had himself been injured in the fight. He presented himself not long afterwards, a little way, to a hospital at Lewisham. He had cuts to his skull and to the back of one shoulder, the latter perhaps properly described as a stab wound. He lied to the hospital telling them that his injuries had been sustained in play fighting and after treatment disappeared to the Midlands and was not arrested until about 4 months later. None of the other occupants of the BMW were arrested or charged. It was at least possible that other than Shivarajah, either one or two more of them had also got through to and taken part in the incident in the store room and alley.
16.
In due course these four defendants were tried. There were then two other defendants. One was a man called Ratnasingham. He had been the driver of the Astra, both to the scene and away afterwards. But the evidence established, as we understand it, that he had not left the car. He pleaded guilty to counts of wounding Mylvaganam with intent, and a section 47 assault on Thanabalasingam and, in his case, the judge withdrew the homicide counts at the close of the Crown case. A further defendant, Shrivinayagan, also pleaded guilty to those same two lesser counts; the jury acquitted him of murder and/or manslaughter. The evidence in his case suggested that there was a real possibility that he never got beyond the white door into either the store room or the alley. The remaining four defendants (the present appellants) were all convicted of murder, as well as the other two counts. As we have said, all challenge the conviction in relation to murder. Two of them contend there was no case to answer upon murder, and all that in due course the direction on common enterprise was defective.
17.
There was some evidence available to the Crown of particular actions ascribed to some defendants. In particular, Miah admitted that he was carrying a bottle when he ran into the restaurant and admitted he had thrown it into the Tooting men, although he said his was not the one which had hit Thanabalasingam. His, he said, had missed and smashed on the counter. In due course he also admitted fighting with Mylvaganam in the store room/alley along with and at about the same time as Mylvaganam was being attacked by somebody else with a cricket bat. The Crown suggested that it was Miah who was the person seen carrying the knife away from the scene afterwards.
18.
Those pieces of evidence apart, the thrust of the Crown case was founded upon common enterprise. Said the Crown, this had been a combined attack on the Tooting men, in which weapons had been carried from the outset, and in which from the outset there had been an intention to cause really serious harm. What had happened was within that common enterprise.
19.
As the case developed it was, however, left to the jury substantially on the basis of the events not from arrival in Tooting, but within the store room and alleyway areas. The Crown's case remained that at least in there there was a plain common enterprise to cause serious injury to the Tooting men, with weapons, those carried and whatever came to hand.
20.
The contention of three of the appellants that there was no case to go to the jury, and of all of them that the direction as to common enterprise was defective can, we think, in this case sensibly be taken together.
21.
At the heart of the combined submissions lie these propositions:
1. No one could have foreseen that the pursued targets from Tooting would pick up knives from the kitchen in the way they did and therefore the use of knives could not have been in the contemplation of any of the defendants.
2. Because there was no evidence who had stabbed Mr Kannan, only proved involvement in a physical attack on him or perhaps holding back somebody else or assaulting somebody else with the specific intention of facilitating the wounding of Mr Kannan could suffice to demonstrate the necessary common enterprise.
3. Whilst in many cases a common enterprise can properly be left for the jury to consider on the basis of encouragement by some defendants of what others did, in this case on the facts encouragement never arose. As Mrs Poulet QC helpfully put it, at root the contention of the appellants is that what happened bears the hallmarks of actions on the spur of the moment, perhaps in response to Shivarajah having been himself injured with a knife.
22.
We agree, of course, that the precise concatenation of events would not specifically have been foreseen by the Croydon men who were taking part in the chase of the Tooting men. They would not specifically have foreseen, we accept, that the chase would take the two rival groups into a restaurant, that the restaurant would have knives available to hand and that the chased men would take possession of them. That kind of precise foresight is not what is necessary to establish guilt as a party to common enterprise. What establishes guilt on that basis is if what occurs is within the scope of what the defendant under consideration either intended or foresaw and thus lent into himself to, in taking part in a criminal enterprise.
23.
We can see no room for doubt that there was a clear prima facie case that the Croydon group who pursued the Tooting men into the store room/alley shared a common enterprise to attack and injure them. That was why they were chasing them there. What the people who were chasing them contemplated was a matter for the jury. If what occurred was within the contemplation, then common enterprise could be made out. If, on the other hand, there had been a sufficiently fundamental departure from what was contemplated, then according to the principles explained in
R v Powell and English
[1999] 1 AC 1
, there would not be. Whether there was a fundamental departure from what was in contemplation either intended or foreseen within the meaning of that expression in the authorities was undoubtedly a jury question. It is submitted there was no basis on which the jury could find other than that there was a fundamental departure. We disagree. We are quite sure that there was a very clear prima facie case that what was in contemplation by any of the Croydon men in the store room and the alley was the infliction of grievous bodily harm on their rivals by the use of whatever weapons came to hand.
24.
It would have been open to the jury to conclude that anybody taking part in an expedition and chase of this kind would foresee that the opposition might be armed, as they themselves were and that whatever the opposition had by way of weapons, might well come to hand. In fact, in due course the judge limited the possible scope of common enterprise to one in which sharp weapons, such as a knife, broken bottle or glass might be used and we can see that they may well have been realistic on the evidence in this case.
25.
Accordingly, we are unable to accept the proposition that because the precise manner in which the knives came to hand would not specifically have been foreseen, it followed that the jury could not conclude that the use of knives or similar sharp weapons was in the contemplation of those who penetrated to the store room and alley. Nor are we able to agree that on the facts of this case, participation in a common enterprise in the store room and yard could only be shown if an individual were shown to have been one of those who physically stabbed or cut the deceased, or held down or attacked somebody else with a specific intention of enabling the attack on Kannan to continue. There was ample evidence that what happened in the store room and alley was a joint attack by the Croydon men on the Tooting men, whichever of them happened at the time to be immediately accessible. This was hand to hand conflict between rival groups. It was not two separate assaults targeted independently on Kannan and Mylvaganam. Engagingly as the proposition has been put to us that those two attacks, one on Kannan and the other on Mylvaganam, taking place within a few feet of each other, both up and down the store room and the yard should properly be regarded as independent acts one of the other, we respectfully disagree.
26.
As to encouragement, the judge in due course directed the jury in conventional terms. He told them clearly that mere presence at the scene of violence was not capable by itself of amounting to guilty participation, and he told them that what was needed was active act, including encouragement or support "by deed or word".
27.
We are unable to accept the proposition that encouragement did not arise on the facts of this case. The reality was that because this was a joint attack by the Croydon team upon the Tooting team, any assault by one of the Croydon team on any of the Tooting team was capable of amounting to encouragement to others to act similarly in relation to somebody else in the Tooting men. Indeed, the very pursuit through the white door and into the alley and store room was itself encouragement to violence. The Croydon aggressors could only outnumber the Tooting group, if there were more of them than three. Those who joined in, provided they did so with the necessary intention or foresight, were we are satisfied, prima facie parties to a common enterprise and the jury was entitled to find that the murder was committed in the course of it.
28.
Specific complaint has been made about the judge's bracketing of the words "encouragement and support". Says Mr Birnbaum QC, the latter waters down the former. We agree, of course, that in principle mere passive endorsement in the privacy of one's own mind is capable of being described as support, but could not be participation in a common enterprise. But as we have explained, there was no possibility that the jury could misunderstand the judge's use of the word "support" to include mere passive endorsement, because he told them that presence was not enough and that encouragement or support by deed or word (those are the important words) were what was required.
29.
We are entirely satisfied that the judge's general narrative directions on the law were entirely correct. At the end of his summing-up he provided the jury with what is now the conventional form of flow chart for decision making usefully termed "steps to verdict". There has been some complaint that he did not sufficiently engage in discussion with counsel on its form, but we are unable to see that that is made out. He had invited and received written submissions and he clearly considered them. He was not obliged to enter into any prolonged debate. In any event it is not the process by which the document was formulated which matters, it is whether its contents were wrong.
30.
Attention is drawn to step 4 which read as follows:
"What did the attacker or attackers do which caused the death of K? The prosecution submit it was stabbing and cutting injuries by knife or sharp instrument. There is no dispute about this."
We should say that the remaining questions went on to ask whether in the case of any individual defendant, he realised that one or more of the attackers might do these things, whether he realised that one or more of them might do them to cause K really serious bodily harm and whether they were fundamentally different from what the defendant realised the attackers might do.
31.
The pathologist had said that there had been multiple sharp injuries, which could have been caused by knives, screwdrivers, glass, bottles or a number of other things. He accepted that there were not less than two different weapons -- there might have been many more but there might have been as few as two -- and he accepted those two could have been knives. Says Mr Birnbaum, the judge's formulation of step 4 was in error to say that there was no dispute about the expression "knife or sharp instrument".
32.
This one of the judge's steps to verdict went to the question of fundamental departure. The important question at that stage was what was in contemplation. The evidence was that a knife or sharp instrument had done the damage. It could have been two knives, it could have been something else. The judge's formulation was, we are satisfied, perfectly correct.
33.
Lastly, the appellants contend that same "steps to verdict" document was potentially misleading at question 9 when it came to count 2, the alternative count of manslaughter. Question 9 begins:
"Looking at the case of each defendant separately, you must be sure, firstly, that one or more of the intruders caused the death of K unlawfully, intending to cause him some injure, albeit not serious harm, and secondly, that D participated unlawfully in the fatal attack."
The question went on but the words on which it is necessary to focus are the words "albeit not serious harm".
34.
As Mr Birnbaum rightly points out, a defendant might be guilty of manslaughter, as a secondary party, whether the principal stabber acted with intent to cause serious harm or without it.
35.
It seems to us likely that by using the words "albeit not serious harm" the judge actually meant "not necessarily serious harm." But we accept the proposition that for a jury the way in which it was expressed might have been taken to mean that manslaughter arose only if the principal lacked the mens rea for murder. We are however unable to see how if that error was made or the words might have been understood in that way by the jury it can possibly affect the safety of the verdicts of murder, which the jury returned. Even if the jury had got to consider manslaughter, it could only have limited the circumstances in which a verdict of guilty of manslaughter could be returned. In fact, they never got to manslaughter, because they convicted of murder.
36.
In all those circumstances, we are quite satisfied the grounds of appeal, so far as they challenge the treatment of the concept of common enterprise in this trial, must fail.
37.
There is a second and distinct set of grounds of appeal which relate to the direction given by the judge under
section 34 of the Criminal Justice and Public Order Act 1994
. The defendants had said, all of them, little or nothing in interview by the police. Kumbay had said that "he didn't do any assault on that day" and when asked if he had stabbed somebody he said "no", otherwise he had declined to answer all questions. Those included how he got injuries to his hand and arm which might have been suggested to be consistent with seizing a knife. Miah made a two sentence prepared statement, but otherwise declined to answer any questions. He did no more than to deny that he was responsible. Nanthakumar told the police that he had not been there at all and further declined to answer a number of questions. Shivarajah, who had been arrested, of course, many months later, declined to answer any questions at all.
38.
All the defendants, however, gave evidence before the jury and they gave evidence, all of them, in considerable detail. It is not necessary to set out the detail. They were given plainly over a period of some time. All of them gave accounts of events in the store room and the yard. They gave what were effectively blow by blow accounts of what each said they had done or seen in the yard.
39.
Those accounts were all accounts which could have been given when interviewed by the police. What they all amounted to was confession, coupled with avoidance. Moreover, three of the defendants were proved at the trial to have blood on them which the Crown at least suggested was incriminating. Miah, Kumbay and Nanthakumar had blood of the deceased on them, Miah in one place only, the others in a number. Miah had Mylvaganam's blood on him and Nanthakumar had, in addition to the blood of the deceased, possible traces of Mylvaganam's DNA. Shivarajah, we should make clear, was not proved to have incriminating blood on him because, of course, he was not arrested until much later.
40.
It follows that those three defendants needed, if guilty, to give accounts of events in the store room and yard, which were capable of explaining the presence of the blood without implicating them in physical attack on Kannan and the accounts which each gave did in fact do so. A simple example is Kumbay's evidence is that he had slipped and fallen near to the then recumbent and bleeding body of the deceased.
41.
So far as we can see it was conceded on all sides that
section 34
directions were appropriate in each case. The judge indicated, through discussion in open court with Crown counsel that he intended to give such directions and no counsel argued that he should not. The judge dealt with the
section 34
issue in this way. He explained the nature of the law, in terms about which there can be no complaint. He gave the proper direction that adverse inference was not required but was a matter for the jury. He dealt properly, subject to one matter we will return to, with the explanations which each defendant gave for not having said previously what he was now saying to the jury. However, the judge dealt with what it was that the defendants had relied upon in court, but had not been said in interview, compendiously rather than individually. He prefaced his explanation of the law, which we have summarised just now in this way:
"As part of his defence each defendant has entered the witness-box and has relied on detailed explanations of his involvement or non involvement in the events of the night in question. All are consistent with innocence on the charges you are trying 'I did not use a knife or any sharp instrument or a cricket bat or a bottle as a weapon. I did not encourage the use of any weapon with intent to kill or to cause really serious injury. I did not throw a bottle which hit anyone. I was present at the premises but my presence although not entirely innocent, was not as part of a gang out to cause really serious harm to anyone."
We are inclined to agree that this compendious method of dealing with the
section 34
question was undesirable.
Section 34
directions can be complex and, as this court has said more than once, it helps to focus everyone's attention on what use can and cannot be made of the rule of law, if careful identification is made of what exactly it is that the defendant has relied upon at trial that he did not say earlier. As a general proposition that treatment also helps to reinforce an important aspect of
section 34
. It is a law often misunderstood as limiting a defendant's right to remain silent in the face of accusation and require the Crown to prove its case. It is not however a rule that bites upon silence except indirectly. A defendant's right to remain silent throughout is an important aspect of English law which is preserved. The Crown must prove its case. The defendant cannot be made to contribute to the process.
Section 34
bites not on silence in interview but upon the late advancing of a case which could have been made earlier. What it does is to permit the jury to ask why, if there is an explanation for the evidence, or a defence to the accusation, the defendant did not advance it when he could have done, providing only that it was reasonable to expect him to have done so then. It follows that to identify what it is that the defendant relies on now but did not state earlier is something which ought to be done so that the ambit of
section 34
in a particular case can be made clear.
42.
The appellants submit that in addition to the compendious nature of this direction there was a further and more fundamental flaw. They say that in the passage which we have cited, the judge was identifying, as the matters now relied upon by the defendants and thus relevant to the
section 34
question, things which were merely broad denials and moreover some of them not in dispute.
43.
That contention depends upon the analysis that there were four matters identified by the judge as the matters relied upon:
(a) I did not use a knife or sharp weapon or any other weapon;
(b) I did not encourage the use of any weapon with intent to kill or do grievous bodily harm;
(c) I did not throw a bottle which hit anybody; and.
(d) I was present but not as part of a gang out to cause grievous bodily harm.
We agree, of course, that those matters were part of the accounts given by each defendant and thus relied upon by them. But they were not the heart of the facts relied upon by the defendants and relevant to the
section 34
question. What was essentially relevant to
section 34
was contained in the judge's preceding words: "Each defendant had relied on detailed explanations of his involvement in the events of the night in question. All are consistent with innocence." As we have said, these defendants had all advanced detailed accounts of events in the store room and alley. They were accounts which they could have given when first questioned. The question for the jury was whether they had neglected to do so because they were untrue and because the defendants wanted to tailor their accounts to known and indisputable facts. Such facts would include especially the presence of the blood of the deceased and/or Mylvaganam on three of them, and, of course, eyewitness evidence, such as it might turn out to be, of movements either side of the two minutes or so to which there was no eyewitness in the store room or alley.
44.
It is the fact that the defendants' narratives were all ones which incorporated into them the known and indisputable facts. Those narratives were either true or they were untruthful accounts which had been fitted round the known facts. When deciding which it was, the jury was, according to the law and in common sense, entitled to take into account the fact that the narratives were not advanced when they might have been, and not until after the opportunity to fit them to the known facts had arisen.
45.
We have been troubled by the compendious manner of the direction. It is important, however, that this was not a case in which any defendant had said some things in interview but added additional significant things at trial. Essentially none of them had said anything earlier by way of narrative account of events in the store room or alley. Accordingly the need to identify, for the jury, what it was that was new was very much less pressing in this case than it is in some.
46.
On examination of the particular evidence in this case, we conclude that if the judge had listed every assertion made by each defendant to which the
section 34
approach could legitimately have been applied, the effect would have been significantly more damaging to each of them than the effect of the direction as given.
47.
The same would be true if he had punctuated his summaries of the evidence of each defendant, as he would have been entitled to do, with the observation that this was an assertion which could have been made to the police bit had not been, and a reminder of the rule in
section 34
. We do not for a moment suggest he should have done that. We are conscious that as with
Lucas
directions trial judges are not infrequently alive to the danger of giving undue prominence to matters potentially damaging to defendants by over detailed
section 34
directions. We surmise that that is why the judge adopted the relatively brief and compendious treatment that he did. We have nevertheless had to ask ourselves whether even with the best of motives the effect of what he said was to create unfairness to the defendants. We do think it would have been better if he found a way of explaining individually in each case that it was the exculpatory confessions and avoidances which raised the
section 34
question. We are however satisfied, for the reasons we have given, that his omission to do so did not in this case damage the defendants or occasion unfairness to them. Indeed probably the reverse.
48.
We do not agree that the defendants' accounts were not in issue. The whole case depended, in the case of each defendant on whether it might be true he had done no more than he said and in particular on whether he had taken part in a combined attack on the by then two Tooting men, realising that a knife or similar was being used in the very confined space available. That was precisely the issue.
49.
It is also true that the defences were to an extent cut-throat, in the sense that Miah and Nanthakumar both implicated Shivarajah in the use of a knife in the yard and thus in the physical attack on the deceased, whereas he denied it. But that did not in end alter the fact that in the case of all four defendants, the accounts now given were new and could have been given earlier. In each case the issue had to be confronted: why were they not? That issue was the same in each case although, of course, as the judge made clear the answer had to be arrived at separately for each.
50.
We do agree in one respect that the judge left out something which he ought to have said. In the case of Miah, whilst in custody the day after the interviews, he had been seen by a lady worker. He had said to her in distress that he did not want to say "no comment" any longer but indicated he knew what had happened. That provoked her to say that he could change his solicitors and in response to that he had told her that he was afraid for his family. That was relevant to the question of whether he had a reasonable explanation for failing to give his account the previous day. The judge seems to have intended to cover that in the course of his
section 34
direction but in fact, because of the form of it, he did not do so. What he did to was to return later to the exchange with the lady worker, where he gave it neutral and suitable treatment. We do not think that the jury could possibly have failed to understand that it went to whether Miah could reasonably have been expected to give an account the previous day or had not given it because he was frightened. In those circumstances we are satisfied that omission, because that is what it was, is not fatal to the safety of this conviction.
51.
Lastly we were asked to look at the question of whether the
section 34
was defective for failure to relate it separately to each count. As was realistically conceded in argument the question was exactly the same in relation to each count.
52.
In all those circumstances, the challenges to these convictions, and all of them, fail and the appeals against conviction must be dismissed.
(Submissions re: appeal against sentence)
53.
LORD JUSTICE HUGHES: Miah and Nanthakumar ask us to say that their sentences are wrong in principle or manifestly excessive.
54.
Miah, who was 20 at the time, but only just, received a life sentence with a minimum term of 17 years, subject of course to time on remand. Nanthakumar, who had been 17 at the time was ordered to be detained during Her Majesty's Pleasure and the minimum term in his case was 14 years, less of course time on remand.
55.
The statutory starting point for Miah was 15 years. The statutory starting point for Nanthakumar, because of his age, was 12 years.
56.
Both defendants take the point that in passing sentence the judge dealt with them upon saying these things about intent. First, that there was no evidence that anybody intended to kill when they had set off on the expedition. Secondly, from that stage, he was quite satisfied that they
did
intend serious harm to any victim who might be found. Thirdly, that they had to taken part in an attack which had been carried out with the intention of killing the deceased. That was no doubt based on the nature of the multiple wounds done to him. Each defendant contends that there was no basis on which the judge could conclude that he, taken individually, had an intent to kill, as distinct from taking part in a combined attack by way of common enterprise, in which attack somebody unidentified had an intent to kill.
57.
We find it a little difficult to tell which of those two propositions the judge meant by his observations. But we accept, for our part, that the proper basis for sentence is not that an intent, a subjective intent to kill, could be proved in any case, but rather that there had been an intent to do grievous bodily harm from the time at least when they arrived in Tooting if not before, and that what then ensued was an attack in which somebody, unidentified had an intent to kill and carried it out.
58.
There will be cases, particularly cases of individual single attacks and especially those committed on the spur of the moment, where the difference between an intent to kill and the intent to cause grievous bodily harm, may call for a very significant difference in sentence. As it seems to us, it is rather different where what one is dealing with is a planned episode of group violence with intent to do grievous bodily harm. That such a planned and orchestrated piece of violence may lead to a death in exactly the kind of the way that happened here is sadly only too common.
59.
So far as Miah is concerned, he takes the additional point that his sentence is not in proper balance with that of Nanthakumar. Says Mr Birnbaum there was only 2 years and a bit in effect difference in age and the difference of 3 years is simply too much. For his part, in respect of Nanthakumar, Mr Evans submits that the increase from the starting point is in his case unwarranted. He draws particular attention to the fact that Nanthakumar was a man of previous good character and not yet 18 and that that could not be said of two other of the defendants, Kumbay and Shivarajah, both of whom had relevant convictions.
60.
We think it is necessary to stand back from the cases and to look overall at the sentences which the judge has passed. We observe that he passed them after trial and after living with the case for no little time. He had to balance the different histories of the defendants, their different ages and, to some extent, some difference in what they which were demonstrated to have done in particular in the case of Miah, who was shown on his own admission to have taken a somewhat more active part than could be proved against the some others. The question for us is whether the minimum terms of 17 years and 14 years respectively are either wrong in principle or manifestly excessive. This was group violence, very seriously aggravated by a long history of vendetta. The judge was told that the police had been called out on something like 80 previous occasions to incidents between these two groups, though not of course necessarily involving these individuals. There is no question of punishing them for participation in previous incidents, which has not been proved. What aggravates the case so severely is that with that background the vendetta was pursued in the way that it was and with an intent to cause grievous bodily harm with weapons from the outset. It was not the result of some chance encounter but the result of a planned expedition.
61.
We are satisfied that the judge was entitled, without error of principle or manifest excess to pass the sentences that he did. Whether other individual judges would have passed slightly longer or slightly shorter sentences or balanced the defendants slightly differently is not the question. We do not say that they would. These appeals against sentence, long as the sentences are, must be dismissed. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE MACKAY",
"MR JUSTICE DAVIS"
] | 2009_10_21-2129.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2368/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2368 | 813 |
12d44b61bc84ccb097095250711ed37f07882ea62549a8da3b65ff2ed14c10e6 | [2014] EWCA Crim 162 | EWCA_Crim_162 | 2014-01-30 | crown_court | Neutral Citation Number: [2014] EWCA Crim 162 Case No: 201304202/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 30th January 2014 B e f o r e : LORD JUSTICE LAWS MR JUSTICE GLOBE RECORDER OF CARLISLE (HIS HONOUR JUDGE BATTY QC) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - R E G I N A v ADRIAN PROCTOR - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Com | Neutral Citation Number:
[2014] EWCA Crim 162
Case No:
201304202/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 30th January 2014
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE GLOBE
RECORDER OF CARLISLE
(HIS HONOUR JUDGE BATTY QC)
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - -
R E G I N A
v
ADRIAN PROCTOR
- - - - - - - - - - - - -
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 W Cordingly
appeared on behalf of the
Appellant
Miss S Whitehouse
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LAWS
: This case started life as an appeal against the appellant's conviction on 11th January 2013 for breach of a sexual offences prevention order. We will call it "SOPO No 2". The case has undergone something of an odyssey, leading to a hearing today at which, for reasons we shall explain in a moment, we shall sit as a Divisional Court of the Queen's Bench Division. It is not necessary however to go into the details for they are explained in the judgment we gave on 22nd January, to which reference may be made.
2.
Since the hearing on that day we have received further written submissions from which it is apparent that SOPO No 2 made on 11th October 2012 was perfectly lawful, notwithstanding agreed submissions to the contrary on the last occasion. The reason is that the offence of possessing extreme pornography may attract a SOPO even though the sentence passed for it was lower than that specified in Schedule 3 of the Sexual Offences Act 2003 because section 106(14) of the statute requires the length of sentence to be disregarded when the imposition of a SOPO is being considered.
3.
What is the result of this development? First, we confirm that the appellant's appeal against conviction on 11th January 2013 is dismissed. The SOPO 2 is good. Secondly, we have to consider the order we made on 22nd January by way of a late appeal against the sentence passed on 11th October 2012 quashing SOPO No 2. That order was fundamentally erroneous. SOPO 2, as we have said, is good. We have power however to revisit the order we made earlier in the month - see the authorities collected in the 2014 edition of Archbold, paragraph 77-222 and 223. It is not necessary to go into the jurisprudence. It seems to us this is an obvious case for the court to revisit its previous order. We do so. We set aside the order quashing SOPO No 2. Accordingly SOPO No 2 remains in being.
4.
That leaves the proceedings of 7th August 2013 before His Honour Judge Crowther. We will act as a Divisional Court at this stage. By way of judicial review proceedings we grant the following relief:
1. We quash His Honour Judge Crowther's declaration that SOPO No 2 was a nullity. That declaration was bad not only because the Crown Court, as a superior court of record, whose orders are not nullities but also because, we repeat, there was nothing wrong with SOPO 2. In making that declaration Judge Crowther was sitting as a Crown Court judge. The Divisional Court has power to entertain a judicial review in relation to that declaration because it was not made in the course of the exercise of the court's jurisdiction in a matter relating to trial on indictment. If it had been there would be no power of judicial review.
5.
As it is, there is such a power. We sit as a Divisional Court; we quash that declaration. Also as a Divisional Court we address the orders made by Judge Crowther sitting under section 66 of the Courts Act as a Divisional Court. Notionally now we are reviewing a decision of a Magistrates' Court. In performing that function we quash the appellant's conviction on his plea of guilty to the fresh information laid for breaches of SOPO 1 and it follows that the sentence or concurrent sentences of 16 months' imprisonment imposed upon that conviction fall away. Those are the orders we make. The result is that SOPO 2 remains extant and the appellant is of course bound by it. But the prison sentence passed on 7th August 2013 is quashed. Those we apprehend are all the matters with which we have to deal.
6.
Think very carefully; is there anything else? No last minute changes of mind?
7.
MISS WHITEHOUSE: My Lord no. Thank you.
8.
LORD JUSTICE LAWS: Very well. Thank you very much. | [
"LORD JUSTICE LAWS",
"MR JUSTICE GLOBE"
] | 2014_01_30-3340.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/162/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/162 | 814 |
9348e2b369abbb34a3a32648aba8da3e82d480abfe6ac59b977c143cfb02c5f0 | [2006] EWCA Crim 2014 | EWCA_Crim_2014 | 2006-07-25 | crown_court | No: 200500299 B4; 200405765 B4; 200405597 B4 Neutral Citation Number: [2006] EWCA Crim 2014 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 25th July 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE PENRY-DAVEY DAME HEATHER STEEL DBE - - - - - - - R E G I N A -v- OTIS LEE MATTHEWS JAMES STUART RAVEN JOHN GODFREY WILSON - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel N | No: 200500299 B4; 200405765 B4; 200405597 B4
Neutral Citation Number:
[2006] EWCA Crim 2014
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 25th July 2006
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE PENRY-DAVEY
DAME HEATHER STEEL DBE
- - - - - - -
R E G I N A
-v-
OTIS LEE MATTHEWS
JAMES STUART RAVEN
JOHN GODFREY WILSON
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR P ROCHE
appeared on behalf of the APPLICANT MATTHEWS
MR S M MILLS
appeared on behalf of the APPLICANT RAVEN
MR P C REID QC
appeared on behalf of the APPLICANT WILSON
MR P HARRINGTON QC & MR D POTTER
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE GAGE: On 19th August 2004, at Chester Crown Court, John Godfrey Wilson and James Stuart Raven were convicted of one count of murder and two counts of conspiracy to cause grievous bodily harm. They were sentenced as follows. In respect of count 1, each was sentenced to life imprisonment with a minimum term of 24 years, less the time spent in custody, and on counts 2 and 3, 14 years' imprisonment on each concurrent and concurrent with the life sentence. The jury at that trial failed to reach verdicts in the case of Otis Matthews. He was re-tried, and on 15th December 2004, having been convicted of the same offences, he was sentenced by David Clarke J, who had not heard the original trial, to life imprisonment with a minimum term of 24 years and 14 years' imprisonment concurrent for each of the counts 2 and 3.
2.
There were other co-defendants at the first trial. One, Ashley Guishard, was acquitted. Another, David Moran, pleaded guilty to doing acts tending and intended to pervert the course of justice. He was sentenced to 21 months' imprisonment. Christopher More, a co-accused, fled to Spain a few days after the murder. His father pleaded guilty to assisting an offender and was sentenced to nine months' imprisonment and ordered to pay a substantial sum by way of costs.
3.
The facts are as follows. In 2002 Brian Waters, a man aged 44, and his wife, Julie, rented a disused dairy farm on the A556 Chester Road near Knutsford called Burnt House Farm. Waters and his life-long friend, Mujahid, ran the premises as a cannabis farm in which they were equal partners. Waters' son, Gavin, and daughter, Natalie, and Mujahid's step-son, Suleman, helped out with the care and harvesting of the cannabis plants.
4.
Before setting up the cannabis farm, Water's main source of income was from cannabis dealing. He was introduced to a Manchester drug dealer, Wilson, and travelled extensively to Holland to broker drug deals on his behalf. Waters became indebted to Wilson when, in 1999, he was stopped by customs officers at Dover and £22,000 was seized and subsequently forfeited. It was believed to belong to Wilson. Waters continued to deal in cannabis and tried to discharge the debt to Wilson. He kept the existence of Burnt House Farm a secret from Wilson for fear that Wilson would take over the operation, which yielded approximately £3,000 every four weeks.
5.
Shortly after 4 pm on 19th June 2003, police attended Burnt House Farm following an anonymous 999 call. As they pulled into the drive a number of men fled from the barn, where officers found Gavin and Natalie Waters and Suleman Razak bound and gagged. Suleman had sustained grave injuries and Gavin was suffering from bruising and swelling to the face. Brian Waters was found dead in the adjoining milk parlour. He had received multiple and extensive injuries after being tortured for a number of hours before his death. Mrs Waters was found unharmed lying in the back of her car, covered over with a duvet.
6.
It was the prosecution case that Wilson had discovered the existence of Burnt House Farm and ordered a gang of men to carry out the attack and find out the whereabouts of cash on the premises while he remained in contact by telephone. It was alleged that Raven and Matthews were part of the gang who had jointly inflicted the fatal injuries on Waters (counts 1 and 2) and had severely injured Suleman Razak (count 3). It was submitted by the prosecution that the gang had included Christopher More, who fled to Spain shortly afterwards. He remains at large. In addition, Ashley Guishard, who was acquitted, and other unidentified members were also part of the conspiracy. It was further alleged that during the incident Matthews and another member, thought to be More, had gone to the Waters' family home and searched the house for money and valuables before forcing Mrs Waters into her car and returning her to the farm where she was later found by the police.
7.
A horsebox was used by the gang to load cannabis plants and drug paraphernalia from Burnt House Farm on the morning of the attack before the arrival of the victims. It was later discovered in a pub car park close to the home of More.
8.
Moran was originally charged with murder, but became a prosecution witness after agreeing to plead guilty to perverting the course of justice over the disposal of the two mobile phones. He worked for Wilson and said that Wilson had instructed that the farm should be stripped of all cannabis equipment and that the men should lie in wait for Waters and anyone with him and use such violence as was needed to obtain money. Wilson had instructed him, that is Moran, to take and collect Raven from the farm and later had instructed him to call the police and report an assault at the farm.
9.
Raven, in evidence, admitted that he was present at the scene after More had persuaded him to drive the horsebox. He had not expected any violence and had used none himself. He was deeply shocked by what took place but was in no position to stop it. He named Matthews as the main torturer and perpetrator of the violence.
10.
In his defence, Matthews gave evidence, admitting that he and More had obtained the horsebox and that he had been part of the group who had gone to the farm in the early morning of the murder and stolen the cannabis and equipment which was loaded into the box. He left at about 8.30 am, before any of the victims arrived, and did not return. He took no part in any of the violence or events which took place thereafter. On the date of the murder he had distinctive bleached blond hair which was not described by any of the witnesses, who claimed to have seen a black/mixed race man as part of the gang.
11.
In evidence, Suleman Razak described what happened when he arrived at the farm at about 11.50 am. He was, he thought, the first to be there. He expected to find the house door locked. He put a key into the lock and, as he opened the door, men in balaclavas and gloves ran towards him. He said someone grabbed him and punched him as he fell to the floor. He was repeatedly punched. He was dragged back into the farmhouse. The house was full of plants and it was all a mess with water dripping from the ceiling. Leaves were pushed into his mouth and he was dragged to the cowshed. He was kicked and punched and his hands were tied by the wrists with duct tape. His ankles were tied with blue rope. He saw six men and recalled counting that number at one stage. He said that he was hung upside down by the legs and thought he was going to die. His head was immersed in a barrel of water and he heard a threat to drown him. He recalled shaking and thought that he had been subjected to some kind of electric shock. It seemed to go on for quite a while. He remembered being on the floor and was still tied up when a burning liquid was poured onto his back. Someone remarked: "This stuff's wicked". He was tied to a chair and had a pillow case still on his head which had been on for some time at that stage. He heard a spraying sound and also the sound of flames. He then felt the heat of flames and felt pinpricks in his back and shoulders. They were later found to be staples from a staple gun. He was unable to breathe properly.
12.
The next thing he saw was Waters, the deceased man, being brought into the barn, bleeding and covered in dirt, still alive. The men hit him and tied him up from the ankles and hung him over a beam. Two or three hit him with a garden cane and something like a plank of wood. Suleman saw a knife with a curved blade and a small handgun which was passed around. Waters was then put into a chair next to him. His own telephone ran and one of the man brought it over and he spoke to his mother. He saw a plastic bag being lit and being dripped over Waters as they asked him a number of times where the money was kept in the house. Natalie and Gavin then arrived and the men rushed out. They were brought into the barn. Gavin was tied by his neck and pulled over the beam. His hands were also tied. Natalie was put in the corner near her father and someone made a remark about all girls having loud mouths.
13.
Gavin Waters said that when he and his sister arrived at the barn, it was strange to see the door was open and water falling from the ceiling. A number of men, he thought six, ran towards him, all in dark clothing and balaclavas. He never saw their faces. One had a gun and shouted "Get the fuck down". He was then covered in kicks and punches and thought Natalie was also hit. He was taken into the barn and saw his father tied to a chair with blood all over his face and shirt. Suleman was also tied to a chair, with a quilt around his chest and his face all puffed up. A rope was round his neck.
14.
Natalie Waters said that when she saw the men, one looked Asian and had dark brown skin around the eyeholes of the balaclava, one had a gun and another had a bat or a bar. She also described a combat knife and thumbscrews which had been brought in from Gavin's car.
15.
There was post mortem evidence from a pathologist, Dr Alison Armour. She said that in her opinion the injuries sustained by the deceased man showed that he had been tortured before his death. He had suffered extensive injuries, which included bruising, abrasions, lacerations, multiple rib fractures to both sides with many fractured in more than one place. He also had a fractured nose and sternum, bleeding on the surface of the brain, bruising to the heart sac and injuries caused by strangulation and compression of the neck, including sharp incised injuries to the throat. A caustic substance had been dripped or poured onto his back causing burns. Staples had been inserted through his trunk, left arm and head. He had sustained a penetrating laceration injury to the anus which had been caused by a blunt object, such as an iron bar, being rammed up or thrust deeply into him with considerable force. She concluded that Waters had suffered persistent violence over a substantial period of time. It was the combination of the injuries which had caused his death. Further wounds indicated that he had been tied under the armpits and the legs. Both hands were very badly battered, which could have been sustained in defensive injuries as he attempted to fend off blows. Considerable force must have been used to cause the multiple fractures to the ribs and sternum.
16.
The judge, in his sentencing remarks, described these matters in this way:
"The crimes were exceptionally sadistic, both the one resulting in death and the one that did not. The violence used was both gratuitous and extreme and was characterised by the humiliation and degradation of Brian Waters before he died. Before that he had undergone extremes of physical violence which Doctor Armour, the Home Office Pathologist, did not hesitate to categorise as torture. He was strung up upside down from a beam, repeatedly and savagely punched and beaten with canes and/or bars; staples were driven into his body and head; an iron bar was thrust not less than 15 centimetres into his rectum causing terrible injury there; he ended up bound to a chair, his ordeal having lasted not less than and probably more than 3 hours, though most if not all of the physical injuries I am satisfied were inflicted in the first hour.
His ordeal culminated in his being forced to witness the physical abuse of his daughter and son, both of whom were trussed up within his line of vision as was the man who had been tortured before him. All this for monetary gain. He died with no fewer than 123 external injuries, abrasions, bruises many of them massive and lacerations as well as 24 fractures to his ribs, a collapsed lung and bruising and fracture of the thyroid cartilage, consistent with strangulation but more likely to have been caused by a blow to the throat. In addition, there was evidence of burning injury to his back, probably caused by use of a caustic substance."
17.
Suleman Razak suffered numerous injuries, including staple injuries to the head, a fractured nose and fractures to the right arm. Dr Armour said that in her opinion there was a striking similarity between his injuries and those sustained by the deceased. The judge described what happened to him in this way:
"This in itself was a terrible crime. A young man, he had arrived at the farm to do his day's work. It matters not one whit that that work was unlawful. He and the others may have abandoned the law but the law does not abandon them. He like the other victims was a vulnerable victim at least in the sense that he never stood a chance. Savagely beaten and kicked by the pack, he too was strung upside down from a beam and then in that position immersed in a barrel of water. It is difficult to imagine a more terrifying experience. There were numerous injuries to his head, trunk and arms, including lacerations, abrasions and bruising and puncture wounds to his neck and left arm. On him too the staple gun had been put to use. There was also a deep full thickness burn to the back caused by some caustic substance as well as fractures to the nose and metacarpals. So he too had been the victim of merciless torture, ending up bound and gagged to a chair, his sufferings lasting over 4 hours and barely if at all mitigated by your, John Raven's, occasional offer of a cigarette of a swig from a bottle and for all of that each of you, whatever his precise role, was jointly responsible because obviously if Brian Waters was to be tortured anybody arriving before him would have to be neutralised and soaked for whatever information he could give about who was to come next."
18.
So far as these applicants are concerned individually, Wilson is a man of hitherto good character. He is now aged 56. Raven is now aged 46, he has one or two minor convictions. The judge, in sentencing him, treated him as of good character. Matthews, now aged 29, has a number of convictions, first being convicted at the age of 15 of robbery and assault. However, those convictions pale into insignificance in the context of these crimes.
19.
The two judges, Poole J and David Clarke J, sentenced all three applicants under the transitional provisions provided by
Schedule 22 of the Criminal Justice Act 2003
. Each made reference to the correct starting point of 16 years. In the case of Matthews, David Clarke J followed the reasoning of Poole J when dealing with Wilson and Raven. (Hereafter, where we refer to "the judge" it will be a reference to Poole J, unless the contrary is stated).
20.
There is no criticism of either judges' approach to his sentencing of these three applicants. It is conceded by all counsel that 16 years was the correct starting point. It is further conceded that for this offence a substantial uplift above that starting point was to be expected. The following submissions are common to all three applicants.
21.
First, it is submitted that the uplift of eight years from 16 years was too great. Specifically, counsel for Wilson and Matthews have submitted that, in the case of each of their clients, 20 years would have been sufficient. Secondly, it is common to all submissions that the judge failed to give proper weight to his finding that there was no intention on any of these applicants to kill. In the case of Wilson and Raven, their age means that they will be old men, perhaps very old men, at the date when they are eligible for release: in Wilson's case, 78; in Raven's case, 67. It is submitted that that is another reason why the assessment of 24 years was too long.
22.
Individually, the following submissions are made on behalf of each applicant. First, for Wilson, Mr Reid QC submitted that he is a man of good character. Further, he relies on the fact that it was him, through the medium of Moran, who alerted the police to what was happening at Burnt House Farm. Thereby he prevented further injury to the surviving witnesses and, it is submitted, made the discovery of those involved in these offences more likely. The judge, in his sentencing remarks, dealt with that matter and accorded credit for it. However, against that he balanced the fact that it was Wilson who was the driving force behind these offences. Next, Mr Reid, on behalf of Wilson, submits that it is important for the court to remember that these applicants fell to be sentenced under the transitional provisions before
Schedule 21 of the Criminal Justice Act 2003
came into force. He submits that the court may now be conditioned by the starting points now in force and ought to be careful to observe that the starting points for the transitional provisions were lower.
23.
So far as Raven is concerned, he will be 67 when eligible for application for parole. It is submitted on his behalf that the judge rightly treated him as a man of effectively good character. On his behalf, Mr Mills submits that he was far less responsible for the physical infliction of the injuries than those others who are present at the scene. Thirdly, his evidence at trial was that Matthews and More were the main perpetrators of the violence. The result is that his safety in custody will be at risk for some time to come. Reliance is placed, not to any great extent, on the fact that he was responsible for some small acts of compassion so far as the victims are concerned. Mr Mills submits that, faced with a sentence of this length, this court ought to make some reduction to give his client a glimpse of light at the end of the tunnel.
24.
So far as Mr Matthews is concerned, Mr Roach, on his behalf, makes a number of submissions. Firstly, he submits that Wilson was the ringleader, and instigator of this crime. It is submitted that Matthews played a subordinate role and that therefore the sentence in respect of him should be much less. Furthermore, it is submitted on his behalf that, at the scene in the barn, Raven was said by Natalie Waters to be the ringleader. The prosecution did not place the applicant at the forefront of the violence in the barn. Next, it is submitted that, although there was evidence that Matthews was involved in the planning of the attack, he bought the horsebox and was involved in reconnoitring the scene, the prosecution were unable to establish his role in the violence. Finally, reliance is placed upon the fact that he is the youngest of these three applicants.
25.
All those submissions on behalf of each of three applicants are such that it is submitted that the assessment of the determinate period of 24 years is too long and ought to be reduced.
26.
Poole J, in our judgment rightly, described the crimes committed by all three applicants as exceptionally sadistic. The attack on the deceased and his family was pre-planned, made for gain, extremely violent and prolonged. Poole J, who heard all the evidence in the first trial, which included Matthews, specifically referred to matters which might be thought, in the case of Wilson and Raven, to be distinguishing features, one between the other. However, he saw no reason to distinguish between them. We see no reason for saying that that conclusion was unjustified.
27.
David Clarke J did not have the benefit of seeing Wilson or Raven give evidence. However, in his sentencing remarks he made it clear that he had considered whether or not to distinguish between Matthews and Raven and Matthews and Wilson. He decided that Raven and Matthews were acting together as a team. Again, we see no reason to differ from that conclusion.
28.
The minimum term of 24 years undoubtedly represented a severe sentence for each one of these applicants, but the facts as we have related them speak for themselves. The offences were very grave and called for very substantial minimum terms. In the circumstances, in our judgment, they were not manifestly excessive and these applications must be refused.
29.
MR MILLS: My Lord, may I raise the matter of representation orders in this case. These were applications for leave to appeal referred to the full court. The terms of the representation order are that if leave is granted for the presentation of the appeal the representation order would cover. I would respectfully ask the court to consider extending representation orders to the presentation of the applications themselves.
30.
LORD JUSTICE GAGE: Yes.
31.
Do you have a representation order or not, Mr Roach?
32.
MR ROACH: My Lord, yes.
33.
LORD JUSTICE GAGE: Yes.
34.
These were, as we have described them, very long terms. We think that all of you ought to have representation orders.
35.
MR MILLS: I am grateful. | [
"LORD JUSTICE GAGE",
"MR JUSTICE PENRY-DAVEY"
] | 2006_07_25-886.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2014/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2014 | 815 |
f3bf1dc4f64b37830a8025a68e2483b700cb1b348f84c6c254c0ce2a72f8eb6c | [2004] EWCA Crim 2400 | EWCA_Crim_2400 | 2004-08-18 | crown_court | Case No: 2004/4246/A3 Neutral Citation Number: [2004] EWCA Crim 2400 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 18 August 2004 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE GRIGSON MR JUSTICE STANLEY BURNTON - - - - - - R E G I N A -v- SUNSHES NKESHA PIKE-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 (Off | Case No:
2004/4246/A3
Neutral Citation Number:
[2004] EWCA Crim 2400
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 18 August 2004
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE GRIGSON
MR JUSTICE STANLEY BURNTON
- - - - - -
R E G I N A
-v-
SUNSHES NKESHA PIKE-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 LEWIS
appeared on behalf of the APPELLANT
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: (To the appellant) We are going to make a conditional discharge for a period of one year. Do you understand? Counsel will explain to you what that means.
2.
MR JUSTICE STANLEY BURNTON: On 15th June 2004 at Southwark Crown Court before His Honour Judge Dodgson, the appellant pleaded guilty to a count of misconduct in a public office and on 13th July 2004 was sentenced by that judge to two months' imprisonment. She was released on bail when leave for this appeal was granted by the single judge on 6th August 2004, so that at that date she had served almost one month and almost completed her sentence. As we have mentioned, she appeals against sentence by leave of the single judge.
3.
The brief facts are that the appellant was employed by the Metropolitan Police as a station reception officer. Whilst there she accessed secure terminals and viewed confidential information which she was not entitled to do. That information related to her own associates and friends. The basis of the plea was that she had not disclosed to them, or indeed to anyone, what information was held on the police computer relating to them. The offence took place between 9th December 2001 and 13th August 2002.
4.
As has been mentioned, there was a written basis of plea to the effect that her searches on a number of people were motivated by idle curiosity, but the information that she accessed was not passed to anyone and that she did not foresee or intend harm to the Metropolitan Police as a result of her actions.
5.
It is not surprising that she is a lady of previous good character. She was born on 2nd September 1982. The effect of her conviction and indeed the sentence on her was obviously significant. There were a number of references relating to her and she had the benefit of a positive probation officer's report.
6.
The judge in sentencing, however, referred to the harm that had been done to the Police Service as a result of her actions, resulting in a lack of trust in the passing of confidential and sensitive information to the police station where she served. We appreciate that in the circumstances of this case, notwithstanding that the appellant intended no harm to the Police Service, it is not surprising that harm results.
7.
We have been referred by Mr Lewis, who represents the appellant, to the decision of this court consisting of the Lord Chief Justice, Gage and Moses JJ in the case of
Nazir
[2003] EWCA Crim. 901. In that case a police officer who had sought effectively to pervert the course of duty by destroying a fixed penalty notice which had been issued in respect of a friend, had his sentence of three months imposed by the judge trial reduced to one month. That was a case in which there were consequences or intended consequences of the breach of trust on the part of the defendant in question. In this case there were, on the basis of plea, no such consequences. We feel compelled to conclude on the basis of that authority therefore that this case did not pass the custody threshold.
8.
The question therefore arises what is to be done in the present circumstances? Had this case come to us at trial we would have been disposed to have passed a community punishment order and a significant one. That is a course which we do not think is appropriate in the present circumstances, having regard to the fact that the appellant served virtually all of her sentence. In those circumstances, as has already been mentioned, we propose to quash the sentence of imprisonment and there will be a conditional discharge for 12 months.
9.
LORD JUSTICE HOOPER: (To the appellant) Do you understand? You made a very silly mistake. Let us hope it is the last you ever make. | [
"LORD JUSTICE HOOPER",
"MR JUSTICE GRIGSON",
"MR JUSTICE STANLEY BURNTON"
] | 2004_08_18-315.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2400/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2400 | 816 |
94f1957569c5e64b86941c9e8c5ad15745ffd7f86548f2de4ace91b3c7ba8b47 | [2007] EWCA Crim 3175 | EWCA_Crim_3175 | 2007-12-06 | crown_court | No: 200700202/D4 Neutral Citation Number: [2007] EWCA Crim 3175 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 6th December 2007 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE SILBER MR JUSTICE COOKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v SAMIAH ALI CHOHAN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet S | No:
200700202/D4
Neutral Citation Number:
[2007] EWCA Crim 3175
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 6th December 2007
B e f o r e
:
LORD JUSTICE THOMAS
MR JUSTICE SILBER
MR JUSTICE COOKE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
SAMIAH ALI CHOHAN
- - - - - - - - - - - - - - - - - - - - -
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 Lawson-Rogers QC
appeared on behalf of the
Appellant
Mr W Hughes
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE THOMAS: The appellant is married to Asad Chohan. In December 2000 he bought No 267 Wake Green Road, Birmingham, for approximately £190,000. The family moved to live there with the two children and mortgage repayments were made during the course of 2001.
2.
Asad Chohan was convicted in April 2001 of conspiracy to avoid excise duty over a large quantity of tobacco. He was sentenced to 18 months' imprisonment. In July 2001 he was charged with various trading standards offences and further charges followed. In April 2006 he was convicted of tobacco smuggling between June 2000 and December 2000. That conviction occurred in his absence as he had fled to Pakistan.
3.
On 6th December 2001 he transferred the matrimonial home at 267 Wake Green Road for £158,000 to Nadim, the appellant’s brother, on behalf of the appellant. Nadim was a barrister who practised in Manchester and lived in Rochdale. The transfer had been made to him because no lender would lend to the appellant. Eventually the Derbyshire Building Society provided a loan.
4.
The appellant and Nadim had been charged with money laundering in respect of 267 Wake Green Road, in that it was said that the sale to Nadim was an arrangement which facilitated the retention or control by Asad Chohan of the property and that property represented the proceeds of Asad Chohan's criminal conduct, which both were said to know. They had done this contrary to section 93A of the Criminal Justice Act 1998.
5.
There was a long trial, lasting some 30 days, at Birmingham Crown Court before His Honour Judge Griffith-Jones and the jury during October and November 2006. The retirement of the jury was about five days. Nadim was acquitted but the appellant was convicted by a majority of ten to two. She received a sentence of 80 hours' community service. She sought leave to appeal on three grounds. She was granted leave on one, namely the conviction was unsafe as the jury's verdicts were inconsistent. This is not a case where there were inconsistencies between verdicts on different counts but it is said that, if the jury had acquitted Nadim, they should also have acquitted the appellant.
6.
To succeed in setting aside the verdict of the jury on the grounds of inconsistency, it is necessary to establish, first, that the verdicts are in fact inconsistent, and secondly, if they are inconsistent, that a legitimate train of reasoning cannot be postulated that can sensibly account for the inconsistency or that the verdicts cannot be regarded as safe.
7.
The leading authority often cited is
R v Bell
(15th May 1997) but we think it is more helpful to refer to the decision of
this Court in
R v WM
(transcript 98/3892/W4 of 30th March 1999) a case briefly referred to in Archbold at paragraphs 7-71 as
R v W Martin
1999 6 Archbold News 3 (Court of Appeal). It is unfortunate that the case is not fully reported as it contains a classic exposition of the law by the then Chief Justice, Lord Bingham of Cornhill. The defendant was convicted on some counts of indecent assault and rape and acquitted on others. The sole issue at trial had been the respective credibility of the complainant and the defendant.
8.
It was a typical case where inconsistent verdicts are sought to be argued before this Court. The Court concluded in the course of its judgment as follows:
"It seems to us important to begin our consideration of this matter by reminding ourselves of the role of the jury in a criminal case. The jury is one of the oldest and most highly valued of our legal institutions, esteemed by the public and almost all of the legal profession, for the fairness, open-mindedness, common sense, practical judgment and breadth of experience which jurors bring to their important task. But the jury is not a precision instrument. It delivers its decision ordinarily in one or two words; it gives no reasons; it provides no explanation. While jurors ordinarily listen with obvious attentiveness to judicial directions, no one can be sure what they make of those directions in the course of their deliberations. It may be that if their thought processes were subjected to logical analysis, flaws would be found. If, however, a flawless process of reasoning were required, a jury would be a strange body from which to require it. As Evans LJ pointed out in
R v Van Der Molen
[1997] Crim LR 604, 605, the court must be very careful not to usurp the role of the jury.
Secondly, we would point out that the judge's direction in this case, as is acknowledged, was in conventional terms. He urged separate consideration of each count. He emphasised that the facts were for the jury. He suggested that most, if not all, of the counts in relation to each complainant would stand or fall together, but he did not direct the jury that, as a matter of logic, it was necessary for counts 1 to 7 and 8 to 16 respectively to be decided in the same way. He was not invited to give such a direction. The defence acquiesced in the direction which he did give, and on appeal Miss Worrall expressly approves it. If the view of the defence was that any differentiation by the jury in the verdicts on counts 1 to 7 or on counts 8 to 16 would of necessity be inconsistent, then that is a view which should have been put to the judge and he should have been invited to give a different direction. As it is, it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it.
The cases to which we have referred in our view make quite plain the proper approach. In a case other than the
Cilgram
type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied."
9.
In this case the learned judge gave a very clear direction. He said:
"You must consider the case against and for each of the two defendants separately. The evidence against them is different and your verdicts do not have to be the same. They can be the same, but they do not have to be."
10.
Against that background we turn to say a little more about the facts of this case. It is, we think, possible to adopt what the judge said as to the basic facts. We have referred to the fact that house was transferred to Nadim for £158,000. The purchase price was funded by a mortgage from the Derbyshire Building Society of £130,000 or thereabouts, a sum of about £27,500, which had come from the sale of a Mercedes motorcar, owned by the Chohan family and Nadim had made a contribution of £4,500 himself. The judge continued:
"You, the jury, are being asked to make a judgment about two or three people who were concerned in that arrangement. The prosecution say to you that the only proper inference from the arrangement is that the house was being transferred away from Asad [Chohan] to enable him to make it easier to retain control of it against the only realistic risk of losing the property, which was confiscation by the authorities. The prosecution say to you that they acknowledged that it may well have been a motivation on the part of Samiah and Ahmed Nadim that the arrangement would help ensure that she and the children had a roof over their heads. However, the prosecution say that they sought to achieve this aim by means of engaging in the crime which is alleged against them on the indictment.
The defence say that the prosecution has totally misrepresented the nature of the arrangement. They say that the arrangement was a device, negotiated at a time when Asad and his family were in a vulnerable position, to obtain control of 267 Wake Green Road from Asad and to change the relative power between Asad and Samiah so that Samiah could, albeit through her brother, control the property. The purpose of taking control was to enable Samiah to exercise choices in an unhappy and uncertain married life, even if she was not going to take the step of divorcing Asad, a step which would have profound family and cultural difficulties for her."
That short passage from the summing-up neatly encapsulates the respective cases put before the jury.
11.
It is said on behalf of the appellant by Mr Lawson-Rogers QC, in an elegant submission to this Court, that the case advanced was one of joint enterprise. That the way the prosecution put the case was essentially that the brother, Nadim, his sister, the appellant, and her husband, Chohan, were in this together and had made an arrangement to the effect that is set out. He goes on to say that, if one looks at the way in which the case was opened and the evidence, the way the persecution put the case was essentially that Nadim was the person who carried out the transaction; that it was, in the circumstances, never suggested that it was open to the jury to consider that if they acquitted Nadim, they could have convicted the appellant. This was really a case where the jury might, on one view of the matter, be satisfied as to Nadim's involvement and not the appellant's but this was never put as a case where it would be open to the jury to find that the appellant was guilty but Nadim was not.
12.
We will return to that submission in a moment. It is clear from the way the prosecution put the case, and it is particularly clear from the way that the learned judge summed the case up to the jury that the jury were to have regard to the knowledge of each of Nadim and the appellant in relation to the transaction and to the source of the funds. It is not necessary to set out in any detail the directions that the learned judge gave, but it is quite clear that he directed the jury to consider carefully the knowledge of each.
13.
The summing-up contains an admirable and clear summary of the evidence. It is clear on the evidence that was before the jury that they could have concluded that the knowledge of the appellant and the knowledge of Nadim was different. First of all, there is the obvious position that it may well be that a person who lives with and is married to a person knows much more about the source of the finances than does the brother-in-law. Secondly, in this particular case the monies that were used to pay interest on the mortgage after it had been obtained by Nadim were monies that were reimbursed to him by the appellant. She would have known of the source of funds; his evidence on this point was that the payments were being reimbursed "from my sister's money", money that had come from her resources. That evidence was quite naturally not contradicted by her because it was her case that the money came from her own resources.
14.
The third aspect where the position between them might be different related to the general life-style that was being lived by the appellant and her husband. It is very fairly accepted by Mr Lawson-Rogers QC that the jury could quite properly have decided on the evidence before them that the appellant may have known much more about the source of the original financing of the house, and might well have known more about the funds that were used to discharge the mortgage.
15.
Indeed, it would have been open on the evidence for the jury to have come to the view that they did not accept the appellant's evidence in relation to her knowledge of the source of the funds. It has been submitted to us, on behalf of the prosecution, that there was ample material upon which they could have disbelieved her. In particular the prosecution referred to and relied upon her evidence that the marriage was an unhappy one and one of the children of the marriage had been the result of an inter-marriage rape, whereas there existed for the jury to consider letters that showed a very different picture of the relationship between the appellant and her husband.
16.
This therefore appears, it might properly be said, to be a case where there is in logic nothing wrong with the jury's verdict upon the basis on which they were directed. They were, it seems to us, on the evidence that was heard, entitled to say, for example: "Well, we are sure about the knowledge of the appellant but we are not sure about the knowledge of Nadim." Or to have said: "We are quite sure that Nadim knew nothing about the source of funds or true purpose of the arrangement." That verdict it seems was unarguably open to the jury on the evidence. It seems to us that on the directions given to the jury which we have set out, it cannot be argued that it was perverse or irrational for them to have come to that verdict.
17.
However, the real complaint which, as we have set out, Mr Lawson-Rogers QC makes is that that verdict should not have been open to them on the basis upon which the prosecution ran the case. It seems to us, if that was the position, then it was incumbent, as Lord Bingham, the then Lord Chief Justice said, for that to have been raised prior to the directions being given to the jury; or, if directions had been given in the standard terms to the jury, the judge should have been asked to correct the directions. If it was in truth to be said that this was a case where the appellant could not be convicted if Nadim was acquitted, then the jury should have been directed in that way. However, we have been told that had that point been raised before the jury the prosecution would have made it very, very clear that their case was that, on the evidence before the jury, it was open to the jury to convict the appellant and acquit Nadim.
18.
It seems to us very important to bear in mind the passage in the judgment of Lord Bingham CJ from which we have cited which, as we have already said, unfortunately is not set out in clear enough terms in Archbold or in the other standard works. If an issue of this kind arises, it must be dealt with at trial, before a direction is given to the jury. Everyone prizes the institution of the jury. If the jury proceed to give a verdict on the evidence and are told that the verdicts do not have to be the same, it simply is not open to someone to come to this Court hereafter and complain that a verdict which is open to the jury on the evidence and which was arrived at in accordance with the judge's directions (which were not objected to) is one that is perverse. It would do the institution of the jury a great disservice if such a line of argument was permissible.
19.
For those reasons, therefore, we have concluded that despite the way in which this issue has been argued by Mr Lawson-Rogers QC, this appeal must be dismissed. | [
"LORD JUSTICE THOMAS",
"MR JUSTICE SILBER",
"MR JUSTICE COOKE"
] | 2007_12_06-1307.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3175/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3175 | 817 |
409e1c6db24e515f02a1a063b0d9e62d78c3ff91a2c5a0b675779782ebd62060 | [2006] EWCA Crim 2572 | EWCA_Crim_2572 | 2006-08-24 | crown_court | No: 200601085/C3 Neutral Citation Number: [2006] EWCA Crim 2572 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 THURSDAY, 24th August 2006 B E F O R E: LORD JUSTICE HUGHES MR JUSTICE MACKAY MR JUSTICE TREACY - - - - - - - R E G I N A -v- JONATHAN ERIC LAWSON - - - - - - - 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 | No:
200601085/C3
Neutral Citation Number:
[2006] EWCA Crim 2572
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
THURSDAY, 24th August 2006
B E F O R E:
LORD JUSTICE HUGHES
MR JUSTICE MACKAY
MR JUSTICE TREACY
- - - - - - -
R E G I N A
-v-
JONATHAN ERIC LAWSON
- - - - - - -
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 CAUDLE
appeared on behalf of the APPELLANT
MR M LEVETT
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: This appellant was convicted at the Chelmsford Crown Court of manslaughter.
2.
His appeal raises the question as to whether his co-accused was entitled to cross-examine upon a previous conviction for wounding.
3.
There were originally in the case three defendants. One pleaded guilty. The manslaughter consisted of pushing a man into deep lake water.
4.
The victim, a Mr Watts, was a man of 44, unfortunately suffering from a handicap so that his mental age was approximately 8 or 9. On a Saturday afternoon in March he emerged from a Lakeside public house, went onto a pontoon jutting out into the lake, took all his clothes off and sat down on the pontoon, dangling his feet in the water.
5.
He attracted the attention of passers-by. Many watched him. Some called jocular remarks. He was made fun of and somebody, not one of the defendants, took away his clothes and ran off.
6.
Among the things called out were shouts of "push him in". The victim was heard to say that he could not swim. Among those who saw all of this were the present appellant, Lawson, and his cousin, Quirk, who were together, and also the third defendant, King, who was not known to either of them. King went down to the pontoon and spoke to Watts. He can be seen to give him a cigarette. As he came back off the pontoon, the other two defendants were approaching it and he turned and returned with them, down to the end of it, close behind Watts. When all three defendants were close behind Watts, laughing and joking, Lawson, who was probably closest to him, made a pushing action by extending his hands and, more or less immediately afterwards Quirk stepped forward a pace and pushed Watts into the water. Very sadly, he never surfaced alive.
7.
The appellant and Quirk made off as soon as that was done. King remained on the pontoon, plainly, from the camera coverage, anxious. He then left, but a little later he went back to the scene, by which time police officers were there, and he identified himself to the police as having been there and concerned with what had happened.
8.
The Crown case was that all three defendants were party to the offence by encouragement to push the dead mean into the water. Quirk, who had physically pushed him, eventually pleaded guilty shortly before the trial, leaving this appellant, Lawson, and the other youth, King, to be tried. Each of those two contended that he had nothing to do with pushing Watts into the water and had not meant that it should happen.
9.
This appellant was shown by closed circuit television camera coverage to have made the pushing gesture to which we have referred. In interview with the police he initially claimed not to have seen Quirk push the man in. His account, however, changed during the series of interviews. At one stage, part way through, he admitted that he had contemplated putting the man into the water but said that he had internally intended that nothing should be done about it. In his final interview he accepted, on more than one occasion, that he and Quirk had agreed to push the man in, though he asserted that he had privately changed his mind before the deed was done.
10.
At trial, it was his case that that last admission had been a false one, made because he was anxious to get out of the police station. He admitted the pushing gesture but said that it was merely miming by way of joke, and he said that he had had no idea that Quirk would then do as he did.
11.
King was with the other two, close behind Watts when Watts was put into the water. His evidence at the trial was that he did not want the man put in and that he stayed in the hope that his presence would discourage the others from doing it.
12.
The defences of the two defendants who were tried were not entirely consistent. It was part of King's evidence that when he passed the appellant and Quirk, who were en route to the pontoon, he had asked them if they were going to push the deceased into the water and that he had received from this appellant the answer "too right".
13.
For his part, the appellant had told the police in his last interview and he gave evidence that when King returned from speaking to the deceased, the appellant had asked him what he had been doing on the pontoon, and received the answer from King that he had been going to push the man in but had "bottled out" of it.
14.
Each therefore gave an account of incriminating conversation with the other at the point where they met and just before they returned together and with Quirk to the end of the pontoon. Each denied the evidence of the other about his own remark.
15.
This appellant was 20 at the time of trial. Between the incident which we have been describing and the trial he had committed and been convicted of an offence of unlawful wounding. That offence consisted of striking someone on the head with a bottle in the course of an altercation at a New Year's party.
16.
King was 16 at the time of trial and of good character. When counsel for King cross-examined this appellant, he put to him that he was not a man of good character, rather that he had a conviction for assault. Contrary to Rule 35.5 of the Criminal Procedure Rules no notice had been given either formally or informally of the intention to adduce bad character evidence.
17.
We are, of course, conscious that we have not heard from counsel for King but we should say that we are quite unable to understand how that came to happen. It was directly contrary to the Rules which are recent in origin but quite apart from it is directly contrary to every good practice of advocacy, as it has been understood for generations. It may have had the result that the appellant did not consider the possibility that his conviction would go into evidence before he decided whether to go into the witness-box. That seems to us to be a possibility which can be overstated. However, whether that was so or not the unannounced cross-examination certainly meant that the jury heard something which, at that stage, it had not been decided it was entitled to hear. The risk was accordingly taken of a serious trial being compromised or aborted if the judge subsequently held that it was material which should not have been before the jury and that the trial could not continue. In the circumstances, we are wholly unsurprised by the judge's description of this conduct of counsel as reprehensible.
18.
That quite unnecessary history gives rise to the first ground of appeal. It is contended that in the absence of notice the judge should not have allowed the question to be asked or the evidence to stand as admitted. We sympathise with those who had to respond to this situation but we entirely agree with the way that the judge dealt with it. He had a discretion under Rules 35.8 to allow evidence of bad character to be adduced, notwithstanding that the required notice had not been given, by permitting notice to be given orally or in a different form to that prescribed, and he had power to shorten time for it. It must be implicit in the power to shorten time that it can be shortened to any degree, and thus dispensed with.
19.
While the Rules are there to be complied with, it does happen, not infrequently, that something is said in the course of trial which either creates for the first time the occasion for bad character evidence to be arguably admissible or leads to a different view being justified as to whether an attempt to adduce it should be made.
20.
This very experienced judge took into consideration the fact that notice had not been given before Lawson decided to give evidence. That, however, as we have said, was of limited force. First, one would have expected him to be advised that it was a possible eventuality. Second, under the
Criminal Justice Act 2003
, if the evidence of Lawson's conviction was admissible in the hands of King it could have been adduced as part of King's case whether Lawson gave evidence or not. It is no longer the law that the only way in which such evidence can be adduced is by cross-examination as used to be the case under the
Criminal Evidence Act 1898
.
21.
The judge concluded that the evidence should be admitted. He limited its relevance to the issue of Lawson's truthfulness about King and he directed the jury carefully that it had no bearing on whether Lawson had himself committed the offence or not. In short, he held it went to truthfulness but not to propensity to offend as charged.
22.
The correctness of his decision that it did not go to propensity to offend as charged has not been queried by either party on this appeal. We say no more about it except that whilst it was a conviction for an offence of violence, it is readily understandable that on the facts of this case it was held incapable of showing a propensity to commit an offence of this kind, which might be seen as a quite different kind of misconduct and recklessly dangerous rather than aggressive.
23.
The substantial ground of appeal is that the evidence of this conviction was wrongly admitted as relevant to truthfulness. As this Court has had occasion to say before, the
Criminal Justice Act 2003
introduces a wholly new scheme for the admission of evidence of bad character. The previously existing common law and statutory rules are abolished. The correct approach is not to start with what the old law would have been, but to address the law as it is set out in the new Act. Section 101(1)(e) provides:
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-
...
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant."
24.
Section 112(1) then provides by way of definition that
"... 'important matter' means a matter of substantial importance in the context of the case as a whole."
25.
Was there, in this case, such an issue? In our judgment, there was. The issue was whether or not King had said that he had intended to push Watts in and had said that at or about the time that he turned and returned with Quirk and Lawson to the end of the pontoon. With it went the issues whether or not he, King, was now lying or truthful when he said that he had not uttered any such remark, and whether Lawson was or was not truthful when he said it had been said.
26.
It seems to us that that did not cease to be an important issue for either of two reasons which have been advanced. First, it is suggested that even if King had said what was alleged by Lawson that would not by itself constitute the offence of manslaughter. That is no doubt true because, if Lawson's evidence was accepted, King was saying he had had the intention but had abandoned it before the deed was done. That does not alter the fact that Lawson's evidence remained evidence which, if it was accepted by the jury, was likely to reinforce the Crown's case against King, which was of course that he had resumed the intention to push Watts in when he returned to the pontoon with the other two.
27.
Secondly, Lawson, in giving the evidence that he did, added that he did not think that King had done anything wrong, and did not take it that King still had the intention to push Watts in. That also, as it seems to us, does not prevent the important issue to which we have referred from arising. There was, after all, every danger that the jury might conclude that those qualifications put on his evidence by Lawson were untruthful because, if he had said anything else, it would mean that he was accepting that he had gone to the end of the pontoon expecting King to push Watts into the water. By contrast, the jury might well think that Lawson's evidence about what King had first said was not tainted by self-protection and was therefore likely to be true. So the issue whether that part of Lawson's evidence was true remained, and its importance to King made it, we are satisfied, an important issue in the context of the case as a whole. Once Lawson had given evidence that King had said this, Lawson's truthfulness or credibility in saying so became an important matter in issue in the case.
28.
In order for the evidence of his conviction to be admissible, two further conditions had to be met:
(a) because it was a question of Lawson's truthfulness or credibility as a witness, the bad character evidence could be adduced only if the nature or conduct of his defence was such as to undermine the defence of King (see section 104(1)); and
(b), if that condition was satisfied, the bad character evidence had to have substantial probative value in relation to the issue of Lawson's truthfulness or credibility. For that see section 101(1)(e).
29.
It is apparent that there is an element of overlap between the questions whether there arose an important matter in issue between the defendants, whether the defence of Lawson undermined that of King and whether the proposed evidence had substantial probative value. This, as it seems to us, will often be the case but it remains necessary for the question to be addressed seriatim.
30.
This evidence given by Lawson did undermine King's defence. It was an important part of King's defence that he had never contemplated touching Watts, that he had only gone near out of curiosity, that he had done no more than offer him the kindness of a cigarette and that it was Lawson who had spoken of pushing him in whilst he, King, was simply an innocent bystander. If accepted, Lawson's evidence, however qualified, that King had made the remark alleged undermined that defence. We are satisfied that it did not cease to undermine it for either of the two reasons which we have previously analysed.
31.
Once gateway (e) is passed there is no discretion in the judge to exclude bad character evidence as there is where application is made by the Crown under gateway (d) or (g). Nevertheless, although discretion does not enter into it, an exercise of judgment is called for, because if objection is taken to the evidence being adduced, the judge must determine whether it has substantial probative value in relation to the important matter in issue which arises. That applies to a case where the bad character evidence is advanced as going to credibility or truthfulness, just as it does when the evidence is advanced as going to propensity to offend as charged.
32.
This is one of several respects in which the law relating to the admissibility of the bad character evidence has been changed by the
Criminal Justice Act 2003
. Under the previously existing provisions of the
Criminal Evidence Act 1898 section 1(3)
(iii) formally 1(f)(iii), once defendant A had given evidence against defendant B, which included any case in which the nature or conduct of his defence undermined that of B, there was no restriction upon what could be put to him in cross-examination. The earlier statute proceeded by providing the defendant with a shield against cross-examination as to bad character, but then stipulating that he lost that shield in certain circumstances of which this was one. The new statute proceeds by a different route. Cross-examination as to credit is no longer unrestrained. Whether evidence of bad character is adduced by cross-examination of the defendant or otherwise, it must have substantial probative value in relation to the issue.
33.
This Court pointed out in
R v Hanson
[2005] 2 Cr App R No 21, 299, paragraph 13 that untruthfulness is not synonymous with dishonesty, and that a previous conviction for an offence of dishonesty will not necessarily be capable of establishing a propensity for untruthfulness. The Court was there considering applications made by the Crown to adduce evidence of the bad character of the defendant on trial. In such a case, particular attention has to be paid if the evidence is suggested to be relevant only to truthfulness or credit, to the danger that the jury may even subconsciously and despite careful direction be influenced by the evidence on the question of propensity to offend and thus directly as to guilt. Whether upon examination of the test of relevance under gateway (d), or on application of the discretion under section 101(iii), it remains essential that a cautious test of admissibility should be applied to applications of this kind made by the Crown in relation to the character of the defendant who is on trial.
34.
It does not, however, follow that previous convictions, which do not involve the making of false statements or the giving of false evidence are incapable of having substantial probative value in relation to credibility of a defendant, when he has given evidence which undermines the defence of a co-accused. No doubt in this case also there exists the risk that a jury may subconsciously and despite direction be influenced by the evidence on the question of propensity to offend as charged as it exists in the case of an application made by the Crown against a defendant on trial. But it remains nevertheless wholly rational that the degree of caution which is applied to a Crown application against a defendant who is on trial when considering relevance or discretion should not be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug - or people - trafficking via housebreaking to criminal violence. Whether in a particular case it is in fact capable of having substantive probative value in relation to the witness' reliability is for the trial Judge to determine on all the facts of the case.
35.
It is quite apparent from the shape of this Act that although it uses the expression "propensity for untruthfulness" in both section 103(1)(b) in relation to prosecution applications and in section 104(1) in relation to applications by co-accused, it addresses the various different occasions on which bad character may arguably be admissible separately and provides a different framework of rules for each situation.
36.
R v Osborne was one of a series of cases decided by this Court, Sir Igor Judge P presiding, under the title of R v Renda
[2006] 1 Cr App R No 24, at page 380.
Osborne
was a case in which the Crown had been permitted at trial to put to a defence witness his previous conviction for a single offence of serious violence, which had resulted in a 2 year sentence of imprisonment. The defendant was charged with robbery committed at a public house. His defence was that the allegation was trumped up by the licensee, to cover deficiencies in his till and other irregularities in his conduct of the house. The defence witness in question had given evidence to support the suggestion that the licensee was guilty of such irregularities. At paragraph 59 of the its judgment this Court said this:
"Welsh [that is the witness] had as recently as February 2003 been sentenced to two years' detention for an offence of serious violence. The judge agreed with the Crown that he could be cross-examined about it. The evidence of the conviction fell within s 100, particularly germane to the fundamental question whether or not a robbery had taken place. Without knowing of Welsh 's character, the jury would have been deprived of important evidence of substantial probative value in relation to the issue of the credibility of Welsh' s evidence on the vital question whether Mr Cleverley had fabricated his complaint, or whether in truth he was rightly to be regarded as a victim.
We cannot find any principled basis for interfering with the judge' s decision."
37.
We have been helpfully referred in addition by Mr Caudle to
R v M
[2006] EWCA Crim 1126
. That must remain its sole identification at least for the time being because this Court has ordered a retrial which may not yet have taken place. There the defendant was charged with an offence contrary to section 18 of the Offences Against the Person Act. The issue was self-defence. He had two recent previous convictions for aggressive violence. The Crown successfully applied to adduce evidence of them before the jury. The judge directed the jury that that evidence went both to propensity to offend as charged and to truthfulness. This Court allowed the appeal on the basis that although the evidence was relevant to propensity to offend as charged, that is to say that the defendant acted on the present occasion aggressively or in self-defence, it did not go and could not go to truthfulness.
38.
Understandably Mr Caudle drew our attention to that decision. However, in that case, the proposition that convictions could not go to truthfulness or credit was presented to this Court as a matter of agreement. It was not the subject of argument. The Court was not referred to the decision in
Osborne, which we have just cited. It was moreover a case of a Crown application in relation to the defendant on trial. It was not either an application by one side or the other in relation to a witness, as Osborne was, or an application by one accused in relation to a co-accused whose evidence undermined his case.
39.
On behalf of the Crown in the present case Mr Levett accepted, as it seems to us wholly correctly, that not every past conviction or other episode of bad character on the part of a witness whose truthfulness or credibility is in issue will be capable of having substantial probative value on that question. The judge must address on the differing facts of each case the question whether the evidence proposed is capable of having substantial probative value, not some possible theoretical relevance to the issue which arises. Where the issue is truthfulness or credibility, he must address the question of whether it is capable of having substantial probative value in relation to that issue. If the evidence has such value, there is no discretion to exclude it. If it has not, it cannot be admitted. We accept that it may well be that, for example, a single conviction for an offence of shoplifting especially some time ago might not be held to be capable of having substantial probative value on an issue of truthfulness or credibility. As in other areas of the application of this part of the
Criminal Justice Act 2003
, the feel of the trial judge will often be critical. This Court is unlikely to interfere unless it is demonstrated that he is plainly wrong or Wednesbury unreasonable. We endorse on this point the words of Sir Igor Judge in Renda
at paragraph 3.
40.
We should add for completeness out of deference to submissions made to us that we do not accept the proposition that if a defendant has a history of bad character which the judge holds not to be capable of having substantial probative value on the issue of his truthfulness or credibility, so that the application to adduce evidence of it fails, then it follows that that defendant is entitled to a conventional good character direction. It does not follow. The good character direction is appropriate to those who are, or who the judge rules may be treated as if they are, those without known bad character of any kind. It does not extend automatically also to those whose bad character exists, but is not of sufficient probative value or relevance to be admitted against them. Still less does it extend to those whose bad character is excluded as a matter of discretion.
41.
Wherever a co-accused proposes to adduce bad character evidence under gateway (e), he should always, without exception, alert counsel for the other defendant to his intention. That is so that the latter can take objection, if he properly can, and it is that the judge can rule, after proper argument on both sides, whether the evidence is admissible or not. That requirement that counsel be alerted is not a substitute for the notice called for by the Criminal Procedure Rules, where the possibility of such an application can be anticipated. It is, however, a practice which must be observed even in any case where the Criminal Procedure Rules notice either has not or could not have been given.
42.
In the present case, the unannounced cross-examination of Lawson put the judge in a very difficult position. We are quite satisfied for the reasons which we have explained that he was right to rule that the conduct of Lawson's defence had been such as to undermine King's defence and that an important matter arose in issue between the defendants, namely whether King had said what was alleged and thus whether Lawson was truthful about it.
43.
It is no doubt because argument arose without proper forethought on the part of counsel for King and thus without proper scope for consideration by counsel for Lawson, or the judge, that the judge did not address the questions which arose in the manner which we have indicated. It looks as if he was referred to Archbold and to the reference there contained to the decision of the House of Lords in
R v Randall
[2004] 1 Cr App R(S) 26
. But it seems from what we can tell that he had no more material to go on and no more assistance than that. The judge said this:
"In those circumstances, I have come to the conclusion that the learned editors of Archbold are correct in referring to the decision of House of Lords in
R v Randall
... I read: 'It seems likely that the courts will adopt the
R v Randall
test to gateway (e) where there is an important matter in issue between co-defendants to where they directly blame each other and exculpate themselves. Evidence of bad character of one of the defendants will be said to have substantial probative value in relation to that issue if it tends to show that version of the facts put forward by one defendant is more likely to be true than the version of the other defendant.'
So I allow those questions to be asked because, in my view, they ago to the truth of them. They do not (and I wish [counsel] to pay a particular close attention to this), go to propensity to commit acts of violence and he is not entitled to suggest to the witness or to make any submission to that effect to the jury in his final speech."
44.
Randall
was a case which was really about propensity to offend as charged. It was a case where the offence must have been committed by one or other of the two defendants charged and each of them blamed the other. Accordingly Randall does not provide a definitive answer to the question that was posed before the trial judge and which is posed before us. As we have said, the judge did not have the benefit either of the sustained submissions which we have had or of the decision of this Court in
Renda
(
Osborne). In the light, however, of those submissions and of that decision, we are satisfied that it is quite impossible to fault the judge in the conclusion to which he came. He was entitled to say that the evidence of the previous conviction was capable of having substantial probative value. As this Court observed in Renda
, a crucial feature of these cases will always be the feel of the trial judge for the way that the case is developing, the way evidence is given and the conduct of cross-examination. In those circumstances that is sufficient to conclude the issue before us in this case and sufficient to dismiss this appeal.
45.
We have, however, in any event reached the clear conclusion that even if we had decided that this conviction ought not to have been before the jury, this is nevertheless a conviction which is wholly safe. This jury was not allowed to think that the conviction made it any more likely that Lawson had committed the offence. It seems that counsel for King, having introduced it, made no further reference to it in his closing address to the jury. The jury had enquired with some perspicacity why it had been told of the conviction and what use it could make of it. It then received from the judge a very clear direction that it had no bearing at all on whether Lawson was guilty, but only had the limited relevance of going to whether he was truthful in what he had said about King. Although Lawson's defence undermined that of King in the manner which we have explained, this, unlike
Randall
, was not the kind of cut-throat case in which it had to be the case that one or other of the two defendants tried was guilty of the offence. The defences of these two men ran in parallel rather than in direct conflict. If King was not guilty, that did not make Lawson guilty. It left the jury to judge separately in his case whether he was a party to the push by Quirk or not. All that the conviction did, even if it had been wrongly admitted, was to weaken the evidence against King; it did not strengthen it against Lawson.
46.
Quite apart from that there are other factors. The really important evidence in the case came in the form of closed circuit television coverage which was uncontradictable and which we have seen. That shows that Lawson approached Watts with Quirk, his cousin with whom he had spent the day and with King in close attendance. Immediately before Watts was pushed into the water Lawson was closest to his back, and makes the pushing gesture or movement. It may be that he looked towards the audience as he did so, but then almost immediately Quirk steps forward and pushes the man in. King at the time is just to one side, with his hands in his pockets. Quirk and Lawson immediately made themselves scarce. King remained looking anxiously at the water and apparently waiting for Watts to surface. Whilst in this case, of course, the jury might have convicted King also, there was plainly a proper basis for treating him differently. He had been independent of the other two, whom he did not know. He had been to speak to Watts and left him quite undisturbed. He remained after Watts went into the water at least initially, and he had come back and presented himself unasked to the police in order to tell them what had happened. Moreover, his account of what had occurred was consistent throughout. Lawson's was not and included a number of admitted lies. King had always denied any complicity in pushing Watts into the water. Lawson had admitted it in interview, in the presence of his solicitor, on more than one occasion. Quirk had photographed what happened on a video camera mobile telephone and there was evidence from the interviews that Lawson was aware of it and was party to it being done. In other words, King's acquittal does not in this case carry the implication that the jury ignored the judge's direction and convicted Lawson by treating his conviction as evidence of propensity to offend as charged. The combination of strong evidence and the very limited nature of the bad character evidence, would have convinced us in any event that this conviction is wholly safe.
47.
We need to deal, briefly, with sentence. Lawson was 20 years of age. In passing sentence the judge confined himself to passing a sentence of 13 months (after allowance for time in custody) without stipulating its nature. In error, when that sentence was recorded in the Crown Court records, it appeared as a sentence of imprisonment. In view of the defendant's age, it should of course have been a sentence of detention in a young offender institution. There is and can be no challenge to its length, but the error needs to be repaired. We grant leave to appeal against sentence. We allow the appeal against sentence to the extent that we quash the sentence of imprisonment and substitute for it a sentence of 13 months' detention in a young offender institution. Accordingly to that extent the appeal against sentence is allowed and the appeal against conviction is dismissed.
48.
MR CAUDLE: For completeness, Sir John also passed a consecutive sentence in relation to the section 20 matter.
49.
LORD JUSTICE HUGHES: Consecutive?
50.
MR CAUDLE: A total of 18 months. Initially he said 12 months plus 6. For a reason I cannot now remember, we juggled with the figures so my Lords might grant the identical appeal in relation to that sentence, in section 20 making it young offender institution?
51.
LORD JUSTICE HUGHES: Let me have the details. You are quite right to remind us, Mr Caudle, I had not appreciated it. Thank you. Five months consecutive it was for the section 20 offence. Well, for clarification the same adjustment must be made to the sentence which was passed for the separate offence of unlawful wounding. That was 5 months. For the same reason the sentence of imprisonment is quashed and a sentence of identical length of detention in a young offender institution is substituted. The net effect for this appellant is that the length of his sentence remains 18 months and we are reassured to hear that he has in fact been detained in a young offender institution since his trial. Thank very much, Mr Caudle.
52.
MR CAUDLE: Out of interest, my Lord is absolutely right that Sir John had no more assistance than Archbold when of course the jury were out and we had to deal with it in a hurry.
53.
LORD JUSTICE HUGHES: Thank you very much. | [
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] | 2006_08_24-911.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2572/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2572 | 818 |
c504728b97109cf0de9d249ec34255a4226d92a0190507f13d3512a904d839c5 | [2011] EWCA Crim 2796 | EWCA_Crim_2796 | 2011-12-01 | crown_court | Neutral Citation Number: [2011] EWCA Crim 2796 Case No: 2011/03446/A8 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT Mr Justice Cooke T2010/7409 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/12/2011 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE and MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - Robert Brown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2011] EWCA Crim 2796
Case No:
2011/03446/A8
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
Mr Justice Cooke
T2010/7409
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/12/2011
Before :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE ROYCE
and
MR JUSTICE GLOBE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Appellant
- v -
Robert Brown
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
J Whitfield QC
for the
Respondent
A Edis QC
for the
Crown
Hearing dates: 24
th
November 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
This is our judgment in the appeal against sentence by Robert Brown who, on 24 May 2011 in the Crown Court at Reading before Cooke J and a jury, was acquitted of murder and convicted of manslaughter on the ground of diminished responsibility. He was further convicted of obstructing a coroner in the execution of his duty. He was sentenced to 24 years imprisonment for manslaughter with 2 years consecutive for the offence of obstruction. An appropriate order was made in relation to time spent on remand. The appeal was dismissed at the end of the hearing last Thursday.
2.
We must make it clear at the outset of the judgment that the evidence very strongly suggested that the prosecution was right not to accept the plea of guilty to manslaughter when it was tendered by or on behalf of the defendant, and to allow the jury to decide whether the verdict should be guilty of murder or manslaughter. However once the jury acquitted of murder and accepted that the appellant’s responsibility for his actions at the time of the killing was substantially diminished, that verdict was binding on the judge, and it is binding on us. None of us can interfere with the decision of the jury and there can be no appeal against the acquittal for murder. What is more, the sentence imposed by the judge had to respect that verdict. The essential question in this appeal is whether it did.
3.
The background to the case is an unhappy marriage. The appellant met his wife Joanna in 1998. A pre-nuptial agreement that each should retain their own property in the event of a separation was signed. They married. He sold his flat and the proceeds were spent as part of the contribution to a property in Ascot where they were to live together. Their son was born in 1999 and their daughter in 2001. The children’s awareness of the circumstances in which their mother met her death at the hand of their father is a specific aggravating feature of the case.
4.
By 2007 the marriage had broken down. Divorce proceedings were started. The negotiations were acrimonious. We can narrate how things appeared to the appellant, but there is another point of view, and as in all these cases it is never wise to assume that any one of the parties is providing an objective assessment. He believed that she was concealing the extent of her wealth, and that he had been manipulated into signing the pre-nuptial agreement. He contributed the proceeds of the sale of his flat to the matrimonial home, but this was in her name. The final financial settlement hearing was listed for April 2010, but then adjourned pending the decision of the Supreme Court in
Radmacher v Granatino
about the enforceability of pre-nuptial agreements. In October 2010 the court held that they were enforceable. He thought that he would emerge from the marriage with little or nothing in it for himself. The discussions at this stage were that whereas the wife offered £200,000, to reflect the actual contributions made by the appellant, he was seeking a contribution of £800,000, on the basis that the equity in the matrimonial home was worth £1.5m.
5.
The case was relisted for hearing on 8 November. According to the psychiatric evidence, and the evidence given by the appellant, he felt aggrieved and betrayed and believed that his wife was trying to manipulate the legal proceedings in order to increase the costs so that he would end up with as little as possible. He also claimed that she wanted to deprive him of any real say in the children’s education, for which she had always paid from family resources.
6.
The crown contended that there had been an earlier incident in 2007 when he had held and threatened his wife with a large kitchen knife. He denied it. Whatever the truth about the incident, what is apparent is that by the time he killed his wife the appellant was very closely focussed on what he regarded as his financial insecurity, and what he believed was his wife’s unreasonable attitude to the pre-nuptial settlement (now binding on them both), which would inevitably have a direct influence on the eventual financial arrangements.
7.
It was arranged between the parents that at half term the children should stay with the appellant. His home was nearby. They came for the weekend. They were due to be returned to their mother on 31
st
October in the afternoon. The appellant drove their children back to their home. It was a short journey. Before he set off, he placed a hammer in the bag which contained his daughter’s homework. When they arrived home, the children went in. Their mother was waiting for them. It can confidently be stated that the last thing that she could possibly have envisaged at that moment was that she might be the victim of an attack. But that is what happened. About 20 minutes after he had left his own home the appellant returned to it. He brought the children with him. Both were crying, and their daughter was particularly distressed. He asked his girlfriend to look after the children and then disappeared.
8.
What had happened in the meantime is that he had killed the deceased in the hallway of her home by striking her repeatedly and violently on the head with the hammer on 14 occasions, innocently carried into the house by his daughter. When the house was subsequently examined there was no sign of any disturbance, although an area of blood staining was found in the entrance hallway, and there was further blood staining on the gravel drive outside. The victim had sustained defensive injuries, consistent with trying to cover her head with her hands. The evidence suggested that she had been taken entirely by surprise. It appears that she must have lost consciousness and died very quickly. The two children were in a room two doors away when their mother was attacked.
9.
Once she was unconscious, the deceased wrapped up her body and put it into the back of his car. His daughter heard what had happened and she saw him put her mother’s body into the car. He went back into the house and removed the CCTV recorder which would otherwise have contained film showing him putting the body into the car. He also pulled out the telephone. As he drove the children back to his house, on the way, his son asked if he was taking the deceased to hospital, but he never did so, and he never called an ambulance.
10.
Having dropped the children off with his girlfriend, he then drove to a remote part of Great Windsor Park. He knew exactly where he was going. On an earlier occasion he had dug a large hole and buried a garden box in a remote spot. He took the deceased’s body from his car and carried or dragged it some 100m from the track, and put it into the garden box. He wrapped the body in a surf board bag and plastic sheeting with a bin liner over the head to prevent blood leakage. He left other items in the box and buried the box in a grave. The arrangements for digging the grave and providing the box, which in reality became a coffin, must, on any view of the facts, have preceded the attack on his wife.
11.
He went to his own home, changed, and then went out and disposed of his bloodstained clothing and the torches or camping lights that he had used for the burial. Having buried his wife, at some stage he took the CCTV recorder and the murder weapon and buried or disposed of them elsewhere. They were never found.
12.
When he returned home at 5 o’clock that morning, he refused to tell his girlfriend what had happened. He telephoned his parents and told them that he was going to contact a lawyer and then go to the police. His father contacted another of his children, a son, who lived in the area, who reported that the deceased was missing. The police went to her home. They arrested the appellant. He was asked if his wife was alive. He replied “I can’t say”.
13.
In interview the appellant spoke of the stress of his divorce proceedings. When it became apparent that he would be charged with murder, on 3 November he gave a prepared statement to the police in which he said that there had been an argument over the schooling for the children, in which he had lost control and pushed the deceased. In the fracas she was injured. He said that he had put her in the back of the car intending to take her to hospital, but later he found that she had died. He panicked and buried her in a box. He took the police to the place where he had buried her.
14.
Evidence to support the contention that this was a case of diminished responsibility was provided by Dr M.E.C. Alcock. In very brief summary he suggested that the appellant had developed an adjustment disorder “as a consequence of a number of life events from around April 2010 and thereafter, on a background of increasingly stressful life events commencing from 2007. … Mr Brown meets the diagnostic criteria for an Adjustment Disorder”. This disorder is classified in the International Classification of Diseases, Version 10, and is a recognised medical condition under the general category of reaction to severe stress or continuing trauma. Dr Alcock expressed the view, and gave evidence that as a result of the pressures which the appellant was under his ability to exercise self control at the time of the killing and his acts in disposing of the body were substantially impaired. The overriding factor in his conduct was abnormality of mental functioning as a result of the adjustment disorder. Dr Philip Joseph rejected the diagnosis of adjustment disorder or indeed any other form of mental disorder which amounted to an abnormality of mental functioning as defined in
section 52 of the Coroners and Justice Act 2009
. He suggested that “in any event if he did suffer from such a disorder, its extent would only be of any relevance if the jury concluded that the defendant had killed his wife without any premeditation”.
15.
At the outset of the trial the appellant tendered a plea of guilty to manslaughter on the ground of diminished responsibility, following a written indication to the prosecution that that plea would be tendered. In due course, the judge gave credit to him for the plea.
16.
In his sentencing remarks Cooke J rehearsed the facts of the case. He took the view that adjustment disorder was a mild disorder which rarely led to violence. This was consistent with the evidence he had heard. He also noted that in this particular case, the disorder appeared to have disappeared almost immediately after the killing. He was satisfied that, on the basis of the jury’s evidence, although the appellant’s culpability was diminished, it remained substantial. He noted particular aggravating features in the form of planning and premeditation, the proximity of the children to the attack, the fact that they had heard what had happened, and were carried in the car with their mother’s body in the back, and of course, in the case of the daughter at the very least, knowing that her mother’s body was in the back of the car following an attack by her father. He considered, too, the way in which the body was concealed, and all the events leading up to the concealment, which represented an additional aggravating feature. In any event although the appellant had, on the basis of the jury’s verdict, lost his control, the context was his anger and resentment towards his wife in the context of the acrimonious financial disposal of their assets. The judge believed that the only reason why the hammer had been taken to her house on that day was that he had intended to kill her. The blows that he struck can only have been done with the intention that she should be killed, and the judge was satisfied that the box or coffin could only have been buried and hidden for this purpose.
17.
In the context of this conviction for manslaughter on the grounds of diminished responsibility, the judge acknowledged the appellant’s good character, that he had eventually handed himself in to the police, and his guilty plea. Nevertheless although his responsibility was diminished it remained substantial.
18.
The judge then considered a number of decisions of this court, which dealt with the necessary correlation or link between sentences for murder, now imposed in accordance with the provisions of
Schedule 21 of the Criminal Justice Act 2003
and manslaughter, in whatever circumstances manslaughter had taken place. He assessed the length of the minimum term which would have been imposed if the jury had convicted the appellant of murder, as at least 28 years, the equivalent of a 56 year determinate sentence. With that consideration in mind, allowing for the guilty plea, the judge assessed the sentence at 24 years imprisonment on count 1, with a short consecutive sentence of 2 years imprisonment on count 2.
19.
Before passing sentence the judge had read the victim impact statements. He was conscious of the affect of these events on the family. We too have read the papers. We have indeed read some further comments which indicate the belief of the family that there had been a miscarriage of justice. But as we have said at the outset of this judgment, sympathetic as we are for the catastrophic consequences suffered by the family of the deceased, we are bound by the verdict of the jury and so was the judge.
20.
In summary the judge’s decision was based on two linked considerations. First, he recognised that this court has made clear that the increase in minimum terms following conviction for murder should be reflected in homicide sentences.
Wood
is a classic example. Second, he considered that the verdict of the jury did not lead to the conclusion that the appellant’s mental responsibility for his actions was extinguished. There remained a substantial level of culpability even at the moment when the killing itself took place, and, moreover, in the context of the post killing aggravating features were assessed, there is nothing to suggest that the appellant’s culpability was diminished by any loss of control. At that stage every action was carefully considered and designed to avoid discovery.
21.
In essence, although there are a number of facets to the careful argument of Mr Whitfield QC on behalf of the appellant, the basis of the appeal is that the sentence was not loyal to the verdict of the jury. The jury had found that because of the condition identified as adjustment disorder the appellant’s ability to exercise self control was substantially impaired. That diminution in responsibility and therefore culpability was overlooked or insufficient allowance was made for it.
22.
We were invited to consider the possible impact of
section 52
of
the 2009 Act
. In the context of diminished responsibility this provides:
“(1) in
section 2 of the Homicide Act 1957
(persons suffering from diminished responsibility), for sub-section (1) substitute
“(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D were suffering from an abnormality of mental functioning which -
(a) arose from a recognised medical condition –
(b) substantially impaired D’s ability to do one or more of the things mentioned in sub-section (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.
(1A) those things are –
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.””
23.
It appears that one purpose of these amendments to the defence of diminished responsibility was to ensure a greater equilibrium between the law and medical science. The issue is the level of mental functioning of the defendant, which must arise from a recognised medical condition, rather than abnormality of mind. We were asked to consider whether the words “substantially impaired” in
section 52(1)(b)
provided a different test to that which was applied to the term “substantial impairment” in
the 1957 Act
. We do not think that it does. When Parliament enacted
the 2009 Act
it was perfectly well aware of the way in which the court had interpreted the phrase “substantial impairment” for very many years, (see
R v Ramchurn
(2010) 2 Cr App R.3
. Cooke J had directed the jury that the reference to “substantially impaired” required the jury to conclude that the impairment was more than minimal. No further embellishment was suggested, and this direction formed the basis for the jury’s verdict. Accordingly, in our judgment, Cooke J was entitled to reach the conclusion that the appellant’s responsibility for the death of his wife, although diminished, remained substantial and that although his ability to exercise self control was, in accordance with the jury’s verdict, to be treated as substantially impaired, he “retained real culpability” for what he had done. That was consistent with the verdict of the jury.
24.
We must now address the correlation between the normal starting points contained in
Schedule 21
of
the 2003 Act
and sentencing following conviction of manslaughter. In cases of murder, of course, the sentencing judge assesses the minimum term to be served for the purposes of punishment and deterrence, before any question of release can be considered. Unless the judge is considering a minimum term following a discretionary order for life imprisonment, in most cases of manslaughter the term of years ordered by the sentencing judge does not reflect the minimum term to be served, rather it specifies the term, half of which will be served. We do not think it necessary for judges seeking to apply the
Wood
principle to set out an exact arithmetical computation of the sentence which would have been passed if there had been a conviction for murder. In this court, on an appeal, we focus on the sentence itself. Perceived errors in individual aspects of the sentencing process obviously require us to consider the end result very carefully, but it is the result on which we must concentrate. Whether or not the computation is set out, it provides a helpful method of approach, identifying the necessary features of the case, both the aggravating and mitigating features, and then applying an appropriate discount for the defendant’s reduced level of culpability. This is a fact specific decision, to be made by the judge, consistently with the medical evidence and the jury verdict, and then publicly explained, as Cooke J explained his conclusion in the present case.
25.
The facts of this case are stark. This young woman died as a result of a brutal attack in her own home within moments of greeting her children after weekend contact with their father. The weapon used for the killing was taken into the home by her innocent daughter. The events, if not actually seen by the children, were witnessed by them. The lack of thought for these young children, even if in part explicable through loss of control when the violence was inflicted on their mother, is chilling. It was aggravated when her young daughter saw the appellant put her mother’s body in the boot of the car and her son, asking only because he must have known how badly injured his mother was, asked if they were taking her to hospital. Not a moment’s thought was given to them, or their welfare, or the impact of what he fully appreciated he had done to their mother. She, of course, was the first victim of this dreadful crime, but the children too were victims, not merely in the broad distressing sense that they had lost their mother but because they heard and saw this terrible crime unfold.
26.
There was no lack of self control in the appellant’s journey to his home, leaving the children there, and then setting off in his controlled endeavours to escape the consequences of what he had done.
27.
There is, we believe, force in the submission that in this case the sentence for manslaughter, on count 1, included at least some allowance for the offence alleged in count 2, in relation to obstruction of the coroner. Consecutive sentences were probably unnecessary and inappropriate. What however we have considered is whether the total sentence imposed on this particular appellant making every allowance for the mitigation arising from his diminished responsibility, but also making due allowance for all the aggravating features of the case, was excessive. In our judgment, it was not. Accordingly the appeal against sentence was dismissed. | [
"MR JUSTICE GLOBE"
] | 2011_12_01-2877.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2796/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2796 | 819 |
201678dd68c575b6784452675733467cbdfb1a8e8f9e7a5ba870a9764e26ef5b | [2008] EWCA Crim 2501 | EWCA_Crim_2501 | 2008-10-29 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 2501 Case No: 2008/02872 A3 (1) 2008/02776 A3 (2) 2008/02873 A3 (3) 2008/02875 A3 (4) 2008/02907 A3 (5) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PRESTON HIS HONOUR JUDGE RUSSELL Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/10/2008 Before : THE LORD CHIEF JUSTICE MR JUSTICE OWEN and MR JUSTICE CHRISTOPHER CLARKE - - - - - - - - - - - - - - - - - - - - - Between : R - v - Herbert | Neutral Citation Number:
[2008] EWCA Crim 2501
Case No: 2008/02872 A3 (1)
2008/02776 A3 (2)
2008/02873 A3 (3)
2008/02875 A3 (4)
2008/02907 A3 (5)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HIS HONOUR JUDGE RUSSELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/10/2008
Before :
THE LORD CHIEF JUSTICE
MR JUSTICE OWEN
and
MR JUSTICE CHRISTOPHER CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Herbert (1), Harris (2), Joseph Hulme (3), Danny Hulme (4), and Daniel Mallett (5)
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M.J. Shorrock QC for the Crown
Mr R.L. Marks QC on behalf of Herbert
Mr A.J. O’Byrne QC on behalf of Harris
Mr P.C. Reid QC on behalf of Joseph Hulme
Mr A. Cross QC on behalf Danny Hulme
Mr D.T. Fish QC on behalf of Daniel Mallett
Hearing date: 7
th
October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice :
1.
The major responsibility for the preparation of this judgment of the Court was undertaken by Mr Justice Owen. The appeal illustrates the practical application of the principles discussed in
R v Height and Anderson
, handed down today, immediately before this judgment.
2.
On 10 March 2008 the appellants appeared at the Crown Court at Preston on an indictment containing two counts and alleging offences committed on 11 August 2007. On count 1 they were charged with the murder of Sophie Lancaster, and on count 2 with the offence of causing grievous bodily harm with intent to Robert Maltby. On re-arraignment each of the defendants pleaded guilty to count 2 and Herbert pleaded guilty to count 1. The prosecution then offered no evidence on count 1 in respect of Mallett, Danny Hulme and Joseph Hulme, and HHJ Russell QC entered not guilty verdicts. Harris was tried on count 1 and convicted on 27 March.
3.
The appellants were sentenced on 28 April 2008. Harris, who was born on 17 June 1992, and who was therefore just 15 at the date of the offences and is now 16, was sentenced on count 1 to be detained during Her Majesty's pleasure with a minimum term of 18 years, less time served on remand. On count 2 the judge imposed a concurrent sentence of detention for life pursuant to
section 226 of the Criminal Justice Act 2003
with a minimum term of five years and 10 months less time served on remand.
4.
Herbert was born on 3 December 1991. He was 15 at the date of the offences, now 16. On count 1 he was sentenced to be detained during Her Majesty's pleasure with a minimum term of 16 years and 3 months, less time served on remand and on count 2 a concurrent sentence of detention for life under
section 226
of the Act with a minimum term of five years and 45 days less time served on remand.
5.
Danny Hulme, who was born on 23 December 1991, and was therefore 15 at the date of the offences, now 16, was sentenced to detention for public protection pursuant to
section 226
of the Act with a minimum term of five years and ten months less time served on remand.
6.
Joseph Hulme, Danny Hulme's brother, was born on 14 September 1990, and was 16 at the time, now 18. Like his brother he was sentenced to detention for public protection with a minimum term of five years and ten months less time served on remand.
7.
Mallett, who was born on 13 June 1990, and who was therefore 17 at the date of the offences, now 18, was sentenced to detention for public protection pursuant to
section 226 of the Criminal Justice Act 2003
with a minimum term of four years and four months less time spent on remand.
8.
They appeal against sentence with the leave of the single judge.
The Facts
9.
This was an appalling crime, but given the youth of the five appellants, the facts must be set out in some detail. In the early hours of Saturday 11 August 2007 the five appellants, all teenagers from the Bacup area, savagely and mercilessly attacked and beat unconscious a young man called Robert Maltby. When his girlfriend, Sophie Lancaster, intervened, two of the appellants, Herbert and Harris turned on her and subjected her to an equally vicious beating. She suffered serious head injuries, never gained consciousness, and died in hospital 14 days later.
10.
Robert Maltby was 21 years of age, Sophie Lancaster 20. They had been together for about 2 years, and had been living together at an address in King Street Bacup for about 6 months. Robert Maltby has no recollection of what happened that night; but it has been possible for the police to piece together their movements leading up to the time at which they were attacked. They spent most of the evening at a friend’s house in Bacup leaving at about 11.40 saying that they were going to walk home. Their route took them past a Total petrol station on Market Street. At the petrol station they fell into conversation with a number of local teenagers who had gathered on the forecourt. The conversation was friendly and good natured; witnesses speak of them handing out cigarettes to the group. The group, including Robert Maltby and Miss Lancaster, then moved on to another location, an area outside the entrance to industrial premises known as the Fudge factory, Park Road. Like the garage forecourt it is a place where local youths congregate. At that stage there was no hint of trouble. After a short period the group moved from Park Road, across a road called New Line and into Stubby Lee Park.
11.
There are skate ramps in the park and it was in the vicinity of the skate ramps that the five appellants suddenly and without warning or provocation attacked Robert Maltby. He was brought to the ground by punches and kicks. When on the ground he was kicked viciously to the head and body, and at least one of his assailants stamped on his head. During the attack the appellants goaded each other on saying such things as
“watch it”
and making noises, as one witness put it,
“like it were summat good, like they’d done summat good.”
Robert Maltby was defenceless and could make no attempt to defend himself as he was beaten unconscious. However, with remarkable courage Miss Lancaster rushed to give whatever assistance to him she could, and as he lay prone, she cradled her boyfriend’s head in her lap, calling for help and shouting at the appellants to leave him alone. Herbert and Harris turned their attention to her and she, too, was subjected to a sustained and vicious attack which involved kicking and stamping until, she too in her turn, was beaten unconscious.
12.
The attacks were witnessed by a number of other teenagers. Many were friends or acquaintances of the appellants, but they nevertheless gave statements to the police. The picture that emerged from their statements was of an unprovoked and sustained assault on Robert Maltby by all five appellants involving punching, kicking and stamping followed by a similar assault on Sophie Lancaster by Herbert and Harris. It would appear that the appellants attacked Mr Maltby, not as a consequence of anything that he had said or done, but simply because he and his girlfriend looked and dressed differently to them. A young man and a young woman encountered Herbert in the immediate aftermath of the incident. He said to them
“theres two moshers nearly dead up
Bacup park.”
“Mosher”
is apparently a term used to describe those who by virtue of their appearance are known as
“Goths”.
After that encounter the appellants met up with another young man who described them as behaving
“in a giddy way,
hyper-active and bouncing around doing silly things
,
it was as though they were boasting what they had done.
” Joseph Hulme said to this young man
“we have just beaten someone up. Do you want a phone?”
and handed him a mobile telephone that had been taken from Robert Maltby. Herbert then said
“you want to
see them they are a right mess.”
The others were saying similar things.
13.
Two ambulances were sent to the scene. The ambulance technicians found the two victims lying side by side and unconscious. It was obvious that each had been subjected to a very serious assault. Their facial injuries were so dreadful that it was not immediately possible to tell which sex either casualty was. They were taken to Rochdale Infirmary. On admission Robert Maltby was agitated, with a Glasgow coma scale of 3. He was sedated, paralysed, incubated and ventilated. A CT scan showed blood around the brain tissue in the right parietal area of the brain. He was then transferred to the intensive care unit at North Manchester hospital where a further CT scan on the following day showed that the subarachnoid blood collection was resolving. By 13 August he was weaned from the ventilator, and on 16 August was transferred to a general ward. He was discharged from hospital on 24 August. In his case there were 22 sites of injury. They consisted of extensive facial injury in the form of multiple bruises, abrasions and severe swelling.
14.
On admission Sophie Lancaster had a Glasgow Coma scale of 3 – 4. She too was admitted to intensive care, but died on 24 August never having regained consciousness. She was found to have 17 separate areas of injury to her head and body. They were of a very similar nature to those sustained by Robert Maltby. As in his case the principal target had been her head.
15.
Herbert, Harris and Mallett were arrested on 11 August and the Hulme brothers on the following day, 12 August. Herbert was interviewed once on 11 August and twice on 12 August. In his first interview he admitted being in the park when the incident took place, but denied being involved in the assaults. He declined to answer questions in the second and third interviews. Similarly Harris was interviewed on 11 and 12 August. In his first interview he read out a prepared statement in which he admitted being at the skate ramps with the four other appellants. He admitted having struck the first blow by hitting Robert Maltby, saying that he did not know why, but was drunk and was showing off. He said that so far as he could recall he had no further involvement in the assaults. Joseph Hulme was interviewed three times on 12 August. In the first interview he denied that he had been in the park at all claiming that he had been elsewhere with his brother. In the second and third, he admitted being there, but denied taking part in any assault. Danny Hulme was interviewed twice on 12 August. In both interviews he admitted being in the park at the material time, but said that he had not hit either of the victims. Mallett was interviewed on 11 and 12 August. He admitted being involved in the assault on Robert Maltby claiming that he had hit him once with a clenched fist when he was still standing up.
16.
After Sophie Lancaster died each defendant was re-arrested and further interviewed. Herbert declined to answer any questions put to him. Harris repeated the account that he had given in the earlier interviews.
17.
We have seen the Victim Impact Statements that were before HHJ Russell QC. Sophie Lancaster’s mother speaks in deeply moving terms about her daughter, of the horror of seeing her in hospital, of her daughter dying in her arms when the life support system was turned of, and of the void in her life and the life of her family that will never be filled. She tells how Sophie’s family and friends have established a charity, with the acronym SOPHIE, standing for Stamp Out Prejudice, Hatred and Intolerance Everywhere, in the hope that something positive may come of this terrible tragedy. Robert Maltby and his mother speak of the devastating effect of attack on him. They too speak movingly of the intense difficulty of coming to terms with the consequences of such chilling, random and mindless brutality. On 7 October 2008 Mrs Maltby made a further statement. Sadly it revealed that Robert Maltby has failed to make the physical and mental recovery that had been hoped for at an earlier stage. She says:
“Physically he suffers from poor short term memory and becomes very uncoordinated when tired. His balance is also poor when he is tired. Robert’s main problem is psychological. He has virtually become a recluse and will not leave our home unless absolutely necessary.
He is currently undergoing treatment for the serious psychiatric disorder caused by the injuries sustained on 11 August 2007.”
The appeals
18.
We propose first to address the issues in relation to count 1 that arise in both the cases of Harris and Herbert, then to consider the issues common to the appellants in relation to count 2.
Count 1
19.
In setting the minimum term to be served by Harris and Herbert before they can be considered for release on parole, the judge took as his starting point the period of 12 years indicated by
schedule 21 of the Criminal Justice Act 2003
. Having taken account of the aggravating features, he arrived at a minimum term of 18 years. In the case of Herbert he gave a further discount of one year 9 months to reflect both his plea of guilty to murder and a degree of remorse. It is submitted on behalf of both Harris and Herbert that the judge erred in setting the minimum term at 18 years less the periods served on remand and, in the case of Herbert, less the further discount.
20.
In setting the minimum term the judge took account of a number of serious aggravating features, most of which applied both to the offence of murder under count 1, and to the offence of causing grievous bodily harm with intent under count 2, and which he summarised in the course of his meticulous and carefully reasoned sentencing observations:
“I am satisfied that the only reason for this wholly unprovoked attack, was that Robert Maltby and Sophie Lancaster were singled out for their appearance alone because they looked and dressed differently from you and your friends. I regard this as a serious aggravating feature of this case, which is to be equated with other hate crimes such as those where people of different races, religions, or sexual orientation are attacked because they are different. This aggravating feature applies to all of you and I add that the courts are perfectly capable of recognising and taking account of such aggravating features without the necessity of Parliament enacting legislation to instruct us to do so.
Further, the extent of the violence in this case although, no weapons were used, is every bit as bad as if weapons had been used. Indeed, because you were wearing ordinary footwear, in the form of trainers, the extent of the injuries shows how much physical force was applied. The brutality of the violence, and the fact that it was so direct reveals a degree of intention to hurt and cause serious injury and pain, which verges on cruel and sadistic behaviour, which, most stabbings and shootings, whether resulting in death or serious injury do not involve. This is also an aggravating feature which applies to all of you. The fact that in the case of Robert Maltby, five of you attacked him and that then when he was unconscious, two of you killed Sophie Lancaster, when each of them was completely defenceless and when Sophie Lancaster was trying to assist her boyfriend with his head in her lap, is also an aggravating feature.
There were two victims here, both of whom were unsuspecting and vulnerable. Your numbers overwhelmed them and reveal you to be cowards of the worst kind. This factor applies to all of you in the sense that five of you attacked Robert Maltby with overwhelming odds and additionally to the two of you who killed Sophie Lancaster because the fact that you attacked two victims must be reflected in the sentence. A fact I have to take account of as a mitigating factor is your ages and apart from your pleas of guilty and in some cases the absence of previous convictions which I shall deal with shortly, it is the only mitigating feature in this case.
You Brendan Harris, are still only 15, nearly 16, Brian Herbert and Danny Hulme, you are both 16 and you Joseph Hulme and Danny Mallett are 17. You were all roaming the streets of Bacup late at night, drinking to excess. You were obviously out of control. Although young in years and very immature in certain respects, in others your behaviour was not that of children your age but very aggressive, intolerant and callous and violent, which means, in my judgment, that you should not be treated as children. Similarly the lack of previous convictions in the cases of you Danny Hulme and you Daniel Mallett, and the lack of any conviction of violence in your case Joseph Hulme, is of less significance that might otherwise be the case because of the extreme nature of the violence that you were prepared to become involved in. You will of course, receive considerably less a sentence than your friends who are to be sentenced for murder.
In your cases, Ryan Herbert and Brendan Harris, you have each been previously convicted of an offence of violence, committed in the same area and involving kicking although, fortunately, with nothing like the consequences. This is an aggravating feature and shows how violent and out of control you were despite your youth. I have read with care the detailed pre-sentence reports prepared upon each of you and the two psychological reports upon you Ryan Herbert. I have also read the various letters and character references submitted on your behalf. It has to be said that your actions on this night are so far removed from the pictures that emerge of your character from those references, that I can only conclude that, when fuelled up with drink and in a gang of like-minded youths, the pack mentality took over. This means that you are unpredictable, which is worrying for the future.”
21.
It is submitted on behalf of Harris and Herbert that the judge erred in a number of respects in his approach to setting the minimum term. First he is said to have been in error in expressing the view that had the appellants had been over 18, the starting point under
schedule 21
would have been 30 years. It is argued on their behalf that the case does not fall within the categories identified in paragraph 5(2) of
schedule 21
. It is correct that the case does not strictly fall within any of sub-paragraphs (a) to (h). But, as explained in
R v Height and Anderson
,
the categories of offence described in paragraph 5(2) are not exhaustive.
22.
The question for the judge under paragraph 5(1) is whether the seriousness of the offence, or the combination of the offence with one or more offences associated with it, is particularly high. Consideration of that question will be illuminated by the categories set out in paragraph 5(2), but it does not follow from the fact that a case does not fall within one of those categories, that the seriousness of the offence is not particularly high. (See
R v Height and Anderson,
referred to earlier).
23.
It is clear that the judge took the view that the seriousness of the case was particularly high. He did so with the benefit of having heard evidence at the trial of Harris. As he observed, first, the attack on Robert Maltby made the case very close to a double murder. Second he considered that Robert Maltby and Sophie Lancaster were singled out because of their appearance and the way that they chose to dress, and that that made the case analogous to those in which victims are targeted by virtue of their race, religion or sexual orientation. As he put it “
this was a hate crime against these completely harmless people who were targeted because their appearance was different”
Third, he took the view that the brutality of the attack on Sophie Lancaster as she cradled Robert Maltby's head in her lap verged on cruel and sadistic behaviour. In our judgment the judge was not only entitled, but fully justified in the view that he took of each of those features of the case, and in his conclusion that looked at over all, the offence was so serious that had the appellants been over the age of 18, it would have been appropriate to take a starting point of 30 years.
24.
It is next submitted that the judge erred in his view that in relation to count 1 the only mitigation, save for the additional considerations that applied in the case of Herbert, was the age of the appellants. Counsel argued that two of the mitigating factors identified in paragraph 11 of
schedule 21
were present, namely an intention to cause serious bodily harm rather than to kill, and secondly a lack of premeditation. The judge dealt with the first in the following terms –
“It is submitted that the case should be treated as one with the intention to cause grievous bodily harm, rather than to kill. Given the savagery of the attack it must make very little difference in the particular circumstances of this case but even approaching the case on that basis because of the aggravating factors and the horrific facts of this case … …”
25.
It is clear that the judge took into account that even if an intention to kill was not proved, in the light of the savagery of the attack, that afforded little mitigation. In our judgment his approach cannot be faulted.
26.
The judge did not make express reference to a lack of premeditation, but there is nothing in his sentencing observations to suggest that he approached the sentencing exercise on the basis that the appellants had set out that evening with the intention of making a random attack on innocent victims such as Sophie Lancaster and Robert Maltby. On the contrary, his sentencing observations underlined the unpredictable nature of the appellants’ behaviour, which clearly indicates that he was approaching the case on the basis that the attack was not premeditated.
27.
The third argument advanced in relation to the minimum term is that the judge failed to make proper allowance for the age of the appellants. It was submitted that he erred in approaching the sentencing exercise upon the basis that the appellant should not be treated as children. That is a point to which we shall return in relation to the sentences imposed on count 2 of the indictment; but so far as count 1 is concerned the judge specifically took as his starting point the indicative period set out in
schedule 21
for those under the age of 18, and then concluded that the aggravating features outweighed any mitigation, by which he had in mind the age of the appellants, by a significant degree. In our judgment there is no basis for the argument that he failed to make a proper allowance for the age of the appellants in setting the minimum term.
28.
We are therefore satisfied that, even with offenders as young as these when they committed this murder, in the horrific circumstances, a minimum term of 18 years was fully justified.
29.
We shall return to the issue of whether sufficient credit was given to Herbert for his plea of guilty.
Count 2
30.
Two issues arise about the sentences imposed on count 2. First it is submitted that the judge erred in his conclusion that Mallett, Danny Hulme and Joseph Hulme fell within the dangerous offender provisions contained in
section 226 of the Criminal Justice Act 2003
, Secondly it is submitted that minimum terms based on a notional determinate sentence of 13 years were manifestly excessive, a point also taken on behalf of Harris.
The Dangerous Offender issue
31.
The judge addressed the issue in the following terms –
“I also have to consider whether you fall within the dangerous offender provisions of the
Criminal Justice Act 2003
. In deciding whether an offender is dangerous, the first thing the court must do is to take into account all the circumstances of the offence:
The circumstances of this offence are such that they speak for themselves. Anyone who can act as you five did, must be regarded as a danger to the public. Without the slightest degree of provocation, forming the intention to cause really serious injury and then carrying it out by repeated kicking, stamping and punching, acting as a group to overwhelm by force and numbers a defenceless victim, indicates that you are all dangerous, even without previous convictions, in some cases. Any other conclusion flies in the case of common sense. Further, Joseph Hulme, and despite your lack of previous convictions, Danny Hulme and Daniel Mallett, the fact that you are dangerous is shown by the fact that each of you was prepared to join in an attack upon a helpless victim. The pack mentality that you displayed is regrettably a feature of some young defendants, who come before the courts and who individually may have positive good qualities but in certain circumstances, buoyed up by the conduct of others, that pack mentality can take over. You have displayed that characteristic in this case, which, in my judgment must render you a serious danger to the public, and until the authorities are satisfied that you no longer have that tendency in your character.
Accordingly an indefinite sentence is necessary to ensure the continuing protection of the public, from you. I have come to the conclusion that you all represent a danger to the public, in that there is a significant risk of your committing further serious specified offences and that there is a significant risk of serious harm to the public from your so doing. Again in regard to these risks, in my judgment, the facts speak for themselves and the same considerations to which I have just referred apply. It is also clear that you have no moral boundaries, which would enable you to control yourselves. Until the authorities can be satisfied that you no longer pose a risk, the public must be protected from you. I reject the assessments, using the assessment tools, that you pose low or medium risks. The test is, in any event, whether there is a significant risk and I am quite satisfied, for the reasons I have given, that there is such a risk, even in the absence, in some cases, of previous convictions for violence. The fact is, that had each of you been assessed before last August, the assessment would have been that you posed a low risk but the events of the 9 and 10 August have proved otherwise.”
32.
It is submitted that the judge erred in holding that Mallett, and Danny and Joseph Hulme presented a significant risk to members of the public of serious harm occasioned by the commission of further specified offences, and in particular that he failed to pay any or any proper regard to the conclusions drawn by the authors of the pre-sentence reports as to the risk that they presented. It is also submitted that the judge erred in failing to consider whether under
section 226
(3) an extended sentence would be adequate for the purpose of protecting the public.
33.
There were no previous convictions recorded against either Mallett or Danny Hulme. Each produced a substantial number of testimonials attesting to their positive good character. The authors of the PSR’s prepared in their cases carried out an assessment of the risk of their re-offending by means of the Youth Justice Board’s assessment tools, ASSET and the Risk of Serious Harm ASSET. In both cases the authors concluded that they were low risk offenders. In the case of Joseph Hulme the ASSET assessment was that he was a medium risk offender, having previously been made the subject of a referral order for an offence of witness intimidation. But the author of the PSR in his case expressed the view that he was unlikely to commit another specified offence, a conclusion that was supported by a report from a consultant psychiatrist dated October 2008. A number of impressive character references were also put before the judge in his case.
34.
It is submitted that the judge erred in rejecting those assessments of risk, in disregarding the views expressed by the probation officers who had reported on the appellants, and in arriving at the conclusion that each presented a significant risk to members of the public of serious harm occasioned by the commission by them of further specified offences simply by reference to the facts of this case. We do not agree. These appellants committed this horrific attack notwithstanding that two were of previous good character, and the third had not been convicted of any offence of violence. As the judge observed in passing sentence, a risk assessment carried out immediately before this attack would have resulted in a finding that they were at low risk of offending; but their violent and vicious behaviour that night proved otherwise. We do not find any basis upon which to interfere with the judge’s conclusion that the dangerous offender provisions applied.
35.
It is then necessary to consider the argument to which subsection 226(3) gives rise, namely whether an extended sentence under section 228 would have been adequate for the purpose of protecting the public from serious harm occasioned by the commission of further specified offences. The judge said that he had “
considered and rejected as being inadequate, whether I should pass an extended sentence in any of your cases
.” The reason why he rejected the imposition of extended sentences is clear from his sentencing observations. He did not think that such sentences it would be adequate for the purpose of protecting the public, hence his repeated reference to the necessity for the appellants to be detained until the authorities are satisfied that they no longer present a risk
.
Neither his reasoning nor his conclusion can be faulted.
The minimum term
36.
In setting the notional determinate sentence the judge had regard to the guidelines laid down by the Sentencing Guidelines Council for assault and other offences against the person. He approached the case as if it was in the highest category for section 18 offences under the guidelines, namely cases in which “
victim suffered life-threatening injury or particularly grave injury from a pre-meditated wounding or GBH involving the use of a weapon acquired prior to the offence and carried to the scene with specific intent to injure the victim”
. The recommended starting point for cases falling within that category is 13 years, with a sentencing range of 10 – 16 years. The next category down is intended to assist with the approach to cases where the “
victim suffered life-threatening injury or particularly grave injury (where the offence was not premeditated)”
It is submitted that the judge fell into error in two respects, first in placing the case in the highest category rather than the next category down, and secondly in failing to take any or any adequate account of the age of the appellants.
37.
Judge Russell said:
“This is the worst case of causing grievous bodily harm with intent by kicking that I have come across in 30 years practice as a criminal barrister and in my career as a judge.”
38.
That observation carries considerable weight, coming as it does from a well respected and highly experienced judge. There can be no criticism of his having taken an extremely serious view of the offence. He fully explained his reasons. Even a definitive sentencing guideline is not to be used or approached as if each offence can be put into fixed and inflexible compartments. The assessment of the seriousness of this offence involved a broad judgment of the overall criminality. (
R v Height and Anderson
) We are satisfied that the aggravating features identified by the judge were such that he was fully justified in placing the case within the highest category, and at the top of the range suggested in the guidelines. By way of emphasis, we record that although these appellants were not convicted of criminal involvement in the death of Sophie Lancaster, the attack on her, and her subsequent death, both followed directly from the merciless attack on Robert Maltby in which these appellants were personally involved and her courageous effort to defend him from it and offer him immediate succour.
39.
It is next necessary to consider whether the judge failed to take any or any proper account of the age of the appellants, bearing in mind that the guideline is directed to the sentencing of those over the age of 18. The judge said:
“Although young in years and immature in certain respects, in others your behaviour was not that of children of your age but very aggressive, intolerant and callous and violent, which means, in my judgment, that you should not be treated as children”.
40.
Counsel for the appellants argue that that passage indicates that the judge fell into error by treating them as adults. But it is clear from his sentencing observations that notwithstanding that passage, he did reduce the notional determinate sentence to reflect their age. Having placed the offence at the top of the range, he reduced the notional determinate sentence to 13 to reflect their youth. In the particular circumstance of this case, we consider that such a reduction was appropriate, and cannot be said to have resulted in a minimum term set at a manifestly excessive level.
41.
Two further arguments are advanced on behalf of the three appellants who pleaded guilty only to count two, namely that in the light of the positive evidence as to their good character, unblemished in the case of Mallett and Danny Hulme, and in the case of Joseph Hulme blemished by two relatively minor matters recorded against him, warranted a lesser minimum term. It is clear that the judge took the view that such personal mitigation was far outweighed by the aggravating features of the attack on Robert Maltby. We agree.
42.
It is next submitted that the judge was unfair to dismiss their expressions of remorse as hollow. As to that the judge said -
“You have shown, in my judgment, little genuine shame, or remorse for your actions and I regard the sentiments of regret, that you have sought to put forward to the youth offending team and through your counsel, as hollow, when put into the overall context to this case, which included your subsequent behaviour on the night … …”.
The judge was able to assess the appellants as they appeared before him. We can see no basis for interfering with his assessment.
43.
Finally, it is suggested on behalf of Joseph and Danny Hulme that an insufficient discount was allowed for the guilty pleas. The suggestion is that these three appellants would have been willing to plead earlier, and told the prosecution so. However the intimation was made subject to the condition that the prosecution would simultaneously accept that the murder charge in count 1 would not be pursued against them. In short, these were tactical decisions and the appellants were not prepared to and certainly did not plead to count 2 until the date of trial. The judge allowed a full discount to Mallett because he had admitted his guilt in his defence statement and the Crown accepted that the plea was to be entered in any event. That could not be said about either of the Hulmes. As we shall see, in the context of Herbert’s appeal, the judge was well aware that the purpose behind the discount was to secure pleas of guilty “for economic reasons”. Again, as we shall see, normally speaking the discount is assessed as at the date when the guilty plea is entered. The judge was, of course, entitled to make an exception where, in his judgment, as in the case of Mallett, this was justified. That said, we emphasise that normally the full discount for a guilty plea should be withheld if the judge is satisfied that it has not been publicly tendered for tactical reasons, in the hope of obtaining a forensic advantage. We can see no basis for adding to the discount which the judge allowed these appellants.
Ryan Herbert
44.
The final issue, which arises in the case of Herbert, is whether he was given sufficient credit for his plea of guilty. The judge reduced the minimum term set in relation to count 1 by 5% to reflect the fact that he had pleaded guilty on the day of the trial. He made a further reduction to reflect the fact that the appellant had not sought to minimise his part in the way that others had, and had shown a degree of recognition of the consequences of his crimes.
45.
The Sentencing Guidelines Council’s Definitive Guideline on the Reduction in Sentence for a Guilty Plea, as revised in 2007, provides that in sentencing for murder, the maximum reduction for a plea at the first reasonable opportunity will not exceed 1/6 or five years whichever is the lesser, with a recommended 5% for a late guilty plea. The judge approached the case on the basis that the appellant was only entitled to the 5% discount as his plea, in common with those of his co-defendants, was entered on the day of trial. It is however submitted that the discount should have been greater for the following reasons.
46.
In his interview by the police the appellant admitted presence at the park at the time of the incident but denied any involvement. But thereafter, as was apparently explained to the judge in mitigation by his counsel Mr Marks QC, the appellant admitted to his solicitor that he had been involved in the attacks upon both Sophie Lancaster and Robert Maltby, and these admissions were incorporated in his defence statement. At the pre-trial review held on 22 February 2008 Mr Marks informed the judge that his instructing solicitor had become concerned about the difficulties that she was experiencing in obtaining instructions from the appellant, and in consequence had instructed a clinical psychologist to examine him. As a result of the provisional view formed by the psychologist about the appellant’s capacity to form the intent necessary for murder, it was decided to instruct a psychiatrist to report. Mr Marks conceded that such inquiries were undertaken late in the day, albeit that that was due in part to the considerable difficulties experienced by his instructing solicitor in gaining access to the appellant in custody. In the event the psychiatric report was not available to the defence until the day of trial. It revealed a disagreement between the psychologist and the psychiatrist as to the appellant’s capacity to appreciate the consequence of his actions. The view expressed by the consultant psychiatrist prevailed; and following a lengthy conference at court, the appellant was advised to plead guilty to murder. It is submitted that bearing in mind in particular the age of an appellant facing so grave a charge, it was both necessary and proper for such an investigation to be carried out; and that in consequence it was not right for the judge to state that the plea could have been entered at a much earlier stage, and for the discount to remain at the minimum level.
47.
There is force in this submission. By his defence case statement the appellant admitted being involved in the attack on Sophie Lancaster, and he conceded that he had kicked her. In those circumstances he was admitting that he was guilty at least of manslaughter and that he was personally and directly involved in the attack on her. In our judgment his legal advisers were justified in seeking a second, psychiatric opinion about the mental capacity of this particular young client, before they could advise him whether to plead guilty to murder. And it was to his credit that he accepted this advice and did not seek to run any form of defence based on the psychologists’ reservations about his capacity to form the necessary intentions. In some ways he was in a similar position to Mallett in respect of count 2. Mallett intimated an intention to plead guilty to count 2 but it was not entered at an early stage in the proceedings and his admission of guilt was made in his defence statement. In these circumstances the reduction of 5% to reflect the guilty plea, together with an additional allowance for the fact that this appellant had not sought to minimise his part in the way others had, and that unlike them he had shown an element of remorse, was not fully reflected in the difference in the minimum term imposed on him and that on Harris. In our judgment, the allowance for the guilty plea should have been somewhat higher than it was. We are acutely conscious that a reduction of 9 months in the minimum term (which we think appropriate) might appear to represent tinkering with the overall sentence. We have taken this course because we are conscious, as we have been throughout the hearing of the appeals, and our reflections on it, of the youth of this and indeed all the other appellants. The minimum term to be served by Herbert will be 15 years 6 months rather than 16 years 3 months (less the days served on remand). The sentence of detention during Her Majesty’s pleasure is unaffected.
Conclusion
48.
The appeals of Harris, Mallett, Danny Hulme and Joseph Hulme will be dismissed.
The appeal of Herbert will be allowed to the very limited extent indicated. | [
"MR JUSTICE OWEN",
"MR JUSTICE CHRISTOPHER CLARKE"
] | 2008_10_29-1698.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2501/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2501 | 820 |
74c2813c4654629c53c42c17c9cb9e73573e024e075873011a499496e1f8b8cd | [2012] EWCA Crim 1939 | EWCA_Crim_1939 | 2012-08-24 | crown_court | Neutral Citation Number: [2012] EWCA Crim 1939 Case No: 201203311/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 24th August 2012 B e f o r e : MR JUSTICE IRWIN MRS JUSTICE NICOLA DAVIES DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v STUART ANTHONY ROYSTON MORGAN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 F | Neutral Citation Number:
[2012] EWCA Crim 1939
Case No:
201203311/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 24th August 2012
B e f o r e
:
MR JUSTICE IRWIN
MRS JUSTICE NICOLA DAVIES DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
STUART ANTHONY ROYSTON MORGAN
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr P Mason
appeared on behalf of the
Applicant
Mr L Chinweze
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
MR JUSTICE IRWIN
:
1.
On 2nd April 2012 in the Yeovil Magistrates' Court this applicant pleaded guilty to theft. By necessary consequence of that plea he was in breach of a suspended sentence order imposed on 2nd February 2012 at the Exeter Crown Court, comprising 6 months' imprisonment suspended for 2 years, with conditions of 2 years' probation supervision and a requirement to undergo treatment for drug dependency, by or under the direction of the probation services for 12 months for offences of burglary and possession of a Class A drug.
2.
On 4th May 2012, following committal, His Honour Judge Cottle, sitting in the Exeter Crown Court, sentenced the applicant as follows: for the substantive offence of theft, 9 months' imprisonment and for the breach of a suspended sentence, which was admitted, the breach being constituted in major part by the theft offence, 6 months' imprisonment, those sentences to be served consecutively to each other.
3.
The Registrar has referred the applicant's application for leave to appeal against sentence to the Full Court and granted a representation order and for reasons which will emerge, we grant leave and proceed to deal with the substance of the appeal.
4.
The theft offence facts can be summarised as follows. The applicant was asked to drive two other men to the Western Power distribution site in the early hours of the morning of the day concerned. They removed fittings from the bottom fence around the site and entered the compound. Police were summoned and saw a co-accused carrying a roll of metal towards a gap in the fence. The appellant was inside the compound standing by two large skips containing the rolls of copper wire. The appellant told police that the third man, who had been seen but who was not apprehended, was a man to who he owed money in relation to drugs that had been supplied to him.
5.
In interview about the theft, the appellant made no comment. All of the copper rolls of wire were recovered. They had been piled up near the point of entry to the site.
6.
The facts of the burglary offence, for which the appellant had received the suspended sentence in February were as follows. On Friday 20th December 2011 the appellant was involved in a non dwelling-house burglary of a portacabin at James Pryce Tractors in Tiverton. Various items were stolen, including two Blackberry mobile phones which were later recovered at the appellant's home address. In interview the appellant had denied the offence but, of course, subsequently admitted his guilt.
7.
The appellant was at sentence 41 years of age. He had 56 convictions for theft and kindred offences and nine for fraud and like offences. He had received 12 weeks' imprisonment in 2009 for burglary and theft; 5 years' imprisonment in 2004 for six offences of burglary and theft, one theft from a motor vehicle, two offences of receiving stolen goods, six of obtaining by deception and one of attempting to obtain by deception. On that occasion he asked for 26 matters of a similar nature to be taken into consideration. He had received other sentences of imprisonment for burglary and theft in 1997, 1994 and as far as back as 1991.
8.
The pre-sentence report was prepared for the judge, in the course of which the appellant accepted responsibility for the theft but sought to mitigate it by stating he had been coerced into taking part because of the drug debt. He was said to have limited appreciation of the consequences to the community of his offending, with a poor attitude to victims and the community. His anti-social behaviour and pro-criminal attitudes were closely linked to his heroin addiction - as we pause to comment, no doubt was his long standing repeat offending of this kind.
9.
His progress on the suspended sentence order had been poor. He was in breach, by means of a failure to attend, in any event. He had consistently failed to supply clean drug test. His continued use of heroin meant that he remained at a high risk of re-offending.
10.
The grounds of appeal advanced on behalf of this appellant included reference to the fact he pleaded guilty at the Magistrates' Court and was committed because of the suspended sentence of the breach. His co-accused, who had committed a greater role in the substantive offence of theft before the magistrates, was dealt with by them and dealt with by means of a community order. Thus it was said by Mr Mason, again with commendable clarity and brevity, that in circumstances where the magistrates felt that the case was suitable for sentence by them in respect of the co-accused, the sentence passed by the judge on this appellant was manifestly excessive.
11.
The Registrar referred the application for leave to this court, really because of a technical problem. Looking at the memorandum of the entry on the register of the relevant Magistrates' Court, the substantive offence of theft was committed to the Taunton Crown Court, as it was then said to be, pursuant to paragraph 8(6) of Schedule 12 of the Criminal Justice Act 2003. It is accepted by all parties, as had been observed by the Registrar of Criminal Appeals, that was an error and the committal could not have been pursuant to that paragraph.
12.
The legal position in relation to committals of this kind is technical. It is well established that an error in recording the basis of committal will not be fatal to the validity of the committal. This court will look to the substantive decision taken by the magistrates as to the basis of committal: see
R v Ayhan
[2011] EWCA Crim 3184
) restating the effect of
R v Folkestone and Hythe Juvenile Court Justices ex parte R
(1982) 74 Cr App R 58
. However, the basis of the committal is important, since a decision to commit by one or other route may result in a limit on the powers of sentence available to the receiving court.
13.
If a defendant who is subject to a suspended sentence of imprisonment, breaches that sentence by committing a further offence, which is triable either way, and admits his guilt of that further offence, the magistrates have two matters to address: a fresh offence and an admitted breach of a Crown Court suspended sentence. It is important for the magistrates to keep in mind that those are discrete, separate matters. It will normally be the case that magistrates will feel that the Crown Court should deal with a breach where the Crown Court has imposed a suspended sentence. It should be noted that magistrate have the power to deal with such a breach themselves (see Schedule 12 paragraph 11(2) of the Criminal Justice Act 2003). However, as we have said, the Magistrates' Court will very often conclude that a breach of a Crown Court suspended sentence should be committed to the Crown Court.
14.
What then of the substantive offence that constitutes the breach? Good sentencing practice requires that all matters should normally be dealt with together, perhaps particularly so, where the relevant breach of a suspended sentence is a fresh offence. In this case the committal of the breach is in conformity with Schedule 12 of the 2003 Act but the underlying power to commit is that laid down in section 6(1) of the Powers of Criminal Courts (Sentencing) Act 2000, the committal being under or consistent with paragraph 11 subparagraph 2 of Schedule 12, which is one of the enactments recited in section 6(4) of the 2000 Act. Thus the breach is, without more, committed by way of section 6(1).
15.
The wording of section 6(1) may be important. The subsection reads as follows:
"This section applies where a magistrates’ court ('the committing court') commits a person in custody or on bail to the Crown Court under any enactment mentioned in subsection (4) below to be sentenced or otherwise dealt with in respect of an offence ('the relevant offence')."
16.
It might be argued that "the relevant offence" may also comprise the substantive offence which constitutes the breach, in addition to the breach itself which is of course a separate criminal offence and which will be sentenced separately. Unless "the relevant offence" is the substantive offence, the latter cannot be committed under section 6(1).
17.
Subsection (2) of the Act reads as follows:
"Where this section applies and the relevant offence is an indictable offence, the committing court may also commit the offender, in custody or on bail as the case may require, to the Crown Court to be dealt with in respect of any other offence whatsoever in respect of which the committing court has power to deal with him (being an offence of which he has been convicted by that or any other court)."
18.
This is certainly apt to catch any unrelated offence which should be dealt with at the same time. If the substantive crime which breaches the suspended sentence does not constitute all of or part of the "relevant offence" under section 6(1), then section 6(2) would be apt to catch the substantive offence also; ie section 6(2) would be an appropriate route for committal of that substantive offence alongside the breach.
19.
Why does all this matter? The answer is because of the potential limits of sentencing powers arising from different committal routes.
20.
Section 7 of the Powers of Criminal Courts (Sentencing) Act 2000 limits the powers of sentencing in the Crown Court where the committal has been by way of section 6 of the Act. Section 7(1) reads as follows:
"Where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence."
It follows that, without more, a committal pursuant to section 6(1) or 6(2) will attract the limits of sentencing powers which apply to the Magistrates' Court dealing with that offence.
21.
However, that position is altered or qualified by the provisions of section 7(2) which read as follows:
"Subsection (1) above does not apply where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the powers under [paragraphs 8 and 9 of Schedule 12 to the Criminal Justice Act 2003] (power of court to deal with suspended sentence) shall be exercisable by the Crown Court."
22.
Because of the abrogation of the limit of sentencing powers derived from section 7(2), there is no difficulty in respect of the breach of a suspended sentence. The breach, in the pure sense, must be covered by the phrase "in respect of a suspended sentence" which is laid down in paragraph 7(2). Thus, in respect of the suspended sentence breach, it must be that the Crown Court has the powers of sentence, set out in paragraph 8 and 9 of Schedule 12 of the 2003 Act. Those powers mean that the Crown Court is not limited to the sentencing powers of the Magistrates' Court, at least in respect of the strict offence of breaching the suspended sentence. However, the matter may be less clear in respect of the substantive offence
. The legislation does not say that section 6(1) is disapplied in respect of "the relevant offence", much less "any offence which constitutes a breach of a suspended sentence".
23.
It may be possible that section 7(2) means that where a person is committed to be dealt with by the Crown Court in respect of a suspended sentence, then the Crown Court has untrammelled powers of sentence subject to the schedule to the 2000 Act in respect of all matters committed to the court. That would seem doubtful given the explicit reference to paragraphs 8 and 9 of Schedule 12 and powers contained therein which, on the face of it, are only really relevant to the breach problem. It follows that it may well be the case, absent a committal pursuant to section 3 of the 2000 Act, that section 7(1) is only disapplied in relation to the Crown Court powers on the breach proper of the suspended sentence and not in relation to the substantive offence which constitutes the breach, even where that is committed to the Crown Court at the same time as the breach of the suspended sentence.
24.
This analysis has not been fully addressed by either side in this case. It will require careful thought and written submissions before a satisfactory answer can be reached.
25.
There is one clear route by which the difficulty could be avoided. Sections 3(1) and 3(2) of the Powers of Criminal Courts (Sentencing) Act 2000 read as follows:
"(1) Subject to subsection (4) below, this section applies where on the summary trial of an offence triable either way a person aged 18 or over is convicted of the offence.
(2) If the court is of the opinion—
(a) that the offence or the combination of the offence and one or more offences associated with it was so serious that greater punishment should be inflicted for the offence than the court has power to impose ...
[the Crown Court should, in the court's opinion, have the power to deal with the offender in any way to do with him as if he had been convicted on indictment] the court may commit the offender in custody or on bail to the Crown Court for sentence in accordance with section 5(1) below."
Section 5(1) gives the Crown Court in circumstances of a section 3 committal full powers of sentence.
26.
We have already observed that any Magistrates' Court is likely to commit an offender who has breached a Crown Court suspended sentence by the commission of a further offence. If, at the same time, the Magistrates' Court were to consider that the gravity of the substantive offence which constitutes the breach, and/or the gravity of that offence taken with any other associated matters, was such as to satisfy the test in section 3(2), then those offences should be committed pursuant to section 3 rather than section 6.
27.
Returning to the facts of this case: it is conceded by all parties that it cannot properly have been committed by paragraph 8(6) of Schedule 12. The sensible and helpful remarks made in the course of looking at the file by the Deputy Justice's clerk for South Somerset and Mendip, lead directly, in our view, to the conclusion that the true basis of the committal here was pursuant to section 6 of the Act. It follows that unless the analysis we have indicated may be possible is correct, the powers of the Crown Court were limited in that case to those of the magistrates and the judge in sentencing this appellant to 9 months' imprisonment for the substantive offence of theft was acting beyond the powers he had. We reach that conclusion with no hint of criticism towards the learned judge. As will already be evident from this judgment, the tortuous route and the difficulty of following it in this case is obvious.
28.
As to the argument on the merits, accepting a limit on the sentence here mirrors the merits of the case in our view. The complaint of disparity between a community penalty passed on the co-accused and a 9 month substantive sentence passed on this offender, in our view, means that disparity was real. There is a valid argument that the sentence was excessive irrespective of the limitation on sentencing powers.
29.
This offender was equally culpable with his co-accused but he cannot have been regarded as more culpable than his co-accused. It seems inconceivable that had the magistrates expressly considered this offence of theft against the criteria under section 3, they could not have been satisfied with their powers of sentence and that is because the role of the two in the offending was very similar.
30.
Having considered the matter with the merits in mind, as well as the limitation in sentence, it seems to us that the proper course is to quash the sentence of 9 months' imprisonment and substitute a sentence of 4 months' imprisonment, reflecting the plea of guilty and beginning at the starting point of the Magistrates' Court sentencing powers. That will be served consecutively to the 6 months passed by the learned judge in respect of the breach, making a total of 10 months' imprisonment. As we understand it, 112 days have been served and they will count towards the total 10 months' imprisonment in the case.
31.
To that extent, this appeal succeeds. | [
"MR JUSTICE IRWIN",
"MRS JUSTICE NICOLA DAVIES DBE"
] | 2012_08_24-3036.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1939/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1939 | 821 |
c9c0d1bc2a74a3309c7440e8c8017d6868e42653693d17ef8534d3d59ae3bf4a | [2010] EWCA Crim 1504 | EWCA_Crim_1504 | 2010-07-01 | crown_court | Neutral Citation Number: [2010] EWCA Crim 1504 Case No: 200904463 A8 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN HIS HONOUR JUDGE ANSELL T20087595 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/07/2010 Before: THE RIGHT HONOURABLE LORD JUSTICE AIKENS THE HONOURABLE MRS JUSTICE SLADE DBE and HIS HONOUR JUDGE WADSWORTH QC - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - AYUB LASHARI Appellant - - - | Neutral Citation Number:
[2010] EWCA Crim 1504
Case No:
200904463 A8
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
HIS HONOUR JUDGE ANSELL
T20087595
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/07/2010
Before:
THE RIGHT HONOURABLE LORD JUSTICE AIKENS
THE HONOURABLE MRS JUSTICE SLADE DBE
and
HIS HONOUR JUDGE WADSWORTH QC
- - - - - - - - - - - - - - - - - - - - -
Between:
R
Respondent
- and -
AYUB LASHARI
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Orlando Pownall QC
(instructed by
JD Spicer & Co.
) for the
Appellant
Barry Gregory
(instructed by
Wood Green Trials Unit
) for the
Respondent
Hearing dates: 14
th
May 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Honourable Mrs Justice Slade:
1.
On 26 June 2009 at the Crown Court at Wood Green the appellant pleaded guilty to possession of a prohibited firearm
contrary to
Section 5(1)
(aba) of the
Firearms Act 1968
and on 16 July 2009 he was sentenced by His Honour Judge Ansell to five years imprisonment. This is the minimum term for that offence provided by
Section 51A
of that Act unless exceptional circumstances are established.
2.
The appellant appeals against sentence. Leave to appeal was granted on 16
th
February 2010 by a different constitution of the full court after refusal by the single judge.
3.
At the conclusion of the hearing before us we dismissed the appeal and reserved our reasons which we now give.
FACTS
4.
The relevant facts are set out in the judgment of the Court of Appeal when granting leave to appeal on 16
th
February 2010. We set these out below.
5.
The essential facts are that on 5th August 2008, a mechanic who had conducted an MOT test of the appellant’s car informed the police that there was a firearm of some description in the boot of the car. The following day police officers attended at the appellant’s home address. The car was searched and a SAPL 12 bore single shot pistol and cartridges were found. They were concealed in the bag of the storage compartment of the boot of the car. The pistol was in working order and the cartridges were capable of causing fatal injuries.
6.
The appellant was arrested and interviewed. He said the car belonged to his brother but he had the only set of keys for it and nobody else used it. His explanation for having the handgun was that a few weeks earlier he had visited a supermarket. He parked in the bay on the basement floor. When he returned from shopping he found a bag in the corner by the wall. He said he found another bag underneath which he opened and found what looked like a gun. He said he put the bag in the boot of the car because he panicked when others wanted to use the parking space. He said his mind was elsewhere in the following days and weeks, due to other matters, and he forgot about the gun. He was never aware that the item was a lethal firearm. He had decided he should arrange for it to be handed to the police as the best way of disposing of it, but that he himself was fearful of doing so. He was a Muslim and unsure how the police would react to he himself bringing the item to the police station.
7.
The interview with the police on 6
th
August 2008 formed the basis of the appellant’s plea.
SENTENCE
8.
Before sentencing, the judge heard evidence from the appellant. The judge found that the appellant came from a respectable family and had an impeccable background. But he also found that although the weapon might be manufactured as a non lethal weapon, it was a very dangerous one because tests had shown that it had the potential to cause serious injury.
9.
The judge was not persuaded by the account given by the appellant:
“I'm afraid I do not find it [the appellant’s account] to be in any way a convincing version of events.”
Later in his sentencing remarks the judge said:
“...I do not find that a convincing story at all I'm afraid and you have in no way satisfied me that on that particular feature you are telling the truth...”
10.
The judge thought that it was more likely that the appellant was keeping the weapon for someone else although he did not make a specific finding on that. He continued:
“As I have indicated already I do not accept those circumstances.”
11.
The judge then addressed the range of mitigating factors advanced on behalf of the appellant and concluded that there were no exceptional circumstances and therefore the minimum term had to be imposed.
ANTECEDENTS
12.
The appellant is 48 years of age and was of previous good character. He has six children and had worked as a driving instructor.
Four character references were
before the court. The appellant comes from a distinguished Iranian family and has helped in a community charity. Prison reports of the courses which the appellant has been undertaking were also before us.
GROUNDS OF APPEAL
13.
Section 51A of the Firearms Act 1968
was inserted by
section 287 of the Criminal Justice Act 2003
. Section 51A(2) provides that if a person is convicted of an offence under
section 5
(1(aba) (amongst other offences) the court shall impose an “appropriate custodial sentence” for a term of at least the required minimum term “…unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so”. Section 51A(4) states that the appropriate custodial sentence for an offender over 18 when convicted is a sentence of imprisonment. Section 51A(5)(a) stipulates that the “required minimum term” in such a case is one of 5 years. Therefore the judge was obliged to sentence the appellant to a term of imprisonment of at least 5 years unless the judge found “exceptional circumstances” within section 51A(2).
14.
Before us Mr Pownall Q.C. on behalf of the appellant eloquently and succinctly submitted that the learned judge misdirected himself in law. He contended that that the judge applied the wrong burden and standard of proof when deciding the factual basis for determining whether there were “exceptional circumstances” justifying passing a lesser sentence than the mandatory five year term. Mr Pownall submitted that in deciding whether the relevant facts amounted to ‘exceptional circumstances’ within the meaning of Section 51A(2), a judge must either accept the account given by the defendant as to the facts or circumstances of the offence or determine whether it has been disproved by the prosecution. On hearing evidence of the facts or circumstances of the offence, the burden of proof is on the prosecution to disprove the defendant’s account to the criminal standard. Mr Pownall relied upon
R v Ahmed
[1985] 80 Cr App R 295
and
R v Guppy
[1995] 16 Cr App R(S) 25
15.
Circumstances in which there is no obligation on the court to hear evidence in order to resolve a factual dispute between the prosecution and the defence and in respect of which the defence bears the burden of proof to a civil standard were listed by Mr Pownall in his written Supplementary Submissions which were before us. These include:
“Where the matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining the background of the offence or other circumstances which may lessen the sentence.”
16.
Mr Pownall contended that the account of how the appellant came to be in possession of and retained the gun and ammunition was not extraneous material and went to ‘the facts or circumstances of the offence itself’. He submitted that it appears from passages in the sentencing remarks that the learned judge applied the civil standard of proof to determine whether the appellant’s account was to be accepted. The judge having applied the wrong standard of proof, Mr Pownall submitted that there remains uncertainty as to the factual basis for sentence and that when taken together with the other mitigating features of the case ‘exceptional circumstances’ are made out.
17.
Mr Pownall advanced a separate ground of appeal that the energy produced by the firearm was less than that of an air pistol which may be lawfully possessed which constituted a compelling mitigating circumstance.
PROSECUTION SUBMISSIONS
18.
Mr Gregory for the prosecution referred to the case of
R v Rehman and Wood
[2006] 1 Cr App R (S) 77
,
[2005] EWCA Crim 2056
in which Lord Woolf CJ set out a number of principles to be applied in the correct construction of ‘exceptional circumstances’ within the meaning of
Section 51A(2) of the Firearms Act 1968
. It was necessary to look at the case as a whole. When reading
Section 51A
in the light of the
Human Rights Act 1998 section 3
, the circumstances would be exceptional if it would mean that to impose the minimum sentence would result in an arbitrary and disproportionate sentence. In
R v Jordan
[2004] EWCA Crim 3291
it was said that cases of exceptional circumstances within the meaning of Section 51A(2) were rare.
19.
Mr Gregory contended that the sentencing judge was entitled not to accept the Appellant’s evidence as to how he came to be in possession of the weapon and to conclude that there were no exceptional circumstances in his case.
DISCUSSION
20.
The appellant was guilty of an offence under
section 5(1)
(aba) of the
Firearms Act 1968
. As noted above, section 51A(2) provides that the court shall impose a sentence of imprisonment of at least five years:
“unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it in not doing so.”
21.
The issue in this appeal is whether the learned judge adopted the wrong burden and standard of proof in deciding whether the appellant’s account of how he came to be in possession of the gun was to be rejected. Those facts were relevant to the decision whether the appellant had established exceptional circumstances within the meaning of Section 51A(2). Mr Pownall rightly recognised that the decision of the learned judge that there were no exceptional circumstances justifying imposition of less than the minimum term of imprisonment could not sensibly be characterised as irrational. He acknowledged that the Court of Appeal would not readily interfere with the conclusion of the sentencing judge as to whether such exceptional circumstances were present. In
R v Rehman and Wood
Lord Woolf giving the judgment of the court at paragraph 14 observed of Section 51A(2):
“The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere.”
22.
The credibility of the account given by the appellant as to how he came to be in possession of and retained the gun formed an important basis for the assessment by the judge of whether “exceptional circumstances” within the meaning of Section 51A(2) had been established. By reason of the terms in which he expressed himself which we have set out above it seems to us that Mr Pownall is correct in his submission that the learned judge assumed that there was a burden of proof upon the defence (to the civil standard) to demonstrate that the appellant’s account of how he came to have the gun was to be believed.
23.
The Court of Appeal in
R v Guppy and
Marsh
[1995] 16 Cr App R(S) 25 held that:
“…in relation to extraneous matters of mitigation raised by a defendant or appellant, a civil burden of proof rests on the defendant or appellant…”
24.
The exchange between the judge and Mr Gregory during the prosecution opening of the facts makes it clear that the prosecution did not accept the explanation advanced by the appellant. (Transcript p8H, 9A). In our judgment those facts could not properly be categorised as extraneous mitigation. They were directly related to the circumstances of the offence itself and were facts that were directly relevant to the sentence for the offence committed by the appellant.
25.
In determining the correct approach to disputed issues of fact relevant to sentence, the Court of Appeal in
R v Ahmed (Nabil)
[1985] 80 Cr App R 295
referred to ‘the broad principle, which is so clearly recognised in
Newton
(R v Newton [1983] 77 Cr. App. R 13) that the accused should be given the benefit of the doubt’. The Court in
Ahmed
held:
“The accused is given the benefit of the doubt (if there is one) by the necessity for the Crown Court to direct itself (or any jury) that the accused’s account must be accepted unless that court is sure that it is untrue.”
26.
The learned sentencing judge should have applied this approach to the question of whether or not the appellant’s account of how he came to possess the gun was to be accepted. The judge should therefore have applied the criminal standard of proof and asked whether the Crown had proved that the version of events put forward by the appellant did not occur. If the Crown had not satisfied that burden of proof to the criminal standard the judge must accept the appellant’s version of events. On a fair reading of his sentencing remarks, the learned judge did not follow this approach in determining this factual issue. Accordingly in our judgment the learned judge misdirected himself in law.
27.
As for the supplementary submission, in our view any facts concerning the level of energy produced by the firearm would not have affected the assessment by the learned judge as to whether there were “exceptional circumstances” justifying the imposition of a lesser sentence in this case.
28.
However, although we have concluded that the judge erred in his approach to the question of whether he had to accept or could reject the account given by the appellant of the circumstances in which he came into and retained possession of the gun, we have concluded that this does not affect the ultimate conclusion that the judge reached, that there were no “exceptional circumstances” in this case. Even if the version of events advanced by the appellant were true or might have been true, in our view it does not follow that, looking at the facts overall, there were “exceptional circumstances” in this case. The fact remains that the appellant had in his possession, in the boot of his car, a gun to which
section 5(1)
(aba) of the
Firearms Act 1968
applied. The appellant had deliberately put it there and kept it there. Accordingly this appeal was dismissed. | [
"THE RIGHT HONOURABLE LORD JUSTICE AIKENS",
"HIS HONOUR JUDGE WADSWORTH QC"
] | 2010_07_01-2433.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1504/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1504 | 822 |
c40b1e96eb27f1e0bc047b2b61a8ebc0eaa1d6ad4458cdb21af45f5f910589c7 | [2009] EWCA Crim 217 | EWCA_Crim_217 | 2009-02-20 | supreme_court | Neutral Citation Number: [2009] EWCA Crim 217 Case No: 200804120 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT RECORDER DAVIES Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/02/2009 Before : LORD JUSTICE PILL MR JUSTICE MADDISON and MR JUSTICE HAMBLEN - - - - - - - - - - - - - - - - - - - - - Between : Trafalgar Leisure Limited Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2009] EWCA Crim 217
Case No:
200804120
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT
RECORDER DAVIES
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/02/2009
Before :
LORD JUSTICE PILL
MR JUSTICE MADDISON
and
MR JUSTICE HAMBLEN
- - - - - - - - - - - - - - - - - - - - -
Between :
Trafalgar Leisure Limited
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Goldberg QC (instructed by Michael Henderson) for the Appellant
Mr R Bloomfield
(instructed by
Newcastle-upon-Tyne City Council, Legal Services Dept
) for the Respondent
Hearing date : 22 January 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill :
1.
On 26 June 2008, in the Crown Court at Newcastle-upon-Tyne before Miss Recorder Davies and a jury, Trafalgar Leisure Limited (“the company”) was convicted, on count 2 of an indictment, of failure to control or prevent the escape of waste contrary to
sections 34(1)(b)
and
34(6)
of the
Environmental Protection Act 1990
(“
the 1990 Act
”). On the following day, the company was given a conditional discharge for a period of 12 months. There was no order as to costs. The company was acquitted of unlawfully depositing controlled waste contrary to
sections 33(1)(a)
and
33(6)
of
the 1990 Act
(count 1).
2.
The company appeals against conviction by leave of the single judge.
3.
The Blackett Arms public house, at Nelson Street, Newcastle-upon-Tyne, was operated by the company. It dealt with its waste by hiring a large green bin which was kept on the street. The company had a contract with Durham Waste Management to empty the bin weekly and dispose of the waste.
4.
At 9.30 am on 26 September 2007, a local authority enforcement officer, Mr Elliott, when on patrol in the area, saw the green bin. On the pavement next to it were 21 bags of rubbish and cardboard boxes. A purple bin was also nearby the ownership and use of which has not been established. The Blackett Arms is situated near an entrance to the Grainger Market where stallholders trade in a variety of products.
5.
Mr Elliott examined the contents of the bags. Many contained material, such as bottles and cans, and indeed till receipts from the public house, which had clearly come from the Blackett Arms. Mr Elliott did not look inside the green bin. He had the bags removed and destroyed. He did not enter the public house or make contact with its staff.
6.
On the same day, Mr Elliott wrote to the company’s head office requiring an explanation for the offending behaviour. No reply was received. On 16 October, he again wrote to inform the company that it had been reported for offences under
the 1990 Act
and stated that any representations should be addressed to him within seven days of receipt of the letter. Six days after the letter was sent, proceedings were commenced.
7.
Section 33(1)(a)
of
the 1990 Act
provides that a person shall not:
“Deposit controlled waste or knowingly cause or knowingly permit controlled waste to be deposited in or on land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence.”
Section 33(6)
provides:
“A person who contravenes sub-section (1) above . . . commits an offence.”
8.
Section 34(1)
of
the 1990 Act
provides:
“. . . it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances –
(a)
To prevent any contravention by any other person of
section 33
above;
. . .
(b)
To prevent the escape of the waste from his control or that of any other person;
. . .”
Section 34(6)
provides that any person who fails to comply with the duty imposed by sub-section (1) commits an offence.
9.
Sub-
sections 34(7)
and (10) provide:
“The Secretary of State shall, after consultation with such persons or bodies as appear to him representative of the interests concerned, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by sub-section (1) above.
. . .
A code of practice issued under sub-section (7) above shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”
10.
It was conceded that
sections 33
and
34
applied to the Blackett Arms as commercial property, that controlled waste was present on land at Nelson Street, and that a Waste Management Licence authorising the deposit was not in force. The prosecution strongly argued for a conviction on count 1. They contended that the staff of the Blackett Arms, employees of the company, put the bags and cardboard on the pavement outside the public house. The circumstances were such that there was clearly a case to answer on count 1. It was possible to infer, depending on the jury’s view of the evidence, that the bags had been deposited on the pavement in that way. Witnesses were called on behalf of the company. The jury acquitted on that count.
11.
At the close of the prosecution case, Mr Goldberg QC, who appeared for the company at the trial as he has before this court, submitted that there was no case to answer on count 2. It arose only upon an acquittal on count 1. The prosecution case on count 2, inconsistent with that on count 1, had to be that other persons had removed the pub waste from the green bin, probably to put their own waste in it. That was the only feasible alternative explanation in the circumstances. The case on count 2 was put on the sole ground that the green bin should have been kept locked so that no waste could be removed from it. It was alleged that by failing to lock the bin, the company had failed to take all such measures as were reasonable in the circumstances to prevent the escape of the waste from its control, contrary to
section 34(1)(b)
.
12.
Mr Goldberg submits that, on that case, the company should have been charged under
section 34(1)(a)
, that is failure to take reasonable measures to prevent other persons from depositing controlled waste by removing it from the bin, and that prosecution under
section 34(1)(b)
was misconceived. The word ‘escape’ means an involuntary act, such as leakage, and not a deliberate dumping by a third party, it is submitted. It is further submitted that, in any event, there was no evidence on which a jury could properly convict of an offence under
section 34(1)(b)
.
13.
On count 2, the evidence of Mr Elliott did not assist the prosecution. The only potential evidence was in a letter written by the company’s managing director on 10 October 2007, though not received by the prosecution until 2 November 2007. It was conceded that the contents of the bags “most likely originated from the [company’s] premises”. The letter continued:
“After receiving your letter we have investigated this matter thoroughly with our staff at the premises, the manageress has confirmed that she has had problems with our bin since the redevelopment of Eldon Square started and the Grainger Market stall holders lost their waste disposal facility which was replaced by a restricted bag collection from their stalls. This has led to rubbish being dumped beside our bin and rubbish pulled out of our bin and dumped on the ground to make room for other persons rubbish in the bin.
Our Manageress has complained to the market inspector about this on more than one occasion and the complaints have been prior to your letter of 26
th
September 2007. Clearly as the Grainger Market is both owned and controlled by Newcastle City Council it should not be too difficult for you to verify these problems.”
Thus there was evidence of previous problems which could conceivably have permitted a conclusion that the bin should have been kept locked.
14.
When cross-examined about the letter, Mr Elliott, rejected the reliability of that evidence on behalf of the company. When asked why he had not made an enquiry of the market inspector on receipt of the letter, Mr Elliott said, as summarised by the Recorder in her summing up:
“He did not regard it as one of his jobs to investigate it any further and that he was quite sure that if there had been a problem in the market, the market inspector would have rung him and told him. It was, in a nut-shell, as he put it: ‘It was my view that the bags that were (?) taken were for the public house and not for anywhere else, and I wasn’t prepared to do any more investigating.’”
15.
In submitting that count 2, if it was to be pursued, was pursued under the wrong paragraph in
section 34(1)(b)
, Mr Goldberg relied, and relies in this court, on the decision of the Divisional Court in
Gateway Professional Services (Management) Limited v Kingston-upon-Hull City Council
[2004] EWHC (Admin) 597
.
16.
The company in that case was charged under
section 34(1)(b)
when one of its employees had deposited a number of black bags containing commercial office waste at premises adjoining the company’s own premises. The defence submission was that the word “escape” in
section 34(1)(b)
was not apt to denote a deliberate act of depositing waste. Laws LJ, with whom Eady J agreed, stated at paragraph 11:
“However, it would be close to unthinkable, in my judgment, if the negligent spillage of waste on to a neighbour's property were prohibited with criminal sanctions but its being deliberately deposited there were not. If that had been the apparent position, it might be open to the court to construe the term "escape" in
section 34(1)(b)
sufficiently widely so as to cover an act of deliberate dumping by the person charged. But in my judgment such a case is already covered and plainly covered by
section 33(1)(a)
.”
17.
Laws LJ added, at paragraph 12:
“Where the environmental wrong is constituted by an act of deliberate dumping of waste, it would seem to be covered by
section 33(1)(a)
. This company was not prosecuted under that sub-section, nor under
section 34(1)(a)
which . . . requires a person (such as this company) to take reasonable measures to prevent any contravention of another by
section 33
.” (sic)
. . .
“The word ‘escape’ cannot be read as widely as [the prosecution] would have it read.”
18.
That approach to the meaning of the word ‘escape’ was followed on a prosecution appeal by way of case stated in
London Borough of Camden v Mortgage Times Group Limited
[2006] EWHC (Admin) 1615
, also a decision of the Divisional Court. Controlled waste had deliberately been deposited in the public highway. Latham LJ, with whom McCombe J agreed, stated, at paragraph 7:
“. . . Depositing waste on the highway cannot be any different from depositing it on neighbouring land for the purpose of determining whether there had been an ‘escape’.”
19.
Latham LJ added at paragraph 8:
“However Mr Lewis, on behalf of the [prosecution] has submitted to us that the justices had not been asked to determine the relevant question. He points out that
section 34
of the Act imposes a duty to take reasonable measures to prevent, in the present case, the escape of waste. It is the failure to take such reasonable steps which constitutes the offence. An escape is not a prerequisite of liability. The true case, he submits, against the respondent was that by depositing the waste on the highway a significant period of time before collection was due to take place, it had materially increased the risk of an escape of that waste, and had accordingly failed to take reasonable measures to prevent that escape.”
“The offence under
section 34(6)
is the failure to take reasonable measures as required by the duty imposed under
section 34(1)
. The prosecution does not have to establish that an "escape" has taken place. It has to establish that there has been a failure to exercise the statutory duty of care.”
The appeal was, however, dismissed because the case had not been presented to the magistrates in that way.
20.
Though the narrow construction of the word ‘escape’ in
section 34(1)(b)
was not challenged, the court accepted that a conviction under the paragraph could properly be obtained in the absence of an escape by reason of a deposit of waste at such a time which materially increased the risk of its escape. That was no part of the prosecution case on count 2 in the present case, the alternative case, upon a failure on count 1, being based solely on a deliberate removal by third parties following a failure to lock the bin.
21.
On that alternative case, the appropriate charge, in our judgment, would, on the evidence, have been under
section 34(1)(a)
. The failure to lock was, on the facts, a failure to prevent other persons depositing controlled waste, contrary to
section 33
.
22.
However, we acknowledge the difficulty the prosecution may face in deciding under which paragraph to frame the charge in circumstances such as the present. The Secretary of State issued a Code of Practice under
section 34(7)
of
the 1990 Act
. It was entitled “Waste Management the Duty of Care”. Under the heading “Keep the waste safely” it was stated:
“2.1
All waste holders must act to keep waste safe against:-
(a)
corrosion or wear of water containers;
(b)
accidental spilling or leaking or inadvertent leaching from waste unprotected from rainfall;
(c)
accident or weather breaking open contained waste and allowing it to escape;
(d)
waste blowing away or falling while stored or transported;
(e)
scavenging of waste by vandals, thieves, children, trespassers or animals.”
23.
The first sentence of paragraph 2.2 provides:
“Holders should protect waste against these risks while it is in their possession.”
24.
Under the heading “Waste left for collection”, it is stated, at paragraph 2.7:
“Waste left for collection outside premises should be in containers that are strong and secure enough to resist not only wind and rain but also animal disturbance, especially for food waste. All containers left outside for collection will therefore need to be secured or sealed. For example, drums with lids, bags tied up, skips covered. To minimise the risks, waste should not be left outside for collection longer than is necessary. Waste should only be put out for collection on or near the advertised collection times.”
There is no mention in the Code of locked bins.
25.
Thus the Code contemplates that keeping waste safe against scavenging by trespassers or animals, or (
Mortgage Times
) the possibility of such scavenging, may amount to a failure to take reasonable measures under
section 34(1)
. The removal and depositing of the waste could be by some other person (paragraph (a) of
section 34(1)
) or it could be by accident, the weather or scavenging by animals, in which case paragraph (a) would not apply and resort to paragraph (b) of the section would be necessary. There may be cases in which the evidence available to the prosecution requires that an offence is charged under paragraph (b) instead of, or as well as, a charge under paragraph (a).
26.
In circumstances such as the prosecution’s alternative case, we would expect the charge normally to be under paragraph (a) of
section 34(1)
but a charge under paragraph (b) may also be appropriate so that both the possibility of removal by human hand and removal in other ways contemplated in paragraph 2.1 of the Code of Practice are covered.
27.
In the present case, the alternative prosecution case (count 2) depended, in the event, solely on the contents of the letter of 10 October. Not only was the count based on facts which involved a rejection of the prosecution’s main case (count 1) but the only evidence which potentially supported it, the contents of the letter, was robustly rejected by the council’s enforcement officer.
28.
The Recorder should have directed a verdict of not guilty on count 2 at the close of the prosecution case. On the jury’s acquittal on count 1, a case could arise on count 2 only on the assumption that the company’s employees had put the rubbish in the green bin. On the evidence at the close of the prosecution case, there was nothing to suggest a failure to take reasonable measures to prevent the escape of the waste from the bin. On that evidence, the same result would have followed if the charge had been under
section 34(1)(a)
.
29.
The verdict on count 2 is unsafe by reason of the failure to stop the case. On count 1, the company was virtually obliged to call evidence to defeat the inference, which almost certainly would otherwise have made, of depositing by their employees. The jury’s attention should thereafter have been confined to count 1. There was a danger that in calling evidence to defeat count 1, a case could be created for the prosecution on count 2. It was unfair to proceed on count 2 and the conviction on that count is unsafe.
30.
That is sufficient to dispose of the appeal but we consider the subsequent events because we share the Recorder’s concern about the way the case was conducted by the prosecution. Criticism was made at the trial of the failure by the enforcement officer to make enquiries of the staff when he saw the rubbish on the morning of 26
th
September (the day on which the green bin was due to be emptied), especially given the absence of evidence of any previous convictions or complaints, and given the good character and excellent reputation of the company’s employees at the public house, including the manageress, as to which evidence was called. His explanation, as summarised by the Recorder, was that he knew or assumed that the manageress was not a director of the company or holder of the waste management licence, an unsatisfactory explanation in our view.
31.
The Recorder stated, when summing up:
“The Defence have also suggested, and you may think, that the prosecution was swift, to say the least, that the tone of the letter, you might think, the tone of the letter was peremptory and unreasonable, and the Defence suggest, you may think, that as a response to a single occurrence the Prosecution, coming so very rapidly upon a letter in terms (inaudible), is quite disproportionate.”
32.
However, in the next paragraph, the Recorder rightly added:
“Members of the jury, you should put such thoughts as those to one side, because they are not relevant to the question has the Prosecution proved its case on one or other of these counts?”
33.
In her ruling refusing costs to the prosecution, the Recorder stated, amongst other things:
“Fourthly, this Prosecution was, in my view, clearly unnecessary. A warning letter would have achieved the Council’s perfectly proper objective to keep the streets of Newcastle clean without the time and expense entailed in a four day trial.”
. . .
“Fifthly, and furthermore, the Prosecution issued summonses against the company before the Council said they would in their curt and pre-empting letters . . .”
34.
We agree with the Recorder’s remarks. A more measured approach may achieve better results in keeping clean the streets of Newcastle-upon-Tyne.
35.
A further matter, of a different kind, has given us concern in relation to the Recorder’s direction to the jury in her summing up on count 2. There was evidence that of the customers of Durham Waste from whom the company had hired the green bins, about 15% had lockable bins and about 25% of those operating in public houses. Many large respectable companies did not have such bins. On the evidence for the defence, there had been two previous occasions when rubbish from the public house had been taken out of the bin and put on the floor. The manageress said that, on the telephone, she had asked for a lockable bin.
36.
The Recorder correctly and helpfully set out the ingredients of an offence under
section 34(1)(b)
. We commend the care with which the Recorder summarised the evidence and conducted the trial. She added that the sole allegation was that a lock should have been put on the bin, and summarised the case for prosecution and defence. The Recorder then stated:
“It is a matter for you, and take into account also the fact that the application to a dustbin of a lock is not something that anywhere is apparently specifically encouraged or mentioned in the Environmental Protection Act, nor in that jolly lengthy code of practice that you have. So, members of the jury, you set the standard.”
The expression ‘you set the standard as to what is reasonable’ had been used earlier.
37.
In our judgment, a jury required to “set the standard” were entitled to further guidance as to how to do it. This was not a negligence case but a criminal charge. In
R v Adomako
[1995] 1 AC 171
, the nature of the case was quite different, and much more serious. The House of Lords considered the test to be applied by a jury in a case of involuntary manslaughter which involves the jury deciding whether the breach of duty alleged should be characterised as gross negligence. Lord Mackay of Clashfern L.C, at page 187C, stated that the jury would have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care was such that it should be judged criminal. In assessing the meaning of dangerous driving, it has been found expedient to lay down a detailed statutory test to be applied by juries in making their decision (
Road Traffic Act 1988, Section 2A(1)
).
38.
On count 2, given the very limited number of previous incidents which might have alerted the company to the desirability of a lock, and the small percentage of commercial premises, including public houses, with locked bins, the prosecution case that the company was guilty of an offence under 1990 Act was thin. Guidance was required as to how to approach the evidence. There was a danger, for example, that, without guidance, the jury would conclude that, since the bin was unlocked when a lock had been requested, it inevitably followed that the company was guilty. Further, in a case of this kind, the jury should at least have been told that they would have to consider whether the company’s conduct fell below a proper standard to the extent that it should be judged criminal. The jury were not required to consider general standards for rubbish control in Newcastle-upon-Tyne but whether a particular defendant was guilty of a specified criminal offence. However, we have decided to allow the appeal on other grounds, on which we heard fuller argument, and do not propose to rule on whether the lack of guidance would have been fatal to the conviction.
39.
The appeal is allowed and the conviction on count 2 quashed. | [
"LORD JUSTICE PILL",
"MR JUSTICE HAMBLEN"
] | 2009_02_20-1834.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/217/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/217 | 823 |
cc3212d902ae593b5a60c002c5ce4668cb277cdc2cabb7a9a29a7aa9400e8fda | [2007] EWCA Crim 1844 | EWCA_Crim_1844 | 2007-06-29 | crown_court | No: 2004/5575/C2 Neutral Citation Number: [2007] EWCA Crim 1844 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 29 June 2007 B E F O R E: LORD JUSTICE GAGE MR JUSTICE STANLEY BURNTON MR JUSTICE WILKIE - - - - - - - R E G I N A -v- PAUL JAMES MACKIN - - - - - - - - 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 | No:
2004/5575/C2
Neutral Citation Number:
[2007] EWCA Crim 1844
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 29 June 2007
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE STANLEY BURNTON
MR JUSTICE WILKIE
- - - - - - -
R E G I N A
-v-
PAUL JAMES MACKIN
- - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - -
MR M BIRNBAUM QC
appeared on behalf of the APPELLANT
MR R BROWN
appeared on behalf of the CROWN
- - - - - - - -
J U D G M E N T
1.
LORD JUSTICE GAGE: This is a reference by the Criminal Cases Review Commission in respect of a conviction at the Manchester Crown Court on 14th June 1999. On that date the appellant, following a re-trial, was convicted of two counts of wounding with intent to do grievous bodily harm (counts 1 and 2) and three counts of conspiracy to supply drugs: cannabis (count 3), cocaine (count 4) and heroin (count 5). The appellant was sentenced to concurrent terms of imprisonment of seven years for counts 1 and 2, 12 months for count 3, three years for count 4 and a consecutive term of three years for count 5: a total of 10 years' imprisonment. On 31st May 2002 this court refused the appellant's renewed applications for an extension of time, leave to appeal conviction and for a representation order.
2.
The appellant was tried together with a co-accused who was jointly charged with the appellant and convicted of all five counts on the indictment. The co-accused, Alan Colin Simpson, received the same sentences as the appellant.
3.
At trial the prosecution case was simple. It alleged that some time between 11.20 pm and 11.40 pm on Sunday 13th September 1998 Jason Atherton and Rita Curless were attacked as they lay in bed in their house at 18 Vincent Way, Marsh Green, Wigan. These two victims suffered serious stab wounds. They claimed that they had been attacked by two masked men whom Atherton identified as the appellant and Simpson. The case for the appellant and Simpson was that neither had entered 18 Vincent Way and neither had attacked Atherton and Curless. This Reference and appeal arises out of fresh evidence which it is alleged demonstrates that the appellant was not one of those who attacked the two victims on 13th September 1998. The central feature of the fresh evidence is a confession by Simpson that he was one of the men who attacked Atherton and Curless but the other was not the appellant but was a man named Barry Chadwick.
The evidence at trial
4.
Atherton confessed in evidence to being a drug dealer. He said that his suppliers were Simpson and the appellant. In due course he began to get into debt to his suppliers and was persuaded to deal in class A drugs. He said that Simpson and the appellant began to chase him for money which he owed to them arising out of their supply to him of drugs.
5.
There was evidence that on the evening of 13th September 1998 the appellant and Simpson, together with their girlfriends Mandy Henderson and Donna Jones, and other family and friends, were all drinking in the Clubhouse Public House. The Clubhouse was approximately 10 minutes walk from Marsh Green, Wigan, the area where the appellant, Simpson and Atherton all lived. At 10.30 pm last orders were called in the pub but people remained there. At approximately 11.20 pm a fire alarm went off in the pub. The licensee, Margaret Molyneux, asked everyone to leave. Both Simpson and the appellant left at or about that time. Simpson's case was that he had left a little earlier than the appellant.
6.
Atherton's evidence was that he and Curless were in bed in their home that night when he was woken up by two masked men coming into the room. When he woke up one of the men was on top of him. He grabbed at that man and pulled up his mask. He said that he recognised the man as the appellant. He fell onto the floor with the appellant and felt slaps all over his body being delivered by the appellant and another man. Curless intervened and was also attacked. The two men then left. Atherton went to the window and saw them walking along the street. One of the men took off his mask and Atherton was able to recognise him as Simpson. He said he was able to identify him by his build, his hair and by the fact that he walked with a limp.
7.
Atherton said that he did not tell Curless that he recognised the attackers. He initially decided that he would not reveal their identities. He spoke to a neighbour and his aunt immediately after the attack and did not disclose the names of his attackers either to them or to staff at the hospital to which he was taken. The following day he was seen by the police but did not tell them that the appellant was responsible. It was only when he made a witness statement on the day after he had first seen the police that he named the appellant.
8.
Curless said that she knew that Atherton was selling drugs and as a result he left their home. However he returned claiming he had stopped drug dealing. She said he appeared to be frightened and to be in hiding. At one stage she said she had dated Simpson but she did not have a sexual relationship with him.
9.
On 13th September 1998 she said she was woken by a banging noise and by shouts from Atherton. Atherton was on the floor of the bedroom being attacked by two men. She jumped on top of him to protect him and felt blows land on her. The men left and she crawled onto the landing while Atherton called for help from the window. Subsequently, she told the police that the men had worn light-coloured plastic masks. She agreed in evidence that this was incorrect and could not remember why she had said it. On the night of the attack she told the police: "I will tell you the Mackins were involved." However, at no time did she name the appellant in particular or claim to have recognised her attackers.
10.
A number of other witnesses gave evidence at the trial. Margaret Molyneux, the licensee of the public house said that the appellant and Simpson had been drinking on the evening of 13th September 1998. She described what the appellant was wearing and said that it was only at approximately 11.20 pm when the fire alarm went off that people began to leave the public house. A next door neighbour, Tracy Barker, described being disturbed at about 11.20 or 11.25 pm. She saw two men outside her house who had their backs to her and were walking away. She said one was wearing a dark Adidas top with a hood and a band on the arm. The other was wearing a light-coloured top with the hood up. She said they both walked normally and a little later Atherton emerged from his house and spoke to her husband. She telephoned for an ambulance, the call being logged at 11.41 pm.
11.
Another near neighbour, Michael Dean, described hearing shouting on that evening. He saw two men in the street. One was wearing dark clothing and the other was walking in an abnormal fashion.
12.
At interview the appellant denied that he had been involved in drug dealing with Atherton and denied that he had carried out the attack on him and Curless. In evidence he said that he had gone out at about 3.00 pm on 13th September 1998 with members of his family. At about 5.00 pm they moved to the Clubhouse Public House where he continued to drink throughout the evening. His girlfriend, Mandy Henderson, was with him. He said he became drunk and at some stage had an argument with Henderson. He described leaving the public house after the fire alarm had gone off. He left with Henderson and a girl called Clare Bird. The latter was the girlfriend of Barry Chadwick. He described walking home to 38 Sunderland Place where he lived. Clare Bird left him and Henderson at a point where her way home diverged from his. He said that about half an hour after he arrived home he and Henderson went to bed.
13.
He was cross-examined by counsel for Simpson who suggested to him that Simpson had left the Clubhouse about five minutes before the appellant left. It was suggested to him by counsel for the prosecution that at interview he had said he left the Clubhouse at the same time as Simpson. It was suggested to him that he was lying in his denials of drug dealing with Atherton and lying when he said he had not attacked him.
14.
Simpson gave evidence to the effect that he had nothing to do with the attack. He accepted that he had known the appellant for approximately 13 years. He also knew Atherton but did not really mix with him. He described injuring his leg in an accident in 1997 and said he was using crutches at the time of the offences. He said that on 13th September 1998 he went to the Clubhouse with his girlfriend Donna Jones and her cousin. He had not gone there to meet the appellant. However, the two groups spent the evening together. He said that he and Jones left within two minutes of the fire alarm going off. The appellant and his girlfriend were still in the Clubhouse when he left. Simpson said that he did not know what time the appellant left and had learnt of the incident the following day. He said that he spent the night at his home, 33 Kit Green Road, with his girlfriend.
15.
Clare Bird and Donna Jones gave evidence in support of the appellant and Simpson. Mandy Henderson had provided a written witness statement supporting the appellant's version of events on the night of 13th September 1998. However, by the time of the trial she had gone to Spain and with the leave of the judge her witness statement was read to the jury.
16.
A number of other witnesses were called on behalf of the appellant and Simpson. They gave evidence which was peripheral to the main issue in the case.
The CCRC's involvement
17.
In April 2002 the appellant requested the CCRC to review his case. The first application preceded the refusal by the full court of his renewed application for leave. In June 2002 the appellant made a second application to the CCRC. From that time on the CCRC made its enquiries which have resulted in this Reference. Mr Birnbaum QC, who represents the appellant before us, makes the point that a number of matters raised in the Reference resulted from their enquiries and not from complaints or information received from the appellant. In particular, he submits that the CCRC obtained from the appellant's former barrister the allegation made by the appellant that the other man involved with Simpson in the attack was Chadwick. Mr Birnbaum submits that this supports his submission that the appellant had not persuaded others to give evidence in his favour. In other words, there is positive evidence that there was no collusion between the appellant and witnesses whom we have heard.
18.
We do not regard this as a significant point. Whether the appellant's trial advocate first raised this point or not, and we accept that he did, it was clearly something which the applicant was going to mention when he was seen by the CCRC.
19.
In the course of a thorough investigation the CCRC interviewed the appellant and a number of witnesses, all of whom had given evidence at the trial, and obtained information from Jason Atherton (the victim). We shall come to this evidence shortly. In the result, the CCRC concluded that there was no real prospect that the appellant's conviction in respect of drug dealing could be successfully challenged, but it did decide to refer the section 18 convictions to this court. Accordingly, following several directions hearings, this Reference came before this court on the basis of fresh evidence.
20.
The fresh evidence which we have heard consisted of statements and oral evidence from Alan Simpson (the co-defendant), Clare Bird (at the time of the offence and until he died the girlfriend of Barry Chadwick), Donna Jones (at the time of the offences the girlfriend of Alan Simpson), Amanda Henderson (the applicant's girlfriend at the time of the offence) and Jason Atherton (the victim). We shall summarise the evidence of each of these witnesses briefly.
Alan Simpson
21.
He had been released from prison having served his sentence. He accepted that he had been involved in supplying drugs. He agreed that Mackin was his closest friend and partner in drug dealing. He said that each of them had their own customers to whom they supplied drugs. In addition some of those to whom they supplied drugs were customers of both of them. Atherton came into the category of one of his customers. He said he had supplied Atherton with drugs for a period of approximately three months before the incident on 13th September 1998. Atherton became increasingly in debt to him which caused Simpson in turn to run into debt with his suppliers. He could not afford to let the debt run on.
22.
On 13th September 1998 with his girlfriend Donna Jones he went to the Clubhouse Public House. He said that Chadwick was present and the two of them got into conversation. Chadwick told him that Atherton owed him money. The two of them then agreed to visit Atherton and threaten him. He said this occurred when the two of them just happened on that evening to get into conversation. He agreed that Chadwick was not a particular friend of his but was a "hard man" whom he knew from living on the estate.
23.
He described leaving the Clubhouse with Donna Jones and being driven by Chadwick to his mother's house where Donna Jones was dropped off. He and Chadwick then drove to Chadwick's flat where they picked up two balaclava helmets and armed themselves with knives. They then went to 18 Vincent Road and attacked Atherton and Curless. Simpson said that neither of them spoke to Atherton or Curless. He did not see Atherton lift up Chadwick's Balaclava helmet. He agreed that the incident went too far and as a result he decided to leave. He was followed by Chadwick. The two of them walked to Chadwick's car which was parked in Viscount Road. Chadwick drove to his flat, stopping at the point where Comet Road met Kit Green Road. At that point Simpson got out of the car and Chadwick made it clear to him that he (Simpson) must never mention Chadwick's part in the incident. Simpson said he telephoned for a taxi which took him the distance of approximately 500 metres to his home at 33 Kit Green Road. The following morning at about 9 o'clock he went round to 38 Sunderland Place and spoke to the appellant. The appellant agreed to his request to provide him with an alibi for the previous night.
Donna Jones
24.
Donna Jones gave evidence that was completely contrary to her evidence at trial. At trial she had stated that Simpson and she spent the night together at his mother's home, 33 Kit Green Road. She said that she was with Simpson the whole night. She told us that she left the Clubhouse to go to 33 Kit Green Road with Simpson and Chadwick. Chadwick drove her and Simpson to Simpson's home where she was dropped off. She went into the house and went straight to bed. She got up at 4.30 am on the following morning to be at work by 5 o'clock. When she got up, Simpson was in bed with her. At some stage during the night he had come into the bedroom and was wearing the clothes which he had worn that evening, save that his t-shirt was missing.
25.
She said that her witness statement given for the purposes of the trial and her evidence at trial were not the truth. She was only 18 at the time and Simpson had told her what to say in evidence. She said she regretted telling lies at the trial. She had been given immunity from prosecution for perjury in respect of her evidence to the jury. She said that her account given to this court was true and that she was giving evidence because it was "the right thing to do".
Clare Bird
26.
Clare Bird gave much the same evidence as she gave to the court at trial. She said that she left the Clubhouse after the fire alarm had gone off and walked down Marsh Green Road with the appellant and Mandy Henderson. She did not know what had happened to her boyfriend Barry Chadwick, nor where he had gone. She had not been drinking that night as she was six months' pregnant. At the turning to Wessex Road she left the appellant and Henderson. She walked on down the road to Chadwick's flat in Bombay Road. When she got to the flat she did not see Chadwick. She went to bed and when she woke up in the morning Chadwick was in bed with her.
27.
The only new evidence which she gave related to how she got to and from the Clubhouse. She said that on the evening of 13th September 1998 she and Chadwick walked to the Clubhouse. She said she was positive that they did not go by car. She did not know where Chadwick's car was but she believed that probably it was outside the house where they lived. She said that Chadwick never spoke to her about what he had been doing that night and there was nothing to suggest that he had been involved in any violence.
Amanda Henderson
.
28.
Amanda, or Mandy, Henderson gave evidence in accordance with her witness statement dated 23rd September 1998. In short she said she had been with the appellant for the whole period following both of them leaving the Clubhouse with Clare Bird. At the Clubhouse she spent most of the time with the other women who were there. The men were in the front room. She described having an argument with the appellant but said they had made it up before they left the Clubhouse. They left shortly after the fire alarm went off. When they got to 38 Sunderland Place, Mackin's home, they had a few drinks and another row about an ex-boyfriend of hers. They went to bed about half an hour after arriving home. She said the appellant was with her for the whole night and she was unaware of Simpson coming to the house on the following morning.
29.
She was asked why she did not give evidence at trial. She said she was in Spain working as a dancer in a bar in June 1998. She was aware that the trial was to take place but she did not know the date of it. She denied that she had deliberately absented herself from the country in order to avoid giving evidence. She agreed that she was in contact with her mother by telephone. She said that she did not know where she was going to live before she arrived in Spain. She had not told the appellant's solicitors when and where she was going.
Jason Atherton
30.
The final witness who was called, as the court's witness, was Jason Atherton. The substance of his evidence was that he now knew that his identification of the appellant as one of those who attacked him and Curless was mistaken. He said that at the time he gave his evidence he was sure that the man whose balaclava he had raised to the level of the middle of the man's forehead was the appellant. However, subsequently he had come to know that he had made a mistake. His explanation for his knowledge that he had been mistaken was that he had been told by others that the man who attacked him with Simpson was Chadwick. He said that he had heard rumours it was Chadwick, but some six to eight months before he was sent to prison for offences of supplying drugs he was told by Neil Woods that Chadwick had admitted taking part in the attack. Atherton explained that Woods came to see him shortly after he (Woods) had been released from a term of imprisonment. Having been told this by Woods, Atherton said he rang up his brother who confirmed that this was the case. When asked how his brother had known, he said: "Because he knows a lot of people." He denied that he had formed this view as a result of anything he had been told by Mackin. He said that Mackin did not write to him until December 2005.
31.
In answer to questions asked by Mr Birnbaum, he agreed that he knew Chadwick. He said he was not a friend but he knew what he looked like. He agreed that he had confused Chadwick with Mackin as the person who had attacked him. It was suggested to him that he had been influenced by the remark made by Curless shortly after the attack, namely the remark that it was the Mackins who had attacked them. At first he denied that this was so and denied that he had heard this remark. However, on being shown the correspondence from him to Mackin in which he made reference to this remark he accepted that it must have been made. He did not think it had influenced him in any way.
32.
There is no dispute about the legal principles which we should apply. The statutory provisions are contained in
section 23 of the Criminal Appeal Act 1968
, as amended by the
Criminal Appeal Act 1995
. They are as follows:
"(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-
...
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
]
33.
As can be seen from our summary of the evidence, which we have heard
de bene esse
, the appellant is relying on evidence from his co-accused Alan Simpson which represents a complete change from his evidence at trial. At the trial Simpson denied the offence. Before us he accepts that he was one of the two men who attacked Atherton and Curless. He asserts that the other man was Chadwick and not the appellant. Mr Birnbaum QC properly and realistically accepts that what this court has said in a series of cases concerning fresh evidence, namely when fresh evidence consists of one co-defendant exonerating another defendant post-trial, the court will be very cautious before receiving such evidence. In
R v Ditch
(1969) 53 Cr.App.R 627 the court said:
" ... It is obvious from the reasons given in Rowland (supra)
[1994] 7 KB 460
, which I need not repeat, that in the ordinary course of events this court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be so easy for criminals to seek to share out the responsibility so as to get one of them off. On the other hand, there is nothing in the decided cases which in any way affects this court in receiving such evidence in a proper case."
More recently, in
R v Horner
[2004] EWCA Crim. 560
, this court has said at paragraph 18:
"As a general proposition if a friend or relative comes forward after a trial and conviction of the offence and claims to have committed the offence having stood by and allowed the trial to go ahead without imparting that information previously, the appellant in such a case would have a very high hurdle to surmount in persuading the Court that the new witness is giving evidence that is credible."
Finally, we must mention the decision of the Privy Council in
Dial v The State of Trinidad and Tobago
[2005] 1 WLR 1660
. In that case, Lord Brown of Heaton-under-Heywood in a speech giving with which the of the majority agreed said, at paragraph 31:
"In the board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view 'by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict': R v Pendleton
[2002] 1 All ER 524
at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP
[1973] 3 All ER 762
,
[1974] AC 878
at 906, and affirmed by the House in R v Pendleton:
'While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].'
32. That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England - see, for example, R v Hakala
[2002] EWCA Crim. 730
... R v Ishtiaq Ahmed
[2002] EWCA Crim. 2781
... It was neatly expressed by Judge LJ in R v Hakala, at [11] thus:
'However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe'."
]
34.
Mr Birnbaum in his skeleton arguments and in oral submissions summarises the case for the appellant under four main headings. First, he submits that on the evidence it is inherently unlikely that the appellant was on that night involved in the attack on Atherton and Curless. Among the submissions upon which he relies in respect of the evidence is the submission that the appellant left the Clubhouse to walk home with Henderson and Bird having bought a carry-out of beer. He submits that does not have the hallmark of someone who was going on an expedition like this. Secondly, his submits there are what he calls frailties in the identification evidence. By this he means that Atherton's identification of the appellant was made in circumstances which render that identification suspect or at least weak. It was, he submits, a fleeting glance identification at night in the dark by someone who had just woken up and been surprised by the two assailants entering the bedroom. He also submits that the description by Atherton of the way in which he pulled up the balaclava was unlikely. Thirdly, he submits that there are now doubts about Atherton's credibility in view of his evidence to this court. Fourthly, he relies heavily on the evidence to this court of the witnesses Simpson, Jones, Bird and Henderson. His principal general submission on this evidence is that there is no evidence of collusion between the witnesses and Mackin. In the circumstances it would be an incredible coincidence if for no apparent motive all three were now prepared to give perjured evidence to support the appellant's case.
35.
Mr Brown submits that the fresh evidence is firstly not truly new evidence; secondly, none of the witnesses are credible; thirdly, although there may be no direct evidence of collusion between the witnesses it would not be safe to assume that there was no contact or communication between them and Mackin. He points to the evidence of correspondence between Mackin and three of the witnesses.
36.
We have given very careful consideration to the submissions made on behalf of both the appellant and the respondent. So far as Mr Birnbaum's first two main submissions are concerned, these raise arguments which do not involve any new evidence. They are arguments which undoubtedly must have been made by counsel in final speeches to the jury. They were clearly rejected by the jury. We accept of course that they may have some impact in this appeal depending upon our findings in respect of the third and fourth main submissions.
37.
We turn to the third main submission made by Mr Birnbaum which concerns the evidence of Jason Atherton. Despite Mr Birnbaum's submission that his identification of the appellant was weak and that he had now genuinely recanted by saying he had been mistaken, we find Atherton an unsatisfactory witness. He conceded that he had known the appellant for many years having grown up with him. He had seen him frequently before the incident in September 1998. He knew of Chadwick and had been involved in an incident with him not long before the September 1998 incident. But he did not know him as well as he knew the appellant. He said that he had not wanted to name his attackers but had been persuaded to do so to protect his girlfriend. In the circumstances, he would obviously have wanted to name the right men. In one of his earlier letters to Mackin following the incident he described the man who attacked him as having a different build to Chadwick. The evidence shows that Chadwick was six foot tall of medium build and that Mackin was five foot eight inches tall and weighing 15 stone. One of the next door neighbours who saw the two men who had left 18 Vincent Road on the evening of the incident, without the benefit of her spectacles, described them as of similar height and build. Mr Birnbaum relies on the comment in the letter as evidence that Atherton was not being pressured into changing his evidence. In subsequent letters to Mackin relied on by Mr Birnbaum, Atherton described Curless telling the police it was the Mackins who had attacked them. At first he denied hearing this. When reminded of what he had said in the letters he agreed that he had heard the remark, but thought that it had not influenced him in his identification. However, we gained the clear impression from Atherton's evidence and from the tone of some of his letters to Mackin that after he arrived in prison he had been influenced to change his evidence given at trial. A sentence in one letter, after telling Mackin what he would say to his solicitors, contained the following:
"In that statement I will say that I believe I mistakenly identified you as my attacker and now believe that it was Barry Chadwick and also that I must have mistaken your friendship with Simmy as a partnership and my dealings was always done with Simmy and none actually done with you. Is that okay?"
It is significant that not only is Atherton now seeking to exculpate the appellant from being one of his attackers, but also to exculpate him from drug dealing. That evidence is quite inconsistent with his witness statement in which he described paying Simpson and Mackin for drugs and seeing them once or twice a week "when I would get gear". He also described how Mackin in a telephone conversation accused him of stealing some of his gear. This is quite inconsistent with Atherton's evidence to us that he assumed Mackin was Simpson's partner in the drug dealing. It is also an assertion which is inconsistent with evidence that Simpson gave that Mackin was involved with him in drug dealing, albeit they had their own customers.
38.
Put shortly, we have no hesitation in rejecting Atherton's evidence before us and his attempts to exculpate the appellant. We have no doubt that at trial he was telling the truth and his recent evidence that he believes he was mistaken is not genuine. Of course we accept that whether or not his genuine belief that his identification was correct was a matter for the jury to decide. We add that he had no sensible explanation for retracting his evidence at trial as to Mackin's part in the drug dealing with him.
39.
We propose now to turn to the evidence of each of the other witnesses to whom Mr Birnbaum referred in his fourth main submission. As to Simpson, we regard him also as a very unsatisfactory witness. We bear in mind the necessary caution which we need to exercise in relation to evidence given by someone who by his own admission not only gave perjured evidence at his trial but in doing so (if his evidence is now to be believed) saw his closest friend convicted of an offence which he knew he did not commit. It was not until some years later that he confessed to his part in the offence and sought to exonerate the appellant. By his own admission even then he did not tell the full truth to the authorities. Later still, when Chadwick was dead and could not refute the allegations made against him, Simpson apparently made a completely full confession to what had occurred on 13th September 1998 at 18 Vincent Road. For these reasons his credibility starts at a very low level.
40.
There are, however, a number of other reasons for looking sceptically at his version of events as it applies to the appellant. His account of how he arranged to carry out the attack with Chadwick is, in our judgment, inherently unlikely. He did not know Chadwick well. According to him now, the attack resulted from a casual chance conversation with Chadwick that night in the Clubhouse. They then drove in Chadwick's car first to Simpson's mother's home and then to Chadwick's flat to collect balaclavas and knives. Clare Bird, whose evidence both sides accept as truthful, did not see any sign of either of them in the flat when she returned to it. Significantly she said that she and Chadwick walked from the flat that night to the Clubhouse. She thought Chadwick's car was parked outside the flat.
41.
We regard it as inherently unlikely that Simpson would ask Chadwick to help him to threaten Atherton rather than ask the appellant, his closest friend and partner, or at least speak to the appellant about it. We are also of the opinion that it defies belief that Simpson would approach the appellant on the following morning to give him an alibi without first speaking to Chadwick. Despite his evidence of threats made by Chadwick to him about disclosing Chadwick's part in this incident, we do not accept that if Chadwick had been involved Simpson would not at some stage have spoken to him about it. Simpson says he did not. Finally we find his description of being driven by Chadwick on a circuitous route away from 18 Vincent Road as improbable. The car was parked only about 60 metres from Simpson's mother's home. It makes little sense for him to be driven some distance away from where the car was parked and to get a taxi back to 33 Kit Green, a distance of some 500 metres.
42.
In the circumstances, we reject Simpson's evidence in so far as he says that it was Chadwick who took part in the attack on Atherton and Curless. Of course, that does not mean of itself that the appellant was the second man involved in the attack. However, it does substantially undermine the appellant's case in this appeal.
43.
Donna Jones. Mr Birnbaum relies heavily on her evidence. He submits that the strongest point in favour of this appeal is her evidence. He submits that there can be no possible motive for her after all these years, having admitted perjuring herself at the trial doing so again in this court. This is a powerful submission but in our view her evidence had to be seen in the light of our conclusions on the evidence as a whole. We have already given our reasons for not accepting either the evidence to this court of Atherton or Simpson. It follows that we do not accept that Simpson was being truthful about Chadwick's part in the attack. As at trial, Jones' evidence closely follows that of Simpson. She now says, as he says, that she was driven back to 33 Kit Green Road by Chadwick. This could of course be taken as supporting Simpson's evidence that Chadwick took part in the attack, but in our judgment it is not sufficient to overcome the inherent unlikelihood of Simpson recruiting Chadwick for this purpose. Her evidence must also be seen in the light of Bird's evidence that she and Chadwick walked to the Clubhouse.
44.
We accept, as we have been informed, that since the trial Jones has distanced herself from the Marsh Green area and started a new life. She does however have a sister still living in the area. We were told that she was very distressed before giving evidence and wanted to ensure that she did not have contact with Simpson. In our judgment this indicates to us that she was in some fear. On many occasions in her evidence she said she was unable to remember some events about which she was asked. She could not, for instance, remember when it was that Simpson asked her to give him an alibi. Above all, her credibility suffers from the not inconsiderable handicap that at trial she said that although she loved Simpson she would not lie for him. However, the fact is that she did lie for him. In our judgment, for whatever reason, she has not told this court the truth.
45.
Clare Bird. As we have already pointed out, both sides accept that she told the truth at trial and to this court. She said that when she left the Clubhouse with Mackin and Henderson she assumed Chadwick was outside and that they would meet up. Because he was not there she walked with Mackin and Henderson to the junction of Wessex Road, a short distance from the Clubhouse, where they parted. She said Henderson asked her to stay for a drink but she refused. We have already referred to the fact that she said that she and Chadwick had walked to the Clubhouse, something which is inconsistent with Simpson and Jones leaving in Chadwick's car. She also said that Chadwick never spoke to her about what happened on that evening.
46.
Mr Brown, in our view, makes a telling point when he submits that if Chadwick had been involved in the attack it was to be expected that he would at some time discuss with her the question of her providing an alibi for him. She said he did not.
47.
Amanda Henderson. She was a confident and articulate witness. Her evidence followed closely her witness statement made on 23rd September 1998. She was asked to explain why she had not given evidence at trial. She said she had got a job in Spain for six months. She had gone to Spain in May for one week but having been offered a job as a dancer in a club she came back to England for one week before returning to Spain to work. She did not know where she was going to be living until she got back to Spain. She said although she and Mackin had split up, she wanted to give evidence and would have done so had she been in this country. She said that after the incident in September 1998 she went to see Jones. She asked Jones if Simpson had been at home on the night of the attack. Jones was crying and said she could not remember. In evidence to us Jones said she had no recollection of this incident. However Mr Birnbaum points to a statement made by Jones' mother who had some recollection of an occasion when Henderson asked Jones to tell the truth.
48.
The difficulty that we have with Henderson's evidence concerns her absence from England at the time of the trial. Although she told us she wanted to give evidence, she said to the CCRC in April 2003 that she was scared about giving evidence. In a written statement she said in answer to the question why she did not give evidence:
"There were two reasons:
Firstly, Paul and I had rowed and were no longer together by the time his trial came up. Secondly, and more importantly, I knew that even though I was telling the truth, I would not be believed because I was Paul's girlfriend and people would say that I was giving a false account because of that. I believed that I would be given a hard time in the witness box and I was scared of that. I didn't want to go."
She said in evidence that she did not know the date of the trial. She did not inform the appellant that she was going to Spain, nor his solicitors, nor did she inform them where she was. However, when she arrived in Spain she telephoned her mother. She had given her mother's address to the police when she made her witness statement.
49.
In cross-examination of him at trial, the appellant told counsel for the prosecution that Henderson was still his girlfriend. She did know the date of the trial and she was told to come to court. He told the judge, when asked if he knew her whereabouts, that she was in Salou. We find it very difficult to understand why the attendance of this potentially crucial witness was not secured for the trial. Both the appellant and Henderson must have appreciated the importance of her evidence if it was true. Yet we have been given no explanation for her not giving evidence other than that she was in Spain. We regret to say that we find Henderson's assertion that she wanted to give evidence completely at variance with the facts. We do not accept that she wanted to give evidence. In our judgment the only credible explanation for her going to Spain shortly before the trial (the date of which if the appellant's evidence was correct she knew) is that she did not want to give evidence. Further, her explanation to the CCRC that her reluctance to give evidence was due to the fact that she felt she would not be believed and would be given a "hard time in the witness box" is difficult to understand. We are reluctantly driven to the conclusion that the reason she did not want to give evidence was because she did not want to give false evidence. This conclusion obviously affects our assessment of her evidence to us.
50.
Having set out our assessment of the evidence of the witnesses whom we have heard, it is necessary for us to put this evidence in the context of the appellant's evidence at trial. The transcript of his evidence is available and we have carefully read it. We recognise that it is not always easy to get the full flavour of the evidence of a witness by reading a transcript of his or her evidence. Allowing for this, we have nevertheless reached the conclusion that to say the least he was not a straightforward witness. In evidence-in-chief he said that he, Henderson and Bird left after everyone else. In cross-examination by counsel for Simpson he said that Simpson and Jones left a couple of minutes, five minutes, before. He was asked by counsel for the prosecution why he told the police at interview that he walked with Simpson and Jones as far as Wessex Road. It was suggested to him that he had lied to the police. This topic, as it now appears, is not unimportant because it is now suggested on his behalf that all the witnesses agreed that the two groups left separately. In answer to questions to prosecuting counsel, he sought to say that Simpson and Jones were just ahead of him. Of more importance was his evidence about visits to Atherton's home. He was asked about what he was doing at Atherton's home when he visited it with Simpson two months before this incident. He said several times he could not remember. Despite telling the police that he had been there with Simpson, he said he could not remember whom he was with. He was pressed to give an answer to questions about that visit and why in one interview he had referred to a grievance existing between Simpson and Atherton. His answers appear from the transcript to be at best evasive. In the course of those answers he denied being a drug dealer. Simpson has told this court that Mackin was a drug dealer, although Atherton was not one of his customers. Atherton told the jury that the debt he owed in respect of drugs was to both Simpson and the appellant. He also told the jury that Simpson and Mackin had asked him to sell crack cocaine and that Mackin had accused him of "stealing gear".
51.
In the light of our conclusions about Atherton's evidence to us and what Simpson told us about Mackin's drug dealings, we are quite confident that Mackin's evasive replies on this topic at trial were lies designed to cover up his drug dealing. Unsurprisingly, he was convicted of the three counts of conspiracy to supply drugs.
52.
This conclusion reinforces our assessment of the fresh evidence which we have heard. So far from Atherton's identification of the appellant as one of his assailants being weak, once one knows, as we do, but the jury did not, that Simpson admits that he was correctly identified by Atherton and we have concluded that the appellant was involved in drug dealing with Atherton, it becomes far more likely that the second man was the appellant and, against the background of the drug dealing with Atherton, inherently unlikely that Chadwick was the second man.
53.
Taking all these factors into account and judging the fresh evidence in its totality in the context of the whole case, we are quite satisfied that the fresh evidence is not credible and does not afford the appellant any ground of appeal. Accordingly this appeal must be dismissed.
54.
MR BIRNBAUM: May I mention briefly two matters? First of all, I thought with respect that you made a relatively small mistake in relation to Mr Atherton. I think you said that he agreed in cross-examination with me that he had confused Chadwick with Mackin. What I think he said was that in the dark it was possible to confuse them. It is a difference of emphasis.
55.
The other matter, perhaps more importantly, may I ask when will a copy, either electronic or a hard copy, be available of your judgment?
56.
LORD JUSTICE GAGE: I do not know. When the shorthand writer has transcribed it and it has been approved.
57.
MR BIRNBAUM: I know I and the commission will be interested obviously. Hopefully within a relatively short period?
58.
LORD JUSTICE GAGE: Yes, it normally is, the shorthand writer is very good about it. It is a question of getting it to me and my doing the corrections. Thank you both very much. | [
"LORD JUSTICE GAGE",
"MR JUSTICE STANLEY BURNTON",
"MR JUSTICE WILKIE"
] | 2007_06_29-1152.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1844/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1844 | 824 |
b7768f50fc5a6e1c1cceb51f87f78dccbf85678a5e896046ba30cc5cbabec0fe | [2023] EWCA Crim 1125 | EWCA_Crim_1125 | 2023-09-19 | 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.
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 202301476/A5
NCN: [2023] EWCA Crim 1125
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday, 19 September 2023
Before:
LORD JUSTICE WILLIAM DAVIS
MR JUSTICE JACOBS
MR JUSTICE GRIFFITHS
REX
V
PABLO JESUS BELSEY
__________
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
MR JUSTICE JACOBS:
1.
On 29 March 2023 in the Crown Court at Wood Green, the applicant was convicted in his absence of two offences of fraud by abuse of position, contrary to
sections 1
and 4 of the
Fraud Act 2006
. On 17 April 2023 the applicant, who was then aged 59, was sentenced in his absence by the trial judge, District Judge Dodd, to a total of seven years' imprisonment. On count 1 the sentence was seven years, and on count 2 there was a concurrent sentence of three years. Although absent from the trial and sentence, the applicant was represented by counsel, who subsequently drafted grounds of appeal against sentence. The application for leave to appeal was refused by the single judge and the applicant now renews the application for leave and applies for a short extension of three days to make the renewal application.
2.
The facts are that the applicant was the sole director of a company called Spanish Property Lawyers Limited which offered legal advice and conveyancing services for customers wanting to purchase property in Spain. He was the sole signatory of an HSBC business account in the company's name. He also had a personal HSBC account.
3.
Count 1 concerned fraud committed in his capacity as co-executor of a widow named Mrs Marie Louise Wright. The other co-executor was Mrs Wright's granddaughter, Marie Hood. She was jointly responsible with the applicant for administering Mrs Wright's estate and distributing it to beneficiaries in accordance with the terms of her will.
4.
In total some £569,000 was realised from the assets of Mrs Wright's estate. The money should have been paid into the executors’ account which had been opened jointly by the applicant and Marie Hood. The applicant distributed some of the monies in accordance with the terms of the will. Six individual payments of £20,000 were made to family members from the applicant's personal bank account. Other beneficiaries received nothing. Marie Hood discovered that none of the £569,000 had been paid into the joint account; it had all been paid into the applicant's personal account. The majority of it had been spent by the applicant on flights, massage parlours and other matters, although a restraining order which was obtained by the family froze some £220,000.
5.
Count 2 involved a different family. Nadeem Amin and his mother transferred just over £20,000 to the applicant's business in order to secure conveyancing services to assist with the purchase of a property in Spain. No conveyancing services were provided. The money was withdrawn and spent by the applicant.
6.
Following his arrest the applicant falsified certain documents purporting to account for his actions. In the case of Mrs Wright's estate, he created a false invoice in the sum of £208,000 for work supposedly undertaken administering the estate. In the case of Mr Amin and his mother, the applicant created a false suspicious activity report after his police interview.
7.
The applicant did not have any previous convictions in the United Kingdom. He did, however, have relevant convictions in Spain. In 1999 he was convicted of unlawful appropriation and sentenced to two years' imprisonment. The applicant had acted as a professional advisor in relation to the purchase of properties in Spain but failed to carry out any of the "entrusted steps" required of him. In February 2016 he was convicted of a further unlawful appropriation committed in 2004. The facts here were that, whilst acting as a lawyer, he was paid monies by clients to purchase a property but the money was not used for its intended purpose. The applicant received a sentence of one year four months' imprisonment, suspended for three years.
8.
The judge in the Crown Court in this case sentenced the applicant without a report and we do not consider that one was or is now necessary. The judge did, however, have the benefit of a number of victim personal statements from members of the family of Mrs Wright and Marie Hood, including Mrs Hood herself. They demonstrated the severe impact that the appellant's crimes have had on members of the family. The family members have suffered physically, mentally and emotionally, particularly the children of Mrs Hood who have seen how much distress the events have caused her. The judge also read statements from Mr Amin describing the resulting breakdown of his relationship with his mother, following the disastrous attempt to purchase the Spanish property.
9.
In relation to count 1 the judge sentenced on the basis that the total loss in the case was £400,000. This comprised the original monies which had been realised from the estate, less the £120,000 which was paid over to a number of beneficiaries. It was common ground below that, applying the relevant guideline, the offences fell into culpability A. It was also common ground that the case was Category 2 for harm, because the loss or intended loss was between £100,000 and £500,000. The starting point for Category 2 is five years, based on a loss or intended loss of £300,000, with a range of three to six years. The judge considered that this was a case at the very top of that category, because of the amount of the loss. He also decided, having read the victim impact statements, that it was appropriate to move up a category and thereby to place count 1 in Category 1 of the relevant guideline. The relevant guideline provides that moving up a category is appropriate where there is serious detrimental effect on the victim, whether financial or otherwise.
10.
The single judge when considering the application for leave, considered that there was nothing wrong with the approach of the trial judge and that it was well within the exercise of his sentencing discretion. We agree with the approach of both the sentencing judge and single judge. This was a case where the entirety of a sum in excess of £500,000 was paid into a personal account of the applicant. Some £120,000 was distributed to beneficiaries but the balance of over £400,000 was not, with a substantial amount of that money being taken by the applicant personally and without any agreement of his co-executor. The applicant then went to ground and disappeared, and it was only because of the restraining order that any money was recovered at all. There was no error in the judge proceeding on the basis of an actual or intended loss of £400,000, but in any event, in the light of the victim impact statements, the judge was fully entitled to move up to Category 1 under the Fraud guideline where the starting point is seven years, which is where the judge finally placed the case.
11.
The single judge also said, correctly in our view, that an overall seven year sentence was also fully justified when count 2 was taken into account. The starting point for count 2, which involved entirely separate offending and could have given rise to a consecutive sentence, was three years taken on its own. Even if the judge had therefore taken a lower starting point for count 1, he would have been entitled to increase the sentence on count 1 in order to reflect the separate criminality on count 2. In our view it is not arguable that an overall sentence of seven years is manifestly excessive.
12.
In explaining the reasons for the delay in submitting the renewed application, the applicant has advanced a number of further arguments. He says, without citing any authority, that no criminal complaint should have been made without a complaint being made to the Law Society in the first instance. We are unaware of any such principle. He also repeats an argument that the loss on count 1 should have been regarded as less, because he carried out 813 hours of work which should be charged at £250 per hour. There is no substance in that point either. If work had indeed been carried out, then the appropriate course was for properly itemised bills to be drawn up and the agreement of the co-executor sought for payment of the amounts claimed. None of that happened. That proper course cannot be circumvented by an executor simply putting the entirety of the estate into a personal bank account without the knowledge of his co-executor and then treating the money as his own, which is what happened in the present case.
13.
Accordingly the renewed application is refused and, because the proposed appeal has no merit, we also refuse the short application for an extension of time.
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"LORD JUSTICE WILLIAM DAVIS",
"MR JUSTICE JACOBS",
"MR JUSTICE GRIFFITHS"
] | 2023_09_19-5822.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1125/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1125 | 825 |
271d121e9a50711b621f732c0391cc36c5088c81767198facb8f0c3e6448f404 | [2005] EWCA Crim 1543 | EWCA_Crim_1543 | 2005-06-09 | crown_court | Case No: 200406685/A9 Neutral Citation Number: [2005] EWCA Crim 1543 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 9th June 2005 B E F O R E: LORD JUSTICE PILL MR JUSTICE OUSELEY MR JUSTICE DAVIS - - - - - - - R E G I N A -v- PAIWANT ASI-AKRAM - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers | Case No:
200406685/A9
Neutral Citation Number:
[2005] EWCA Crim 1543
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Thursday, 9th June 2005
B E F O R E:
LORD JUSTICE PILL
MR JUSTICE OUSELEY
MR JUSTICE DAVIS
- - - - - - -
R E G I N A
-v-
PAIWANT ASI-AKRAM
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR T LODY
appeared on behalf of the APPELLANT
MR A PEET
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE DAVIS: The appellant, Paiwand Asi-Akram, is now 18 years old but at the relevant times for the purposes of this appeal was 17. On 27th October 2004, in the Crown Court at Derby before His Honour Judge Hamilton, he pleaded guilty, on rearraignment, to three particular counts on an indictment: the first two counts, counts 1 and 2, being counts of rape and the third matter, count 4 on the indictment, being a count of attempting to choke, suffocate or strangle with intent to commit an indictable offence (being rape) contrary to
section 21 of the Offences Against the Person Act 1861
. He was sentenced on each of these counts to 14 years' detention. The judge exercised his powers under
section 91 of the Powers of Criminal Courts (Sentencing) Act 2000
, the appellant being under the age of 18 at the relevant time. The judge in fact expressed himself as imposing a term of imprisonment but it is plain that he intended to impose a term of detention. In addition, the appellant was recommended for deportation and it was a consequence of the sentence that he was required to register indefinitely under the provisions of the
Sexual Offences Act 2003
.
2.
It may perhaps be noted that in the initial stages of the argument before the judge he clearly had in mind the possibility of imposing an indeterminate sentence. The judge, however, was persuaded by counsel that, by reason of the appellant's then age, he had no power in law to impose an indeterminate sentence. It is now conceded before us that the judge did have such a power. The point now is academic. But we think it worth noting that the judge, at least initially, had that prospect in mind.
3.
Against the total sentence of 14 years' detention the appellant appeals, having obtained the leave of the Single Judge.
4.
The facts may be briefly stated for present purposes. They are, to say the least, disconcerting. In the early hours of the morning on a day between 26th December 2003 and 1st January 2004 a prostitute was working in Derby when she came across the appellant. He asked her how much she charged for full sex and oral sex and an agreement was reached that she would perform oral sex upon him for £10. They both went to some bushes but when she started to perform the sex act on him, he immediately became aggressive and demanded full intercourse. When she refused he became violent, forced her to the ground, placed both hands round her neck and got on top of her. He then pulled her clothes off, placed his hand over her mouth so that nobody would hear her screams and then forcefully penetrated her vagina with his penis. So violent was he that she genuinely believed she was going to die. He ejaculated inside her without wearing a condom. After that, he asked her to accompany him home but when she refused he raped her again in exactly the same manner and then ran off.
5.
She did not make a complaint to the police initially, because she feared she would not be believed because of her vocation. In the end she did make a complaint when she heard on the grapevine that another woman had been assaulted in a similar way, in the same area of Derby.
6.
That other victim was approached by the appellant in the early hours of the morning of 11th January 2004 as she walked towards a shop. He tried to engage her in conversation and asked her if she did business. She replied that she did not, but he followed her into the shop, followed her out again and persisted in his conversation with her, making her feel uncomfortable. When they reached some bushes, he produced a knife, grabbed her by the arm, pulled her into the bushes and pushed her to the ground. When she tried to get up, he pushed her down again and at this point she pleaded with him repeatedly to stop and told him she was frightened that he would kill her. He then pulled her trousers off and used the knife to cut away her underwear. After that, despite her kicks aimed at him, he got on top of her, pinned her down, placed one hand round her neck and pressed hard down with it so that she had difficulty in breathing. The more she struggled by trying to scratch him, the greater the pressure he exerted on her windpipe. She passed out momentarily and the next thing she recalled was him vaginally raping her, placing his finger inside her anus and trying to kiss her. He did not use any condom. He turned her over to change position, and as he did this, she grabbed her opportunity to run off, leaving most of her clothing behind. She ran to a group of her friends who were nearby and told them what had happened.
7.
Both victims subsequently identified the appellant at identity parades. So far as the second victim was concerned, DNA materials in semen and also by reference to skin under her fingernails were found, implicating the appellant.
8.
Shortly after this second attack, the appellant left Derby and made his way to Teesside. In the early hours of the morning on 23rd January 2004, he approached a prostitute in Middlesbrough. An agreement was reached whereby he would pay her £10 to perform oral sex upon him. They walked down an alleyway and the victim produced a condom which she placed on him and she then started to perform oral sex upon him. However, as with the previous two incidents, he became aggressive and violent and demanded full intercourse. Initially she agreed to do that for a further £10. When she asked for the extra money he became extremely violent. He grabbed her by neck and pulled her to the ground, in a headlock. She asked him to leave her alone but his response was to say that he was going to kill her if she did not do what she was told. She was terrified. He placed both hands round her neck and began strangling her as she shouted for help. She tried to poke his eye but he banged her head on the ground, knocking her unconscious. By the time she came round the police had arrived. As it happened the police had been alerted by a man who lived nearby, who had heard groaning noises in the alley behind his home. When that man went out to investigate, he saw the appellant leaning over the victim, punching her and grabbing at her with both hands.
9.
When the police arrived the appellant was standing a short distance from her, with his trousers and underwear around his buttocks. The victim was initially motionless and blood was coming from her head. In the event she came round quite quickly although it is clear that she was disorientated as a result of what had happened. She was taken to hospital for treatment for her injuries. This Court has seen photographs of the injuries to the last two victims. They are unpleasant.
10.
When the appellant was arrested and interviewed he said that he had beaten the third victim after she demanded that he pay for sex with her, had stolen some money from him and then attacked him. He claimed that he had beaten her in self-defence. As to the first two attacks, he maintained that he knew nothing about those at all.
11.
Before the sentencing judge was a psychiatric report which had been obtained. That noted that there were certain difficulties in making an assessment because of the appellant's poor grasp of the English language (the appellant is by birth an Iraqi Kurd). The report, understandably, dealt in some detail on what appear to have been significant traumatic experiences suffered by the appellant whilst in Iraq and before he came to the United Kingdom. In the course of the report, the psychiatrist noted this:
"Most vigorously and repeatedly he protested his complete innocence with regard to all the index charges."
The psychiatrist noted that he presented as a very sullen young man, and that he had certainly no delusions as to guilt and, on the contrary, that he saw himself as a good person. He was distraught that no one seemed to believe in his innocence. The psychiatrist concluded that there was no evidence of any psychopathic or personality disorder, although the appellant was likely to have been traumatised by his past experiences in Iraq. We might add that since sentence was passed a prison report has been obtained. That reports on the appellant in terms which, it has to be said, are generally unfavourable and records instances of him threatening other inmates.
12.
In the course of his sentencing remarks, the judge indicated that, in terms of appearance, the appellant seemed to him to be more likely to be something in the region of 22 years old or thereabouts: although the judge made it clear that he sentenced the appellant as a 17 year old and one who had never before committed any criminal acts. The judge then dealt with the mitigation, including age; referred to the psychiatric report; dealt with the facts of the case; and then said this:
"You are, in my view, a very great danger to women and, as I have already said, only a very substantial term of imprisonment is appropriate."
The judge acknowledged the plea of guilty that had been tendered and then proceeded to impose a sentence of 14 years' detention in total, as already noted, as well as recommending the appellant for deportation.
13.
Mr Lody, who appears on behalf of the appellant today as he did in the court below, does not in the course of his realistic submissions in any way seek to minimise the seriousness of this offending, which he rightly described as "dreadful". Mr Lody does not seek to dispute the judge's finding that the appellant is a danger to women. Mr Lody expressly accepted that there is a high level risk of repeat offending. Further, Mr Lody does not dispute that a campaign of rape of this kind indicated a starting point, after a contested trial, of 15 years, having regard to the guidelines given in the case of
R v Millberry
[2003] 1 Cr App R(S) 25
.
14.
Mr Lody, however, submits that a custodial sentence of 14 years is of an order which, he suggests, one would expect (assuming that is, as he does, that a life sentence was not to be imposed) in the case of an adult offender, even allowing for the plea. We would very much query whether a judge (assuming he passed a determinate sentence) would be restricted to a sentence of a maximum of 14 years for an adult, given the circumstances. But that, at all events, was the submission of Mr Lody.
15.
In particular, Mr Lody emphasises the observations of the Court of Appeal in
Millberry
at paragraph 30, where in dealing with young offenders the Court of Appeal said that, like the Sentencing Panel, it concluded that a sentence should be "significantly shorter for young offenders". Mr Lody emphasises this point: although he does also add to it the point that the appellant did plead guilty at what the judge accepted was to be regarded as the earliest practical stage and thereby spared the victims from the ordeal of having to give evidence. But Mr Lody's real point is the age of this particular appellant.
16.
We should perhaps add, by reference to
Millberry
, that a little further on in the judgment the Court of Appeal stressed that the Court should not adopt a merely mechanistic approach to guidelines and should look at all the circumstances in the round.
17.
These were indeed very grave offences: in our view, amongst the very worst of their kind. The appellant showed complete disregard for the victims in each case. Extensive and gratuitous violence was used in each case. In the first case the rape was repeated. In the second, which is perhaps the most serious of all, a knife was produced and used to cut the victim's clothing. There was an attempt to strangle her. In the third case, again there was an attempt to strangle and the violence lasted for a significant period. In all cases quite significant injury was caused. Inevitably all three of the women victims were absolutely terrified; inevitably all three of them feared for their lives.
18.
Quite apart from this being a campaign of rape, directed by the appellant at prostitutes, or women whom he regarded as prostitutes, there were here, therefore, significant aggravating features which by reference to the putative starting point, had also to be taken into account. Further, the appellant is, as Mr Lody accepts, a danger to women. The psychiatric report seem to indicate that he has no regard for his victims and indeed the impression one rather gets is that that appellant seems somehow to have contrived to persuade himself that it is he who is in some way the victim. There is no doubt, in our view, that the judge was justified in imposing a very significant sentence indeed given the circumstances.
19.
But there remains the matter of the appellant's age. As we have said, the judge and the prosecution were prepared to accept that the appellant was 17 at the relevant times. The question then is whether that particular matter was sufficiently reflected in the total sentence which the judge imposed.
20.
In our judgment, the observation of this Court in
Millberry
at paragraph 30, that in the rape cases the sentence should, in the case of young offenders, be "significantly shorter" than otherwise be the case of adults is a broadly general observation, which nevertheless admits of exceptions. It was not, in our judgment, designed to be one of invariable and inevitable application. In all such cases youth will always be a relevant consideration. But the extent to which it calls for a reduction (and, specifically, a "significant" reduction), by comparison to a sentence which otherwise would have been passed on an adult, nevertheless remains to be assessed by the sentencing court by reference to the circumstances of the case. There are cases of rape where the youth of the defendant can be said, in one sense at least, to play an operative part in the offence. But this most emphatically is not such a case. We bear in mind, too, that there may be greater prospects of rehabilitation in the case of younger offenders as compared to older and perhaps more hardened offenders. We do also bear in mind the point, well made by Mr Lody, that it is a particularly daunting matter, as far as a young person is concerned, if a very long sentence is imposed.
21.
However, as against that, in this particular case there is to be borne in mind the very important consideration that, in the context of a campaign of particularly nasty and violent rapes, the appellant was found by the judge (and as is accepted) to be a serious danger to women. Overall, while the sentence may have been a severe one, in our view it was justifiably so. We dismiss this appeal. | [
"LORD JUSTICE PILL",
"MR JUSTICE OUSELEY",
"MR JUSTICE DAVIS"
] | 2005_06_09-529.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1543/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1543 | 826 |
b89b379b17bbd210963e191529acb9103d9a98eb2226e2d744fd73d45013244b | [2019] EWCA Crim 1946 | EWCA_Crim_1946 | 2019-10-22 | 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.
No. 201803126 C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number:
[2019] EWCA Crim 1946
Royal Courts of Justice
Tuesday, 22 October 2019
Before:
LORD JUSTICE SIMON
MR JUSTICE GOOSE
MRS JUSTICE COCKERILL DBE
REGINA
V
JASON LEE CHURCHILL
__________
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]
_________
Non-counsel application
_________
J U D G M E N T
MRS JUSTICE COCKERILL:
1
On 24 November 2014 the applicant was convicted in the Crown Court at Sheffield before his Honour Judge Robinson of three counts of fraud. On 15 January 2015 before the same Judge he was sentenced to four years' imprisonment. The facts of this case are summarised in some detail in the Criminal Appeal Office note and need not be repeated here.
2
In essence, the applicant's convictions arose from transactions which date back to 2009
when the applicant, a property developer, had an interest in two companies, known as APL and BPL, the former of which had a tax liability of around £450,000. It was alleged, and the jury accepted, that the applicant obtained money from a company called Hartlepool Renaissance Limited and two individuals, Tony Storey and Paul Adler, based on representations that he would use that money for the purposes of deals with them through BPL, whereas in fact he used the funds to discharge APL's tax liability.
3
The applicant has served his prison sentence and been released. By an application dated 24 July 2018 he has applied for an extension of time and for leave to appeal his conviction and implicitly for leave to introduce fresh evidence. The extension of time sought is 1,311 days. The grounds for that extension are the lack of support of his legal teams and the need to re-establish his business on his release from prison.
4
As to the application for leave, the grounds focus on the conduct of his defence at trial. The
applicant contends that his legal representatives failed to secure the attendance of a key witness, one Paul Farmer; the legal representatives failed to obtain a statement from him. In addition, they failed to place before the jury statements from Paul Farmer's brother-in-law or statements from Neil Oliver, Richard Byrne or Roger Groves. In the light of the nature of the allegations the legal representatives who were employed at trial have been asked to comment and have done so.
OPUS 2 DIGITAL TRANSCRIPTION
DRAFT
5
We have read the grounds and the supporting material, as well as the waiver of privilege
material and the respondent's notice and have considered them all carefully. However, ultimately, we find ourselves in full agreement with the notably detailed and careful decision of the single judge, whose reasons can scarcely be improved upon and need not be repeated here.
6
We would only add the following: firstly, there are strict time limits for applications for
leave to appeal. It is incumbent upon the applicant either to comply with those or to produce good reasons why they were not able to do so. The longer the delay the more the compelling will need to be the reasons to persuade the court that the indulgence of an extension of time should be granted. Nothing beginning to approach a good reason for a delay of this length has been provided here. In those circumstances, the application for the extension of time would fall to be refused.
7
In any event, we are not persuaded that the conviction is arguably unsafe for the reasons
given by the single judge, and we add that this appears to be a case of considerable hindsight and erroneous recollection being used as a basis for an application. The single judge has carefully explained the reasons why the appeal was unarguable. The applicant appears to have had diligent and competent advice. His own proof of evidence apparently noted that if Mr Farmer were to hold back or not tell the truth his evidence would substantially undermine the defendant. The judge's summing-up characterises Mr Farmer on the evidence before the court as a man that neither the applicant nor Mr Sanders would trust. Calling Mr Farmer, an unwilling witness, would have been in the circumstances an extremely inadvisable course. As a defence witness there would be no right to cross-examine him. Even if he did defraud the applicant, it does not mean the applicant's
OPUS 2 DIGITAL TRANSCRIPTION
DRAFT
conviction for defrauding others - which was based on evidence as to the applicant's own actions vis-a-vis the complainants - is arguably unsafe.
8
As for Mr Sanders, this appears to be an example of misrecollection in that he was called
and he was cross-examined on the applicant's instructions. Another example of misrecollection is the position as to Mr Byrne, who was not in fact the person with the conduct of the trial and who could not therefore have given the relevant evidence. As for Mr Groves, he has indicated in his statement that his evidence could not help the applicant and he says that he is "
at a loss as to why Mr Churchill feels I should have been a key witness at his trial
". Mr Oliver seems to be in a similar position, and he could not, as the applicant was rightly advised, have been called without Mr Farmer's consent; and with Mr Farmer being unwilling to assist, that consent was always unlikely to have been given.
9
A careful reading of the single judge's decision should explain clearly why his appeal is
unarguable and why the applicant should cease to dwell on it. Accordingly, the application for leave is dismissed.
10
As we have noted earlier, the applicant was released from prison and the question of a Loss
of Time Order therefore does not arise. An order is therefore made under
section 18(6)
of the
Prosecution of Offences Act 1985
for the applicant to pay £481.44, those being the reasonable costs of the transcript of the judge's summing-up in this case.
__________
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Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof.
Transcribed by
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This transcript is subject to the Judge’s approval. | [
"LORD JUSTICE SIMONMR JUSTICE GOOSEMRS JUSTICE COCKERILL DBE"
] | 2019_10_22-4740.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1946/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1946 | 827 |
2a9bda5453ffec27bfef54d1af43a71c5eab08e682850ee6754f06eadcb6b313 | [2020] EWCA (Crim) 596 | EWCA_(Crim)_596 | 2020-04-24 | crown_court | NCN: [2020] EWCA (Crim) 596 No: 202000821 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Friday, 24 April 2020 VIRTUAL HEARING B e f o r e : LORD JUSTICE SIMON MR JUSTICE WILLIAM DAVIS MRS JUSTICE TIPPLES DBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v ANTHONY CALLUM-SMITH Ms C Pattison appeared on behalf of the Attorney General Ms D Becker appeared on behalf of the Offender Computer Aided Transcript of | NCN: [2020] EWCA (Crim) 596
No: 202000821 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 24 April 2020
VIRTUAL HEARING
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE WILLIAM DAVIS
MRS JUSTICE TIPPLES DBE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
ANTHONY CALLUM-SMITH
Ms C Pattison
appeared on behalf of the
Attorney General
Ms D Becker
appeared on behalf of the
Offender
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
J U D G M E N T
LORD JUSTICE SIMON:
1.
The Attorney General seeks leave to refer a sentence passed on Anthony Callum-Smith in the Crown Court at Luton on 5 February 2020 under
section 36 of the Criminal Justice Act 1988
as being unduly lenient.
2.
On 20 January 2020, the offender, aged 32, pleaded guilty to two offences of robbery, contrary to
section 8(1) of the Theft Act 1968
. He also invited the court to take into consideration two further offences of robbery and a single offence of attempted robbery, reflected in a schedule signed by him on 3 February. Two days later he was sentenced by His Honour Judge Stephen Evans to what was an overall term of five years and three months' imprisonment on count 1, with a concurrent term of three years and four months
on count 2. A victim surcharge was also imposed.
3.
The offence charged under count 1 occurred on Thursday 5 December 2019 at about 6.00 pm, when the offender and another man entered the Co-operative store in Hemel Hempstead. The offender armed with a knife. The accomplice was armed with a hammer. They wore hooded tops with the hoods up, and their faces were covered. Miss Kenny, who was working in the store, heard a male voice say, "Get the cash out of the till". She turned around and saw the offender standing with a large knife in his right hand. He raised his hand, leaving Miss Kenny sure that the knife was real. He told her to go and open the till. He kept repeating this; and then approached her and held the knife towards her. It was only a few inches away and she was petrified. She did as she was ordered. The offender said, "Don't push any buttons. Don't you dare push any buttons." She thought he was referring to an emergency button behind the till. The offender kept brandishing the knife in her direction. He and his accomplice removed the cassette containing money from the till. He left the knife, a large black-handled kitchen knife, on the counter when he left the store. His DNA was subsequently recovered from it. Police officers were called, and CCTV footage was seized. A total of £444.34 in cash,
approximately 15 to 20 packets of cigarettes (valued at about £150) and the cassette from
the till valued at £100 were stolen.
4.
Count 2 related to a further robbery two days later on Saturday 7 December 2019. At about 8.00 pm, the offender and another man entered Express Wine, in Hemel Hempstead. They demanded money. Tharmalingam Thiyalingham was working there that night. The offender approached him and told him to sit down, before dragging him to the store cupboard. The offender asked Mr Thiyalingham where the safe was. Mr Thiyalingham told him there wasn’t one. The offender then dragged him behind the counter. The offender's accomplice walked to the back of the till and took cash and alcohol. The offender and his accomplice then left. Police officers were called, and CCTV footage was recovered. A total of £1,047 in value was taken: £462 in cash and
alcohol to the value of £585.
5.
On 11 December the offender was arrested at his home in Hemel Hempstead. In interview he gave ‘no comment’ answers to most of the questions asked. However, he also told the police that they would not find anything that would link him to the robberies and that he occasionally smoked crack cocaine but did not have a problem with the drug. He was told a knife with his DNA had been recovered from the Co-operative store
following the robbery on 5 December. He said it must have been a knife from his friend's
house and recognised it as a knife from his friend's kitchen.
6.
On 16 December he was arrested again and interviewed the following day. Again, he
answered ‘no comment’ to questions asked. He was subsequently charged.
7.
On 3 February 2020, he was interviewed again and admitted involvement in both the index offences, as well as two further offences of robbery and one offence of attempted robbery. These offences were added to a schedule of offences to take into consideration.
8.
The facts were as follows. On 6 December 2019 at about 8.20 am, he and another man entered the One Stop Store in Hemel Hempstead. The offender took a pair of gloves from a shelf, removed the tag and put them on. He was armed with a knife and
threatened a member of staff with it. He removed packets of cigarettes and tobacco, and put them in a carrier bag, leaving his accomplice to empty cash from a till. He demanded the safe be opened, but the member of staff said he did not have a key. The offender and his accomplice then left the store. They had stolen £207 in cash and tobacco and
cigarettes valued at £885.
9.
Later on the same day, shortly after 8 pm, the offender and another man entered Nisa in Longlands. The offender was armed with a hammer. He approached the till area and jumped over the counter. A member of staff initially tried to stop him; but withdrew on seeing the hammer. The offender repeatedly struck the till with the hammer in an attempt to steal from it. His accomplice put packets of cigarettes and tobacco into a white carrier bag. Both then left the store. They stole £688 in cash and £1,356 worth of tobacco and cigarettes valued. They also caused £199 worth of damage to the till.
10.
The following day on 7 December, the offender committed the offence of attempted robbery. At about 7.15 pm he and another man entered Cox's Pond store in Hemel Hempstead. The offender was in possession of a knife. He approached a member of staff who was behind the till area and demanded cash. The member of staff tried to wrestle the offender away from the till area and another member of staff threw bottles of wine at the
offender's accomplice. The two men left the store without taking any items from it.
11.
There were a number of victim statements before the sentencing court. Vicky Kenny described how her enjoyment at working at the Co-op store had been taken from her. She had thought about leaving the job and had trouble sleeping after the attack as she kept
thinking about what had happened. She dreaded something similar happening again:
Even though I am starting to get better, it is always in the back of my mind. I even struggle now with customers coming in with their hoods up as I worry about them turning on me. You never know what they have on them or how dangerous they are.
12.
Other victim statements from Noel Macado, Tharmalingham Thiyagalingham, Kay Jarvis, Margaret Leatherland and Kethan Mathi were to similar effect. Those who were working in these local stores were left frightened and the effect of the offences remained with them. They all felt differently about working in their places of employment as a
result of the offender's crimes.
13.
The offender had 27 previous convictions for 60 offences. The offending began when he was 14 and continued up to age of 31. Twenty-seven of the convictions were for
offences of dishonesty.
14.
So far as material, on 15 November 2013, when 26, he was sentenced for two offences of conspiracy to commit non-dwelling burglary in May and June 2013, to a term of seven years' imprisonment for a former offence and four years' imprisonment concurrent for the latter. The offender and two others had used stolen motor vehicles to ram-raid small commercial premises. Three of the burglaries were committed at convenience stores where cash and tobacco products were stolen. A fourth burglary was committed at a hair salon. The offender was on licence from this sentence when he committed the present. On 29 November 2018, when he was 31, he was convicted of burglary (non-dwelling)
and was sentenced to a term of 11 months' imprisonment.
15.
The offender pleaded guilty to counts 1 and 2 at the plea and trial preparation hearing on 20 January. At the sentencing hearing on 5 February the judge had letters from the offender and his partner Sabrina Bullen. The former expressed remorse for his actions and for the impact on his victims. He explained the circumstances, the suicide of his best friend, which led to him coming off his prescription and going on a drug and alcohol binge leading to the commission of these offences. Ms Bullen's letter described the offender as a "brilliant" father of five children. The youngest is the child of both of them. She is particularly vulnerable due to circumstances which we need not elaborate. The letter also described the offender's mental health issues for which he had never sought
help.
16.
In passing sentence, the judge noted that the offender and an unidentified accomplice had gone into local convenience stores intending to frighten employees into handing over cash and goods that could be conveniently converted into cash on 5, 6 and 7 December 2019. It was common ground that the offence charged under count 1 fell within Category 2A of the Definitive Guidelines for Robbery of small local stores. It was intermediate harm Category 2 because the impact on the staff and the business was neither serious on the one hand, nor minimal on the other. It was Culpability A because a knife and hammer were used to threaten staff. Count 2 fell into a lesser category. The guidelines provide that for a Category 2A offence, count 1, the starting point was a term
of five years and a range of four to eight years' custody.
17.
The judge referred to the aggravating factors to be taken into account: the offender's previous convictions, the offences being committed as part of a group that targeted convenience stores, the impact on the staff at those stores, his joint leading role, the attempts to conceal his identity, a degree of force in the second robbery, his previous convictions, the fact that he was on licence at the time of the offences and the further
offences to be taken into consideration.
18.
The judge also referred to the mitigation of the offender's mental health issues, the contents of Ms Bullen's letter and the offender's remorse. He also took into account the issue of totality. On this basis he took a starting point of five years, increased this to seven years and applied a 25 per cent credit for the guilty pleas, leading to the sentence
on count 1.
19.
For the Attorney General, Ms Pattison accepted that the judge adopted the right categorisation (category 2A) for the reasons he gave. However, she submitted there were
a number of additional aggravating factors. First, there was planning: it was a campaign of commercial robberies albeit of short duration between 5 and 7 December. Second, there was group activity in which the offender took a leading role with others. Third, there was an attempt to conceal identity: his hood was up and his face was covered. Fourth, he had a number of previous convictions for dishonesty offences in which the consumption of alcohol and/or drugs had often been a factor. This was a statutorily aggravating factor (see
section 143(2) of the Criminal Justice Act 2003)
. Fifth, he had failed to respond to earlier sentences and this offending had been committed while on licence. Sixth, he had asked the court to take three further offences into consideration. The Sentencing Council Definitive Guidelines on Offences Taken into Consideration and Totality indicated that the offences taken into consideration should generally be treated as
an aggravating factor, justifying an upward adjustment from the starting point.
20.
Ms Pattison submitted that uplifting the starting point from five to seven years before reducing the sentence to give 25 per cent credit for the plea did not sufficiently reflect these aggravating factors. An appropriate upward adjustment from the starting point of five years would have taken the appropriate sentence on count 1 to above the upper range of eight years. The starting point of seven years and the final sentence of five years and
three months was unduly lenient.
21.
For the offender, Ms Becker commended the judge's approach: the focus on count 1; the categorisation as Category 2A; what she described as the agreed architecture of the sentence; the uplift to take into account the aggravating factors balanced against the mitigating factors and the credit for the plea. She drew attention to the features of mitigation accepted by the judge. First, the offender's remorse for his crimes and particularly their impact on his victims. In his sentencing remarks the learned judge accepted that the offender was "genuinely remorseful". He had noted his reaction in
court when the victims' statements were being read out:
They are generally not very well paid and extremely vulnerable. The impact is considerable, and you have heard about it and I know you took it seriously as I saw your reaction.
Second, the offender accepted that he was responsible for his decision to become involved and admitted that the motivation was financial: to be able to purchase more drugs. Although there was no forensic or identification evidence linking him to the three further offences taken into consideration, he had attended a voluntary interview and admitted responsibility for his actions in relation to those offences. Third, the existence of mental health issues with which he had struggled with for years without seeking help. Fourth, his drug addiction: he had become addicted to drugs whilst serving a prison sentence. Eight months before the commission of the offences he was stable and taking his daily prescription of Subutex. However, following the suicide of his best friend he failed to collect his daily prescription for two days and thereafter was not allowed it under the strict pharmacy rules that applied. He was told he must get a new prescription
from his GP but was not able to obtain an appointment for two weeks. These
circumstances led to a spiralling out of control, which involved a suicide attempt, the binge of Class A drugs and, along with others, agreeing to take part in the offences. The offender described the 72-hour period when the offences were committed as "one long day" where he was in a drug-induced haze. Fifth, there was his family circumstances, his efforts since leaving prison to rebuild his life with his childhood sweetheart Ms Bullen with care for her five children. His care and concern for his daughter and sense of guilt that he had not been able to care for her in her time of need. Sixth, his access while in custody to counselling for his mental health issues and his successful efforts to remain drug free while on remand. In relation to this last point we should observe that the most recent prison report is not to the offender’s credit, which is strange bearing in mind the
current application.
22.
We have taken account of these submissions.
23.
The two offences to which the offender had pleaded guilty and the three that he asked to be taken into consideration comprised sustained offending directed at small convenience stores and their employees. The experience of those employees was clear: they were frightened by the actual and threatened violence and that sense of fear has remained with them. It has to a greater or lesser extent profoundly affected their lives. The offence under count 1 was a Category 2A offence with a starting point of five years and a range of up to eight years. There were a number of aggravating factors which took the
offending above the starting point. It is unnecessary to repeat them since we have already described Ms Pattison's submissions in relation to those factors; Ms Becker does not dispute them; and, importantly, the judge referred to them and plainly had them in mind. We would only add that we are doubtful whether when two individuals have similar roles
in a joint enterprise robbery it is helpful to refer to them as having joint leading roles.
24.
The issue on this reference is whether, despite the common ground as to the aggravating factors and the judge's assessment of the aggravating and mitigating factors, the term of seven years' imprisonment before credit for the plea was unduly lenient. This is not a case in which it can be said that the judge overlooked relevant matters of aggravation; he plainly did not. His sentencing remarks were clear and admirably concise. In our view, the aggravating circumstances took the seriousness of this offending at least to the top of the category range. However, there was the mitigation to which Ms Becker drew our attention. The judge accepted that the offender had made efforts to "wipe the slate clean". That was because, as Ms Becker submitted, not only was there no forensic evidence in relation to the three offences taken into consideration, it appears that the prosecution had indicated that the pursuit of anyone for these crimes would not be taken further. He was also someone who had taken on responsibility for other children and cared for his daughter. The judge told the offender that he appreciated the significant impact on his family and expressed the hope that he made good his genuine intentions.
As the judge put it: "When free of drink and drugs you generally want to be better."
25.
The sentence of seven years on count 1 took this mitigation into account. The judge must therefore have had in mind a sentence in excess of seven years before taking the
mitigation into account.
26.
We accept that the sentence on count 1 can properly be described as at the lower end of the range of appropriate sentences. However, the power under
section 36
is not to be exercised as a general power of review. This court does not have the advantages of the sentencing court; and it is not for this court simply to substitute its own view of a sentence unless the sentence is not just lenient, but unduly so. The power is to be directed to what is sometimes referred to as the avoidance of gross error and the allaying of public concern where a judge appears to have departed by a substantial extent from sentencing norms. It will be exercised where the sentence is plainly outside the range of
appropriate sentences.
27.
For the reasons we have given, we do not consider that the sentences for these offences
did fall into this category. Accordingly, we refuse leave to refer. | [
"LORD JUSTICE SIMON",
"MR JUSTICE WILLIAM DAVIS",
"MRS JUSTICE TIPPLES DBE"
] | 2020_04_24-4883.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/596/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/596 | 828 |
0dc535c9443137c621c4143f7b98a59e414aabe80eabd1f40ceb401ca3cf1dc5 | [2011] EWCA Crim 861 | EWCA_Crim_861 | 2011-03-10 | crown_court | No: 201006058/A7 Neutral Citation Number: [2011] EWCA Crim 861 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 10 March 2011 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE SPENCER SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - R E G I N A v MARY BOATENG - - - - - - - - - - - - - - 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:
201006058/A7
Neutral Citation Number:
[2011] EWCA Crim 861
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 10 March 2011
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE SPENCER
SIR CHRISTOPHER HOLLAND
- - - - - - - - - - - - - -
R E G I N A
v
MARY BOATENG
- - - - - - - - - - - - - -
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 R Cohen
appeared on behalf of the
Appellant
- - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE SPENCER: Mary Boateng, who is now 20years of age, appeals with the leave of the single judge against a sentence of five years' detention imposed by Mr Recorder Atchley in the Crown Court at Kingston upon Thames on 28 July 2010. She had pleaded guilty to possessing a prohibited firearm and to two counts of possessing ammunition.
2.
The items in question had been recovered by the police when a search warrant was executed at her flat on 7 April 2010. They were in a rucksack or sports bag. She admitted being in possession of the bag but denied knowing these items were inside it. She said that the bag had been left at her flat two days earlier by a friend whom she named. She suspected that the bag might contain “something bad”. She had been told not to touch the bag and did not do so until she saw the police arriving, at which point she moved it from her own flat to a communal hallway.
3.
The firearm was a .22 calibre Derringer style rimfire pistol. There was a variety of different ammunition within the bag in separate packages. In total, there were 305 rounds of ammunition of which 149 would have fitted the pistol. Three rounds had been modified to make them expanding ammunition. The remainder could have been possessed lawfully with a licence.
4.
Count 1, which charged possession of a prohibited firearm contrary to
section 5(1)
(aba) of the
Firearms Act 1968
, carries a statutory minimum sentence of five yearsimprisonment. Count 2, which alleged possession of expanding ammunition contrary to
section 5(1)(f)
of the Act, also attracted the five year statutory minimum. Count 3, possessing ammunition without a firearm certificate contrary to section 1(1)(b) of the Act did not attract the statutory minimum sentence.
5.
The judge held a
Newton
hearing to determine as a question of fact whether the appellant genuinely had no knowledge that the firearm and ammunition were in the bag. That issue was resolved in her favour. The judge was clearly impressed by her as a witness. He found that the appellant knew or believed that the contents of the bag were, to use her own word, "dodgy", as had been asserted in her basis of plea, but the judge was not satisfied that she had actual knowledge of the contents and was not satisfied that she had any part or involvement in or with the firearm or ammunition, save that she held the bag for two days at the request of someone else, probably the man she referred to as "Andy". The judge found that she was a young woman who been very foolish,and who had been badly misused.
6.
The appellant was a young woman of impeccable character, attested to by a number of impressive references, and she was studying for a degree.
7.
It is clear that the purpose of the
Newton
hearing was not directed to the issue of whether exceptional circumstances could be found relating to the offence or the offender which might justify the court in not imposing the statutory minimum term of five years, which is the basis of the appeal. Indeed, at the start of his ruling in the
Newton
hearing the judge said in terms that:
"No special reasons have been put forward to seek to reduce the minimum."
8.
The judge made it clear in his sentencing remarks that had he rejected her evidence in the
Newton
hearing, the starting point for her sentence would have been eight to nine years having regard to the seriousness of the offences. He said that the contents of the bag smacked of an armoury. The only possible reason anyone could have such a selection of ammunition was to provide it illicitly onto the gun market in south London. He observed that, although there were many guns on the streets of London, there was a paucity of ammunition. People who provide ammunition such as this, he said, fill that gap and doubtless do so for a great deal of money. He accepted that the appellant had been dragged into this very sordid matter with her eyes closed.
9.
The judgee imposed the statutory minimum sentence of five years on counts 1 and 2 and imposed the same sentence on count 3. There is, of course, no permissible reduction even for a guilty plea from the statutory minimum. He said:
"If I could pass less, may I make it very plain, I would. I cannot, on the basis of matter as it is presented to me today."
10.
Mr Cohen, who did not appear in the court below, submits that, had it been argued, the judge could properly have found exceptional circumstances in this case in the light of his findings in the
Newton
hearing. The point of principle raised in his grounds of appeal is whether the fact that a defendant is genuinely unaware that he or she is in possession of a prohibited firearm or ammunition within a bag or other container can in itself amount to exceptional circumstances.
11.
The starting point, we agree, is the decision of the Court of Appeal in
Rehman
[2006] 1 Cr App R(S) 77
. The Court of Appeal had to consider submissions that
section 51A of the Firearms Act 1968
, which provides for the statutory minimum sentence, was incompatible with the European Convention on Human Rights, articles 3 and 5, as it could result in arbitrary and disproportionate deprivation of liberty. At paragraph 14 of the judgment the Lord Chief Justice said this:
"Before proceeding further it is necessary to determine the meaning of section 51A(2) in accordance with the ordinary principles applicable to statutory interpretation. This involves seeking to determine the meaning of the language used by Parliament in its statutory context. It is to be noted, as already pointed out, that part of the context is that
section 5
of the Firearms Act creates an absolute offence. Secondly, the purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences. However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him. The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere."
12.
The court explained the rationale of the statutory provisions as follows at paragraph 12 of the judgment:
"So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender, for example by theft, in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers. This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of
section 5
of the Firearms Act. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under
section 5
are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of
section 51A
creating a minimum sentence."
13.
There have been many appeals to this court against the refusal by a sentencing judge to find exceptional circumstances not to impose the minimum five year sentence for possession of prohibited firearms. A number of principles have emerged. Our attention has not, however, been drawn to any previous decision of this court on the point that arises starkly in the present appeal.
14.
The relevant principles were most recently considered in
Ocran
[2011] a Cr App R(S) 36. In that case a semi-automatic pistol, a shotgun and a silencer were found beneath a wardrobe in the flat of the appellant, a 24 year old woman of previous good character. They had been put there three weeks earlier by a man who had access to the property. She admitted that she knew they were there and had made no attempt to contact the police. Her appeal was dismissed. In the course of the judgment of the court Aikens LJ referred to
Edwards
[2007] 1 Cr App R(S) 111
in which court emphasised that strong personal mitigation on its own was unlikely to be sufficient to amount to exceptional circumstances. That was because, if it was so, there would be a risk that those looking for a safe haven to harbour dangerous firearms would target persons whose personal circumstances might excite the sympathies of the court. If that exercise was successful, it would undermine the very policy of the minimum term, i.e to deter the possession of these types of firearms.
15.
To a degree the same principle applies in a case such as this. If those looking for a safe haven to harbour dangerous firearms target persons who they can trust not to look inside the bag which is left with them so that such persons can claim truthfully that they did not know the bag contained firearms, the policy of the minimum term would in the same way be undermined.
16.
On the other hand, applying the reasoning of the court in
Rehman
the fact that an offender may commit an offence without even realising he has done is so is a matter of "great significance" when considering whether the operation of
section 51A
in a particular case leads to an arbitrary and disproportionate sentence.
17.
The crucial feature of this case is that the judge was satisfied after holding a full
Newton
hearing that the appellant was genuinely unaware that the bag contained firearms and ammunition. That is a high threshold for any defendant to achieve. We would expect any court dealing with such a case to subject to the closest scrutiny any plea of lack of knowledge of the contents of a bag or container.
18.
In
R v Lashari
[2010] Crim LR 783 this court held that where a defendant advances exceptional circumstances in a firearms case the burden is on the Crown to disprove the truth of the defendant's assertion. In that case the defendant had put into the boot of his car two bags he had found close to his car in a parking bay. One of the bags contained what looked like a gun. He forgot about the bags in the boot and was never aware that the gun was a lethal firearm. He did realise it was a gun. Although the sentencing judge had applied the wrong burden and standard of proof, this court concluded that even if the defendant's version of events had been true, or might have been true, it did not follow that there were exceptional circumstances. The defendant in that case had deliberately put the bag in his car believing it contained a gun and he kept it there. It is implicit in the reasoning of the court, however, that had he been unaware that there was a gun in the bag at all, the position might well have been different.
19.
In the present case the appellant's criminality lay in being prepared to receive into her flat a bag which she suspected was somehow linked to crime. In doing so she acted at her peril but she did not know the bag contained firearms and ammunition. In our judgment there were exceptional circumstances, which, had the point been argued, would have entitled the judge not to impose the minimum five year sentence. It is clear that had the judge believed such a course was open to him he would have taken it.
20.
It follows that we are persuaded that it is proper to allow the appeal and to impose instead a determinate sentence consistent with the appellant's criminality. Mr Cohen submitted that this case ought to be equated with, if not treated less seriously than, the offence in
Edwards
, to which we have referred. He submits that in that case the appellant was older and at least had some knowledge that the items she was looking after were firearms.
21.
We do not think it is appropriate to draw such comparisons. We think that justice will be done in this case if the sentence upon this appellant is reduced from five years to two years, a sentence which we think reflects properly the appellant's true criminality whilst giving her full credit for her guilty pleas.
22.
We therefore quash the sentences of five years' detention and we substitute on each count concurrent sentences of two years' detention. To that extent the appeal is allowed. As the appellant has already served almost the equivalent of a two year sentence, it follows that she will be eligible for release in the very near future. | [
"LORD JUSTICE RICHARDS",
"MR JUSTICE SPENCER",
"SIR CHRISTOPHER HOLLAND"
] | 2011_03_10-2659.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/861/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/861 | 829 |
d3e9078947135bfa656a6c453a192ca97757d8f83e30c259f7b050811b526b86 | [2010] EWCA Crim 2250 | EWCA_Crim_2250 | 2010-08-03 | crown_court | Neutral Citation Number: [2010] EWCA Crim 2250 Case No: 200805957 C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 3rd August 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE MCCOMBE MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - R E G I N A v KAMAHL FORD - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street | Neutral Citation Number:
[2010] EWCA Crim 2250
Case No:
200805957 C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 3rd August 2010
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE MCCOMBE
MR JUSTICE KING
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
KAMAHL FORD
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss F Dunkley
(Solicitor Advocate) appeared on behalf of the
Applicant
Mr J C Dawes
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LAWS: In September and October 2008 before Her Honour Judge Karu at the Inner London Crown Court this applicant faced a re-trial on an indictment containing 14 counts. On 8th October 2008 he was convicted by the jury of three offences of making a threat to kill (counts 1-3), two of possessing a firearm with intent to endanger life (counts 4 and 8), one of possessing a prohibited firearm (count 6), one of possessing ammunition without a firearms certificate (Count 7), three of doing acts tending and intended to pervert the course of public justice (counts 10, 11 and 12), one of conspiracy to possess a firearm with intent to endanger life (count 13), and one of conspiracy to pervert the course of public justice (count 14). On 10th December 2008 he was sentenced to concurrent terms of detention for public protection with an overall minimum term of seven years' detention in a young offenders institution less 463 days spent on remand.
2.
There were two co-defendants. Nacoli Bravo was acquitted on the counts he faced: they were 6, 7 and 8. Shafan Kerr pleaded guilty to possessing a prohibited firearm, count 5. This was the only count which did not charge the applicant with an offence. As against Kerr it was put as an alternative to count 4.
3.
On 13th January 2010 the full court (Maurice Kay LJ, Christopher Clarke and Sharpe JJ) adjourned the applicant's renewed application for leave to appeal against conviction and directed that the appeal should follow if leave were granted. They also directed that the applicant's counsel should re-cast the grounds of appeal and lodge a skeleton argument and that the Crown should lodge a skeleton in response. All those steps have been taken and so the matter comes before us today.
4.
The facts may be outlined quite shortly, though it will be necessary to consider in a little more detail certain particular aspects of the evidence in addressing the reformulated grounds of appeal. In November 2006 the applicant had just been released from custody. He got in touch with a young woman called Cardine Wignall, who lived with her father, Leonard Wignall, at 26 Camplin Street in London. He wanted her to hire a car for him. She refused. She stopped replying to his messages and his text messages. Thereafter, referring to himself by the nickname "Killa", he sent a series of abusive and vitriolic text messages, three of which (sent respectively on 10th November 2006, 2nd January and 5th January 2007) formed the subject of the first three counts on the indictment charging offences of making threats to kill. There were quite a number of other messages also, no less nasty. The message of 2nd January 2007, count 2, gives the flavour: "oi you dick head your goner here two bangs and think yourself why did I not take him seriously watch".
5.
On the day of the last threat to kill, 5th January 2007, at about 2.45 in the afternoon two gun shots were fired through the front window of the Wignalls' home at 26 Camplin Street. That was represented by count 4 in the indictment. A few minutes later the applicant sent Cardine another text message, "Ring me back if you want". A witness to the shooting, or part of it, was a woman called Asiatu Charm who knew the applicant. She dialled 999 and told the police what she had seen. She made a statement later that day. Another witness was a young woman called Emma Leaburn.
6.
On 18th January 2007 a woman called April Maddix, of whom more hereafter, was bought a Ford Focus car by her father. She was a friend or associate of the applicant. On 4th February 2007 the Ford Focus was stopped by armed police near Blackfriars Bridge with the applicant at the wheel. There were three other occupants, including the co-defendant Bravo. The police found a loaded semi-automatic Browning pistol in the glove compartment and a holster which fitted the gun in the driver's side door. These facts gave rise to counts 6, 7 and 8. The applicant gave his address as April Maddix's address.
7.
The applicant was charged and remanded in custody on 5th February 2007. Cell site analysis and billing records show that while he was in custody he used a mobile phone to make calls to April Maddix 205 times, Asiatu Charm seven times and Cardine Wignall once. The Crown said that these calls were made in order to intimidate the women so that they would not give evidence for the Crown. They formed the substance of counts 10, 11 and 12.
8.
On 12th September 2007, while the applicant was still in custody, there was a second shooting at 26 Camplin Street. Two gun shots were fired through the front window at about 11.30 at night. Leonard Wignall was hit by broken glass. When the police arrived at the scene an unknown female handed one of the officers a piece of paper bearing a vehicle registration number, T921 RJK, and a note which said that the woman had "heard gun shots and saw them getting into this car but I don't want to get involved".
9.
On 18th September 2007, six days after the shooting, police came upon a car with the registration plate T921 RJK. The four male occupants were apprehended. Telephone evidence showed that they had been in contact with each other at various times and their mobile phones had been in the vicinity of Camplin Street at about the time of the second shooting. The applicant had made contact with two of them, one called Junior Salokun, on 6th September 2007 and Troy Hudson-Davies on 13th September 2007. Salokun had tried to phone April Maddix, it was said, on 8th September 2007 and had arranged to visit the applicant in custody the following week. The Crown case was that the applicant was the controlling mind behind the second shooting: hence counts 13 and 14.
10.
The applicant made no comment in his police interview and did not give evidence at his trial.
11.
The reformulated grounds of appeal fall into two parts. It is first said that certain evidence admitted by the judge should have been excluded. It is said secondly that the summing-up was defective in various respects.
12.
We turn to the first head of appeal, the evidence which it is said should have been excluded. There are six separate items here. Statements made by April Maddix, Emma Leaburn and Asiatu Charm were read to the jury. These are the first three items involved. The applicant says the judge should not have allowed that course of action to be taken. The fourth item is the anonymous hearsay evidence of the woman who produced the car registration number and the note in the context of the second shooting. The applicant says that should not have been allowed in. The fifth item was the evidence of an officer, PC Crossley, to the effect that on 3rd January 2008 a woman called Tameika Dixon had been stopped and searched, her telephone directory recorded the name "Killa" against a phone number ending 169 which was the number of a phone used by the applicant. The sixth and last item was the evidence relating to the four males in the car T921 RJK. They have been referred to in the proceedings as "the four boys". The evidence in question is the anonymous hearsay note, item 4 above, the number plate and the telephone evidence.
13.
When the matter was before the full court on 13th January 2010 the court was most interested, if we may put it that way, in item 4, the anonymous hearsay evidence. This was a new point not pleaded in the original grounds. The court said this:
"6. At its broadest, the point sought to be made by Miss Dunkley in relation to that is that in the light of some observations of this court in the case of
R v Mayers and Others
[2008] EWCA Crim 2989
at paragraph 113, and in the light of an endorsement of that in the Supreme Court per Lord Judge in
R v Horncastle and Another
[2009] UKSC 14
, paragraph 13 of his contribution, anonymous hearsay is inadmissible in all circumstances."
14.
We will deal with item 4 first. The judge let in this evidence by a ruling given on 16th September 2008, in which she set out arguments which had been advanced before her but gave no clear reasons of her own. By
section 114(1) of the Criminal Justice Act 2003
hearsay evidence is admissible in criminal proceedings if, but only if, any one or more of four conditions listed at
section 114(1)(a)
to (d) applies. The Crown relied on
section 114(1)(d)
: "The Court is satisfied that it is in the interests of justice for it to be admissible".
15.
The force of the evidence of the anonymous witness from the Crown's point of view is very plain. The registration number and the statement that the woman had seen them "getting into the car" enabled the police, once the car was found, to connect the applicant with the scene of the second shooting. It is true that the four boys were arrested on suspicion of involvement with the shooting but were never charged, and in fact the allegations of conspiracy in counts 13 and 14 were that the applicant had conspired "with others unknown". But whatever the truth about the four boys may be, the evidence of the car number and the note linked the applicant with the 12th September shooting, and the anonymous woman cannot have known on 12th September, when she spoke to the officer, what was to happen six days later when the police came upon the car. That may be thought to be of some importance because it means that the anonymous hearsay evidence is untainted; that is to say it cannot have been motivated by any animus against the applicant, and its accuracy is vouchsafed by the fact that the very number plate turns up six days later on a car containing associates of the applicant.
16.
In our judgment if the trial judge had power to let in this evidence there were very strong reasons for her to do so. But the applicant, by Miss Dunkley, who has put forward the point with great economy and clarity, says there is no legal power to admit this piece of evidence. She relies on
Mayers
[2008] EWCA Crim 2989
and
Horncastle
in the Court of Appeal EWCA Crim 964, but particularly in the Supreme Court at
2009 UKSC 14
. It is most convenient simply to cite a short passage from her skeleton which introduces this material. She quotes paragraph 113 of this court's decision in
Mayers
:
"... we are being invited to re-write
the 2008 Act
by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury. We cannot do so. Neither the common law, nor
the 2003 Act
, nor
the 2008 Act
permits it."
The 2008 Act
is of course the
Criminal Evidence (Witness Anonymity) Act 2008
, which governs the admissibility of anonymous witness evidence for the purposes of a trial. Miss Dunkley's skeleton continues:
"The Court of Appeal in
R v Horncastle and Others
[2009] EWCA Crim 964
, para 48 upheld this decision: 'The CJA 2003 is concerned with identified but absent witnesses. It does not permit the admission of the evidence of anonymous witnesses'.
Then she says this:
"The United Kingdom Supreme Court upheld this position in its judgment in
R v Horncastle
[2009] UKSC 14
. Annexe 4 prepared by Lord Judge specifically approved the decision in
Mayers
and stated at paragraph 13 'the relaxation of some of the rules against the use of anonymous witnesses under the
Criminal Evidence (Witness Anonymity) Act 2008
does not extend to witnesses who are not only anonymous but also absent ... In short, such evidence is inadmissible."
That reasoning is relied on in a series of different contexts to be found in Lord Judge's Annexe 4 at paragraphs 16, 24, 38, 46, 54, 73, 80, 89 and 96.
17.
On the face of it these materials appear to demonstrate that it is inescapable that anonymous hearsay evidence cannot be admitted under the present statutory regime. Hearsay evidence of course is admissible under
the 2003 Act
, but if anonymous evidence, whether hearsay or not, is to be admitted that can only be done by reference to the provisions of the Act of 2008. Quite plainly the statement of the unknown woman giving the car registration number is or would be anonymous hearsay evidence.
18.
We have considered whether the reasoning of this court and that of Lord Judge necessarily applies in a case where the statement is made not by a known witness whose identity is sought to be withheld, but by a person whose identity is not known at all. In those circumstances it might be said that
the 2008 Act
is simply not in the picture. That being so the reasoning in
Mayers
at paragraph 113, cited by Lord Judge at paragraph 13 of Annexe 4 in
Horncastle
, may be said not to apply. But we cannot see that such an argument could prevail. As we have already indicated, and we repeat it for convenience, the Court of Appeal in
Mayers
at paragraph 113 said:
"No surviving common law power to allow for witness anonymity survives
the 2008 Act
.
The 2008 Act
addresses and allows for the anonymity of witnesses who testify in court. This jurisdiction is governed by statute, and any steps to extend it must be taken by Parliament."
19.
The reality is then that a statement which is sought to be adduced in evidence in circumstances where the anonymity of its maker is sought to be preserved can only be so adduced if it falls within any of the provisions of the Act of 2008 which permit that to be done. The statement of this unknown lady does not fall within any such provision and it has not been contended that it does. In those circumstances it seems to us inescapable that the evidence was not admissible, the judge should not have let it in. Miss Dunkley's argument is correct. On this ground of appeal we grant leave. We will consider shortly what the consequences of this position may be for the full appeal.
20.
It is right we should deal with Miss Dunkley's other points and we turn to the first three items, the statements of April Maddix, Emma Leaburn and Asiatu Charm. First, Asiatu Charm. She had been walking towards Camplin Street at about 2.30 pm on 5th January 2007, the day of the first shooting. She had seen the applicant, who was known to her, and attempted to engage him in conversation. He was with another man. She continued walking with her back to the two of them. She heard two shots. She turned and saw the two men running from the scene. As we have said, she made a 999 call and later a statement. On 17th September 2008 (transcript volume IV) the judge admitted Miss Charm's witness statement, an edited version of her 999 call and evidence from DC Hunter reporting a much later conversation in which she had corrected certain details in the statement. The evidence was admitted under
section 116(2)(d)
of the
Criminal Justice Act 2003
on the footing that the witness cannot be found and (2)(e), the witness does not give oral evidence through fear.
21.
The applicant concedes that these two gateways were open on the facts relating to Miss Charm's statement, but it is submitted that the statement was not demonstrably reliable having regard to discrepancies about the name of the road, the route she took, the circumstances in which she had come to know the applicant, a want of detail about the applicant, a question whether on her statement the applicant could have been the shooter and alleged inconsistencies with the statement of Emma Leaburn.
22.
Now, there was a wealth of evidence that Asiatu Charm was terrified to testify. She had been served with a witness summons for the first trial and vomited when she received it. However after her statement was read at the second trial she attended court voluntarily and was examined and cross-examined. There was no unfairness to the applicant here. His objections to the admission of her statement are entirely insubstantial.
23.
Emma Leaburn. On 24th September 2008 the judge expressed herself as satisfied that Emma Leaburn would not give evidence out of fear for her safety. In fact she attended court and testified on a voir dire from behind a screen. She begged not to have to give evidence before the jury given the threats, that she or a member of her family would be shot, which she had received. In her statement she gave an eye witness account of the first shooting. Her account differed in some ways, it is true, from that of Asiatu Charm. She failed to pick out the applicant at an identification procedure. Asiatu Charm, we should say, did not attend such a procedure. She, Emma Leaburn, had given a description of the shooter. She also had some information about the second shooting. Such differences and discrepancies as there were here, given that there was an identification issue, can presumably only have assisted the applicant. The judge's decision to let in Emma Leaburn's witness statement cannot be faulted.
24.
April Maddix. On 17th September 2008 the judge admitted her statement under
section 116(2)(d)
of
the 2003 Act
. She made herself unavailable during the trial despite the Crown's reasonable efforts to find her. Her evidence was important from the Crown's point of view because the applicant claimed that when the Ford Focus was stopped by the police on 4th February 2007 with himself in the driver's seat he had only just got into the car. Maddix's statement of 19th February 2007 showed, however, that he had been in possession of it for a number of weeks. In fact she wrote a retraction of her statement and the judge allowed that in along with the original statement. Again, the applicant says there are inconsistencies in her account: thus belongings of hers were found in the car which seemingly had been put there after she said she was last in the vehicle, and reliance is placed on the fact that there was a suggestion at trial of a phone call between Miss Maddix and some of the four boys could be evidence that Miss Maddix was a co-conspirator for the purpose of counts 13 and 14. Miss Dunkley submits that that circumstance is to be taken into account in considering overall whether her evidence should have been admitted in the form in which it was. The applicant says that Miss Maddix's statement must be shown to be demonstrably reliable before it could be admitted. Miss Dunkley refers to the decision of this court in the
Horncastle
case
[2009] EWCA Crim 964
. But
Horncastle
does not decide that a witness statement must be demonstrably reliable in every case before it can be admitted. Thomas LJ said this at paragraph 57:
"Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable, or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures."
It is evident to our mind that decisions as to the admissibility of hearsay evidence under the Act of 2003 are always going to be case sensitive and nothing, with respect, in
Horncastle
contradicts that. Miss Maddix's statements were, in our judgment, rightly admitted.
25.
In relation to these three witnesses we would add this. Where application is made in evidence to adduce a statement because its author has been frightened or intimidated so that he is unwilling to give oral evidence, and that has been done by or on behalf of the defendant in the case, the defendant in opposing the statement's admission should not generally be allowed to rely on weaknesses or inconsistencies in the statement to show that it would be unfair to admit the statement. To accede to arguments of that kind would allow the defendant the benefit of his own wrongdoing or that of his associates in having intimidated the witness. It is his fault, not the witness's, that the weaknesses in the statement cannot be explored in cross-examination. Such weaknesses accordingly cannot be said to give rise to a want of fair procedures for the purposes of Article 6 of the European Convention on Human Rights. At paragraph 41 in
Horncastle
in this court this was said:
"... what is important for the present case is a further proposition adopted in
Al-Khawaja
that if the evidence is the sole or decisive evidence there will necessarily be a breach of Article 6 and Article 6(3)(d) if the defendant is denied the right to confront the witness, at least unless the case is one of fear."
We understand that the Strasbourg court also has acknowledged such a position.
26.
We turn to item 6, Tameika Dixon's telephone directory. On 17th September 2008 (transcript volume II) the judge admitted PC Crossley's evidence that on 3rd January 2008 Tameika Dixon had been stopped and searched and her phone book had the name "Killa" against a phone number ending 169. This evidence was admitted under
section 114(1)(d)
. The witness could not be found. The applicant's use of the nickname "Killa" was obviously important for the Crown's case. The applicant was associated with a phone number 169. This evidence was rightly admitted as giving material objective support to a part of the Crown's case.
27.
Lastly item 6, the four boys. Given that the evidence of the unknown lady who produced the car registration number should, in our judgment, not have been admitted for the reasons we have given, the other evidence relating to the four boys likewise should have been excluded because without the anonymous lady's evidence there is nothing to connect them or the motorcar with the scene of the shooting on 12th September.
28.
That leaves the second area in which Miss Dunkley seeks leave to appeal, her criticisms of the summing-up. We have considered these with some care. We do not think it necessary to go through each and every one of them. We do not consider that what is said in relation to the summing-up affects the fairness of the trial.
29.
The result of our judgment is that leave to appeal will be given on the one ground relating to the anonymous unknown lady. Leave to appeal will be refused on all other grounds. We will hear counsel briefly as to where that leaves the substantive appeal, by which I mean, Miss Dunkley, Mr Dawes, whether our ruling in relation to the note and the car registration number is fatal to the conviction on every count or not. It is clearly fatal to the conviction on the last two counts relating to the shooting on 12th September.
(Submissions followed)
30.
LORD JUSTICE LAWS: We have given very anxious consideration to the question what is the consequence of our having allowed this appeal on the ground only that the unknown witness's evidence should not have been admitted. It is, in our judgment, first clear that the convictions on the last two counts (which were counts 13 and 14 in the indictment as originally drawn but may have been re-numbered 12 and 13) cannot stand. Those were the counts of conspiracy and they related only to the second shooting on 12th September to which the anonymous witness's evidence was directly related.
31.
We have considered very carefully, however, what is the effect on the balance of the case. In the end we have concluded that the convictions on the remaining counts are safe. First, it is clear that there was extremely powerful evidence to support each and every one of those counts. Secondly, if one asks, so to speak, the notional question, what would have been the jury's thought process if they were going to acquit on those counts not having heard the evidence of the anonymous witness, it is very difficult to see how they could have set aside the obvious force of the many matters relied on by the Crown on those earlier counts. Having looked at the evidence and the facts of the case very carefully, and of course considered the judge's summing-up, we consider that the convictions on those counts are safe. Accordingly, this appeal will be allowed only to the extent that the convictions on the last two counts, originally 13 and 14, are quashed.
32.
LORD JUSTICE LAWS: Miss Dunkley, it occurs to us that in the light of that decision you may wish to say something about sentence. I am not necessarily encouraging you to, but this was an IPP with a fixed term of seven years. I am not suggesting it is realistic that that could come down, but as he is no longer to be held guilty of the last two counts I think we probably should give you an opportunity, however briefly, by way of a late application for leave to appeal against sentence to say anything if you want to. I am not particularly encouraging you to.
(Submissions regarding sentence followed)
33.
LORD JUSTICE LAWS: In light of our judgment on conviction we have permitted Miss Dunkley to make short submissions on sentence by way of a late application for leave to appeal against sentence. We do not repeat the facts of the case which are described in our judgment on conviction. We are grateful to Miss Dunkley for her short submissions and, as we should have said earlier, especially so for her treatment of the point on which she has been successful in this court, a point which, so far as we can see, occurred to her before it occurred to anyone else.
34.
In light of the fact that the appellant, as he now is, no longer stands convicted of the two conspiracy counts, it seems to us that some alteration to the minimum term of seven years' detention in a young offenders institution imposed on counts 4 and 7 on the indictment should be made. Such a minimum term was also fixed for count 12, conspiracy to possess a firearm, and it is reasonably clear that the judge considered that the notional determinate sentence represented by that minimum term, namely a sentence of 14 years, was the total sentence justified given all the offences of which this appellant has been convicted, and it may be said not least the two conspiracy offences. In the circumstances we propose to quash the minimum term of seven years fixed on counts 4 and 7 and in each case substitute a minimum term of six years' detention in a young offenders institution. All other sentences remain untouched. The sentences run concurrent with each other, as the judge ordered them to do.
35.
We grant leave to appeal against sentence, treat this hearing as the hearing of the appeal and allow it to that extent. | [
"LORD JUSTICE LAWS",
"MR JUSTICE MCCOMBE",
"MR JUSTICE KING"
] | 2010_08_03-2479.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2250/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2250 | 830 |
e4bb38db292c8cb73b9fc91fd61091853971c0f12c730ec0259f381af20a32ff | [2012] EWCA Crim 2821 | EWCA_Crim_2821 | 2012-12-21 | crown_court | Neutral Citation Number: [2012] EWCA Crim 2821 Case No: 201201799A2, 2012022074A2, 201202806A7, 201202711A7, 201202600D1, 201202493A5, 201202497A5, 201202773A8, 201203188A8 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Peterborough, HHJ Enright T20117218 (Caley) The Crown Court at Peterborough, HHJ Enright T20117219 (Robertson) The Crown Court at Warrington, Mr Recorder Menary T20120052 (Perry) The Crown Court at Liverpool, HHJ Clifton T20117823 (Bowen) The Crown C | Neutral Citation Number:
[2012] EWCA Crim 2821
Case No: 201201799A2, 2012022074A2, 201202806A7, 201202711A7, 201202600D1, 201202493A5, 201202497A5, 201202773A8, 201203188A8
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Crown Court at Peterborough, HHJ Enright T20117218 (Caley)
The Crown Court at Peterborough, HHJ Enright T20117219 (Robertson)
The Crown Court at Warrington, Mr Recorder Menary T20120052 (Perry)
The Crown Court at Liverpool, HHJ Clifton T20117823 (Bowen)
The Crown Court at Southwark, HHJ McCreath T20107596, T20107373 (Sanham)
The Crown Court at Snaresbrook, Mr Recorder Nigel Peters T20127024 (Kamwiziku) T20127025 (Didonga)
The Crown Court at Lincoln, HHJ Morris S20120085 (Wade and McWilliams)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/12/2012
Before :
LORD JUSTICE HUGHES
MR JUSTICE WILKIE
and
MR JUSTICE POPPLEWELL
- - - - - - - - - - - - - - - - - - - - -
Between:
Caley & others (guilty pleas)
Appellant
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Michael Duffy
for the
Appellant Caley
Tim Bowden
for the
Appellant Robertson
James E Coutts
for the
Appellant Perry
Paul Wood
(instructed by
Kirwans Solicitors
) for the
Appellant Bowen
Jamas Hodivala
for the
Appellant Sanham
Daniel W. O’Malley
(instructed by
Michael Carroll & Co
) for the
Appellant Kamwiziku
James Boyle
(instructed by
Michael Carroll & Co
) for the
Appellant Didonga
Nicola Devas
for the
Appellant Wain
Samuel Skinner
for the
Appellant McWilliams
Tom Little
for the
Respondent
Hearing dates: 4th October 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes:
1.
The several cases before us raise a number of different questions associated with the long established practice in sentencing which recognises that a distinction should ordinarily be drawn between a defendant who admits his guilt and one who does not. It has been convenient to hear them together and we believe that it is possible to give some general guidance on some of those questions. We do not, however, set out to re-appraise
ab initio
every issue which may arise in connection with sentencing upon pleas of guilty. There is an existing guideline issued by the Sentencing Guidelines Council (“SGC”) in July 2007 (a second edition of a document originating in 2004). It is thus necessarily the point of departure. The cases before us do not, moreover, provide the material which would be required if there were to be a wholesale re-appraisal of reduction for plea. Nor would it be appropriate for this court to exercise its powers to deliver a judgment seeking to make fundamental alterations in the practice. It is known that the Sentencing Council has the overall approach to pleas of guilty and sentencing on its agenda, having deferred further consideration of the topic when the possibility existed (now no longer present) that the Government might seek to introduce legislation upon it. When it resumes consideration of the topic, the Council will be able to have access to the product of wide consultation, and probably to research material which is not before us in these cases. Whether any overall re-visitation of the topic is necessary or appropriate must remain for the future. Some questions, however, arise as to how the SGC guideline should normally be applied. Furthermore, some aspects of the handling of cases in the criminal courts have altered in recent years and the manner in which the Guideline should be applied to present procedures needs to be considered. It is to these topics that we address ourselves.
2.
The starting point is in statute. Section 144(1) of the Criminal Justice Act 2003 is mandatory:
“(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence….a court must take into account:
(a) the stage in the proceedings…at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which this indication was given.”
Section 174 requires the court which moderates the sentence on this basis to say that it is doing so.
3.
We draw attention to the wording. The statute refers to the defendant “indicating his intention” to plead guilty, not to his being arraigned and actually entering such a plea. By definition, the latter will often be at a later convenient opportunity in the court timetable.
4.
Section 144 reflects the practice which the criminal courts had developed over many years. The SGC Guideline identifies the purpose of the practice at paragraph 2.2:
“A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation.”
5.
In order of importance, plainly the first is the benefit for victims and witnesses. The impact of crime on its victims can be enormous or slight, but whether it is large or small the knowledge that a defendant has accepted his guilt and that punishment will follow normally reduces that impact substantially and thus brings significant benefit to the victim. It is generally worse for the victim when the offender, although guilty, is defiant. The same applies to the impact on those who may have to give evidence; they include, but are not confined to, the victim. A few may relish it, or think that they will, but for most the process is normally stressful and often unavoidably uncomfortable. Moreover the anticipation may often be painful, sometimes even more than the actuality. For both victims and witnesses the benefit from a plea of guilty remains even when it comes late, but generally speaking the later it is the less the benefit.
6.
The second major reason for the practice is a more pragmatic one but it is nevertheless vital in the public interest. The expenditure in public time and money on trials and on preparation for trials is considerable. The case must be thoroughly prepared so that the exacting standard of proof rightly required in a criminal case can be met. Further investigation is likely to be necessary, as may the assembly of a good deal more evidence, lay and expert. Such steps are necessary, but expensive. They are avoided or much reduced by an admission of guilt. The public’s limited resources can then be concentrated on those cases where a trial will really be necessary, and such cases will not be delayed, often with accused persons in custody. At present something of the order of 75% of all Crown Court cases result in pleas of guilty; if in all those cases the defendants were out of defiance or otherwise to insist on each detail of the case being proved to the hilt the administration of criminal justice would be in danger of collapse.
7.
As the SGC’s statement of purpose makes clear, a plea of guilty may of course be an indication of remorse for the offence, but it may not be and the two things are not the same. A defendant may indeed regret his offence, and, beyond that, it may be clear that he wishes to avoid doing it again. Equally, however, he may plead guilty not because he regrets committing the crime but simply because he does not see a way of avoiding the consequences. The benefits which we have described which come from a defendant who is guilty admitting that he is so remain present if it is a case of the latter type. Moreover, it accords with elementary instincts of justice to recognise the difference between two defendants, one of whom is defiant and requires the public to prove every dot and comma of the case against him and the other of whom accepts his guilt.
8.
The well established mechanism by which this is done is by reducing the sentence which would have been imposed after a trial by a proportion, on a sliding scale depending on when the plea of guilty was indicated. The largest reduction is of about one third, and is to be accorded, under the well established practice and the SGC Guideline, to defendants who indicate their plea of guilty at the “first reasonable opportunity”. Thereafter the proportionate reduction diminishes. A plea of guilty at the door of the trial court will still attract some reduction, but it is likely to be of the order of one tenth.
“First reasonable opportunity”
9.
The SGC Guideline rightly makes it clear that the question of when the defendant’s first reasonable opportunity arose is a matter for the sentencing judge. Individual cases may call for individual decisions about this. But it is obviously desirable for there to be a baseline of broadly consistent approach if justice is to be done between different offenders, in all parts of the country. Equally such consistency is necessary if proper advice is to be given to accused persons.
10.
The SGC Guideline contains at Annexe 1 some general assistance in determining the point of first reasonable opportunity. That document however leaves unresolved a question which is important in the context of current practice for handling the early stages of a criminal prosecution. It suggests that the first reasonable opportunity may be the first time a defendant appears in court and has the opportunity to enter a plea (ie when he is arraigned), but also that a court might consider that he had a reasonable earlier opportunity to
indicate
a willingness to plead guilty, and “perhaps whilst under interview”.
A broad spectrum of possibilities is thus left open, beginning with the police interview of the defendant as a suspect, passing through a variety of possible hearings in the Magistrates’ and Crown Courts and ending with formal arraignment. It has fallen to us to consider whether within that broad spectrum any further general assistance can usefully be given. It is apparent that different approaches are taken by different judges not simply to individual cases requiring special attention (which is clearly necessary) but also to the general or default position. We think that some limited narrowing of the spectrum can be achieved in the interests of greater consistency. We will come below to consideration of formally propounded and well established local schemes, usually known as ‘Early Guilty plea’ schemes.
11.
First, however, some of the cases before us have debated the question whether the first reasonable opportunity generally arises at arraignment, which will normally take place at a plea and case management hearing (“PCMH”) in the Crown Court, or at an earlier stage. If the latter, then at which earlier stage ?
12.
Mr Little, who appeared for the Crown in all these cases, did not ask us to say that the first reasonable opportunity normally arises in police interview. We agree that that would require a significant adjustment to general practice. It might have implications for the terms of the caution and for other rules of practice about how interviews are conducted. Moreover, at the interview stage, although the factual allegation will normally be made, the charge will generally not have been formulated.
13.
It does not of course follow that it is irrelevant to sentence if a defendant frankly admits in police interview what he did. Far from it. The defendant who does so will have additional mitigation which should normally be recognised in sentencing. Its impact on sentence will of course vary according to circumstances. At one end of the scale, the defendant who volunteers an admission when the police could not have brought the allegation home (and occasionally when they did not even know about it) usually has a great deal of mitigation. So has the defendant who, by admitting what he did, spares others who would otherwise have come under suspicion. At the other end of the scale, the defendant who is confronted with evidence which is in practice unanswerable has little, although some, mitigation. The right way for courts to deal with admissions in interview is not, however, by treating them as essential in every case to according the maximum one-third reduction for guilty plea. Rather, the variable circumstances of such admissions are best dealt with not by percentage adjustments prescribed in advance but by recognising them as a factor tending towards downwards adjustment to the sentence passed, to be assessed in the ordinary way by the judge along with other aggravating and mitigating factors, but before adjustment for plea of guilty.
14.
There is sometimes confusion in argument between (i) the first reasonable opportunity for
the defendant
to indicate his guilt and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not. There will certainly be cases where a defendant genuinely does not know whether he is guilty or not and needs advice and/or sight of the evidence in order to decide. We do not attempt to define them, and they do not arise in the present appeals. They might however include cases where even if the facts are known there is a need for legal advice as to whether an offence is constituted by them, or cases where a defendant genuinely has no recollection of events. There may be other cases in which a defendant cannot reasonably be expected to make any admission until he and his advisers have seen at least some of the evidence. Such cases aside, however, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different. Moreover, even though a defendant may need advice on which charge he ought to plead guilty to, there is often no reason why uncertainty about this should inhibit him from admitting, if it is true, what acts he did. If he does so, normally the public benefits to which we have referred will flow.
15.
The progress of a criminal case through the courts has undergone considerable streamlining in recent years. Where the offence is an “either way” offence, the magistrates are required to conduct mode of trial proceedings under the Magistrates’ Courts Act 1980, and if the case is suitable for Crown Court trial then formal committal follows. The mode of trial proceedings in the Magistrates’ Court include the requirement that the defendant be read the charge and given the opportunity (if he wishes) to indicate that he will plead guilty: see s 17A(3) and (4). Where the offence is indictable only it will have to be “sent” to the Crown Court, but a similar enquiry must be made at the Magistrates’ Court whether the case is likely to be a plea of guilty or not. This is required by the Rule 9.7(5) of the Criminal Procedure Rules, as well as more generally by Rule 3.8. Both Rule 9.7(5) and paragraph IV41.3 of the Consolidated Criminal Practice Direction ensure that the management directions given by the magistrates at the time of sending will vary according to the answer. A preliminary hearing for the plea to be taken in the Crown Court, and “as soon as possible” will be directed where a plea of guilty is indicated but (unless there is another reason for such a hearing), not otherwise. A case management hearing in the Crown Court will be directed if no such indication is given. In other words, there is always a formal opportunity in the Magistrates’ Court for the defendant to indicate that he accepts he is guilty. The impending abolition of committal and replacement by sending to the Crown, which we understand to be likely to be completed in the next year, is a further streamlining but does not affect this position.
16.
These statutory provisions dovetail with case management initiatives increasingly taken by Crown Courts, often referred to as “Early Guilty Plea” schemes. By this, we do not mean individual sentencing practices of one or more judges but, rather, formally adopted local schemes, publicly stated and usually following discussions as to practicalities with local practitioners, both prosecuting and defending. Whilst these schemes vary in detail, the principle is that the parties are encouraged to give active early consideration, either (under some schemes) at the Magistrates’ Court or (under others) immediately the case arrives in the Crown Court,
to whether it is likely to be disposed of by plea of guilty or by trial. If the former, a prompt hearing is set up, with the necessary pre-sentence report available, so that the plea can be taken and sentence passed, all at a single hearing. If the latter, the case will be listed for plea and case management, that is for arraignment and trial planning. Thus under these schemes, at the latest by the time the case arrives in the Crown Court, the defendant is given a formal opportunity through his solicitors or counsel to notify his intention to admit the offence and/or to ask for prompt listing for arraignment and sentence.
Even without such formal schemes, every defendant has in fact the opportunity in every Crown Court to give such an indication.
17.
These various procedures all serve a similar end. They aim to advance the point at which everyone can know whether a trial is going to take place or not. The sooner this is done the greater the advantage for the victim and witnesses. The sooner this is done the greater the public saving in preparation of trial-ready evidence by the Crown and in successive Crown Court hearings. The point at which there is, in practice, great saving in the assembly and service of evidence, and in the investigation and making of disclosure, is if and when an indication of a guilty plea is given either in the Magistrates’ Court or immediately on arrival in the Crown Court. The practice of local CPS branches as to the level of preparation for a case leaving the Magistrates’ Court by way of committal (whilst this endures), or by way of ‘sending’, may well vary, and this may well underlie some of the variations in locally hammered-out formal schemes. But by the time of a plea and case management hearing a complete or nearly complete trial file of evidence should normally have been prepared, even if scientific evidence may often be still to come and there may be other evidence which becomes necessary when once the issues are defined for trial. There are undoubtedly considerable savings still to be made if a plea of guilty is tendered on arraignment at such a hearing, but they are normally significantly less than can be achieved if an earlier indication is given.
18.
All this leads us to the clear conclusion that, absent particular considerations individual to the case, the first reasonable opportunity for the defendant to indicate (not necessarily enter) his plea of guilty, if that is his mind, is
not
the PCMH, This court pointed towards this conclusion in
R v Chaytors
[2012] EWCA Crim 1810
. The first reasonable opportunity is normally either at the Magistrates’ Court or immediately on arrival in the Crown Court – whether at a preliminary hearing or by way of a locally-approved system for indicating plea through his solicitors. There will, we think, ordinarily be some, but limited, difference in public benefits between the two stages of the Magistrates’ Court and the first arrival in the Crown Court, but for practical purposes either can properly, we think, ordinarily attract the maximum percentage reduction (one third) provided for by the SGC Guidelines. Properly promulgated local schemes which provide for either appear to be working, may well reflect local variations in the preparation of files for committal or sending, and do not, we think, need at present to be disturbed. However, the possibility adverted to in Annex 1 of the Guideline that an indication at the Magistrates’ Court might attract a reduction of 33% and an indication at the first Crown Court hearing 30% is not, we think, generally reflected in practice as experience has developed it over the years, and, given the minimal distinction, is likely to be an unlooked-for complication.
19.
A plea of guilty at a plea and case management hearing will ordinarily not be significantly different from a plea notified shortly after it. Whatever the exact procedure in different courts for fixing trial windows or trial dates this is clearly the stage at which the Guideline contemplates a reduction of about a quarter.
20.
By ‘indicate plea of guilty’ we mean to include the case where, either in the magistrates’ court or at or soon after arrival in the Crown Court, the defendant through counsel or solicitors notifies the Crown that he would admit a lesser charge or invites discussion as to the appropriate charge, at any rate where the position taken up is a reasonable one. The same may be true, where a formal local scheme does not operate, of a considered indication to the court that a trial is unlikely, so long as realistic and prompt discussions with the Crown then take place. Ordinarily these kinds of indication will bring similar public benefits to those which we have described.
21.
We recognise that this may well mean that advocates at the Magistrates’ Court must be equipped to explain to the defendant the practice relating to reduction for pleas of guilty, and that the trial advocate may well need to be instructed earlier than used in years past to be the practice. This is a matter for the parties and their advisers, but to the extent to which these things are wise and necessary they ought already to be the trend.
22.
We also recognise that some courts may wish to embark on consultation with local practitioners with a view to adopting particular schemes consistent with the principles which we have set out, and adapted to local conditions. Provided that the general principles set out above are observed, that appears to us to be perfectly legitimate.
“Overwhelming case”
23.
Paragraph 5 of the SGC Guideline expressly advises that it might be appropriate to limit the reduction in sentence for plea of guilty where the case against the defendant is, irrespective of any admission, overwhelming. The terms in which that advice is given in the Guideline are cautious. If the plea is indicated at the first reasonable opportunity, the Guideline states that there remains a presumption that the full reduction of one third ought to be given. If there is reason not to make this full reduction, it is suggested that the reduction should be of the order of one fifth.
24.
In
R v Paul Wilson
[2012] EWCA Crim 386
this court recently considered this question in the context of a particularly serious case of two oral rapes of a three year old, which had been recorded on camera. The trial judge had declined to make any reduction in sentence for the plea of guilty although it had been indicated at a very early stage within a week of police interview. This court disagreed and reduced the very long sentence imposed, which reflected also other very serious child grooming offences. After assessing the state of the evidence, the Lord Chief Justice referred to the judge’s view that the defendant had had no choice but to plead guilty but said that “Ultimately the plea is for the defendant”. He then said this at [29] and [31]:
“[29] Even in an overwhelming case the guilty plea has a distinct public benefit. The earlier that it is indicated, the better for everyone…..There are two examples we wish to highlight. First, none of the repellent movie of the little girl would ever be shown in public. No one would ever see her face. In addition, none of it would ever be seen by the jury [who]….would have been horrified… Those are but two advantages of the guilty plea.
……..
[31] Although we understand the judge’s view, it would be productive of uncertainty, and would ultimately cause chaos if this court were to suggest that an existing definitive guideline could be disregarded or ignored in this case unless, at any rate, we were able to find a specific reason to conclude that he interests of justice required us to do so. ”
Those observations were made in the context of wholesale refusal of
any
reduction but they have a wider lesson to teach. The cautious terms of the SGC guidelines on this topic are deliberate and wise. The various public benefits which underlie the practice of reducing sentence for plea of guilty apply just as much to overwhelming cases as to less strong ones. Next, judges ought to be wary of concluding that a case is “overwhelming” when all that is seen is evidence which is not contested. Thirdly, even when the case is very strong indeed, some defendants will elect to force the issue to trial, as indeed is their right. It cannot be assumed that defendants will make rational decisions or ones which are born of any inclination to co-operate with the system, but those who do merit recognition. When contemplating withholding a reduction for plea of guilty in a very strong case, it is often helpful to reflect on what might have been the sentences if two identical defendants had faced the same “overwhelming” case and one had pleaded guilty and the other had not. In any event, the guidelines make clear that normally at least a one-fifth reduction ought to be made, however ‘overwhelming’ the evidence.
25.
As one of the present appeals illustrates, it can be particularly tempting for courts to avoid reduction in sentence for plea of guilty when the statutory maximum sentence is low, or there is other inhibition, and the resulting sentence is felt to be insufficient. However tempting, this must be resisted. As the Guideline says at paragraph 5.6:
“The sentencer cannot remedy perceived defects (for example in an inadequate charge or maximum penalty) by refusal of the appropriate discount.”
“Newton” hearings
26.
The Guideline expressly stipulates at paragraph 4.3(iv) that if the trial of an issue by way of
Newton
hearing is necessary because the defendant asserts a false basis of plea or otherwise disputes a part of the case against him, then if his case is rejected that should be taken into account in determining the level of reduction for plea of guilty. This is only commonsense. The reduction is to recognise the public benefits which flow from a plea of guilty. If despite a plea to the indictment the defendant insists on a version of events which calls for a trial of the issue before the judge some witnesses may well have to give evidence and even if they do not court time will be taken up and further preparation by the Crown will often be necessary. Of course, if the Crown cannot prove its version, the defendant’s reduction for plea of guilty will be unaffected. But if the defendant fails, the converse follows. It is of no little importance to the administration of justice that where bases of plea which will affect sentence are tendered, judges should decide the facts. It is particularly important that unrealistic bases of plea should receive no incentive.
27.
We do not think that it is either necessary or possible to attempt to lay down a rule as to what (if any) reduction for plea should survive an adverse
Newton
finding. It will depend, as it seems to us, on all the circumstances of the case, including the extent of the issue determined, on whether lay witnesses have to give evidence and on the extra public time and effort that has been involved. Some cases involve little more than an assertion in mitigation which the judge is not minded to accept at face value, so that the defendant is given an opportunity to give evidence about it, often (sensibly) there and then. In that case, the reduction ought normally to be less than it would have been if the (false) assertion had not been made, but significant reduction for plea of guilty will, we anticipate, normally survive. Other cases may be ones where something akin to a full trial has to take place, with full preparation by the Crown, lay witnesses having to be called and considerable court time taken up. In such a case, the reduction for plea of guilty which survives is likely, we suggest, to be very small, and may be none at all. In between there may be a considerable range of situations. These must be left to the informed judgment of the sentencing judge.
Residual flexibility
28.
The general approach which we have endeavoured to set out is, we think, essential to an understanding by defendants and their advisers. But it does not altogether remove the scope of the judge to treat an individual case individually. We make no attempt to anticipate the great variety of circumstances which might arise, but give three examples. One is the case of murder where there is real necessity for advice on the availability of a defence, whether self defence, lack of intent, or the partial defences of diminished responsibility or of loss of control. This court (Judge LJ) recognised this in
R v Peters, Peters & Campbell
[2005] EWCA Crim 605
; [2005] 2 Crim Rep R (S) 101 at 627, but only in the context of a defendant who accepts, and makes clear early that he accepts, responsibility for the killing: see paragraph [19]. Next, one of the appeals before us raises the possibility of poor advice. That might, if clearly demonstrated, be relevant to the issue of first reasonable opportunity, especially in the case of a young or inexperienced defendant particularly in need of advice. It is, however, likely that before a defendant could satisfy the judge that it was right to proceed on the basis of poor advice, he would have to consider optional full waiver of privilege. That is because the question may well be raised what (if anything) he was telling his lawyers about his actions. A third case which is sometimes treated as meriting exceptional treatment is the exceptionally long and complex trial, whether in fraud or otherwise (such as people trafficking, complex drug cases, serial sex abuse cases with many complainants and the like). Since the rationale of reduction for plea is the public benefit which we have described, we leave open the possibility that in some such cases, unusually, some considerable benefits may well ensue from a plea of guilty even at a late stage. Care must however be taken with such a proposition so that it does not become routine. If it does, then the incentive to focus on plea at an early stage is lost, and it becomes impossible to maintain proper parity between late-pleading defendants and those who indicate their guilt at the right time. One of the appeals before us (Sanham) is a useful illustration of the fact that there is no real obstacle in a complex fraud case to a defendant who admits his guilt doing so at an early stage.
29.
The necessary residual flexibility which must thus remain does not, however, extend to suggesting an investigation in every case of the savings which have or have not actually ensued. The rationale of the reduction for plea of guilty lies in the incentive provided, not in an
ex post facto
enquiry into what would or might have happened if a different course had been taken. If that kind of enquiry were necessary in every case, the administration of justice would not be made more efficient but rather would unnecessarily be complicated, slowed, and made more expensive. The appeal of Bowen,
infra
, affords an illustration of the point.
30.
We apply the foregoing principles to the several cases before us.
Caley & Robertson
31.
Caley and Robertson were two of three men who robbed a newsagent/general store. Robertson and the third (unidentified) man entered the store carrying what appeared to be guns and disguised by stocking masks. The third man brandished a handgun at the solitary shopkeeper, pushing it into his face. Robertson stood guard at the door holding what appeared to be a shotgun, which at one stage he pointed at the shopkeeper. Caley drove them to the shop and remained waiting as the getaway driver outside. The team had inspected the shop about 45 minutes earlier. It escaped with the contents of the till (about £300) and a quantity of cigarettes, carried in a bin liner taken there for the purpose. The car was Caley’s own, and quickly traced to him because a passer-by took its number. These two defendants, but not the third, were caught still in the car within a little over an hour an a half of the offence. The firearms were not recovered and because it was not known what exactly they were the defendants were charged with possession of imitation weapons. The offence had a considerable and lasting impact on the unfortunate shopkeeper, who believed them to be genuine. In interview, Caley answered no questions. Robertson initially did the same and then advanced a false alibi. Both men entered pleas of guilty at the PCMH but had not indicated beforehand that they would do so.
32.
Caley was thirty years of age. He had previous convictions for driving and drugs offences, for battery and for assault on a constable, but had not previously been sentenced to a custodial sentence. He asked the court to take into consideration four other offences of metal stealing, three of them lead from church roofs.
33.
Robertson was 19. He had previous convictions for affray (twice), harassment (twice), the possession of cannabis (three times) and criminal damage; he had not received one short custodial sentence. He asked for five other offences of theft and burglary to be taken into consideration; some of them were metal thefts.
34.
The judge took a starting point of ten years after trial. He reduced that by 25%, made a slight adjustment for Robertson, no doubt for age, and passed sentences of seven and a half years on Caley and seven years on Robertson.
35.
For Caley, Mr Duffy’s principal submission is that the judge was wrong not to treat his plea of guilty as made at the first reasonable opportunity. The sequence of events was as follows. The arrest was shortly after the offence. The police interview followed next day; he declined to answer questions. He appeared at the Magistrates’ Court the following day. The offence was indictable only so he was sent to the Crown Court that day. By 7 November, a week after the offence, the first (“preliminary”) hearing took place at the Crown Court. No indication of plea was given, although the court operated a system with a form asking the question what the plea was likely to be. The case was therefore adjourned for the service of the Crown evidence, which followed on 20 December. The PCMH hearing ensued on 31 January, and at that hearing Caley pleaded guilty.
36.
Mr Duffy asserted that Caley had had poor advice. He told us that the defendant’s instructions were that his solicitor’s representative attended the interview very late, appeared disinterested, and lost patience with the defendant; accordingly Caley disengaged from the process and declined, apparently on his own initiative, to answer any questions. As to the preliminary hearing in the Crown Court, Mr Duffy asserted that counsel had offered no advice at all as to plea, although he accepted that the form must have posed the question. Similar submissions were made to the judge, who recorded that he had been shown some documents, tendered by the solicitors, although they were redacted. The judge took the view that the suggested waiver of privilege was partial, and that it any event the decision whether to make admissions or to plead guilty was a personal one for the accused. That led to his reduction of 25%, but not of 33%.
37.
We investigated the sequence of events a little further with Mr Duffy, who very frankly made it clear that it was at his initiative that the point was taken as to poor advice. We recognise his very proper concern to serve the interests of the defendant. We agree that if the solicitors’ unqualified representative behaved as suggested at the interview, he did not discharge their duty to give professional advice. He ought at the very least to have explained to the defendant that only he (the defendant) knew whether he took part in the robbery or not, but that if he did and wished to admit it, that would be likely to produce a shorter sentence in due course than if he chose not to. But the mixed quality of advice in interview, sometimes at short notice and inconvenient hours, is simply one of the reasons why, as we have held above, the police interview ought not to be regarded as the first reasonably opportunity to indicate a plea of guilty for the purposes of the SGC Guideline. As to the possibility of later indication of plea, we do not agree that the bare assertion that no instructions were given on the occasion of the preliminary hearing in the Crown Court by itself removes responsibility from the defendant. We gave leave for additional written submissions to be made, from which it emerges that there is no unanimity between counsel who appeared then and now as to what exactly occurred. We cannot and do not attempt to resolve that issue. We do not agree that the assertion of poor advice is clearly made out. But even assuming in Caley’s favour, without deciding, that clearer advice could have been given to him, that does not lead to the conclusion that the sentence was in error. If the judge thought that partial waiver was always impossible, he erred (see
Seaton
[2010] EWCA Crim 1980
;
[2011] 1 Cr App R 2
). However, in this case, if waiver was to be effective it would have to reveal whether the defendant was telling his solicitors that he was one of the robbers; Mr Duffy acknowledged that this was not revealed.
38.
Mr Duffy told us, frankly as one would expect, of his own dealings with Caley. There was a conference with counsel on 10 November, shortly after the preliminary hearing in the Crown Court. The defendant admitted his part in the offence at this conference. However, on advice, he did not notify the Crown or the court of his intention to plead guilty. Rather, a reasoned decision was taken, on advice, to await sight of the evidence. The Crown then produced a full file of evidence, and it was after sight of this that the defendant pleaded guilty at the PCMH.
39.
We were grateful to Mr Duffy for clearly articulating the arguments for generally treating the PCMH as the first reasonable opportunity. We accept that from the point of view of defence counsel first instructed on this occasion, it is helpful for him to be in a position to explain to the defendant (a) what the evidence is against him and (b) that a plea of guilty then and there will normally result in a reduction of about one third in sentence. But that is to fail to put into the scales the consequential need for a trial-ready Crown file, or something close approaching it, to be prepared for the PCMH. It is no doubt true that a reduction of about a quarter available at the PCMH stage is to that extent less incentive to a defendant than a third would be, but it is in no sense insignificant, is consistent with the SGC Guideline, and, as it seems to us, fairly recognises the balance which the Guideline had to strike between the public interest and that of the defendant.
40.
Accordingly we conclude that the Judge was entitled to, indeed right, to adjust the post-trial sentence in Caley’s case by a quarter rather than by a third. The same is clearly so in Robertson’s case, where there was no sign of any indication of a plea of guilty before the PCMH.
41.
The remaining argument on behalf of both defendants was that the judge’s starting point of 10 years after trial was too high. We agree that consideration of the categories of robbery contained in the robbery guideline alone would suggest a lower starting point, but that has to be subject to the impact on the case of the very serious firearms offence. The Guideline itself, at page 6 point (b) expressly counsels courts to consider, where firearms are used, the use of consecutive sentences which properly reflect the totality of offending. It is true that this was not a sophisticated robbery of its kind, and that the defendants’ convictions were, though repeated, not of equivalent gravity to the present offence. The judge’s starting point, however, was, although severe, not outside the bracket properly available to him and cannot be described as either manifestly excessive or wrong in principle
42.
Additional submissions were made in the case of Caley that:
i)
there was objectionable disparity between the two defendants, since, it was said, Robertson carried a weapon and had not, unlike Caley, tried to help the police recover it;
and
ii)
adjustment ought to have been made in the term of imprisonment for the fact that a deprivation order was made removing from him the car used to commit the offence.
We are afraid that neither is persuasive. There were differences between the two defendants, as so often, pointing in both directions. Caley was significantly the elder. The judge was perfectly entitled to treat them as governed by the same hypothetical post-trial starting point, and to make a minimal adjustment for age as he did. There is no reason why a deprivation order should have the consequence of reducing the sentence of imprisonment and the decision in
Buddo
(1982) 4 Cr App R (S) 268, to which we were referred, does not say that it should; it simply says that a deprivation order does not follow automatically in every case but its imposition calls for an exercise in judgment.
43.
For these reasons, the applications for leave to appeal against sentence must in both cases be refused.
Perry
44.
This appellant pleaded guilty to possession of a controlled drug of Class A with intent to supply and, on 12
th
April 2012, he was sentenced to 4 years and 6 months detention. His case raises the issue of the relevance of an adverse
Newton
determination to reduction for plea of guilty. The single judge gave leave to appeal.
45.
Perry’s plea of guilty was on a written basis to the following effect:
“He had purchased the drugs on behalf of himself and four friends at the campsite shortly before attempting to enter the festival. They had all contributed some money towards the purchase and they were to share the drugs inside the event. There was no commercial motive or intention to make financial gain on behalf of himself”
46.
The Prosecution did not accept that basis of plea and a Newton hearing was ordered, at the conclusion of which the Judge rejected the Appellant’s version of events and found that he had been supplying drugs on a commercial basis.
47.
Perry had been arrested at 15:40 on 28
th
August 2011 attempting to enter a dance festival. He had in his possession a snap bag containing yellow tablets and wraps which were MDMA (ecstasy). Within that bag there were 16 wraps and 15 tablets comprising 31 deals. The commercial value, if sold inside the festival site, was between £780 - £940. He was 20 years of age and had no previous convictions but he did have a warning imposed by the police on 23
rd
April 2010 for possession of cannabis.
48.
The judge followed the Sentencing Council Drugs guideline, saying that he could in all the circumstances see no reason to depart from the suggested starting point for that category of offending of 4.5 years. Because of the outcome of the
Newton
hearing he felt he could give no credit for the plea of guilty. He therefore sentenced the appellant to 4.5 years’ detention.
49.
The judge’s application of the Guideline was unimpeachable. He concluded that, in terms of culpability, the Appellant had a significant role, namely: “motivated by financial gain or other advantage whether or not operating alone”. In terms of harm the offence fell within Category 3 where in an offence of selling directly to users (street dealing) the level of harm is not based on quantity. Applying the guideline to those two factors for a Class A drug, the starting point is 4 years 6 months with a sentence range of 3 years 6 months to 7 years.
50.
The grounds of appeal are twofold. First, that the Judge, having identified correctly the starting point, failed to consider any factors which would indicate a reduction by way of personal mitigation, in particular, no previous conviction and/ or age or lack of maturity. Second, that the judge was wrong in principle in failing to give any credit at all for his plea of guilty albeit it had been on a specific basis which the judge had rejected after a Newton hearing.
51.
In our judgment there is nothing in the first ground. The Appellant was not a person of good character as he had a relevant warning for possession of a Class B drug. Furthermore, in the context of this particular type of offence, committed at such an event, a person of age 20 should not expect to receive any discount merely on account of his age. The judge had found that he was, despite his age and lack of previous convictions, acting, on this occasion, as a street dealer, on a commercial basis, involving a not insignificant amount of drugs and trading within a particularly lucrative market. There was no error in fixing four and a half years as the appropriate sentence after a trial for this offence.
52.
As for the second ground, this was a clear case for a
Newton
hearing. The facts alleged in the written basis of plea did not go to whether or not he had committed the offence, but were central to the proper basis for sentence. This was a moderately substantial hearing. It involved the prosecution calling police expert evidence on the way in which the festival was organised and the market for drugs within the festival site. The appellant gave a detailed account in evidence which was wholly different from that which he had originally proffered in police interview, when he was saying that the drugs were for his own personal consumption. The interview, he accepted, had been a lie, hence his plea of guilty to the offence of possession with intent. But the judge, in rejecting his evidence that he was a social supplier for himself and his four friends, concluded that the account he gave in evidence was a lie as well. The false basis of plea which he advanced is a particularly common one in cases of this kind. It was important that it be investigated and its truth or falsity determined.
53.
As we have said above, we agree with the generalised submission of the Crown that there will be some cases where after an adverse
Newton
determination, no reduction for plea of guilty will survive.
R v Elicin and Moore
[2008] EWCA Crim 249
,
[2009] 1 Cr App R (S) 98
was an example where the adverse finding came on top of what was understandably regarded as an overwhelming case since the defendants had been caught carrying into the country a substantial cargo of weapons and their telephones contained messages arranging for their sale. But at that stage the court did not have the advantage of the decision in
Paul Wilson
(see [25] above), and the sentence of three years was in no sense severe. In a case such as Perry, although the great bulk of the reduction for plea of guilty will be dissipated by advancing a false basis of plea such as he did, the difference does normally need to be maintained between a defendant who pleads guilty and one who, overwhelming evidence or no, refuses to do so. The public expense and inconvenience of a trial in such a situation is yet greater than that involved in a
Newton
hearing.
54.
For these reasons we conclude that some limited reduction ought to have been made for the guilty plea by which the defendant abandoned any contention that the drugs were for personal use only and relieved the public of the additional expense of a jury trial. We think the reduction should have been of the order of 10%. We therefore allow this appeal to this extent: we reduce the sentence from four and a half years to one of four years detention. The other orders made by the court will remain as before.
Kamwiziku and Didonga
55.
In the early hours of 12
th
January 2012 the complainant, Vimal Jain, aged 37 was walking along the Ridgeway in Golders Green. He was struck to the back of head with a piece of wood wielded by Kamwiziku. He turned around and was struck across the right side of his face which caused him to fall to his knees. His bag, containing amongst other things an iPad, was taken from him after a desperate struggle during which he was hit several more times in the face and was dragged around the pavement when on the ground. He heard the applicants running off. They had been lying in wait in a place where they had no business, waiting for someone to rob. They were arrested soon after. As a result of the attack Mr Jain suffered severe damage to his optic nerve; he will almost certainly go blind in his right eye. His eye socket and cheek bone had numerous fractures and his nose was broken. He is the breadwinner for his family and had a potentially fulfilling and prosperous career, but his future career and employment prospects are very much at risk, and he will be unable to follow the sports which were important to him. He and his family feel unsafe in the area around their home. The effect on him of a few moments’ terrible violence is enormous.
56.
Kamwiziku was not quite 19 years of age. He had 20 previous convictions. They include an assault occasioning actual bodily harm in 2008, having a bladed article in January 2010, an assault in February 2010, 2 attempted robberies in March 2010 and an attempted dwelling house burglary in September 2011. He had received, in addition to many non-custodial sentences, with some of which he had failed to comply, three terms of detention, of which the longest had been six months.
57.
Didonga was two years older and had four previous convictions. They included an attempted robbery in 2007 and a robbery in April 2008, when he was respectively 16 and 17. He had not previously been sentenced to a custodial term.
58.
In police interview Kamwiziku denied that he had been present. Didonga admitted that he had been there. The two defendants first appeared at the Crown Court at Wood Green on 20
th
January for a preliminary hearing. At that stage the indictment charged a single count of robbery. No pleas of guilty or indications of pleas were made on that date. Counsel for the Crown invited the judge to inform the defendants formally that that occasion would be last on which a full reduction for plea of guilty could be expected. For the reasons given above, the judge would, in the light of this judgment, have been right to do so. But he did not. He expressly told the defendants that significant reduction would remain available at the PCMH. No doubt that reflected his general practice. Then, when on 2
nd
March the PCMH took place, the Crown radically altered the indictment by preferring an additional count against both defendants charging a Section 18 offence of causing grievous bodily harm with intent. The sentencing judge surmised, we believe accurately, that this was in order to reflect the more serious aspect of the offending namely the very severe attack with a weapon which accompanied the robbery and it had the effect of potentially raising the correct level of sentence.
59.
On that occasion, at the PCMH, both applicants pleaded guilty to both counts. On 23
rd
March they were sentenced as follows. Kamwiziku, whom the Recorder adjudged dangerous, was sentenced to 9 years in respect of the robbery and to an extended sentence of 18 years (custodial term 14 years detention and an extended licence period of 4 years) for the section 18 offence. Didonga was sentenced to 9 years imprisonment for the robbery and 10 years imprisonment for the Section 18 offence.
60.
In arriving at those sentences, the Recorder held that the offence merited placement at the top of the range of 9-16 years for section 18 offences. He told Kamwiziku that he could give only “a very small” reduction for plea of guilty since he had denied his involvement until the PCMH. His sentence of 14 years custody suggests that his reduction for plea of guilty was of the order of one tenth or possibly less. He did not refer specifically to reduction for Didonga, but the 10 year sentence may well reflect either a lower starting point or a greater reduction for plea, or both.
61.
The addition of the section 18 counts at the PCMH, although of course legitimate, meant that the defendants were unable to indicate a plea of guilty to them until that day. On the general principles which we have endeavoured to set out above, this did not mean that they were unable to indicate whether or not it was disputed that they were responsible for the attack, and, as we have said, Didonga did admit taking part, albeit whilst minimising his own actions. We think that most judges would have thought it right to recognise the late addition of the more serious charge in adjusting the right reduction for the plea of guilty which was immediately entered on the very day it was made. Thus far, the proper approach would have been to reduce Didonga’s sentence by about one third, in recognition of his prompt admission of presence. For Kamwiziku the reduction may well have been smaller, but it would not have been “very small” or the apparent 10% actually made, for the plea was tendered at the PCMH; at least it would have been about a quarter and given the late addition of the count it might have been a little more. In any event, the Recorder overstated the position, as it seems to us, when he described Kamwiziku as persisting in his denial “until the bitter end”. However, the additional factor is that the defendants had been told at the preliminary hearing that a significant reduction would remain available at the PCMH, and it is clear to us that this did not, in the court in question, convey the message that it would be appreciably less than the orthodox “first reasonable opportunity” one third.
62.
In those circumstances, we agree that the sentence passed on Kamwiziku erred in principle to the extent that the wrong adjustment was made for plea of guilty. We give leave to appeal. Approaching the case afresh, as is then necessary, we conclude that a proper starting point after trial ought not to have been greater than 15 years, and that the right custodial term was accordingly 10 years. We quash the extended sentence and substitute for it one of a custodial term of 10 years with an extended licence of five years. The concurrent sentence for robbery is not affected.
63.
As to Didonga, we do not agree that the sentence is rendered wrong in principle by the decision not to adjourn for a further pre-sentence report. Didonga had not been interviewed by probation officers prior to the date of sentence because the video link was not working on the arranged date. However, on a subsequent day, when he was offered an interview, he refused, without good reason, to cooperate. The recorder indicated that, if he felt that he needed more information following mitigation he would ask for a supplementary pre-sentence report. The recorder had a report from the probation service which was based on information previously assembled and reports previously made. The recorder was perfectly entitled to conclude that he had sufficient information to determine sentence. Nor do we agree that the recorder was not entitled to conclude that the defendants had lain in wait for their victim, albeit that they may have found themselves in the particular part of London after changing buses on their way home. We do, however, agree that there was a proper basis for distinguishing between the two defendants, because Kamwiziku wielded the weapon, on grounds of past record and because he had admitted presence right from the outset. The recorder recognised those factors, but his sentence of 10 years did not sufficiently give effect to them. In our view the proper starting point in Didonga’s case would not be greater than 12 years. We can see no reason not to accord the one third reduction for plea. In those circumstances, we give leave, we quash the sentences of 10 years on the section 18 count and 9 years on the robbery count, and we substitute sentences of 8 years concurrent on each.
Bowen
64.
Bowen and a cousin fell to be sentenced for an attack on a doorman at a club. On their arrival there, the cousin was refused entry. The defendant was allowed in, but came back to the doorway to remonstrate with the doorman, and then punched him in the face. That resulted in his cousin joining in; he also punched him and, further, kicked him when he was down. The doorman suffered a broken jaw as a result of the attack. The whole event, which lasted only a brief time, was recorded on CCTV.
65.
This defendant was 37 at the time. He had previous convictions for a variety of offences and had served a five year sentence for offences of robbery and assault, as well as two subsequent shorter custodial sentences.
66.
The Crown Court was Liverpool, which operates an Early Guilty Plea scheme of the kind which we have described above. That particular scheme concentrates upon the first hearing at the Crown Court as the normal first reasonable opportunity to indicate a plea of guilty. It provides for the Crown to identify cases which may benefit from the scheme, and for the defendant then to have the opportunity to ask for an early and final single hearing for plea and sentence. If that is done, then ordinarily the full reduction of one third is, as we understand it, accorded.
67.
This defendant was shown the CCTV in his police interview. He elected to answer no questions. At the magistrates’ court he gave no indication of plea of guilty, but this was at that stage an indictable only charge (s 18) and under the Liverpool scheme a failure to indicate a plea at that stage would not remove the probability of a one third reduction providing that an indication of plea and a request for single prompt listing were given on arrival in the Crown Court. However, this defendant declined to take advantage of the scheme and only pleaded guilty at the PCMH, after, no doubt, a trial-ready file or one nearly so, had had to be prepared. Judge Roberts, who is well used to the practice in Liverpool, adjusted the sentence by one quarter from a starting point of 27 months.
68.
Mr Wood, who also is well familiar with the scheme, invites us to say that this plea was indicated at the first reasonable opportunity. He reminds us that in the magistrates’ court a plea to section 20 was not available since the only charge was s 18. We agree, although the defendant could certainly have indicated that a trial was unlikely if the charge were adjusted, but in any event, it is the deliberate decision not to take part in the Crown Court EGP scheme which is significant in this case. Mr Wood suggests that this was reasonable, since the CCTV had not at that point been disclosed as part of the Crown case. But the defendant had seen it. If he wanted Mr Wood to watch it and advise him, that was his right, but it can no longer be said that he was indicating his plea of guilty at the first reasonable opportunity. Nor are we persuaded by the contention that a plea of guilty to section 20 was not acceptable to the Crown until about the time of the PCMH; no-one had asked the Crown until about two and a half weeks before the PCMH whether it would be accepted if tendered. The first opportunity to indicate plea had been a month or so earlier when the Crown had invited participation in the EGP scheme and the defence had declined. The adjustment in sentence in this case was perfectly proper; indeed it seems to us to have been exactly what the case called for.
69.
There is, and can be, no challenge to the starting point of 27 months after trial. The judge distinguished the co-defendant to the extent of starting in his case at 24 months on grounds of the difference in criminal histories. He paid proper attention to the mitigation, which suggested that both regretted what had occurred. There is nothing arguably wrong with the sentence. The application for leave must be refused.
Sanham
70.
Sanham was a mortgage broker of sixty. He pleaded guilty to two offences, one of conspiracy to defraud and one of statutory fraud. Nothing turns on the division of his offending into these two counts; it is the overall picture which matters.
71.
Using his mortgage brokerage business, and over a period of about six and a half years between 2003 and 2009, he prepared and submitted to lending institutions false mortgage applications making bogus claims to remunerative employment for the applicants. Those were supported by false documents which Sanham sourced from others for a fee. They included false P60 certificates, false wage slips, false accountants’ certificates and forged employer’s references. He had at least three different sources of such false documents. He provided the documents to applicants for mortgages, and they enabled them to obtain loans which otherwise they would or might not have been granted. Some 43 dishonest transactions were represented by the two counts. The total amount lent by the lending institutions pursuant to the fraudulent applications was £8,045,849. A significant majority of the mortgages have been fully serviced. Of the 43 transactions, only two have so far resulted in losses to lenders, amounting to £108,928.18. Five other mortgages are in arrears. Given the long term nature of the transactions, there must be a risk that the eventual losses may be greater. All the funds advanced went directly to the mortgagees or their legal advisors. Sanham’s gain was a fee in each case from one or more of three sources, commission from the lender, referral fees from the conveyancing solicitors and insurance commission. Over the period of his offending he profited by a little more than £60,000. The dishonest mortgages constituted about 60% of his total business.
72.
The Defendant had not had a criminal conviction for a period of over 20 years prior to the commencement of these frauds. But between 1975 and 1981 he was convicted on 3 separate occasions of offences of theft and false accounting resulting in sentences of 6 months (suspended) and then of 3 months’ immediate custody. The judge found mitigation in the manner in which he cared for his partner who was in fragile health, but she was also his active partner in the fraud and was convicted after trial of being so. The defendant had inevitably lost his business and his home was likely to be repossessed. He had got another job but would not be able to keep it because of the inevitable sentence. The judge expressed himself as confident that the defendant would not offend again.
73.
The Defendant had been arrested in December 2009 and his office searched. A very large volume of mortgage applications and associated forged documentation was recovered. There were forms sent by Sanham to a supplier of false documents in which he set out the false details that were to be included. There were also forged utility bills and other documents which Sanham had altered. Many of the recovered mortgage applications which had false details and were supported by forged documents were made out in his own handwriting.
74.
He was initially charged with a number of individual offences, and on 2 September 2010 was sent by the magistrates for trial at the Crown Court. In the meantime very detailed plea negotiations had been commenced pursuant to the Attorney General’s Guidelines and eventually resulted in a comprehensive written plea agreement which set out his formal admission of guilt to specific transactions. That was the outcome of a series of meetings.
75.
The first took place on 12 October 2010, between counsel and litigators on each side. The prosecution provided, for discussion, a schedule showing 20 mortgages then identified as having been fraudulent, to a value of about £4 million. The prosecution said they had identified further files, described as the “top 40” which appeared to involve fraudulent transactions, amounting to £8 -10 million in respect of which not all of the evidence had been obtained. It suggested that the extent of the fraud was likely to be over £20 million although the Serious Organised Crime Agency had not yet fully investigated all the files. The meeting concluded with the prosecution agreeing to prepare a schedule for the “top 40” transactions (£8-10 million total) and a further schedule of the transactions making up the anticipated £20 million plus total.
76.
At further meetings involving leading and junior counsel for the Crown and the Defendant’s solicitors and counsel on 8 December 2010, matters discussed included whether Sanham knew or believed he was in effect helping his clients launder the proceeds of crime, whether brokering fraudulent mortgages constituted Sanham’s core business, the extent of defaulting mortgages, repossessions and losses to lenders, particular amounts involved in particular transactions, and the particular fraudulent methods used. There was also discussion about confiscation and the extent of Sanham’s assets which might be available to meet a confiscation order. During the negotiations the time for the preliminary hearing in the Crown Court arrived. By agreement, the court was informed of the continuing discussions and that Sanham was likely to enter a plea of guilty to suitable charges. It was invited to, and did, give time for the negotiations to be completed.
77.
The eventual written plea agreement contained Sanham’s formal admission of guilt to specified transactions. It dealt also with the basis on which the case would be put to the court, on each side. For its part, the Crown accepted that he did not corrupt others, but that they came to him by word of mouth and were willingly involved. Importantly, it also accepted that he honestly believed that the applicants would service the mortgages and would be able to do so from sources of income which, albeit not documented or declared, were not criminal in origin.
78.
The Crown and the defence between them also lodged with the Court a formal joint sentencing document. In it, they correctly identified the relevant SGC fraud guidelines and features of the offending which went, according to those guidelines, to aggravate it. By reference to the guideline category of offences involving more than £500,000 and a mid-point of £750,000, the Crown suggested that the appropriate starting point after trial might be about 6-7 years, whereas the defence contended for about 5-6. Further, the Crown and the defence jointly submitted that an appropriate overall reduction in recognition of the plea agreement and the early guilty plea might be 50%.
79.
The judge did not identify his notional starting point after trial. He did conclude that the evidence had been overwhelming once the office was searched and that for that reason he would make a reduction of 20% in respect of plea of guilty. However, he also said that he would make a further unspecified reduction for the detailed negotiations resulting in the plea agreement which had assisted the investigators and thereby saved time and effort. He took into account also the amount of the actual loss (£108,000) and that the defendant had hoped that the loans would be serviced. He allowed for the personal mitigation. He arrived at a sentence of four and a half years. It was divided between the two counts, but for the reasons which we have given it is the total which matters.
80.
We do not agree that a reduction of 50% in the notional sentence after trial would have been appropriate. It is certainly true that the defendant deserved clear recognition of his co-operation with the Crown, which will have saved the public purse significant sums in chasing down evidence of matters which he admitted. It is undoubtedly true that the trial could, if he had chosen to insist on it, have been lengthy, at further expense to the public. But the process into which he entered was not entirely one-sided. It enabled him to secure the prosecution’s agreement to a number of mitigating features at an early stage, and to avoid any risk there may have been that further investigations might have revealed a different degree of culpability or a larger number of mortgage frauds. In addition the defendant was able to reach agreement which limited any confiscation proceedings.
81.
The judge had tried the co-accused. He was in the best possible position to assess whether the evidence was overwhelming, and we do not feel able to differ from his conclusion. We do, however, draw attention to the dangers of too readily invoking the passage in the SGC guideline which deals with “overwhelming case”: see [24] and [25] above. The present case is a good example of one in which, had the defendant wished to be unco-operative, the scope for so behaving would have been considerable, however strong the evidence found at his office.
82.
The submissions made to the judge about the notional starting point revealed common ground as to a range of about 5-7 years. That is consistent with the maximum sentence for any single offence of fraud (10 years) and with the SGC fraud guideline, which suggests at page 20 a range of 5-8 years for the relevant category (confidence fraud) where the amount involved exceeds £500,000. The guideline does not fully explain its suggested approach to a case where a much larger sum (here £8m) is obtained, and the risk of loss is thus very large, but the
actual loss
is currently much less, and may remain significantly less. The actual loss is clearly relevant, as is the defendant’s intention, if that be the case, that actual loss be avoided: see the observation on page 6 at paragraph 20 dealing with the situation where no loss is
intended.
The
risk
of loss, however, is usually an inevitable consequence of such offences and here was potentially enormous. This risk is part of the harm done by the offence. The hopes of repayment can frequently evaporate, especially where, as here, they depend on the solvency of others, not the defendant, and where, as here, the market may move dramatically downwards. Moreover in the present case there was substantial gain to the defendant. The judge was referred to
R v Petkova and Khan
[2011] EWCA Crim 109
. There, the amount obtained was much lower at £1.8m, and the actual loss (thus far) not very different at £110,000. This court there substituted a sentence which looks to have been based on a starting point after trial of about 5 years, for a defendant of hitherto good character. The present case was worse, in amount, in scale of repetition, in duration and in risk of loss. We conclude that a starting point of about six and a half years after trial may well have been taken by the judge and would have been justified. The entry into the detailed plea agreement would have justified movement down, but not necessarily by a fixed percentage. The plea of guilty could well have attracted a reduction of up to a third. The judge’s sentence of four and a half years, however it was in fact arrived at, amounts to a reduction of very close to a third from six and a half years. We conclude that it cannot be criticised as either manifestly excessive or wrong in principle.
Wain and McWilliams
83.
These two defendants come from Southampton. Both are 37 years of age. Both have large numbers of previous convictions for dishonesty. In recent years they had been convicted together of stealing fuel from good vehicles parked in haulage yards. Sometimes fuel cards were additionally stolen and used to obtain fuel. The judge aptly described them as professional thieves, and that is what they were.
84.
At about 9.30 pm they were found near Grantham in Lincolnshire in a van in which they had two large fuel containers, one some 250 gallons in capacity. They were only too plainly in the course of a venture far from home to commit their trademark offence of fuel theft. The big container would take over £2000 worth of diesel. McWiliams was driving. He had neither a licence nor insurance and he gave a false name to the policeman who stopped them. Wain was his passenger and was clearly an equal partner in the commercial venture. Both were on licence from previous sentences at the time.
85.
They were charged with going equipped for theft. The Recorder of Lincoln regarded them, correctly, as devoid of personal mitigation. Neither had ever done an honest day’s work and their thievery might put honest small-scale self-employed lorry owners out of business. He passed sentences of three years on each man, observing that it was time “to put a proper shot across your bows”.
86.
The difficulty about that sentence does not lie in the sentiments which provoked it. Rather it lies in the facts that (a) three years is the statutory maximum for going equipped and (b) both defendants indicated pleas of guilty on their first appearance in the magistrates’ court and pleaded guilty as soon as they could. The short and unanswerable point is that they were treated as if they had fought the case when they had not. They could equally have been charged with conspiracy to steal – but they were not. We are not impressed with the argument that this going equipped ought to have attracted a lower sentence because the object was theft from vehicles rather than, for example, burglary. That may well make a difference in some cases, but the calculated repetition of these defendants made the maximum sentence (after trial) justifiable. It is true that McWilliams had to answer for the additional offences of driving whilst disqualified and thus without insurance, as well as for giving a false name to the policeman, which produced a separate charge of obstructing the officer. But the reality is that both were jointly responsible and there was no reason to distinguish between them. Whilst the maximum was justifiable if there had been a trial, it was not in the event of very early pleas. If they had chosen to contest the case they would have cost innocent taxpayers even more money. We understand the frustration of the Recorder of Lincoln, but dissatisfaction with the court’s sentencing powers does not justify rejection of the universal practice as to pleas of guilty.
87.
We quash the sentences of three years and substitute ones of two years imprisonment in each case. No alteration is necessary to the sentences for the ancillary offences in the case of McWilliams. | [
"LORD JUSTICE HUGHES",
"MR JUSTICE POPPLEWELL"
] | 2012_12_21-3099.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2821/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2821 | 831 |
629b4b154a633d4402db9da117b04610da2c2366d9d1b156895a95e44c03cd77 | [2009] EWCA Crim 1799 | EWCA_Crim_1799 | 2009-05-12 | crown_court | Neutral Citation Number: [2009] EWCA Crim 1799 Case No: 200806053 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12th May 2009 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE SHARP DBE HIS HONOUR JUDGE WADSWORTH QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ANTHONY JAMES BIDMEAD - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph | Neutral Citation Number:
[2009] EWCA Crim 1799
Case No:
200806053 A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 12th May 2009
B e f o r e
:
LORD JUSTICE TOULSON
MRS JUSTICE SHARP DBE
HIS HONOUR JUDGE WADSWORTH QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ANTHONY JAMES BIDMEAD
- - - - - - - - - - - - - - - - - - - - -
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 Smith QC
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
JUDGE WADSWORTH: This appellant was sentenced by Judge Hamilton at the Crown Court in Derby to imprisonment for public protection with a minimum custodial term of five years in respect of offences of sexual activity with a child, and also to an 18 month extended sentence concurrent for possessing indecent photographs of a child or young person. This appeal is made out of time by leave of the single judge and is limited to the question of the appropriate minimum term on the sentence of imprisonment for public protection.
2.
The appellant was of course also the subject of a Sexual Offences Prevention Order for an indefinite term and was disqualified from working with children. No appeal lies in respect of those matters.
3.
His co-accused was a man of similar age who received a total sentence of six years' imprisonment, which this court reduced to a four year determinate sentence, and it was, as Mr Smith has rightly told us, that decision of this court which led to this application being made and granted out of time.
4.
The appellant and his co-accused were homosexual partners living in a house where there was a room which they called the "Egyptian Room" with an adjoining hot tub and sauna, and it was clear that various parts of the house had been converted and were being used for homosexual activities.
5.
On the joint indictment with his co-defendant this defendant pleaded guilty on counts 4, 6, 8 and 10 to sexual activity with a child, and on counts 12 and 13 to possessing indecent photographs of a child. The child, named J, was 14 at the time of the offence. He was a young man who had had an unhappy and difficult life at home and had been asked to leave by his mother. He had gone to stay with other young men in the neighbourhood, who soon introduced him to the appellant. J then moved into the house with the appellant and his co-accused and stayed there for some four months in the course of 2006. It is clear that he fell under the controlling influence of the appellant and began to engage regularly in consensual sexual activity. This resulted in the two specimen counts on the indictment, counts 4 and 6, relating to acts of oral sexual intercourse. The young man said that it happened too regularly to be able to give an exact account, but that it was sometimes three times a day, that it happened on about ten separate occasions, and one of those was a three-some with the appellant and his co-accused.
6.
Counts 8 and 10 on the indictment alleged anal penetration of the child by the appellant. Again, these were specimen counts in that it was alleged that this had happened on more than four occasions.
7.
When the police searched the house they recovered a home made video showing two boys or young men engaged in oral and anal intercourse with the appellant and the co-accused. It appeared from the video that that activity was consensual. It was that matter which led to the counts of possessing indecent photographs.
8.
The appellant is a man of nine previous convictions with a history of sexual offences against children and of violence dating back some 20 years. These convictions included indecent assaults on males under the age of 14 and the age of 16 years, buggery (as it was then called) and gross indecency with a child and unlawful sexual intercourse with a young female.
9.
The appeal before this court relates only to the tariff element of the sentence, which it is submitted is manifestly excessive in that it must be based on a notional determinate sentence of ten years following a plea of guilty, which indicates a 15 year term had the sentence been imposed after trial.
10.
Leave to appeal out of time was sought and given following the decision to reduce the sentence on the appellant's co-accused, Clinch.
11.
We have had the benefit of considering the judgment of that court and seeing the pre-sentence reports in relation both to the appellant and his co-accused. When both parties were sentenced, the learned judge described the appellant as "clearly the most involved in this particular series of offences". He also described the appellant as drawn to young people who were particularly vulnerable young people who came from broken homes and as a manipulative man who would in due course try to manipulate the Parole Board when the time for review came. In sentencing, the judge noted that a previous offence had been in relation to a 14 year old boy and explained that in this present case, had there been a conviction after trial, sentences would have been consecutive and would have exceeded 14 years. The reason given for the consecutive sentence was that the judge regarded the appellant's house as deliberately set up to what he described as "almost a sort of honey trap for young children". The appellant is described as having total control over the boy concerned in this case and it is clear that the judge worked on the basis that he was discounting from a notional total of 15 years.
12.
So far as concerns the co-defendant Clinch, he was a man of good character, found to be under the influence of the appellant. He was described by the judge as being simply interested in his own sexual gratification, but nevertheless of former good character and not a serious danger or serious risk. For that reason there was no imprisonment for public protection in his case but a term of six years after giving credit for plea. This court held in relation to Clinch that the starting point of nine years without discount for a plea of guilty was too long, and we are invited to use that as something of a bench mark for the starting point of 15 years in the case before us.
13.
As the court said in Clinch's case, the breadth of the suggested sentencing range in the definitive guidelines is great and reflects the fact that each case turns very much on its own facts. Nevertheless, we do receive assistance from the indication that the appropriate starting point for the co-accused was one of four years after a plea of guilty. On that basis we have come to the view that the appropriate sentence upon this defendant, had it been a determinate sentence after trial, would have been one of the order of 12 years. Giving the normal discount on a plea that would be one of eight years, so that the minimum period to be served on a sentence of imprisonment for public protection becomes one of four years rather than the five years pronounced by the trial judge. To that extent this appeal is allowed, but we stress in so doing that that four years is a minimum term and the amount of time eventually served will be a matter for review as appropriate. All other orders to stand. | [
"LORD JUSTICE TOULSON",
"MRS JUSTICE SHARP DBE",
"HIS HONOUR JUDGE WADSWORTH QC"
] | 2009_05_12-1923.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1799/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1799 | 832 |
802a53e03594435b84f182c738d004e7942719ba6421585f5a2d80df23d97a4c | [2018] EWCA Crim 1174 | EWCA_Crim_1174 | 2018-03-20 | crown_court | No: 201800680 A1 Neutral Citation Number: [2018] EWCA Crim 1174 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 20 March 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOOSE HER HONOUR JUDGE TAYTON (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - R E G I N A v ANDREW CHRISTOPHER SAWDON - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International | No:
201800680 A1
Neutral Citation Number:
[2018] EWCA Crim 1174
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 20 March 2018
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE GOOSE
HER HONOUR JUDGE TAYTON
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - -
R E G I N A
v
ANDREW CHRISTOPHER SAWDON
- - - - - - - - - - - - - - - - - -
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 Bailey
appeared on behalf of the
Applicant
Mr F Schofield
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - -
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.
LORD JUSTICE SIMON:
THIS PAGE IS
NOT
INTENTIONALLY BLANK
1
This is the Solicitor General's application to refer a deferred sentence passed at Grimsby Crown Court on 19 January 2018 under
section 36
of the
Criminal Justice Act 1988
as being unduly lenient. The sentence was passed on the offender Andrew Sawdon by his Honour Judge Bury in respect of a charge of robbery committed on 6 August 2017.
2
The offender, now aged 32, had pleaded guilty on 15 December and the sentencing was adjourned for the preparation of a Pre-sentence Report. A report was prepared but its utility was limited due to the fact that the offender had failed to attend for an interview at 9.30 am on 3 January 2018 and did not make contact to explain why.
3
At approximately 12.30 pm on Sunday, 6 August 2017 the offender walked into Saint Martin's Service Station on Scartho Road, Grimsby and selected a comb in cardboard packaging from a display. Mrs Krishnasamy, aged 30 and pregnant, was working behind the counter. About a minute after the offender had entered the store, a customer, Kevin Stanlard, aged 59, also entered and approached the counter. The offender approached Mr Stanlard from behind and put him in a headlock. With his free hand the offender held the packaged comb. Mrs Krishnasamy thought the offender had a knife and Mr Stanlard, who felt the comb as it was held to his neck, believed it was a blade. The offender said to Mrs Krishnasamy, "Give me the money or I will stab him. I will stab him, I will." Mrs Krishnasamy felt very scared and shocked, and froze. She saw that Mr Stanlard was scared. The offender appeared aggressive and agitated, and said to Mr Stanlard, "Don't have a heart attack, you old codger."
4
Mrs Krishnasamy used the store microphone system to summon her husband, the store manager, Mr Alargasamy, who was aged 42. He was outside on the forecourt at the time. He entered the store and went immediately behind the counter to join his wife. The offender then released his grip on Mr Stanlard and walked towards the till area, turning his attention to Mr Alargasamy. He said, "Give me the money or I will kill you." Mr Alargasamy feared for his own safety and that of his pregnant wife. Mr Stanlard now realised, some minutes after the offence had begun, that the offender held a comb and not a knife, and said to the offender, "It's a comb", to which the offender replied, "No, it's a knife and I will stab you with it." Mr Stanlard repeated, "It's a comb", to which the offender replied, "Yes, but I can still stab you with it." The offender punched Mr Alargasamy three or four times to the side of his head and kicked him. Mr Alargasamy told his wife to give the offender cash from the till and she did so, handing him £160. The offender kicked out at Mrs Krishnasamy without making contact. Once he had the money, the offender calmed down and was then ushered out of the shop by Mr Alargasamy.
5
He walked in front of a passing ambulance and attempted to throw himself onto the bonnet. He then approached a male member of the public aged 60 years old or so, and having asked him the time, punched him in the stomach in an unprovoked attack. Members of the public then detained the offender and pinned him to the ground until the police arrived. The offender was arrested at approximately 12.40 pm, and on arrest, said, "You're all Jewish bastards." "I'll stab them all", and chanted, "Allahu Akbar." £160 in cash was found on him. The comb, still in its packaging, was recovered nearby.
6
At approximately 9.00 pm on the same day the offender was released into the care of Harrison House, the local mental health unit, where his mental health was assessed by Dr Bodo of NAVIGO. He was found to have no acute mental illness and was discharged on 7 August without medication or a home treatment package. He tested negative for opiates and cocaine but positive for cannabis and Mephodrone (MCAT).
7
On Thursday, 24 August the offender attended Grimsby Police Station to be interviewed on a voluntary basis. He had an appropriate adult with him during the interview. He was frank and co-operative during the interview. He accepted what witnesses said he had done but denied that he had ever intended to hurt anybody. He said that he had smoked cannabis before entering the service station store, but unknown to him the cannabis had been laced with MCAT and he had never taken that before. He claimed that he did not really have full control over himself when he committed the offence but did accept that his actions were done in order to make the victims feel scared. He claimed that he had attempted to commit suicide while in Harrison House. He expressed remorse and offered to apologise to the victims and witnesses.
8
The victim impact statement showed that Mr Stanlard suffered no physical injury as a result of the incident. However, he was very frightened when he was being grabbed because he thought that the offender was going to seriously hurt him or members of the staff.
9
Mrs Krishnasamy expressed her upset by the incident, "I have been unable to continue my work as I fear being in the shop on my own... I feel scared about going back to work." She added that she genuinely feared that the offender would have killed her husband if she had not handed over cash. Mr Alargasamy was left with a small lump on the side of his head but he did not seek medical treatment. He feared for the safety of his wife and the customers.
10
The man aged over 60 whom the offender had punched in the street provided a statement saying that the offender "deserved a break", but the punch had caused him some pain and bruising.
11
The offender had no previous convictions. He had been cautioned for an offence of shoplifting in December 1998 and been made the subject of a reprimand for possessing cannabis in December 2001. There were reports available to the judge. First, NAVIGO, a local, not-for-profit enterprise that runs mental health services in north-east Lincolnshire assessed the offender on 6 and 7 August. The conclusions of the doctors were that he had full capacity to make decisions and did not present in any acute medical disorder. He was not psychotic or delusional, and he presented a low risk to himself.
12
In addition, a psychiatric report was commissioned by the defendant's solicitors from Dr Pablo Vandenabeele. This included the following relevant information and opinion: the offender was subject to childhood sexual abuse. He attended mainstream schools. He had difficulties with writing. He indulged in low level domestic violence with his current or ex-partner. He claimed he had engaged in episodes of self-harm in the past. He said he had abused cannabis from the age of 11, and appeared to hold paranoid views about the organisation of society and expressed conspiracy theories. However, this paranoia had no bearing on the commission of the offences, had no history of mental illness or previous diagnoses and was not currently suffering from mental illness.
13
As we have noted, the offender failed to attend the appointment with the probation officer to be assessed for the purposes of a pre-sentence report. The incomplete report included the following:
i. The offender presented a 5 to 10 per cent risk of reconviction within 12 to
24 months (low risk).
ii. He presented a medium risk of physical and emotional harm to members
of the general public, and
iii. Although the probation officer considered that the likely sentence would
be immediate custody, she offered to supervise
the offender and proposed
activity requirements.
14
The offender appeared on a summons before the justices sitting at the Humber Magistrates' Court, sitting at Grimsby and Cleethorpes Court House, on 14 November 2017. He gave no indication as to his likely plea and his legal representative told the court that owing to the offender's suspected mental health issues, he wished to explore whether or not the offender was fit to plead or stand trial. He was unconditionally bailed to appear at the Crown Court at Grimsby for a pre-trial preparation hearing on 15 December. On that date the offender, having been assessed as fit to plead and stand trial, pleaded guilty and no basis of plea was put forward. Sentencing was adjourned.
15
On 19 January the offender appeared before his Honour Judge Bury. The Pre-sentence Report had not been completed and the judge refused a defence application to adjourn so that a further appointment could be made for the offender to be assessed by the probation service.
16
The judge passed a deferred sentence for a period of 6 months and set out the following terms of deferment, which if complied with, would result in a non-custodial sentence in due course. First, to commit no further offences; second, to stop using cannabis completely; third, to save money to pay compensation, and fourth, to continue to address his mental health issues so that he would be able to do unpaid work.
17
In the course of the sentencing hearing and his sentencing remarks the judge made the following observations. First, it would not have been immediately apparent, if at all, to the offender that Mrs Krishnasamy was pregnant. Second, the unpleasant comments made by Jews and the use of the words "Allahu Akbar" on arrest were neither racially nor religiously motivated. Instead, they were, "the ramblings of a man who is under the influence of cannabis." The starting point for the sentence was of the order of 4 years' imprisonment.
18
The judge then went on to say this.
My first, and indeed second, thought about this was that you had to go immediately to prison, in spite of the fact that you have no record to speak of. But I've now watched the CCTV footage and it seems to me that the level of violence was not as high as I had anticipated it would be.
19
We should add that this court too has watched the CCTV footage.
20
The judge continued:
If I were to take the view that this was explained by your mental health at the time, then that affords you some significant mitigation. You've been seen by a psychiatrist. You have no mental illness, although you appear to have certain character traits which are concerning. You appear to hold conspiracy theories and are somewhat paranoid. Those traits are not at the moment seriousness enough to warrant you being regarded as mental disordered. Some of the things your mother has written in her letter suggest to me that you might -- and I say only 'might' because I am by no means a psychiatrist or psychologist -- you might have some illness in the autism spectrum. I know that you've been assessed for dyslexia.
This does not happen very often, I can assure you, Mr Sawdon, but I'm not in fact going to send you to prison today. What I'm going to do is defer sentence — I don't do that very often either — until 6 July. Six months' time, more or less. And what I want you to do in six months' time and every day during the six months, is to keep your employment save up some money, because I don't see why the victims of your offending should suffer, so I expect you to save up money to pay off the money that you were given... You can also pay some compensation for the upset you've caused. And I expect you to have completely given up cannabis by the time I see you again because, whether it's cannabis, whether it is M-CAT, I don't know, but you do have some mental fragility and I can virtually promise you that that is being exacerbated by cannabis. I've seen too many cases now where people have mental illness and have been using cannabis, probably heavier than you're using it but
nevertheless, it's in my own mind, certainly, a contributory factor and so you need to give it up.
If there have been no further offences and you've given up the cannabis, because taking cannabis is a criminal offence, and you've saved up some money to pay compensation, and you are in a state to be able to do some unpaid work or some other community requirement which the probation service think is appropriate, then, and only then, I won't lock you up. So you are on trust for six months.
21
He then asks the offender, "Do you think you are able to comply with these things?", and he replied, "Yes. I will try my hardest."
22
Mr Schofield for the Solicitor General draws the court's attention to a number of Sentencing Guideline Council Guidelines and Sentencing Council Guidelines which were relevant to the sentencing process. First, the Definitive Guideline on Robbery (Street and less sophisticated commercial); secondly, the Definitive Guideline on reduction of sentence for guilty pleas, and third, those parts of the Guideline on New Sentences under the
Criminal Justice Act 2003
applicable to deferred sentences. He draws attention to the terms of
section 1(3)
(c) of the
Powers of Criminal Courts (Sentencing) Act 2000
, whose terms were incorporated into
Criminal Justice Act 2003
.
Section 1(3)
(c) provides that a deferred sentence may be imposed only where:
The court is satisfied having regard to the nature of the offence and the character and circumstances of the offender that it would be in the interests of justice to exercise the power.
23
Finally, he submits that the imposition of a deferred sentence was unduly lenient because the judge was required to impose a significant custodial sentence. The sentence should have been increased from the starting point for a category B2 robbery, as characterised in the Guidelines, towards the top of the category range to reflect the aggravating factors, albeit it is not submitted that the sentence should have been aggravated in accordance with
section 145
of the
Criminal Justice Act 2003
. It should then have been reduced proportionately to reflect the mitigating factors and offender's personal mitigation. Even after giving due credit for his guilty plea, Mr Schofield submits that the custody threshold was significantly passed. He also submits that, even if the sentencing judge was not obliged to impose an immediate custodial sentence, the nature of the offence and character and circumstances of the offender were such that the offender did not fall into the limited class of offenders for whom a deferred sentence was appropriate. The offender should in all the circumstances have been sentenced immediately with the conditions of deferment incorporated into his sentence.
24
For the offender, Mr Bailey accepts that the sentence was lenient but submits that it was not unduly so. It was an exceptional case which justified what he acknowledges was an exceptional course. The offence was committed by a 32-year-old man with no previous convictions. The explanation for his offending was that the cannabis he had consumed had, unknown to him, been spiked by MCAT: the MCAT that was subsequently found when he was tested. On any view of the matter the decision to rob the garage store armed with a comb indicates that it was a spur of the moment decision to commit the offence.
25
He accepts, as he must, that the offence was serious, involving three victims, but he submits that the physical injuries suffered were relatively slight. None of the victims required treatment. It was apparent to the police that he was unfit to be interviewed when arrested, and when he was interviewed he expressed remorse and made admissions.
26
He recognised that the offender failed to attend the Pre-sentence Report interview but it is said the offender was not used to court proceedings and opened the appointment letter too late.
27
He relies on a long letter from the offender's mother which refers to his conduct after the robbery and the attempted suicide at Harrison House.
28
So far as the guidelines on robbery are concerned, Mr Bailey recognises that the judge placed the offending in category B2, with a starting point of 4 years and a range of 3 to 6 years, but argues that, even if it were within category B2, the sentence could properly be one of 3 years before giving credit for the plea. However, his primary submission is, that since there was minimal physical or psychological harm, the offence could properly be categorised as category 3 harm, in which case the Guidelines indicate a starting point of 2 years' custody and a range of 1 to 4 years.
29
We have considered the submissions. We start with a few preliminary observations. First, it is clear that deferment of a sentence is a sentence for the purpose of
section 36
of the
Criminal Justice Act 1988
and therefore the Attorney General can challenge a deferred sentence that is unduly lenient. See, for example,
Attorney General's Reference (No 22 of 1992) (Thomas),
[1993]
14 Cr.App.R.(S.) 435.
30
Second, notwithstanding what the offender said after the commission of the offence, we accept the judge's assessment that this offence was not racially or religiously aggravated within the meaning of section 28(1)(a) and (b) of the Crime and Disorder Act 1988 for the reasons that the judge gave.
31
Third, while it is clear that the offender was a habitual cannabis user and it may be that the cannabis he used on this occasion had been adulterated, this does not provide any significant mitigation. People who habitually use cannabis are using an illegal drug whose chemical make-up cannot be assured.
32
Fourth, we are unimpressed by the excuse for not attending the Pre-sentence Report interview. Those who adopt this course put at jeopardy points which may be put in their favour.
33
Fifth, it is plain from a letter dated 9 March 2018 that the offender has obtained employment. His line manager has described both his attendance and his attitude as "excellent". "He has been committing to extra day's work on Sunday and has not let me down."
34
Sixth, we agree with Mr Schofield's submission that by reference to the Sentencing Council Definitive Guidelines on Robbery this offending was within the category of medium culpability (B). There was the production of a type of weapon other than a bladed article and there was a threat of violence by using it. So far as harm was concerned, we consider this was a category 2 harm. There was not serious physical harm but nor was there no or minimal physical or psychological harm. On this basis the guidelines indicate a starting point of 4 years and a category range of 3 to 6 years.
35
There were also aggravating circumstances. First, although the robbery lasted only a few minutes, there were three victims. The offender held a weapon which Mr Stanlard believed, at least initially, was a knife, against his neck and threatened him. The offender also threatened Mrs Krishnasamy and he punched Mr Alargasamy three or four times which led Mr Alargasamy to tell his wife to give the offender cash from the till. Second, the robbery was carried out under the influence of drugs.
36
Against this, there were a number of mitigating factors, as described in the Guideline. First, his lack of previous convictions at the age of 32; second, his mental condition; third, the apparently impulsive nature of the offence, and fourth, a determination to address his drug abuse.
37
In our view, on the unusual facts of this case the judge would have been entitled to take a starting point of 3 years before the important matter of his plea was taken into consideration.
38
Seventh, the offender had effectively admitted the facts of the offence at the police interview on 24 August. The reason he did not do so at the first hearing before the magistrate on 1 November was his legal representative's concern about his fitness to plead or stand trial. Following an assessment of fitness to plead by Dr Vandenabeele, he entered his plea on 15 December. In these circumstances it would have been open to the judge to give a full one-third credit for the guilty plea.
39
Eighth, the power to defer sentence was originally set out in
sections 1
and 2 of the
Powers of Criminal Court (Sentencing) Act 2000
. These provisions are substituted under schedule 23 of the
Criminal Justice Act 2003
. Sub
section 1
:
(1)The Crown Court or a magistrates' court may defer passing sentence on an offender for the purpose of enabling the court, or any other court to which it falls to deal with him, to have regard in dealing with him to-
(a) his conduct after conviction (including, where appropriate, the making
by him of reparation for his offence); or
(b) any change in his circumstances; but this is subject to subsections (3)
and (4) below
……
(3) The power conferred by sub
section (1
) above shall be exercisable only if-
(a) the offender consents;
(b) the offender undertakes to comply with any requirements as to his
conduct during the period of the deferment that the court considers it
appropriate to impose; and
(c) the court is satisfied, having regard to the nature of the offence and the
character and circumstances of the offender, that it would be in the
interests of justice to exercise the power.
(4) Any deferment under this section shall be until such date as may be specified by the court, not being more than six months after the date on which the deferment is announced by the court[...]
40
The Sentencing Guideline Council Guideline on new sentences introduced under the
Criminal Justice Act 2003
refers to deferred sentences at page 14. Having described the legislation at heading A, the guidelines refer under heading B to the use of deferred sentences.
1.2.6 Under the new framework there is a wider range of sentencing options open to the courts, including the increased availability of suspended sentences, and deferred sentences are likely to be used in very limited circumstances. A deferred sentence enables the court to review the conduct of the defendant before passing sentence, having first prescribed certain requirements. It also provides several opportunities for a defendant to have some influence as to the sentence passed-
(a) it tests the commitment of the offender not to offend;
(b) it gives the offender an opportunity to do something where progress can be shown within a short period;
(c) it provides the offender with an opportunity to behave or refrain from behaving in a particular way that would be relevant to sentence.
1.2.7 Given the new power to require undertakings and the ability to enforce those undertakings before the end of the period of deferral, the decision to defer sentence should be predominantly for a small group of cases at either the custody threshold or the community sentence threshold where the sentencer feels that there would be particular value in giving the offender the opportunities listed because, if the offender complies with the requirements, a different sentence will be justified at the end of the deferment period. This could be a community sentence instead of a custodial sentence or a fine or discharge instead of the community sentence.
41
Paragraph 1.2.8 makes clear that any conditions during the period of deferment that the court considers appropriate should be specific, measurable conditions, so that the offender knows exactly what is required and the court can assess compliance. While there may be some doubt whether the court could ensure compliance with some of the conditions, in the present case the terms of those conditions were clear enough. We would, however, have normally expected such conditions to have been set out in a Pre-sentence Report.
42
The reference to the limited circumstances in which a deferral sentence is appropriate (paragraph 1.2.6 of the Guidelines) and the "Small group of cases for custody threshold", (paragraph 1.2.7), is reinforced by the observation of this court in
Attorney General's Reference (No 101 of 2006)
, (P)
[2006] EWCA Crim 3335
at paragraph 17:
Deferral of a case like the present will therefore only be appropriate if a non-custodial sentence was a proper and realistic possibility on the facts of the case.
43
We have concluded that it was proper and realistic for the judge to decide, on the basis of what he knew, that he would be able to pass a 2-year sentence for this offence, which he would be able to suspend. Although such a sentence might be regarded as lenient, we would not regard it as unduly so. Once the judge had reached that conclusion, it was open to him to defer sentence on the terms and over the period that he did in the interests of justice.
44
Accordingly, although we grant leave, we will not interfere with this sentence. This was an unusual set of circumstances and our conclusion should not be regarded as broadening the availability of deferred sentences. | [
"LORD JUSTICE SIMON",
"MR JUSTICE GOOSE"
] | 2018_03_20-4225.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1174/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1174 | 833 |
e6a36d58462fd3900b63a70d840d2a379fe92f6d2a7034d57ac0d7b560220969 | [2009] EWCA Crim 1775 | EWCA_Crim_1775 | 2009-08-20 | supreme_court | Neutral Citation Number: [2009] EWCA Crim 1775 Case No: 2008/02417 B5 + 2009/00232 B5 + 2008/03055 B5 + 2008/02426 B5 + 2008/02420 B5 + 2008/02419 B5 + 2008/02422 B5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE MOSS QC T200700052/T20070061/T2070106 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/08/2009 Before: LORD JUSTICE HOOPER LORD JUSTICE ETHERTON and MR JUSTICE CRANSTON | Neutral Citation Number:
[2009] EWCA Crim 1775
Case No: 2008/02417 B5 + 2009/00232 B5 + 2008/03055 B5 + 2008/02426 B5 + 2008/02420 B5 + 2008/02419 B5 + 2008/02422 B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE MOSS QC
T200700052/T20070061/T2070106
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/08/2009
Before:
LORD JUSTICE HOOPER
LORD JUSTICE ETHERTON
and
MR JUSTICE CRANSTON
- - - - - - - - - - - - - - - - - - - - -
Between:
Kurtis Yemoh: BR; JB; MW; and TD
Appellant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J K Benson QC for Kurtis Yemoh
Mr M Turner QC for BR
Mr Z Khan for JB
Mr C Sallon QC for MW
Mr D Spens QC for TD
Sir Allan Green QC and Mr J W Hallam for The Crown
Hearing date: 26 June 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE HOOPER :
1.
The full facts of this case are set out in our judgment
[2009] EWCA Crim 930
dismissing all the conviction appeals and all the applications for leave to appeal except one. That one concerns TD and is an application for leave to appeal based on fresh evidence. We adjourned this application and listed it for a separate hearing. At the conclusion of oral argument, we announced that the application for leave to appeal was dismissed and we now give our reasons. Having done so we turn to the appeals against sentence, leave having been given either by the single judge or by the full court.
Leave to appeal conviction- TD
2.
The applicant seeks to rely on what is said to be a record of mobile phone calls made in July and September 2008 in which BR confessed to the stabbing. We told Mr Spens QC for TD that we would assume for the purposes of the application that BR had confessed to being the stabber and that the stabbing had taken place outside 174 Hammersmith Grove. It was TD’s case supported by his evidence that he went some way up Hammersmith Road beyond Chez Kristof and then turned back and away (see paras. 73 and 74 of the main judgment). Mr Spens tells us that he reached about as far as 150 Hammersmith Grove. Mr Spens submits that the fresh evidence would:
“require the court to consider whether or not the jury could have been sure that [TD] had not withdrawn from any joint enterprise and was thus a party to the killing by [BR]”.
3.
In our view, although the judge did direct the jury about withdrawal (see pages 14-15 of volume 1 of the summing-up), we have no doubt that, on the facts of this case, the jury would have been sure that TD had not withdrawn simply by turning away when he reached 150 Hammersmith Grove. As we said in the main judgment, in order to have convicted TD of murder the jury must, in our view, have reached the conclusion that a knife other than a Stanley knife caused the deceased’s death and that TD knew that the knifeman had a knife and he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part.
Merely turning back just before the fatal end of a long chase cannot in law constitute withdrawal on the facts of this case.
Sentence appeals
4.
As we said in our main judgment, the appellants BR and TD were each unanimously convicted of the murder on 14 March 2007 of 16 year old Kodjo Yenga (count 4). The appellants Kurtis Yemoh, JB and MW were each acquitted of his murder but were unanimously convicted of the lesser charge of his manslaughter.
5.
Yemoh, JB and MW were convicted of violent disorder relating to the same incident, a count to which BR and TD had earlier pleaded guilty. Additionally Yemoh (on his own admission), TD and JB were convicted of violent disorder on 17 February 2007 and Yemoh was convicted of inflicting grievous bodily harm on the same occasion. The incident of 17 February is described by the learned judge in passing sentence (see below). The victim was caused serious injury.
No separate penalty was imposed for the count of violent disorder.
6.
Yemoh, aged 16 at the time of committing the manslaughter, received an extended sentence of 15 years under
section 228 of the Criminal Justice Act 2003
comprising a custodial term of 10 years (less 418 days spent on remand) and an extended period of licence of 5 years. He had one police warning for burglary and three previous court appearances for aggravated vehicle taking, attempted robbery and robbery, for the latter of which he had received a 6 months detention and training order.
7.
BR, aged 13 at the time of committing the murder, was sentenced to be detained during Her Majesty’s Pleasure and to serve a minimum term of 15 years (less 418 days spent on remand). He had a previous court appearance for robbery and possession of a bladed article. He had also committed an attempted robbery, although not dealt with until after the murder conviction.
8.
JB, aged 14 at the time of committing the manslaughter, received an extended sentence of 15 years under
section 228
comprising a custodial term of 10 years (less 359 days spent on remand) and an extended period of licence of 5 years. He had nine previous court appearances for offences including assault on police (two occasions), attempted robbery and affray for which he had been sentenced to a 6 months detention and training order. Later the warrant was amended to show the remand time as 325 days.
9.
MW, aged 13 at the time of committing the manslaughter, received an extended sentence of 15 years under
section 228
comprising a custodial term of 10 years (less 418 days spent on remand) and an extended period of licence of 5 years. MW had no previous reprimands or court appearances.
10.
TD, aged just under 16 at the time of committing the murder, was sentenced to be detained during Her Majesty’s Pleasure and to serve a minimum term of 15 years (less 418 days spent on remand). He had no previous reprimands or court appearances.
11.
No separate penalty was imposed on the other counts and on the February 17 indictment.
12.
In passing sentence the judge said, amongst other things:
Kodjo Yenga was lured to a quiet residential street in Hammersmith on the pretext that he was to be challenged to a one-to-one fight. You, TD, and you, BR, were the prime instigators in that challenge. You, MW, you, Kurtis Yemoh, and you, JB, were part of the gang of youths who confronted Kodjo once he was there.
What then happened was anything but one-on-one. Following an initial exchange of blows, you all pursued Kodjo as a pack. I am quite satisfied that you, JB, deliberately set loose your Staffordshire bull terrier dog with the intention that it would join in the attack, although in the event it caused Kodjo inconvenience rather than injury.
Kodjo was chased into Hammersmith Grove by all of you. You, TD, on the evidence were armed with a Stanley knife. You had threatened Kodjo with it. Whether that was the knife that eventually killed him is doubtful. It is far more likely that a more substantial weapon was used to stab him through his clothing and into his heart. It cannot be said with any degree of certainty on the evidence which of you was armed with the murder weapon, and nor in my judgment does it matter. You, BR, and you, TD, may have been the assailant; I cannot say. But you are both convicted of murder on the basis that you knew perfectly well that one of your number was armed with a knife or other sharp implement which might be used to attack Kodjo with murderous intent. You, MW, you, Kurtis Yemoh, and you, JB, also knew perfectly well that such a weapon was present which might be used to attack Kodjo and cause him at least some harm.
It was in those circumstances and with that knowledge that you all took part in the pursuit which ended in the needless loss of yet another young life as a result of the use of knives on the streets of our cities by youngsters such as you. Whether all or some of you were members of a formal gang -- it is said that you were all members or followers of the MDP gang -- again is unimportant. What is undoubtedly the case is that you are all part of the gang culture which casts its dreadful influence over so much of the youth of our inner cities and which leads almost inevitably to the sort of tragedy that has been seen so vividly here.
These events took place in broad daylight in a residential street, to the horror of people going about their business. The fact that you, almost without exception, come from decent and caring backgrounds makes the situation all the more worrying.
A month previously on a Saturday in February 2007 you, TD, you, Kurtis Yemoh, and you, JB, had been part of a gang of youths who attacked Seun Adeboyejo and terrified ordinary members of the public in Shepherds Bush market.
13.
In passing sentence on BR and TD the judge said:
I have to set the minimum term which you must each serve before you may be considered for release on licence. The starting point in each of your cases is agreed to be 12 years. The only mitigation in your cases is your youth and the fact that I cannot be sure that you intended to kill. Otherwise, your crime is
greatly aggravated by the factors which I have already identified
, not least the use of knives. You, TD, are of previous good character; you, BR, are not, and you are mature beyond your years. Despite the disparity in your ages I intend to treat you equally. The minimum term in each of your cases is 15 years (Underlining added).
14.
In passing sentence on the others, the judge said:
MW, Kurtis Yemoh and JB, will you stand, please. I am satisfied in all of your cases, taking into account your antecedents, all that I have read about you and the serious nature and circumstances of your conviction for manslaughter, that there is a significant risk to members of the public of serious harm occasioned by the commission by you of further specified offences. I am, however, satisfied in each of your cases that an extended sentence under
section 228 of the Criminal Justice Act 2003
will be sufficient protection for the public and indeed accord you the extended licence which I think you all need upon release. Accordingly, on Count 4 of this indictment I pass upon each of you an extended sentence, the total term of which is 15 years, of which 10 years is the custodial term and 5 years the extension period for which you are to be subject to licence once you have completed the normal licence period following release.
15.
On behalf of all the appellants it is submitted that the judge made a finding of premeditation when he said: “Kodjo Yenga was lured to a quiet residential street in Hammersmith on the pretext that he was to be challenged to a one-to-one fight” and that counsel was not forewarned of an intention to make this finding and that this finding was not justified. Thereafter it is said that, although he did not use the word premeditation, he made it clear that he was sentencing on the basis that the offences were premeditated. We were referred to the sentencing remarks in the case of BR and TD and the words which we have underlined.
16.
We looked carefully at the evidence and, in particular, at the period of time between the arrival of the victim and the start of the attack and the location of the start of the attack compared with the location of the victim when he first arrived and what happened during this period. Sir Allan Green QC did point to the fact that some of the appellants were armed. That does not, in our view, necessarily show the kind of premeditation to which Schedule 21 refers. We conclude, with all deference to the trial judge, that it would not be right to sentence on the basis of being certain that an attack had been planned beforehand. We also noted that the earlier encounter with Kodjo Yenga when he was with his girlfriend Shar-de Cummings in Hammersmith, West London was not pre-planned. It was at that stage that TD said “I hear you want to fight me” and Kodjo Yenga agreed to a one-on-one fight with him. The fight was to take place at the corner of Agar Road and Adie Road. BR’s later receipt of the rucksack in Adie Road tends to suggest that at that stage it was going to be a one on one fight. There was evidence from a witness FF that the start of the attack came a little later in Adie Road when deceased picked up a scaffold pole. In the words of one counsel, what started as a one on one fight spiralled out of control and in the words of another counsel “the confrontation escalated rapidly”.
17.
The aggravating features are therefore: the prolonged chase and attack on a schoolboy, the possession of two knives one of which caused the death of 16 year old Kodjo Yenga, the possession of other weapons and the fact that “these events took place in broad daylight in a residential street, to the horror of people going about their business”. In the cases of Yemoh, TD and JB there was the aggravating feature of the earlier attack.
BR and TD
18.
We turn to the sentences passed on BR and TD. Both were sentenced on the basis of participation in a joint enterprise. Both had the mitigating features, as found by the judge, of an intention to cause serious bodily harm rather than to kill. Both had the mitigating feature of age (BR 13, TD just under 16) and TD additionally had no previous convictions. On the other hand there was the additional aggravating feature in TD’s case that he had been involved in the nasty incident of February 17.
19.
In our view the judge was right to set the same minimum term for the two of them. BR was younger and had a previous court appearance for robbery, and had, at the start of the incident, taken TD’s rucsack for safe keeping. TD was older and although he had no previous convictions he had been involved in the February 17
th
incident. The agreed starting point is 12 years and in the light of our finding about the absence of a significant degree of planning or premeditation and giving due weight to their ages, we think that the right minimum sentence is one of 13 years. To that extent their appeals against sentence are allowed.
Yemoh
20.
Yemoh was aged 16 and had serious previous convictions. It is submitted that the judge was wrong to make the finding of dangerousness. In the light of his antecedents and his involvement in the February 17
th
offences, coupled with his age and the facts of the manslaughter, the judge was in our view entitled to make a finding of dangerousness and that finding is not challenged. Given our finding about premeditation, we reduce the sentence by substituting for the sentence passed an extended sentence of 13 years under
section 228 of the Criminal Justice Act 2003
comprising a custodial term of 9 years (less 418 days spent on remand) and an extended period of licence of 4 years.
JB
21.
JB was 14 and time of the offence and had previous court appearances for assault and affray. There is no challenge to the finding of dangerousness, nor could there be in the light of the previous offending, the index offence and the contents of the PSR. In the absence of premeditation but bearing in mind JB’s bad record and his involvement in the offence of 17
th
February, we reduce the sentence by substituting for the sentence passed an extended sentence of 13 years under
section 228
comprising a custodial term of 9 years (less 325 days spent on remand) and an extended period of licence of 4 years.
MW
22.
MW was only 13 and had no previous remands or court appearances. He has expressed genuine remorse and is progressing well in detention. The finding of dangerousness is not challenged. In his case the absence of premeditation should result in the sentence being reduced by substituting for the sentence passed an extended sentence of 11 years under
section 228
comprising a custodial term of 8 years (less 418 days spent on remand) and an extended period of licence of 3 years. | [
"LORD JUSTICE HOOPER",
"MR JUSTICE CRANSTON"
] | 2009_08_20-2056.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1775/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1775 | 834 |
a3fe44139ba7eac23726526aa3f7c3bfe342e4ce0db9baa0f8f3352cb0b63d80 | [2009] EWCA Crim 2108 | EWCA_Crim_2108 | 2009-09-10 | crown_court | No: 200903307/A8 Neutral Citation Number: [2009] EWCA Crim 2108 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 10th September 2009 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE SIMON MR JUSTICE COULSON - - - - - - - - - - - - - - - - - R E G I N A v J - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7 | No:
200903307/A8
Neutral Citation Number:
[2009] EWCA Crim 2108
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 10th September 2009
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COULSON
- - - - - - - - - - - - - - - - -
R E G I N A
v
J
- - - - - - - - - - - - - - - - -
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 Gateshill
appeared on behalf of the
Appellant
Miss J Hill-Baker
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: On 17th November 2008 in the Crown Court at Hull, the applicant pleaded guilty to rape of a child under 13 (count 1); to causing a child to engage in sexual activity (count 2), to two counts of assault of a child under 13, by penetration (counts 3 and 5) and to two counts of sexual assault of a child under 13 (counts 4 and 6). He was sentenced pursuant to section 91 of the PCC(S)A 2000 by His Honour Judge Richardson as follows: count 1, 6 years' detention; count 2, 3 years concurrent; count 3, 2 years consecutive; counts 4, 5 and 6 in each case 2 years concurrent. That led to a total sentence of 8 years' detention pursuant to section 91. The judge also ordered that 332 days spent in custody should count towards sentence. He applies for leave to appeal against sentence, the matter having been referred to us by the Registrar.
2.
The background is this. The applicant at the time of the commission of these various offences was only 14 years old. From early 2007 he lived with his mother and 5-year-old sister, L, the complainant in counts 1 and 2, in a flat in a hostel in Hull. The hostel catered for women who had suffered domestic violence. In October 2007 another family moved into another flat in the hostel. The family had a seven-year-old boy, C, who was the complainant in counts 3 and 4, and a 3 to 4-year-old called S, the complainant in counts 5 and 6. The mothers became friends. As a consequence the applicant became friendly with the other children.
3.
The mother of C and S began to have some concerns about the applicant's conduct and she saw video clips on her son's mobile telephone which indicated that the applicant was behaving in unacceptable ways, for example, encouraging another child to punch S. On 14th January S told her mother that the applicant had "touched her la-la". C told her that the applicant had touched him also. That led to the police being contacted. The applicant was detained and interviewed and he made a number of admissions in the interview. He admitted that on two or three occasions he had anally and vaginally raped his 5-year-old sister. Before doing that he had touched her vagina and anus and continued when she told him to stop. He made her suck his penis for 3 or 4 minutes and warned her not to tell anyone (count 2). Count 3 related to an occasion when he inserted his finger into C's anus. Count 4 concerned an occasion when he masturbated C's penis and touched his bottom and warned him not to tell anyone. Count 5 concerned his inserting a finger into S's anus on two or three occasions and count 6 concerned the action where he touched S's vagina and masturbated her and again warned her not to tell anyone.
4.
Credit was given in this case for the early pleas. It was noted that there was no previous conviction. The judge had the benefit of a number of reports. There was a pre-sentence report which said that the appellant did not appear to have the capacity to empathise with his victim. His IQ fell into the mild to moderate learning disability range and it was noted he had experienced inconsistent and neglectful parenting. No alternatives to custodial sentence was proposed as it was considered that he posed too great a risk to the victims.
5.
There were two letters from Mr Weston, a consultant clinical psychologist, one in August 2008 and the other in April 2009. He confirmed that the IQ scores were well below the learning disability range. The applicant's maturity would be equivalent to a child at primary school age. He had no generalised idea of morality and would need supervision and direction. More recently, on 14th May, Mr Weston confirmed that it was doubtful whether the applicant should leave custody without support.
6.
The judge recognised the great difficulty involved in sentencing somebody of this age, for offences of this nature. He noted that notwithstanding the guilty plea at the earliest opportunity, the sentences would have to be long. They would, of course, have been far longer had this been an adult offender, but he reminded himself that it was the welfare of the applicant that had to be at the forefront of the case. He noted the very damaging effects that offences this kind would necessarily have on the victims. He considered but rejected the possibility of invoking the dangerous offender provisions, but he concluded that the applicant had taken advantage of these very young children. He made threats against some of them. It was not a case of adolescent experimentation. He did know that what he was doing was wrong. Bearing all these factors in mind, the judge concluded that 8 years was the appropriate sentence.
7.
Mr Gateshill today has made one single and simple submission. He says that bearing all the relevant considerations in mind but particularly focusing on the age, the lack of maturity and the low intelligence of this particular applicant, a sentence of 8 years was simply too high. It was the equivalent of a 12-year sentence, if there had been a trial. That, he says, is too much for a child of 14, however grave the nature of the sexual offences.
8.
We think there is force in that submission. This was, as we have said, an extremely difficult sentencing exercise. There is the obvious public interest in protecting these and potentially future victims, but there is also very importantly the welfare of this child, then 14, to be taken into consideration. The balance is not an easy one. But we think that on this occasion the judge did pitch the sentence too high. We consider that an appropriate sentence would have been 9 years after a trial which, in view of the early plea should be reduced to 6 years. We think that strikes a difficult balance that has to be exercised in a sentencing exercise of that kind. To that extent we grant leave to appeal and to the extent that we substitute 6 years for 8 years, the appeal is successful.
9.
LORD JUSTICE ELIAS: Mr Gateshill there is one further matter. We were very concerned that this boy had been on remand for such a long time before matters came to a head.
10.
MR GATESHILL: The delay was caused by the clinical psychologist, Mr Weston, and further enquiries being put to him. There was an original report then there are two subsequent letters from him.
11.
LORD JUSTICE ELIAS: There was certainly a long delay to sentence, but he seems to be on remand before then too.
12.
MR GATESHILL: He was on remand before sentence, for July 2008.
13.
LORD JUSTICE ELIAS: It is most unsatisfactory that a child should be in that situation for that long, waiting to know his fate. I know these things may sometimes be inevitable, but we have to say it is a matter which has caused us some concern.
14.
MR GATESHILL: To be fair to counsel instructed originally visited this young person when he was in custody. He reported to me yesterday that the appellant himself was enjoying his stay at that establishment and really that was the best time of his life.
15.
MR JUSTICE SIMON: That is also reflected in the 26th August report.
16.
MR GATESHILL: It is a very sad case.
17.
LORD JUSTICE ELIAS: That may be so for this child but the principle is a wider one.
18.
MR GATESHILL: In this particular case, I do not think any harm was in fact done.
19.
LORD JUSTICE ELIAS: We are grateful to you. Thank you very much. | [
"LORD JUSTICE ELIAS",
"MR JUSTICE SIMON",
"MR JUSTICE COULSON"
] | 2009_09_10-2075.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2108/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2108 | 835 |
3da7ac56ca89feb48a499626305f17553b02e9e8adb86e122b4028580592ed4c | [2004] EWCA Crim 2769 | EWCA_Crim_2769 | 2004-10-28 | crown_court | No: 200404289/A4 Neutral Citation Number: [2004] EWCA Crim 2769 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 28th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE HENRIQUES MRS JUSTICE DOBBS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY- GENERAL's REFERENCE NO 98 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Lim | No:
200404289/A4
Neutral Citation Number:
[2004] EWCA Crim 2769
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 28th October 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE HENRIQUES
MRS JUSTICE DOBBS
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY- GENERAL's REFERENCE NO 98 OF 2004
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR R HORWELL
appeared on behalf of the ATTORNEY GENERAL
MR S EVANS
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: The Attorney- General seeks the leave of the Court, under
section 36
of the
Criminal Justice Act 1988
, to refer sentences said to be unduly lenient. We grant leave. The offender was born in April 1986 and so is 18 years of age. On 14th June 2004 he pleaded guilty to both counts in the indictment; count 1 was robbery and count 2 assault occasioning actual bodily harm. On 5th July he was sentenced by Mr Recorder Carus QC, at Manchester Crown Court, to 30 months' detention in a young offender institution on count 1 and 12 months' detention concurrently on count 2. A co- accused, Blanchflower, also charged on count 1, was at that time awaiting trial, but we are told that he has subsequently been convicted.
2.
The circumstances of the offence, somewhat unusually, are depicted clearly in CCTV footage which each member of this Court has seen. The offender was in the street at night- time with three others. The victim was alone. He was punched and kicked, not only during the robbery, but also, conspicuously by this offender gratuitously afterwards.
3.
The victim was Mr Prince. A little before 2 o'clock on the morning of 23rd February 2004, he was using a public telephone kiosk in Pendleton. He was telephoning for a taxi to take him home. He was told it would be about 15 minutes, so he decided to stay in the kiosk to keep warm. The offender and the three other youths were not far away. As depicted in the video footage, the offender had previously attempted to break into a parked motorcar, but had failed. Thereafter, he and the other three walked towards the kiosk. They saw Mr Prince inside. Mr Prince assumed that they wanted to use the telephone. He stepped outside. Thereupon, the offender and one of the others attacked him, punching him to the side of the face and knocking his spectacles off. He was knocked to the ground and kicked in his head, shoulder and back. At no stage did he offer any resistance. He curled up in a ball in order to protect himself. As he lay on the ground, the offender and others searched his pockets and took £64 in cash, a mobile telephone and a number of disposable cigarette lighters from him. Thereafter, as we have said, the offender and one of the others returned and the offender stamped on him.
4.
The offender and the others walked off. Mr Prince was still lying on the ground and again the offender came back and kicked and stamped on him. Mr Prince said: "Don't you think I've had enough?" That later incident was the subject of count 2, assault occasioning actual bodily harm.
5.
Fortunately, not long after this attack, the taxi which Mr Prince had ordered arrived. It took him home. He went to hospital the following morning. He had deep bruising of the head, back and shoulders. Because of what was recorded on the CCTV camera the offender was identified. He was arrested on 14th April. In interview he made no comment. He pleaded guilty at the plea and directions hearing on 14th June. That was the first occasion when he had the opportunity to do so. Sentence was adjourned to await the outcome of Blanchflower's trial. But, on 5th July, that trial was adjourned because he had other matters to face. It was in that context that the learned Recorder passed the sentence to which, at the outset, we referred.
6.
On 24th May 2001 the offender had been conditionally discharged for 12 months for an offence of having a bladed article in a public place, to which he pleaded guilty. He had been 13 at the time of the offence and 15 at sentence. He had also been cautioned in respect of offences of theft and assault occasioning actual bodily harm when he was 12, and for criminal damage when he was 13. As we have said, he was 18 at the date of sentence. He had been 17 at the time of the offence. The learned Recorder, like this Court, had the advantage of seeing the CCTV footage.
7.
In passing sentence, the Recorder indicated that the plea of guilty would reduce the sentence to be imposed, though he observed that, given the quality of the CCTV evidence, the prospect of a successful contest would have been "virtually zero". The learned Recorder also said that, having watched the video, he experienced a sense of revulsion and shock. He indicated that the offender had played the most prominent part in the attack on Mr Prince, who was fortunate not to have sustained serious injuries, despite the offender's best attempts to cause serious injury.
8.
On behalf of the Attorney- General, Mr Horwell draws attention to what he submits, rightly, are five aggravating features. First, the offence of robbery was committed by a group of four upon a sole individual. Secondly, it took place at night. Thirdly, shod feet were used as weapons. Fourthly, the violence which we have described went beyond that required merely for the purpose of robbery. Fifthly, there was the subsequent further and wholly gratuitous violence used on the victim after the robbery had been committed.
9.
Mr Horwell drew attention to the mitigation to be found in the pleas of guilty and the age of the offender. He drew attention to two authorities
R v Gordon & Foster
[2001] 1 Cr App R(S) 200, in some respects is similar to the present case, though dissimilar in others. In that case, following a plea of guilty, a sentence of 5 years was imposed on defendants aged 26 and 28 and that sentence was upheld on appeal to this Court. Mr Horwell also drew attention to
Attorney- General's References No 4 and 7 of 2002
(R v Lobban & Ors) [2002] 2 Cr App R(S) 345, in particular, paragraph 5 of the judgment of the Court, where in it was accepted that the authorities reveal a sentencing bracket of 18 months to 5 years, subject to the observation that, if offences are committed by an offender who has a number of previous convictions and, if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the 5 year upper limit may not be appropriate. In paragraph 7 the Court identified as a factor of importance whether a team of offenders was involved.
10.
In the present case, as we have said, there were four members of the offender's group, though it is right to point out that one of them took no part in the violence. One of them intervened to reduce the degree of violence and the violence was essentially inflicted by the offender primarily and by one of the other youths secondarily.
11.
The submission Mr Horwell makes is that the sentences passed by the learned Recorder were unduly lenient and failed to reflect the aggravating features identified and public concern about offences of this kind.
12.
On behalf of the offender Mr Evans stresses that the guilty plea on the first occasion is the most powerful aspect of mitigation so far as this offender is concerned. He accepted that the quality of the video made it very difficult to contest the issue of guilt, although he did point out that Blanchflower did contest that issue, albeit he was convicted. Mr Evans conceded that the garment warn by the offender, which bore white stripes, was particularly readily identifiable and he also accepted that the offender's participation in these events was in the forefront of those involved. But, he stresses, the offender was 17 at the time. His only previous involvements with the law, as we have indicated, was when he was a good deal younger. As to the offences themselves, Mr Evans stresses that no weapon was used. Bearing in mind the number of those involved and the use which was made of shod feet, that is not, as it seems to us, a particularly powerful point.
13.
Mr Evans also drew the Court's attention to
Attorney- General's Reference No 23 of 2004
(R v Fereday)
[2004] EWCA Crim 1883
. As was pointed out to Mr Evans in the course of his submissions, individual cases which state no general principle are of limited assistance when approaching sentence, because of the variety of facts which are to be found in the reported cases. Mr Evans' submission, and he said all that could be said on behalf of the offender, is that this was not an unduly lenient sentence and not one with which, in any event, this Court should interfere. That submission we do not accept.
14.
Taking into account all the circumstances which we have rehearsed, we would have expected in the court below a sentence of at least 5 years' detention in a young offender institution for the totality of this criminality. It follows that the sentences passed were unduly lenient. Taking double jeopardy into account, that is the offender is being sentenced a second time, the sentence which we pass is one of 4 years' detention in a young offender institution. We pass that sentence in relation to count 1, quashing the sentence of 30 months imposed by the learned Recorder and we leave undisturbed the sentence of 12 months concurrent on count 2. | [
"MR JUSTICE HENRIQUES",
"MRS JUSTICE DOBBS",
"S.36 CRIMINAL JUSTICE ACT 1988"
] | 2004_10_28-352.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2769/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2769 | 836 |
0061813127f8f4ffb4f9a00979c2a95a2346449e133407e7b02b7e08ee27aa2d | [2021] EWCA Crim 538 | EWCA_Crim_538 | 2021-03-24 | 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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NCN:
[2021] EWCA Crim 538
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202001969/B4 & 202001970/B4
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 24 March 2021
LORD JUSTICE SINGH
MR JUSTICE WILLIAM DAVIS
MRS JUSTICE ELLENBOGEN DBE
REGINA
V
RYAN THOMAS KENNEDY
__________
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 T QURESHI
appeared on behalf of the Applicant
J U D G M E N T
1.
LORD JUSTICE SINGH: There are two renewed applications for leave before this court, the first to appeal against conviction and the second to appeal against sentence. The applicant also requires extensions of time.
2.
On 12 March 2020 in the Crown Court at Liverpool, the applicant, then aged 26, was convicted by the jury of an offence of kidnapping (count 1), assault occasioning actual bodily harm (count 2) and possessing criminal property (count 4). He was acquitted of having a bladed article in a public place (count 3, the original count 5). Before the trial he had changed his plea to guilty in respect of an offence of burglary (which was the original count 3), possession of an offensive weapon, namely a sledgehammer (the original count 4) and handling stolen goods (the original count 6).
3.
On 2 April 2020 the applicant was sentenced by His Honour Judge Warnock in the following way. On the offence of kidnapping, the sentence was an extended sentence under
section 226
A of the
Criminal Justice Act 2003
, comprising a custodial term of eight years and an extended licence period of three years, thus making an extended sentence of 11 years. On the count of assault occasioning actual bodily harm there was a concurrent sentence of 12 months' imprisonment. On the count of possessing criminal property there was a concurrent sentence of 18 months' imprisonment. On the count relating to burglary there was a concurrent sentence of 18 months' imprisonment. On the offence of possession of an offensive weapon in a public place there was a concurrent sentence of three months' imprisonment. On the offence of handling stolen goods there was also a concurrent sentence of three months' imprisonment. Accordingly the total sentence was an extended sentence of 11 years, comprising a custodial term of eight years and an extension period of three years.
4.
There was a co-accused, Liam Rogan, aged 31, who was jointly tried and convicted in respect of the count of kidnapping and the count of assault occasioning actual bodily harm. He was sentenced to six years and 12 months concurrent respectively.
5.
The facts can be summarised as follows for present purposes. The complainant, Macauley Sawyers, now aged 18 said that on 5 September 2019 he was forced into a Ford Fiesta car by the applicant and co-accused who then threatened and assaulted him with a Taser whilst demanding to know the whereabouts of his friend Josh Caddick. He was detained for over an hour during which the vehicle was driven around the local area searching for Josh. At one point they stopped whilst the applicant and co-accused burgled some commercial premises.
6.
When arrested the next day the applicant was found to be in possession of a large quantity of cash which was seized as the proceeds of crime/drug dealing.
7.
The prosecution case was that the applicant used young males, including Josh Caddick, to deliver drugs from Liverpool to Stockport and that Josh owed him money arising from this activity. In an attempt to locate him, the applicant and co-accused kidnapped the complainant, who was Josh's friend, and used a Taser to inflict pain and injury upon him. In addition, the applicant was in possession of a knife or dagger which he used to threaten the complainant. He was acquitted on that (count 3 at the trial).
8.
The cash recovered at the time of arrest was said to be from his "county lines" drug dealing. To prove its case the prosecution relied on, first, the evidence of the complainant Macauley Sawyers; secondly, the evidence of the complainant's mother Rebecca Shaw; thirdly, an adverse inference from his failure to answer questions in interview; and fourthly, his bad character, previous convictions being placed before the court.
9.
The applicant's defence at the trial was that he did not kidnap the complainant, nor did he take part in or encourage any assault upon him. The complainant had gone with him willingly and indeed it was his idea to burgle the commercial premises, although he lost his nerve and did not in fact take part. As to the cash seized, it was said this was the proceeds of the sale of eight Bull Terrier dogs whom the applicant had bred and sold for approximately £3,000 each.
10.
The issue for the jury was whether the complainant's account was true and accurate, whether the jury were sure that he had been held in the vehicle against his will, assaulted/injured with a Taser gun, threatened with a knife and whether the cash recovered from the applicant's address was criminal property rather than the legitimate proceeds from the sale of puppies.
11.
During his evidence, the complainant suggested that he suffered from "cognitive difficulties" including dyslexia which hindered his ability to understand oral questions. Later in his evidence, dealing with the moment the applicant came into the chip shop to kidnap him, he said:
"I took what he said in but I have cognitive problems so I had to re ask what he said..."
12.
The complainant's mother, Rebecca Shaw also gave evidence. She explained on this topic that her son had cognitive difficulties. She said that they had not discussed the incident much "because of my son's developmental issues, cognitive issues, it's not something we have been talking about because I didn't want to keep reiterating it in his brain."
13.
In answer to a question from judge, she said:
"His brain cannot process information, nor can it retain information. He has social disengagement."
14.
She said again that her son had cognitive difficulties, saying:
"At 17 years of age I'm still telling him things of a five-year/six-year-old child because his brain does not retain information. It just goes."
15.
We will deal first with the renewed application for leave to appeal against conviction. In helpful revised written submissions and in his oral submissions, Mr Qureshi has clarified that he no longer pursues all of the original grounds of appeal. Rather, he pursues three grounds. Under ground 1, Mr Qureshi complains that the way in which the judge summed up the evidence on this topic was to over-emphasise the complainant's cognitive impairment. The relevant parts of the summing-up are as follows. First, at page 14E (page 150 of the bundle) the judge said:
"We start of course with the ABE interview of Macauley Sawyers. He was born on 24 August 2002. You may wish to recollect the evidence of his mother about what was said to be his cognitive impairment, if you accept that. That is a matter of fact for you to consider, but that is part of the picture, if you accept that evidence, of this particular witness."
16.
In summarising the evidence which had been given by Rebecca Shaw, the judge said the following at page 32F (page 168 of the bundle):
"She says, 'My son has cognitive issues'. Remember, she has described the problems. 'I presumed his phone had been taken off him. My knowledge of Reggie Kennedy is from what has happened to Josh Caddick in the past', and again I caution you about that. That is hearsay of course."
17.
And at page 33A (page 169 of the bundle:
"In answer to me, she told us this: 'Macauley is 17 years of age, his brain cannot process information, he has had help at school, he's dyslexic and he's vulnerable. I am still telling him matters like a 5-year old.'"
18.
Mr Qureshi submits that there was no medical evidence about the extent and effect of Mr Sawyers' cognitive impairment and the extent to which it affected his reliability. He submits that the judge over-emphasised the importance of this evidence when he suggested to the jury that this was "part of the picture". He submits that the impression left by this evidence was that Mr Sawyers' cognitive impairment meant that he was not only a vulnerable person by virtue of his age (17) but also because he suffered from significant impairment of intelligence and social function. Mr Qureshi submits that this court will quash a conviction where there has been a misrepresentation of the facts which is liable to make a conviction unsafe and draws an analogy with the decision in
R v Bateson
(1969) 3 All ER 1372.
19.
We consider that there is no analogy to be drawn with that decision. In our view, there was no misrepresentation of the facts by the trial judge. His summing-up was simply a summary of the relevant evidence which the jury had heard and which included the evidence of Mr Sawyer's mother. The jury had evidence that the complainant had some degree of cognitive impairment. The fact that there was no expert or medical evidence on the topic did not mean that the evidence was irrelevant or inadmissible. It came principally from the complainant's mother, who was in as good a position as anyone to give the evidence. The judge was justified in saying that this was "part of the picture" so far as the jury's assessment of the complainant was concerned. There was no objection taken to this evidence at the time or at any stage during the trial, although the defendant was represented by counsel (although not at that time Mr Qureshi). Finally, we would note that the trial judge gave the usual direction to the jury that matters of evidence were entirely for them and that they should not read into his choice of the evidence any particular significance (see summing-up page 14C).
20.
Under ground 2, Mr Qureshi submits that the prosecution failed properly to exercise their continuing duty of disclosure. They should have but failed to disclose to the defence relevant material which went to Mr Sawyers' reliability and credibility as a witness. After enquiries were pursued for the purpose of this appeal, the following factual position was agreed as between the Crown and the defence. It is set out at paragraph 56 of
Mr Qureshi's revised submissions:
"1. On 25th February 2020, one week before the commencement of Mr Kennedy's trial, the police sent to the Crown Prosecution Service a letter from Mr Macauley Sawyer's GP dated 24th January 2020, along with a 2015 psychology report also in connection with Mr Sawyers.
2.
The contents of the 2015 psychology report refer to Mr Sawyers suffering from cognitive impairment and the Crown accept, in 2015, they were indeed aware of Mr Sawyers suffering from cognitive impairment.
3.
Notwithstanding the letter from the police and its enclosures, the
Crown's position is that there was no evidence to suggest Mr Sawyers was still suffering from any such impairment at the date of the trial.
4.
The full contents of the report have never been disclosed to the defence.
5.
The medical documentation was sent by the police as a result of a discussion between the police and Mr Sawyer's mother in which Mr Sawyer's mother indicated to the police he was not well enough to give evidence. The details of this conversation, when it took place and any records pertaining to it have never been disclosed to the defence.
6.
The GP's letter [that is the one from January 2020] stated Mr Sawyers was suffering 'with symptoms of severe stress'.
7.
The police provided the medical documentation to the CPS with a view to inviting the CPS to apply to adduce Mr Sawyer's evidence via hearsay pursuant to
s.116(2)
(b) of the
Criminal Justice Act 2003
.
8.
In receiving this documentation and deciding whether to make a hearsay application ... the CPS ... sent the material to Crown counsel. In the event, no application was pursued, but special measures were arranged to enable Mr Sawyers to give his evidence via live link.
9.
The evidence lodged with the court, on 29th February 2020, in support of these special measures, made no mention of the medical evidence and the application was made on the basis of fear and panic.
10.
The final schedule of unused [material] prepared before the trial is dated 30th January 2020. It was prepared after receipt of the medical documentation and after the conversation between the police and Mrs Sawyer's mother. The schedule makes no mention of the conversation and/or the medical documentation pertaining to Mr Sawyers.
11.
When asked by Mr Kennedy's new lawyers why there was no reference in the Schedule of unused [material] to this material, the Crown have explained that this material did not form part of their case.
12.
There is no record and no record has been disclosed indicating that the Crown reviewed the 2015 psychology report between its receipt ... and the conclusion of [the] trial with a view to determining whether it should be disclosed.
13.
No assessment was made about the extent to which Mr Sawyers was suffering from cognitive impairment and the extent to which that would affect his ability to participate in the trial."
21.
In those circumstances, Mr Qureshi submits that the Crown was in possession of material which might have undermined the claims made in evidence by Mr Sawyers and his mother to the effect that he did suffer from cognitive impairment. The Crown's position is that there was no evidence to suggest that Mr Sawyers still suffered from any such impairment by the date of the trial.
22.
In the Respondent's Notice it is accepted that the document should have been placed on the unused material schedule and there was an oversight on the part of the Crown. However, it is submitted that in the event no hearsay application to adduce Mr Sawyer's evidence was in fact made. Further, it is submitted that even if there was an irregularity it did not affect the safety of the conviction. It is submitted that the reliability and credibility of a witness are always matters for the jury. The jury had the opportunity to see the complainant and to assess his evidence, including in cross-examination.
23.
We accept those submissions on behalf of the respondent. In our view a report dating back to 2015 supporting the diagnosis of cognitive impairment has no direct relevance to the position some four years later. What the prosecution may say about the position is neither here nor there, unless based on evidence. In any event the issues at the trial had little or nothing to do with any impairment of the complainant. He gave a full account of being the victim of a kidnapping, with a view to his taking Kennedy and the co-accused to a friend of his who supposedly owed Kennedy money arising out of drug dealing. The complainant had injuries consistent with being Tasered. Kennedy's case was that the complainant had been with him and his co-accused in order to commit a burglary, from which the complainant had withdrawn at the last minute. We therefore do not consider that ground 2 has reasonable prospects of success.
24.
Underground 3 Mr Qureshi submits in the alternative that if contrary to the prosecution's assessment Mr Sawyers did continue to suffer from cognitive impairment by the time of the trial, then in the interests of a fair trial the possibility of providing him with additional measures such as an intermediary ought to been explored.
25.
In our view this has no material bearing on the fairness of the trial so far as the applicant is concerned. What if any special measures beyond what was already put in place for the benefit of Mr Sawyers should have been considered has no material impact on the fairness of the trial for the defence. Further, and in any event, the argument about an intermediary or other special measures might have had some force if there were any example given of the complainant failing to understand evidence or missing the point. In fact, as appears from the full summing-up of the complainant's evidence, both via the ABE and cross-examination, the complainant was well able to follow the propositions being put to him. At this hearing, when pressed by the court, Mr Qureshi was unable to draw our attention to anything specific in the complainant's evidence to show that he, as it were, got the wrong end of the stick. Accordingly, we conclude that ground 3 also is not reasonably arguable.
26.
We turn then to the renewed application for leave to appeal against sentence. There are no Sentencing Council Guidelines for the offence of kidnapping. Reference has been made by Mr Qureshi to decisions of this court which have set out helpful guidance, in particular
R v Iqbal
[2020] EWCA Crim 376
and
Attorney General's References Nos 92 and 93 of 2014 (Gibney)
[2014] EWCA Crim 2713
.
27.
Mr Qureshi submits that the facts of the present case did not have the aggravating features such as to place it close to the facts of a case of the sort exemplified by
Gibney
. At the other end of the spectrum, Mr Qureshi accepts was a case such as
R v Abbas
[2017] EWCA Crim 201
. Mr Qureshi rightly accepts the facts of the present case were significantly more serious than those in
Abbas
.
28.
Mr Qureshi submits that the judge was wrong to sentence against the background of the county lines operations in Scotland. He submits that there was no evidence to suggest that Mr Kennedy was involved in such an operation beyond the general comments made by Mr Sawyers based upon his understanding. We see nothing in this argument. This was part of the factual background with which the judge was familiar having presided over the trial.
29.
Next, Mr Qureshi submits that the entire incident took place over a relatively short period of something like three hours, between about 4.30 pm and 7.30 pm. He submits that the only time that a knife was produced was at the point when the victim was in fact being released from the car. Mr Qureshi submits that no lasting physical harm was caused to the victim, although he accepts that he was Tasered four times.
30.
It is accepted the victim was 17 at the time of the offence. Nevertheless it is submitted that Kennedy did not single the victim out on account of his age, but rather because of his association with Josh. Mr Qureshi also submits that Kennedy has no relevant previous convictions and the victim was not robbed. In the circumstances, he submits that the judge was wrong to impose an extended sentence.
31.
We disagree. In our view the judge was perfectly entitled to reach the conclusion which he did on dangerousness, not least as he had presided over the trial. As the single judge observed when refusing leave on the papers, the judge could have structured the sentence in a variety of different ways. He chose to make the kidnapping offence the lead offence and was therefore entitled to impose a higher sentence than might otherwise be
appropriate for that offence, while taking into account the principle of totality. The other sentences were rightly made concurrent.
32.
In all the circumstances, we have reached the firm conclusion that there is no arguable basis for saying that the sentence was either wrong in principle or manifestly excessive. If there had been any merit in any of the grounds of appeal against either conviction or sentence we would have extended time, but in the result we refuse those applications too.
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"LORD JUSTICE SINGHMR JUSTICE WILLIAM DAVISMRS JUSTICE ELLENBOGEN DBE"
] | 2021_03_24-5150.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/538/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/538 | 837 |
663b581237cbfbdc37c6154dde72f66650d34229857b8b092255872675d6fce4 | [2019] EWCA Crim 1862 | EWCA_Crim_1862 | 2019-10-25 | crown_court | NCN: [2019] EWCA (Crim) 1862 201805278/ C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 25 October 2019 B e f o r e: LORD JUSTICE SIMON MR JUSTICE WILLIAM DAVIS and SIR KENNETH PARKER ____________________ R E G I N A - v - MUATAZ AHMED ALI ____________________ 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 Wri | NCN: [2019] EWCA (Crim) 1862
201805278/ C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 25 October 2019
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE WILLIAM DAVIS
and
SIR KENNETH PARKER
____________________
R E G I N A
- v -
MUATAZ AHMED ALI
____________________
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 E Stuart-Smith
appeared on behalf of the Appellant
Mr B Temple
appeared on behalf of the Crown ______________________
J U D G M E N T
_____________________
LORD JUSTICE SIMON:
1.
On 18 July 2018 in the Central Criminal Court the appellant pleaded guilty to counts 4 and 5 on an indictment.
2.
On 6 December 2018, following a trial in the Central Criminal Court before Mr Recorder Sells QC and a jury, he was convicted on counts 2 and 3. On the following day, 7 December, he was sentenced by the Recorder as follows: on count 2 (possessing a firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968), to eight years' imprisonment; on count 3 (possessing ammunition without a firearm certificate, contrary to section 1(1)(b) of the 1968 Act), to a concurrent term of two years' imprisonment; on count 4
(having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988), to a consecutive term of two years' imprisonment; and on count 5 (possessing a controlled drug of Class B, contrary to section 5(2) of the Misuse of Drugs Act 1971), to a concurrent term of six months' imprisonment. The total sentence was, therefore, one of ten years' imprisonment.
3.
The appellant now appeals against that sentence by leave of the single judge.
4.
During the course of the evening of 19 June 2018 a London minicab driver, Samson Ayele, was instructed to collect a male named "Tazz" from the Kingsmead Estate, London E9. He drove there and picked up the appellant. The booked journey was to Westerham Avenue, N9, and then on to Marsh Wall, E14. The appellant paid him £50 in cash by way of advance. While en route to Westerham Avenue, the appellant asked him to stop the car on Church Road. The appellant got out and walked down a side street. When he returned, Samson Ayele continued with him on the journey to Marsh Wall.
5.
At around 12.50am uniformed police officers travelling in three marked police vehicles stopped the minicab in Fore Street, N18. The appellant was the sole passenger. As he was taken from the car a knife fell from his right side to the ground. One of the police officers searched the vehicle and found a sock containing a pistol concealed in the rear pouch of the front passenger
seat.
6.
The pistol was later forensically examined. It was a CZ model 9 millimetre Parabellum calibre self-loading pistol, loaded with a magazine with 15 undischarged bullets. Having checked the firing marks made on the bullets by the firearm against other fired bullets from other incidents, a forensic scientist concluded that the firearm had been used to fire two 9 millimetre
Parabellum bullets and the cartridges cases found nearby in Kingsmead Way, E9, on 17 April 2018.
7.
When he was interviewed by police on 19 June 2018 in respect of these offences, the appellant declined to answer all questions.
8.
The appellant was aged 22 at the date of sentence. He had two previous convictions. In 2015 he received a conditional discharge for theft of a cycle; and in 2018 he was fined for possession of cannabis. He had no prior experience of custody.
9.
There was no pre-sentence report. We are satisfied that none was required either at the sentencing hearing or on this appeal, and none has been sought.
10.
In passing sentence the Recorder noted that the appellant had been travelling in a minicab through London with a fully loaded, automatic pistol and knife. The Recorder had no doubt that his conduct that night was part of an organised criminal enterprise in which he had played his part. There was well-known public concern about knife and gun crime. The courts had stated that the requirements of public policy was material to the imposition of sentences.
11.
The Recorder had been referred to a number of authorities and had taken into account the history of the firearm which had been used on a number of previous occasions in the last two years in the commission of very serious crime (albeit not by the appellant).
12.
In mitigation, the Recorder took into account the appellant's limited previous convictions and his relative youth. Such people were commonly used by others in these types of offences.
He said that he took into account totality, and passed the sentences to which we have referred.
13.
In the grounds of appeal and in her oral submissions today, Miss Stuart-Smith has submitted, first, that the consecutive sentence of two years' imprisonment for possession of a bladed article (count 4) was manifestly excessive. Both prosecution and defence counsel agreed that the starting point on the guidelines was a term of six months' imprisonment, with a range of three to twelve months. The two year sentence was, therefore, significantly above the starting point and significantly beyond the appropriate range. Furthermore, the appellant had pleaded guilty to the bladed article offence during the plea and trial preparation hearing, and it does not appear from the sentencing remarks that the appellant was given 25 per cent credit for that plea.
14.
Second, and linked to this point, Miss Stuart-Smith urged that insufficient regard was paid to totality. The following points bore on the appellant's culpability and therefore the seriousness of the firearms offences: first, he had only been in possession of the firearm for between ten and twelve minutes; second, there was text message evidence that he was being directed where to go and what to do; third, he was aged 21 at the time, was only lightly convicted and had not previously served a custodial sentence; fourth, his family had fled from Somalia when he was aged 6, he had been brought up in difficult circumstances, he had obtained a number of GCSEs and a Level 3 Diploma in Engineering, but had been unable to find work; and finally, his father was disabled.
15.
For the prosecution, Mr Temple submitted that the sentence for the bladed article offence was severe but that, if one is looking at totality, the overall sentence was fair, just and proportionate in view of the accumulation of weapons: a knife and a firearm carried at the same time.
16.
The starting point is that there can be no justifiable criticism of the sentences passed for the firearms offences. Those who are lightly convicted, or of good character, are frequently used by criminals to look after or transport guns. The offence in this case involved possession of a loaded, automatic weapon with the intent required for a section 16A offence.
17.
The possession of the knife was both a separate offence and aggravated the seriousness of the offending. However, we are persuaded that, by reference to the Sentencing Council's definitive guideline on bladed articles and offensive weapons, this was category A culpability, since it was a bladed article, and category 2 harm. The starting point, therefore, was a term of six months' imprisonment. This was the appellant's first relevant offence and therefore the minimum term provisions did not apply.
18.
However, we regard it as an aggravating factor that the knife was carried with the gun. This justified an uplift to eight months' imprisonment, before credit was given for the guilty plea.
19.
We do not consider that the Recorder was in error in making the sentences consecutive.
That approach recognised the criminality of carrying knives as part of a criminal enterprise.
20.
Accordingly, we quash the sentence on count 4 and substitute a consecutive term of six months' imprisonment. The other sentences are unaffected, and so the total term will be one of eight and a half years' imprisonment instead of ten years. To that extent, the appeal is allowed. | [
"LORD JUSTICE SIMON",
"MR JUSTICE WILLIAM DAVIS"
] | 2019_10_25-4746.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1862/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1862 | 838 |
74af26f8ec8ce873a2b8dc1484c4b672fbb5003ee29bcf27b73505e54c66a354 | [2012] EWCA Crim 2520 | EWCA_Crim_2520 | 2012-11-30 | crown_court | Neutral Citation Number: [2012] EWCA Crim 2520 Case No: 2012/03703A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEEDS CROWN COURT Mr Justice Globe T20117554 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/11/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SIMON and MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Between : Sudhanshu Garg Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down | Neutral Citation Number:
[2012] EWCA Crim 2520
Case No:
2012/03703A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
Mr Justice Globe
T20117554
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
30/11/2012
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE SIMON
and
MR JUSTICE WILKIE
- - - - - - - - - - - - - - - - - - - - -
Between :
Sudhanshu Garg
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
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Tel No: 020 7404 1400, Fax No: 020 7831 8838
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- - - - - - - - - - - - - - - - - - - - -
Mr M Ellison QC and Mr A Darbishire QC
for the
Appellant
Mr R Smith QC
for the
Crown
Hearing dates : 15
th
November 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
This appeal by Sudhanshu Garg against a sentence of two years imprisonment imposed at Leeds Crown Court by Globe J on 25
th
May 2012 was dismissed on 15
th
November. These are our reasons.
2.
The appellant is 44 years old, a man of positive good character and a highly qualified medical practitioner appointed as a Consultant Urologist at Bradford Royal Infirmary in March 2006.
3.
In the morning of 22
nd
August 2008, a Friday, Lisa Quinn was admitted to the Accident and Emergency Department of the hospital. She was 37 years old, and the mother of two children, aged 12 and 10 years. She appeared to be a healthy young woman, but she was complaining of abdominal pain and pain on passing urine, strong smelling urine, symptoms which had gradually become bad enough for her to seek medical help at hospital. She died in hospital on the following Monday evening.
4.
The Urology Department comprised five specialist registrars and five consultants of whom the appellant was one, and if necessary locum registrars were called upon. Twenty four hour cover was provided both by a registrar and a consultant. The appellant was the urology consultant on duty throughout the weekend during which Lisa Quinn was a patient in the hospital. Although we understand the complexity of the environment which obtains in a large hospital ward of this kind, the appellant was negligent in his capacity as the head of the team of medical practitioners responsible for Lisa Quinn’s care, which on occasions, at any rate, appears to have been dysfunctional. The appellant was also negligent in the performance of his responsibilities as the consultant in personal charge of her care as his patient. He became aware of her admission no later than the Saturday afternoon. On analysis, his negligence covered a fairly protracted period.
5.
The appellant was charged with the manslaughter of Lisa Quinn on the basis of gross medical negligence. In due course he pleaded guilty. He did not intend the death of Lisa Quinn, nor indeed that she should come to the slightest harm. Nevertheless her death was a direct consequence of gross negligence on his part. The result is that she has left a grieving family, shattered by her death, to mourn for her, and his medical career is in tatters.
6.
We were told, and we believe it to be correct, that this will be the first occasion since the
Criminal Justice Act 2003
came into force on which this court has considered an appeal against sentence in the context of gross medical negligence. Our decision will no doubt be considered by other sentencing courts, but beyond broad general observations, this is not a guideline decision which purports to encompass the full ambit of sentencing in cases of manslaughter by gross medical negligence. Our decision reflects specific individual features of the case. Even in cases of medical gross negligence manslaughter, where the consequence of the harm in every case is identical, that is, the death of a patient, the level of culpability of the defendant will vary considerably. There will certainly be cases of greater culpability than this, and other cases where the culpability will be significantly lower. In the end, of course, all will be cases involving gross rather than simple negligence, and therefore liable to involve the perpetrator in a criminal prosecution rather than provide the victim with civil remedies only.
Facts
7.
We summarise the facts in some detail, putting the appellant’s personal failures into the broad context to which Mr Ellison QC drew our attention.
8.
At 11.14 am on Friday 22 August, Lisa Quinn was admitted to the Accident & Emergency Department of the Bradford Royal Infirmary. She was complaining of the symptoms to which we have referred earlier. These symptoms were recorded by the admitting doctor, who made a provisional diagnosis of kidney infection, and ordered an x-ray to be taken. He reviewed the x-ray after she had been taken to the urology ward, formed the view that she was suffering from a kidney stone and prescribed an antibiotic (Gentamicine). It appears that neither he nor the x-ray department communicated his view that the x-ray suggested a possible obstruction. The omission of any x-ray from the notes sent from A&E was overlooked by members of the admitting urology team.
9.
She was admitted to Ward 20 at 5.30 pm. The on-duty Urology Registrar devised a treatment plan: to continue the course of antibiotics and arrange for an ultrasound scan of the kidneys, ureter and bladder. A differential diagnosis ‘acute pyelonephritis’ was made. This is a urinary tract infection which has reached the pyelum of the kidney; and is a condition which can lead to pyonephrosis, which is an accumulation of infection around the kidney which may lead to sepsis. The purpose of the ultrasound scan was to discover whether there was a stone which was blocking the ureter, which would increase the risk of pyenophrosis as a result of what is termed a ‘closed infection’. The prosecution expert evidence was critical of the Registrar in not treating the ultrasound scan as urgent and not recording the need for a scan on the medical notes, although there was a note to this effect on the ‘plan’. The defence expert did not regard the ultrasound as essential at this stage, since the treating specialists were unaware that there was an x-ray showing a possible stone.
10.
At about 6.30 am on Saturday 23 August Lisa Quinn, was found to be shaking with rigor and shortly afterwards her temperature was found to be ‘spiking’, which would have been consistent with an infection. At about 9.30 a new Urology Registrar (Mr Attique) took over. The Junior House Officer accepted that it had been his duty to put into action the plan to carry out an ultrasound scan either on Friday evening or Saturday morning and that he had not done so. Mr Attique saw Lisa Quinn at about midday. He noted that she was not responding to the antibiotic Gentamicin. He appears to have been unaware of the earlier plan to have an ultrasound or scan. In the early evening Mr Attique contacted a Microbiologist in the Hospital to tell him that Lisa Quinn’s condition had worsened, and was advised to change the antibiotic (Meropenem). The Appellant had carried out a surgical procedure earlier that day and did not see Lisa Quinn in the company of Mr Attique until the late afternoon in Ward 11 (where she had been transferred) at the end of the ward round. This was the first time he had seen her.
11.
The medical notes make no mention of this joint visit, but it is agreed that the Appellant would have known about her temperature and vital signs. He regarded her condition as an uncomplicated case of acute pyelonephritis which should have been responsive to antibiotics. The only available blood test results were those of blood taken the previous day.
12.
Later that night, at about 11.00 pm, when the appellant and Mr Attique were visiting another patient, they looked at Lisa Quinn’s chart. The appellant advised Mr Attique to continue the treatment, in the belief that there had been a response to the new antibiotic, and asked that the ultrasound scan be arranged for the following day. No instructions were left for the nursing staff.
13.
The appellant accepted that he placed too much reliance on the information provided by Mr Attique, that he should have made more enquiries and that, if he had done so, he would have realised that Lisa Quinn was more seriously ill than he realised.
14.
The prosecution evidence was that the response to Lisa Quinn’s condition by the end of this visit on Saturday evening was grossly substandard. The request for an ultrasound, which had been identified as necessary on Friday, had still not been carried out, although there was an on-call radiologist available for the 24 hours from 9.00 am on Saturday to 9.00 am on Sunday. Nor had sufficient attention been paid to the nursing notes in relation to Lisa Quinn’s general condition, including the recording of rigor earlier in the day and low blood pressure, both of which would have been consistent with sepsis. In short, nothing which was necessary to exclude the possibility of a closed infection had been done. The prosecution contended that it was significant that when he came later to change the records for 23 August he inserted the following: ‘continue plan as above, partial response to antibiotics, arrange ultrasound scan, kidneys, ureter, bladder ... monitor urine output.’
15.
On the morning of Sunday 24 August the nursing staff noted that Lisa Quinn had another bout of rigor, spiking temperatures and that her blood pressure was low. The request for an ultrasound scan had still not been filled out. At 11.00 am, when Mr Attique saw her, she asked him when the ultrasound was going to be carried out. He contacted the radiology department to arrange this and returned later to tell her that it would be carried out later that day. It seems that, because the radiology department was busy that day, it could not be carried out until 3.00 pm.
16.
The appellant telephoned Mr Attique during the morning to find out how Lisa Quinn was. He was told that her creatinine levels were up (consistent with kidney malfunction) but was not told that her blood pressure was low. The appellant told Mr Attique that the ultrasound should be carried out as soon as it could be arranged. The appellant accepted that at this point, appreciating that Lisa Quinn was not responding to the antibiotic medication, he should have been much more pro-active in her treatment. She had been in hospital for two days and he had still not seen any imagery of her kidney and upper urinary tract so as to be able to exclude a blockage as the cause of her persisting infection.
17.
The appellant saw her on the ward at about 1.30 pm and, on being told that she had a high temperature, said he would wait for the results of the ultrasound before seeing her again. It is said on the Appellant’s behalf that he was not informed of the persistent problem with low blood pressure, nor that she was not catheterised for fluid balance monitoring. There was also a consistent pattern of reports which indicated that she felt well and appeared well; although the appellant accepted he was too much influenced by these when assessing her condition. Whatever may have been her appearance, there was a significant body of information to indicate that she was very unwell.
18.
At about 1.00 pm, the radiologist who was on-call on Sunday was first made aware of the request for an ultrasound scan, the purpose of which was to discover the cause of Lisa Quinn’s renal failure. The scan was carried out shortly before 4.00 pm. The radiologist was able to observe a right-sided obstructed kidney, whose cause was not clear; and she informed Mr Attique of these findings, and raised the possibility of a nephrostomy. A nephrostomy is a procedure which is usually carried out by an Interventional Radiologist, and involves inserting a catheter through the skin into the renal pelvis and the kidney, using either ultrasound or CT technology to direct the catheter. If a stone is blocking the ureter and preventing drainage of urine, a catheter inserted above the site of the blockage can drain the urine.
19.
Mr Attique was informed of the results and said that he would speak to the appellant about it. After this the appellant visited the ward in the company of Mr Attique; but did not visit Lisa Quinn to monitor her progress or take steps to investigate her condition.
20.
Subsequently, between 6-6.30 pm, Mr Attique contacted the Consultant Radiologist and told him that he had discussed the matter with the appellant who had decided that she needed a Nephrostomy. The appellant remained in touch with Mr Attique and suggested that Lisa Quinn be taken to Ward 21 where she could be monitored more closely. Following this, the Radiology Department contacted Mr Attique to ask when he wanted the nephrosomy done, indicating that they would prefer to wait until Monday when they could arrange for an Interventional Radiologist more easily. Mr Attique spoke to the appellant who said that the nephrostomy should be done as soon as it could be accommodated by the Radiology Department.
21.
At some stage the Radiology Department suggested that the next step was to carry out a CT scan so as to identify the cause of the renal obstruction. There is expert evidence that this was unnecessary and that there was sufficient information to indicate that nephrostomy drainage should be carried out urgently. The appellant knew that the procedure could not be carried out at this point since there was no longer an Interventional Radiologist available in the hospital to carry out the procedure that night. The appellant accepted that he had still not investigated Lisa Quinn’s condition sufficiently and that, if he had done so, he would have realised that the ultrasound findings indicated the need for drainage was urgent.
22.
In the event a CT scan was carried out at 8.45 pm and the cause of the obstruction, a stone at the lower end of the right ureter, was discovered. Shortly after this the Radiology Department made contact with the appellant. The appellant decided that he did not want to adopt the alternative of operating that night (drainage by the insertion of a retrograde stent) if there was no Interventional Radiologist available as back-up. Accordingly he decided to wait and make a final decision on Monday, when an Interventional Radiologist would be available. There are two unresolved issues: first, as to whether personnel in the Radiology Department spoke to the appellant about the possibility of taking Lisa Quinn to the Leeds General Infirmary where an Interventional Radiologist was available; and secondly, as to whether that would have been regarded as a wholly exceptional course at the time. In any event, the appellant accepts that he had still not properly informed himself of his patient’s condition; and that if he had done so, he would have recognised that he was faced with a rapidly developing and potentially life-threatening emergency which called for drainage that night.
23.
At about 10.30 pm Lisa Quinn was transferred to Ward 21, by this time Mr Attique was concerned about her heart rate, high fever, low blood pressure, low urine output and low oxygen saturation. The admitting senior nurse was told that Lisa Quinn might be developing septicaemia.
24.
The day shift on Bank Holiday Monday 25 August began at 7.30 am, and nursing staff noted that Lisa Quinn’s blood pressure had dropped. At 8.00 am Mr Attique finished as Registrar on-call and handed over to the Locum Registrar. He told the Locum Registrar that Lisa Quinn had a blocked kidney due to a kidney stone and that the appellant would be arriving on the ward at 9.00 am. At 9.30 am the appellant rang the Locum Registrar to say that he would not be coming to the hospital that morning: he had now been on-call for eight days and had had a very poor night. It was pointed out on the appellant’s behalf that there was evidence that this work-regime of sleeplessness and stress would affect the judgement of even the most robust practising clinician.
25.
At 10.00 am the Locum Registrar assessed Lisa Quinn’s condition and informed the appellant that she was well enough to undergo the ureteric stent procedure. The Locum Registrar then went to book the Operating Theatre for the procedure; and was told that there were other pre-booked and priority cases, and that the Theatre would not be available until after 1.00 pm, unless there was dire emergency, in which case another theatre would be opened and staff called in, He made contact with the appellant, who told him that he intended to perform the ureteric stent procedure and asked if he thought Lisa Quinn could wait. The Locum Registrar said he thought she could. At some stage during the morning the Radiology Department was contacted and informed that the nephrostomy was not going ahead and that the Urology team would be operating. The appellant accepted that if he had taken proper steps to investigate Lisa Quinn’s condition it would have been apparent that she was not fit to be operated on that Monday morning.
26.
The appellant arrived on the ward at about noon. The results of the blood test came back at about this time; and for the first time he began to appreciate the true seriousness of his patient’s condition. When he looked at the CT scan he also realised that the stone was higher than he had appreciated the previous day; and this made him realise that a ureteric stent procedure could not be carried out. At about 2.00 pm the appellant contacted the Radiology Department to say that the patient’s condition had deteriorated and to ask if the nephrostomy could be performed. It was agreed that the Interventional Radiologist on-call would come into the hospital to carry out the procedure. It was also agreed that Lisa Quinn should be taken into Intensive Care in view of her condition. This was not possible because the Intensive Care Unit was full. However, she was cared for by the outreach team of the Intensive Care Unit; and was also seen by a Consultant Anaesthetist, who told the appellant that he thought she was well enough for a nephrostomy. The Consultant Anaesthetist recommended the insertion of a venous central line, repeat blood gases and ventilation, and asked that the Intensive Care Unit should be informed when she returned from the procedure.
27.
It was not until 3.45 pm that Lisa Quinn was taken from Ward 21 for the nephrostomy procedure. This was carried out successfully by the on-call Interventional Radiologist. However a review of an x-ray taken later that evening showed excessive fluid on her lungs and, on return to the ward soon after 5.00 pm, her pulse rate increased, her saturation levels fell further and her respiratory rate increased. No one had followed the recommendation that a venous central line be inserted and, although its importance was now recognised by the Locum Registrar, there were delays in inserting it. At 6.35 pm Lisa Quinn suffered a cardiac arrest and was found to have widespread fluid on her lungs and secretions in her throat. The oxygen levels were so low as to be unreadable. Despite the efforts of the cardiac ‘crash team’, she died at 7.28 pm.
The breaches of duty
28.
The case against the Appellant can be summarised as four principal breaches of duty. (1) Failing to ensure that Lisa Quinn’s clinical condition was properly identified. (2) Failing to identify or diagnose the possibility of closed renal infection and the development of sepsis. (3) Failing to arrange urgent interventional treatment for a closed renal infection, of which there was early evidence in the form of the A&E x-ray and the patient’s clinical condition. (4) Failing to arrange a transfer to an appropriate hospital after 8.00 am on the morning of Sunday 24 August. There was expert evidence which demonstrated that if active intervention had been instituted, even as late as the evening of Sunday 24
th
August, she would probably have survived, and her prospects of ultimate survival only became remote by the Monday. This was 48 hours after her condition first came to the attention of the appellant. The medical experts instructed by the prosecution expressed the view that the breach of duty in this case constituted a very serious departure from normal professional standards and that no reasonably competent consultant in this discipline would have failed to take action to exclude a closed infection, or have failed to take timely action to institute effective intervention. The Crown’s case was that these breaches of duty were causative of Lisa Quinn’s death, and that cumulatively they amounted to a disturbing picture of a failure to take action to treat a 37 year old woman in otherwise good health, who would have survived but for the neglect.
29.
The appellant, by his basis of plea, acknowledged criminal breach of duty in the following respects. First, having become aware that Lisa Quinn had been admitted under his care as the consultant urologist on call, he failed to investigate promptly whether she had or might have a blocked right urethra. Second, he failed to ascertain or pay due regard to the available results of blood culture, x-ray and clinical results and symptoms, which suggested that she was suffering from deteriorating renal function and was at risk of life threatening sepsis, and thereafter to ensure that her condition was investigated sufficiently urgently and treated sufficiently promptly. Third, he failed to arrange for a percutaneous Nephrostomy and by the means thereof to ensure drainage of the infective process with sufficient urgency.
The appellant’s conduct following Lisa Quinn’s death
30.
The appellant was on his way back to the hospital when he was informed of Lisa Quinn’s death. It was the first time he had to deal with the death of a patient since he had been a consultant; and it is clear that he was deeply upset by it. He reviewed the medical notes with the locum registrar and it became apparent that he was concerned about what the notes showed. He then set about changing them.
31.
The following morning the Locum Registrar informed the Coroner’s Office of the death and notified the cause of death, as agreed with the appellant, pulmonary oedema, secondary to renal failure, secondary to acute tubular necrosis, secondary to urinary sepsis.
32.
The appellant filled in a cremation certificate and gave inaccurate information in relation to the question which asked whether there was any reason to suspect that the death was due directly or indirectly to (among other things) neglect. As a result the Coroner’s Office was not alerted to the possibility that her death was due to negligence. The prosecution accept that this was done with a view to deflecting an internal investigation by the hospital; nevertheless, as a result, the body was cremated and no post mortem examination was carried out. However, it is right to note that there had been no internal investigation in relation to any delay in care at this stage, and the only real issue so far as the Coroner was concerned was the cause of death.
33.
On 2 September the medical notes were examined by the Hospital Medical Director who was concerned to see what appeared to be retrospective entries inserted into the records by the appellant. Further enquiries also indicated that a number of notes and charts were missing. When challenged about this on 5 September, the appellant denied removing sections of the case notes and said that he had made the retrospective entries before Lisa Quinn’s death. However, on the night of 7 September the appellant called at the home of a fellow consultant urologist. He seemed very disturbed and looked ill. He said that he had removed records, changed entries and had tampered with Lisa Quinn’s notes. He said he did it after her death and that he did not know why he had done it. Subsequently he admitted removing the original history sheet and replacing it with a false history sheet, trying to copy the writing of another doctor. Among other changes, he had also replaced the original fluid balance charts with altered charts so as to conceal the fact that there was a significant and uncorrected positive fluid balance; and had changed a clinical record so as to show him attending Lisa Quinn at 9.00 am on the morning of Saturday 23 August and again at 4.00 pm. So far as the records for Sunday 24 August were concerned, the appellant had inserted an entry demanding to know why an ultrasound scan had not been conducted.
34.
In mitigation it was submitted that. although the appellant made some changes which were intended to make Lisa Quinn’s condition appear less serious, most of the changes were additions which were intended to reflect the true position more accurately than they had been reflected in the notes. However that may be, the appellant took steps to conceal his neglect, by falsifying medical records and clinical notes by altering them, and substituting pages within them to conceal his inactivity. In particular the fluid balance charts were altered in an attempt to conceal the fact that her intake of fluid significantly exceeded the output. This was directly related to the fact that the appellant appreciated that one of the contributory factors leading to death had been fluid overload. What is more the observation charts were altered by the insertion of a higher blood pressure reading so as to conceal the evidence that the patient was in fact suffering from low blood pressure, which in itself would have been an indication of sepsis. Moreover the effect of some of his own entries on the records was to conceal the fact that the patient was not responding to anti-biotics, and to attempt and convey the impression that the appellant had been chasing up the absence of any ultra-sound scan. As the judge put it, the appellant was trying to present a false picture suggestive of an improvement in her condition while she was in hospital over the weekend, whereas her condition was deteriorating, and a false report was provided to the panel at the hospital dealing with suspected untoward incidents.
The arrest
35.
In late September 2008 the appellant was arrested on suspicion of gross negligence manslaughter and interviewed. He supplied a prepared statement, and declined to answer any questions. He denied that he had been responsible for gross negligence manslaughter. In a second statement he explained that he had taken the death of his patient very hard and he felt personally responsible because she had been admitted to hospital under his care. He said that he had been anxious and had had difficulty sleeping and that he had been prone to anxiety because of a number of different personal and medical problems of his own. However he sought to claim that the junior doctors had made no records of his ward rounds on the Saturday and the Sunday, and sought to shift some of the blame to nursing staff for failing to monitor the patient closely enough. He asserted that there was no reason why an ultrasound scan should not have been carried out on an urgent basis on the Saturday, and he expressed concerns about the standard of care provided by the junior medical staff when he was absent. He did however admit falsifying the records, and he set out in very careful detail the various alterations for which he had been responsible. His explanation for doing so was that he had been so overwhelmed with anxiety and stress about the death of his patient and the internal investigation at the hospital to think rationally.
36.
He was reinterviewed in February 2009. He supplied another prepared statement. To the extent that he suggested that he was unaware that an X-ray had been conducted on 22
nd
August, the statement was inaccurate. According to the medical records he had personally examined the X-ray on the evening of the Saturday. The X-ray showed evidence suggestive of a stone blocking the right kidney. As the evidence was not definitive, an ultrasound and possible CT scans would have been necessary.
Personal mitigation
37.
The judge was provided with powerful character references. He acknowledged the pressures and responsibilities bearing on the appellant, and indeed his heavy workload before and during the weekend. He also examined and directed himself not to under-estimate the level of reliance the appellant placed on junior members of the medical staff. He recognised that some of their actions may have contributed to this tragedy, but as he put it, the appellant’s inactivity and failures were the ones that were paramount. He took account of the consequences to the appellant, involving the loss of his employment, his financial security and his good reputation, and the level of remorse which the judge believed was genuine.
38.
A psychiatric report provided an analysis of the appellant’s history of psychiatric problems, and recorded that he suffered from anxiety and depression as a result of Lisa Quinn’s death, and appeared to be a broken man. There was no recommendation in the pre-sentence report. It recorded that the appellant accepted his culpability and was deeply remorseful. There was no real risk that he would re-offend or cause serious harm to the public.
39.
Full credit was given for the appellant’s guilty plea, which the judge considered was greatly to his credit.
The sentence
40.
The basis of the argument that the sentence was manifestly excessive was that the judge adopted too high a starting point and failed to take sufficient account of the significant personal mitigation, including the impact of the offence on the appellant’s own family and life, his psychiatric problems, and the delay in the case coming to trial. We were also invited to consider some further, post sentence material which underlines the impact of the prison sentence on the appellant himself, which we did.
41.
We must examine the main thrust of Mr Ellison’s submissions. He began by drawing attention to some of the sentences imposed in medical gross negligence manslaughter cases decided before the
Criminal Justice Act 2003
(
the 2003 Act
) came into force, and comparing them with sentences in gross negligence manslaughter of different kinds. This was not because Mr Ellison overlooked the impact of
the 2003 Act
on sentencing in cases involving homicide or the increased level of attention which is now paid to the consequences for the victim of an individual crime, nor indeed the decision of this court in
Appleby (Attorney General’s reference No. 60/2009
(
Declan Appleby and others)
[2010] 2 Cr. App. R(S) 46. His argument was that prior to its implementation medical gross negligence cases were regarded as requiring levels of punishment at a more modest level than those appropriate to different forms of the offence of manslaughter by gross negligence. Whatever may be the increased level of sentencing for all cases of homicide, that perceived distinction between different types of gross negligence manslaughter should not be eroded.
42.
Assuming that such distinctions can be identified by reference to the broad heading which can be given to the different ways in which gross negligence manslaughter can occur rather than the individual facts which give rise to the prosecution, we agree that there is nothing in the legislation or subsequent decisions of this court which suggests that any long established balance drawn between different types of gross negligence manslaughter should now be recalibrated. Nevertheless, two clear principles which follow the implementation of
the 2003 Act
have been identified in the sentencing decisions of this court. First,
s.143(1)
of
the Act
, focussing direct attention on the harm actually caused by the offence, always involves harm at the highest level. Second, the effect of schedule 21 of
the 2003 Act
has been to increase the punitive element in sentences for murder, and this has had an inevitable effect on sentences for manslaughter on the basis that the statutory intention was to underline that crimes which result in death should be treated more seriously and dealt with more severely than before. (See
Wood
(
Clive
) [2010] 1 Cr. App. R(S) 2:
R v Appleby (Attorney General’s Reference No 60/2009
:
R v Holtom
[2011] 1 Cr. App. R(S) 18: and
R v Barrass
[2012] 1 Cr. App. R(S) 80, the latter two decisions both involving manslaughter by gross negligence.)
43.
In
Barrass
Rix LJ observed:
“…
Appleby
we consider has created a situation in which there has now been a step change in the tariff in sentencing in such cases (that is gross negligence manslaughter cases) each of which of course ultimately rests on its own particular facts, but in general by reference to a proper consideration of the … fatal consequences of the offences”.
44.
In
Holtom
the same point was emphasised in different language. Sweeney J observed:
“… there is now greater emphasis to be placed on the fatal consequences of a criminal act … A similar consideration applies to cases of manslaughter by gross negligence in the work place”.
45.
The decisions in
Holtom
and
Barrass
demonstrate that the principles enunciated in general terms in relation to sentencing in manslaughter cases in
Wood and Appleby
apply to cases involving gross negligence manslaughter generally. There is no special exception when manslaughter occurs in the context of gross medical negligence.
46.
It is of course self evident, and Mr Ellison was at pains to underline the importance of ensuring a proper assessment of the culpability of the individual defendant. He explained a number of features of the case to us, which we have endeavoured to summarise in their proper context in the detailed summary of the facts. In essence, Mr Ellison submitted, and we see the force of the submission, that the appellant was by no means the only person involved in the treatment of Lisa Quinn who had failed to exercise proper professional care of her. Nevertheless, as we have explained, he was in charge of the team responsible for her care, and his responsibility went far beyond mere failures of oversight and supervision of those for whose work he was responsible. Mr Ellison drew attention to the appellant’s previous good character, the destruction of his medical career, his genuine remorse, and the damaging psychological impact on him, his guilty plea, and the long period between the date when he was first charged with manslaughter, and the eventual decision that he should be imprisoned. We have also considered evidence about the severe impact of the sentence on him.
47.
With these considerations in mind we come to the starting point reached by the judge, three years imprisonment, subject to the full discount for the guilty plea. We have emphasised that so far as the medical negligence itself is concerned there will be more serious cases, and cases where the relative culpability of the defendant is less serious than it was here. The essential feature of culpability in this case is that, in relative terms, the negligence of the appellant while Lisa Quinn was a patient in hospital continued for a lengthy period. Although no express warning was given to him by anyone else about the risks to which the patient was being exposed, there were a number of different occasions when, if he had not fallen significantly below the standards of accepted practice, the dangers would have been identified, and the consequent risks averted. There is the additional aggravating feature, involving the amendment and alteration to the records by the appellant in the hope of evading responsibility for his actions. Although we recognise that this may not have been directed to the possibility of the evidence considered at the Coroner’s Inquest, and certainly not to the possibility of a criminal prosecution for gross negligence manslaughter, the documents which demonstrated that he, and indeed others for whom he was responsible, had fallen well below the necessary standard were of importance to any internal inquiry. Perhaps most important of all, these records represented what was supposed to be the true history of this patient’s stay in hospital and the circumstances which led to her death. These records should be sacrosanct. The amendments and alterations to them were designed to be a cover up. That is a serious matter of aggravation.
48.
In these circumstances the sentence imposed by the judge, making due allowance for the mitigating features which he clearly identified, was not manifestly excessive. Accordingly the appeal was dismissed. | [
"MR JUSTICE WILKIE"
] | 2012_11_30-3082.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2520/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2520 | 839 |
21412b032ae0e767ddf7642bdf0e3ecd01408d71b29c52118e3c00db4d177d0e | [2019] EWCA Crim 2287 | EWCA_Crim_2287 | 2019-12-20 | crown_court | The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under these 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. As such, the victims in this judgment are not referred to by their real names. Neutral Citation Number: [2019] EWCA Crim 2287 Ca | The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under these 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. As such, the victims in this judgment are not referred to by their real names.
Neutral Citation Number:
[2019] EWCA Crim 2287
Case No: 201801896 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON THAMES
His Honour Judge Lamb QC
T20167423
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/12/2019
Before:
LORD JUSTICE IRWIN
MRS JUSTICE ANDREWS DBE
and
HIS HONOUR JUDGE AUBREY QC
- - - - - - - - - - - - - - - - - - - - -
Between:
Edward Gabbai
Appellant
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Sarah Forshaw QC and Orla Daly
(instructed by
Hodge Jones and Allen LLP
) for the
Appellant
Simon Russell Flint QC
(instructed by
The Crown Prosecution Service
) for the
Respondent
Hearing date: 8 November 2019
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Introduction
1.
On 6 April 2018, the appellant, Edward Gabbai, was convicted of two counts of rape contrary to
Section 1(1)
of the
Sexual Offences Act 2003
, and sentenced to terms of 7 and 13 years imprisonment, to run consecutively. This is an appeal from those two convictions.
2.
At trial, it was the prosecution’s case that the appellant raped three women (“HM”, “VG”, and “NR”) over a three-year period. HM alleged anal penetration against her will, in the context of an otherwise consensual sexual relationship, characterised by a mutual interest in extreme bondage, dominance, sado-masochism (“BDSM”) practices (count 1). VG’s allegation was based on the removal of a condom during otherwise consensual sex (count 2). NR alleged violent vaginal, anal and oral penetration without her consent (counts 3, 4, and 5).
3.
It was the appellant’s case that he had engaged in sexual activity with the complainants, but only ever with their consent. The only element of sexual activity he denied was the claim by NR that he had penetrated her anus, although he somewhat qualified that denial in evidence.
The convictions relate to the vaginal rape of VG (count 2) on 23 March 2016, and the anal rape of NR on 4 December 2016 (count 4). The appellant was acquitted of the other counts.
4.
The appellant appealed initially on four grounds. He was granted leave on 25 October 2019. The grounds were:
i)
The trial judge failed to mention in the route to verdict document that any penetration of NR’s anus had to be intentional before guilt could be established;
ii)
The judge erred in refusing to allow evidence that NR had made six previous, and at times inconsistent, complaints of rape or sexual assault against six separate and unconnected individuals;
iii)
The judge erred in refusing to allow the jury to hear extrinsic evidence that VG had a particular interest in rough, violent sex;
iv)
The judge erred in directing that the complaints made by VG and NR could be treated as cross-admissible.
5.
Before us the appellant sought leave to appeal on the further grounds that:
i)
The prosecution failed to serve a bad character notice, which was required if cross-admissibility was to be relied upon, and the judge failed to give a ruling on that in advance of closing speeches;
ii)
The verdict on count 4 was illogical, inconsistent with verdicts on counts 3 and 5, and a verdict that no reasonable jury could have reached.
iii)
Alternatively, that the judge’s direction as to consent in relation to count 4 was inadequate and misleading.
6.
We allowed the appeal, and quashed the convictions as being unsafe. We now give our reasons.
7.
Given the nature of the grounds of appeal, the facts concerning the cases of NR and VG will need to be set out in some detail. Though the events relevant to VG occurred first in time, for reasons which will become clear, a review of the events relating to NR fall to be explored first.
8.
Section 1
of the
Sexual Offences Act 2003
provides that:
“(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.”
The Case Concerning NR
9.
Later in this judgment we refer in more detail to the record of conversations between NR, her general practitioner and her psychiatric team, bearing on previous accounts of rape, and on the complainant’s expressed doubts as to whether her own past accounts were true and accurate.
10.
However, there were agreed facts before the jury in the following terms:
“31. On 20
th
October 2016, [NR] was admitted to the Maytree Centre for the maximum five-day stay.
32.
The Maytree Centre is a respite centre for those in suicidal crisis.
33.
Whilst at Maytree, [NR] was noted as saying, amongst other things, the following:
a)
she went out of her way to hurt herself and put herself in dangerous situations;
b)
this would include walking alone at night when it was dark;
c)
that she “counts tubes and speeds and looks at traffic”;
d)
she said that “in a way if (she) gets murdered it won’t look like suicide”;
e)
she is unable to look in the mirror or at her body.
“34. On 1
st
November 2016, during a psychiatric assessment, [NR] told Dr Sanchez that she was “always putting herself in danger, found it hard to say no, but there were lots of other times she didn’t when she wanted to say no”.
35.
On 14 November 2016 [NR] was referred to the Haringey Complex Care Team following a psychiatric assessment. It was recommended that her dose of fluoxetine (for depression) should be doubled to 40mg per day.
36.
On 28
th
November 2016 it was noted by her GP that her mood had dropped sharply. She was told to go to A&E immediately and was offered an ambulance or taxi to take her, which she declined. Medical records show that the does was duly doubled on 1
st
December 2016.”
11.
On 3 December 2016, NR spent the evening with friends in the Angel area of London. At the end of the evening she and her friend met the appellant and, leaving her friend, NR entered an Uberpool taxi with the appellant to travel to south London. Prior to this, NR and the Appellant were complete strangers. They exited the taxi together and entered a house in Battersea which the appellant was looking after whilst the occupants were away. From this point, their accounts given in evidence diverge.
12.
It was the complainant’s evidence that the appellant became almost immediately very violent. When upstairs, he pushed her onto the bed, slapping her in the face very hard and strangling her whilst she cried out, screamed and attempted to wriggle away from the appellant. He removed his and her clothing and forced her to perform oral sex on him, before forcing her to engage in vaginal and anal intercourse. At one point, after noticing blood on both of them, NR and the appellant moved to the bathroom to wash. He then pushed her to the ground, so her head and chest were being pushed to the floor and penetrated her anus with his penis. At this point NR noticed that the appellant was filming on his phone. In other words, her evidence was that all sexual activity with the appellant was non-consensual.
13.
It was the appellant’s case that the oral and vaginal penetration was consensual, and that there was no anal penetration. Throughout the trial, the appellant maintained that he had not penetrated the anus of NR, but he did concede that he could not entirely exclude the possibility of unintentional anal penetration.
14.
The video recorded by the appellant is approximately three minutes long. It shows NR and the appellant in a bathroom, with NR kneeling in front of the appellant.
15.
The transcript is agreed by the parties, and reads as follows:
“(
NR and Gabbai are already in the bathroom
)
Gabbai: Put your face up, keep your eyes closed
NR:
(
demonstrates
)
Gabbai: Tell me you’ll do anything you want
NR:
I’ll do anything you want
Gabbai: Do you know what happens if you miss obey?
NR
(
shakes
head
)
Gabbai: You’re shaking your head (
slaps
)
NR:
No, don’t, don’t, don’t
Gabbai: Close your eyes. Hands behind you. Now.
NR:
(
demonstrates
)
Gabbai: Arse in the air
NR:
(
demonstrates
)
Gabbai: Stay there for me
(
Gabbai searches for a condom and returns, putting it on
)
Gabbai: Say, “Please”
NR:
Please
Gabbai: Louder, I can’t hear you
NR:
Please
Gabbai: Good
(
Gabbai inserts penis
)
NR: Ouch, ouch, ouch. Please, don’t. No, please, no. Ouch (
crying
).
Please, don’t, please, don’t Gabbai: Do you want me to stop?
NR:
(
shakes head
)
Gabbai: Say it clearly, say it clearly
NR:
No
Gabbai: No, you don’t want me to stop. You want me to keep fucking you.
Say it clearly for me
NR:
Mm-hmm (
nods head
)
Gabbai: There’s a good girl. Suck (
indicates
)
(
NR sucks Gabbai’s fingers
) Gabbai: Good girl”
16.
It appears to us that, all along, a central issue in the case concerning NR was a rather striking conflict between the oral evidence of the complainant and the video evidence.
The Direction on Intentional Penetration (Ground 1)
17.
The “route to verdict” document provided to the jury by HHJ Lamb QC broke down the offence of rape into a series of questions, in an attempt to make the offence more easily navigable. The questions were as follows:
“
Question 1: Are you sure that D penetrated the anus of NR with his penis?
If your answer is “Yes”, go to question 2.
If your answer is “No”, your verdict will be “Not Guilty”
Question 2: Are you sure that when D penetrated NR’s anus, NR did not consent to it?
If your answer is “Yes”, go to question 3.
If your answer is “No”, your verdict will be “Not Guilty”
Question 3: Are you sure that D did not genuinely believe that NR consented to the penetration of her anus?
If your answer is “Yes”, your verdict will be “Guilty”.
If your answer is “No”, go to question 4.
Question 4: Are you sure that D’s belief in NR’s consent to the penetration of her anus was unreasonable?
If your answer is “Yes”, your verdict will be “Guilty”
If your answer is “No”, your verdict will be “Not Guilty””
18.
It is the appellant’s case that this omitted a key aspect of the offence of rape relative to Count 4 (the anal rape), namely that penetration must be intentional. When the route to verdict was provided by the judge in draft, it did not include the first question as to the fact of anal penetration. Counsel for the appellant, Ms Sarah Forshaw QC, requested that the trial judge amend the document to include that step. This clarification, however, only addressed the question of whether there was anal penetration, and not whether any anal penetration was intentional. As we have said, the appellant had been explicit that there was no anal penetration, but if there was it was not intentional.
19.
If the jury concluded that the relevant penetration was anal but the appellant had intended to penetrate her vagina, such accidental anal penetration could not have formed the basis for conviction. Thus, the argument goes, the jury might mistakenly have reached a guilty verdict without determining a critical matter of fact, and a necessary ingredient of the offence.
20.
In light of the acquittal of oral and vaginal rapes (counts 3 and 4), this omission is said to be significant. Given that the jury could not be sure that the vaginal or oral intercourse constituted rape, then intercourse which was intended to be vaginal would be unlikely to found a conviction.
21.
The Crown, for their part, drew our attention to the extent to which the judge had elsewhere directed the jury in reference to the requirement that the penetration must be intentional. The route to verdict, the Crown submitted, is not intended to be a recital or repetition of all the relevant legal issues in a summing up. The members of the jury had been provided with the statutory definition of rape. It was not the appellant’s principal case that the anal penetration had been accidental, but rather that it had not happened at all. Consequently, it was argued, even if there was an omission from the route to verdict document, this was not determinative, as the jury clearly rejected the appellant’s argument that he did not penetrate the anus of NR.
22.
In the summing up the judge recited the statutory definition of rape, including a brief recital of the requirement that the penetration be intentional. He directed the jury in the following terms:
“[I]f the jury are sure about the absence of consent and they are sure about the absence of reasonable belief, it is no defence for A to say, ‘I didn’t intend to rape’. Go back to the statutory definition right at the beginning. A person commits an offence if he intentionally penetrates. That is the only point at which intentional comes into the statutory definition. The penetration, I am going back to that passage on intention, see the statutory definition.”
23.
There was thus, at least, a dissonance, between the direction and the working document the jury had been given. We consider that the route to verdict document was deficient.
24.
We note the recent decision of this court in
R v Lewis
[2019] EWCA Crim 710
, where the issue was whether a conviction was unsafe because the recorder had told the jury that the route to verdict document was “a guide, you are not forced to follow it”: see paragraphs 35 to 41. The court concluded that could not render the conviction unsafe. The jury in that case “… were aware that they needed to answer the questions set out in the “steps to verdict” document. There is nothing to suggest that they did not follow that course” [41]. That judgment does nothing to undermine or limit the importance of the “steps/route to verdict” given to juries, but rather emphasises the significance of these guides for juries.
25.
The problem arising here is that if the jury took the route to verdict as their approach, it is possible they may have missed the importance of the requirement for intentional anal penetration. Such documents are of very great use in criminal trials, but it is essential that the key steps which are in issue are included in the document, precisely because juries may rely heavily upon them.
26.
Taken on its own, in the light of the direction given and the fact that the jury had a copy of the statute, it may be that this deficiency would not have brought this court to conclude this conviction was unsafe. However, this issue does not stand on its own.
Logically Inconsistent Verdicts (Additional Ground 2)
27.
It was the Crown’s case that the sexual activity that took place with NR on 3 December 2017 was a result of the physical force, or threat of physical force, coming from the appellant. NR’s account left no room for a finding that any of the activities had been consensual. The appellant maintained that the events of that evening were role-play, pursuant to a mutual interest in rough sex, and that the activities were consensual.
28.
The appellant submits that the jury’s rejection of the allegations of vaginal and oral rape (counts 3 and 5) demonstrates that they were not convinced by NR’s oral evidence. Yet, as the video is consistent with role-play and shows NR giving explicit consent, the jury appears to have relied upon the oral evidence of NR in convicting the appellant of anal rape, despite that fact that the acquittals demonstrate that the jury could not be sure of her narrative account.
29.
The Crown rejects the claim that there are inconsistencies. As the video is only three minutes long, the Crown submits the aspects of NR’s narrative that are said to conflict with the video merely took place other than during those three minutes. It is further submitted that it is not reasonable to draw the inference that the acquittals on counts 3 and 5 show that the jury rejected the submission that NR did not consent. Rather, the acquittals may be based on a finding that despite a lack of consent, the appellant held
a reasonable belief in consent with respect to those acts of penetration only. As a result, there is no necessary inference that the jury have rejected NR’s account, save where it was corroborated by the video.
30.
We have looked with care at the video. On a straightforward viewing it appears, at least arguably, entirely consistent with role-play. There are marked disparities between the account of the event given by NR, and that which can be seen on the video evidence. There is a clear act of violence, with the appellant forcefully slapping NR across the face, but the other actions of violence recalled in the account of NR are not shown. By NR’s account, marked violence should have been shown. The video does not show the appellant pushing NR to the floor, or holding her down immediately prior to the alleged anal penetration. No blood can be seen on the video, and there is no evidence that either of them has just washed. Importantly, the words spoken by NR, which are heard on the video and appear in the agreed transcript, are also absent from her account and, on the face of it, are inconsistent with it. This part of the video is important, as it shows, on a plain viewing, a giving of explicit consent by NR a few seconds after the allegedly anal penetration: “Do you want me to stop? No.”
31.
If the jury had convicted of the oral and vaginal rapes alleged, then it might more easily be said that the explicit consent in the video was falsified or nullified, because the whole course of events was non-consensual, flowing from physical force or threats applied by the appellant earlier, but not captured by the video. However, that argument cannot easily arise, given the acquittals.
32.
For these reasons, the verdicts of guilty on count 4, and not guilty on counts 3 and 5 appear at first difficult to reconcile. However, in our judgment it can reasonably be inferred that the jury had doubts as to NR’s full account of the events, but found that the penetration showed in the video was anal penetration to which NR did not initially consent, and that the appellant had no reasonable belief in NR’s consent, or at least no reasonable belief in consent for the act of penetration. On this reading of the verdicts as they relate to NR, they are not clearly inconsistent.
33.
The legal threshold for a finding of logical inconsistency is high. In
R v Fanning
[2016] EWCA Crim 550
it was held at [27] that:
“…absent a specific direction, it was generally permissible for a jury to be sure of the credibility or reliability of a complainant or witness in relation to one count in the indictment and not to be sure of the credibility or reliability of the complainant on another count.”
The account of a complainant is divisible. Some parts may be believed and others disbelieved. In
Fanning
, at [28], this Court recited with approval the approach of Sir Igor Judge PQBD, as he then was, in
R v C
[2007] EWCA Crim 2581
. At [40], in holding that the verdicts were not logically inconsistent, the Court observed:
“Here the jury was sure about the reliability of the complainant’s evidence, where it was provided with a measure of independent support, but unprepared to be sure where it was not. This was an entirely rational approach, properly seeking to give the benefit of the doubt to the defendant.”
34.
In our view, the conflict between the reliance on the evidence of NR with respect to count 4, and doubts as to the reliability of the evidence of NR with respect to counts 3 and 5, do not mean that the verdicts are so logically inconsistent as to render the conviction unsafe. The jury in the present case may have relied upon the complainant’s account where it was corroborated by one interpretation of the video evidence, whilst maintaining doubt as to the credibility or reliability of the oral evidence where uncorroborated. There is of course no requirement for such corroboration, but that does not mean that such an approach by this jury would be improper. As a result, this ground of appeal is dismissed.
NR’s History (Initial Ground 2)
35.
In the course of the trial, on 27 March 2018, HHJ Lamb QC rejected a defence application under
Section 100
Criminal Justice Act 2003
(“CJA”) to adduce evidence relating to previous allegations of a sexual nature (“the undisclosed material”) made by NR. The judge also rejected a request to adduce evidence concerning NR’s previous sexual behaviour under
Section 41
of the
Youth Justice and Criminal Evidence Act 1999
(“YJCEA”). The undisclosed material is separate and additional to the matters in the agreed facts set out above.
36.
The appellant asserted that the undisclosed material, comprised of GP notes and counselling records which detailed previous allegations of sexual assault and rape, were replete with inconsistencies and contradictions. It was material upon which the jury could conclude that these complaints were false. The materials further showed, the appellant submitted, that NR deliberately took part in consensual sexual activities and subsequently reported falsely that she had been raped or sexually assaulted.
37.
It is helpful to recite some of the specific aspects of these records.
i)
Notes from the GP from April 2015 relating to an episode said to have taken place in 2011, when the complainant was 18 years of age, recording an allegation of rape: “Taken from a bar. I only said “no” half way through”. ii)
In relation to the same episode, notes from her assessment for the Maytree Clinic on 19 October 2016 read: “She is 18 years old. She goes out with a group of friends and drinks quite a bit of alcohol. She loses one of her group and goes out to look for her. The next thing she knows, she’s in a taxi with a stranger and is raped. She couldn’t remember all the details and wonders whether she consented to it as she is a bad person”.
iii)
A further account, given in her second ABE interview for this case, but bearing on the same earlier episode, includes the following: “Actually hadn’t had v. much to drink. Went over to bar then memory becomes unclear. I remember being in a taxi with a man and then he took me to his house and had sex with me. I do remember telling him to stop. I don’t remember what happened after that. I think he did kind of carry on for a little while after that but I’m not …. I don’t remember very clearly. I think … don’t think it was [non-consensual].”
iv)
In relation to an episode said to have taken place in 2014 when the complainant was 21 years of age, the complainant is noted in the course of discussion in October 2016 as saying this was an episode of “rape … by her boyfriend two weeks ago … didn’t think she was at risk or had the right to say no. This has happened to me before. Previous assault several years ago.”
v)
In relation to an episode said to have taken place in 2015 when the complainant was 22 years of age, again the Maytree Notes from 2016 read: “In Spain. Maybe wasn’t rape.”
38.
The complainant was seen by a counsellor at university in March 2014. The complainant told the counsellor that she was raped by her boyfriend two weeks earlier. She is again recorded as saying that “she didn’t think she was at risk or had the right to say no … this has happened to me before”. After discussion of her history of mental health problems and drug-taking, the notes record “see Thought Sheet… I took him back to my flat. I didn’t say no to begin with. Lying. Attention-seeker.” The implication of the last phrases is, or may be, that they were self-descriptions.
39.
On 12 October 2016, the complainant was noted as having an hour-long telephone call with a counsellor at the Maytree Clinic. In the course of this she was noted as describing events as follows:
“Raped three times. ‘I put myself in dangerous situations’ 1. 18 years taken from a bar. I only said no half-way through.
2.
A guy forced himself on me.
3.
In Spain. Maybe wasn’t rape.”
40.
The pre-admission notes to the Maytree Clinic on 19 October 2016 include the following:
“Has suffered three rapes. Putting herself in dangerous situations (i.e. voluntarily) like walking through a park when its dark and late … I felt she could quite easily do something impulsively, she agreed she counts tubes and speeds and looks at traffic.
On the day she gets her results (A levels) she goes out to celebrate. She is 18 years old. She goes out with a group of friends and drinks quite a bit of alcohol. She loses one of her group and goes out to look for her. The next thing she knows she is in a taxi with a stranger and is raped. She couldn’t remember all the details and wondered whether she consented to it as she is a bad person … Aged 19 years she rents a room with a friend and works for about 1 year. This is when she really starts to act out sexually with no regard for her safety. She often goes off with strangers and takes whatever drug they have, lets people do what they want to her, switches off … She found it hard to say no to people… Whilst in Spain she is raped. Doesn’t go into detail but is very clear that on both occasions she said no to the perpetrators… Back to England and has returned to study at [university]. Not reported rapes. Has since started to put herself in dangerous positions. Having random sex with just anyone. She goes out and if someone chats to her she will have sex with strangers. I asked her what she was thinking when she did this and she said she hates herself and feels she deserves no better. In a way, when she’s out walking late at night, if she gets murdered it won’t look like suicide… She said she wasn’t exactly planning suicide but putting himself in dangerous situations would save her having to do it. I got the sense she could quite easily throw herself under a tube or walk out into traffic … She said she went out of her way to hurt herself and put herself in dangerous situations.
When she said “no” she felt like she didn’t have the right to say no and even when she did she wasn’t listened to…”
41.
On 21 October 2016, the Maytree Clinic note records that in discussion with the counsellor, the complainant “touched on whether the sexual acting-out was more a symptom of her self-hatred. A form of self-harm”.
42.
In notes made on 1 November 2016, during a psychiatric assessment, the complainant again said she was raped three times, once when 18, then aged 21, and then last year (2015). She is noted as saying “tells me she is always putting herself in danger, found it hard to say no, but there were lots of other times she didn’t [say no] when she wanted to say no.”
43.
The chronology of this material may be significant. As will be clear, in late
November and into December 2016, the complainant was noted as having “active suicidal thoughts” and was under active psychiatric care, receiving antidepressant medication. Her Fluoxetine was increased in dosage on 1 December 2016. The episode involving the appellant took place three days later on 4 December 2016.
NR’s History: The Application at Trial
44.
It was initially argued by the appellant that the evidence of false complaints of sexual assault and rape did not require a ruling under
Section 41
YJCEA, as such material was not evidence of the previous sexual behaviour of the complainant. In essence, the distinction was between the account of previous sexual behaviour and the selfdoubting account of ambiguity as to consent, and unreliable accounts of rape. However, following
R v V
[2006] EWCA Crim 1901
(“
R v V”
), the appellant also submitted an application under
Section 41
YJCEA to complement the application under
Section 100
CJA should the initial argument fail.
45.
Section 100
of the CJA, entitled ‘Non-defendant’s bad character’ in its relevant parts reads:
“(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –
(a)
it is important explanatory evidence,
(b)
it has substantial probative value in relation to a matter which –
(i)
is a matter in issue in the proceedings, and
(ii)
is of substantial importance in the context of the case as a whole,
(2) For the purposes of sub
section (1
)(a) evidence is important explanatory evidence if –
(a)
without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b)
its value for understanding the case as a whole is substantial.
…
(4) Except where sub
section (1
)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.”
46.
For the purpose of argument as to admissibility,
section 109
of
the Act
stipulates that it should be assumed that bad character evidence is true. The Court of Appeal has articulated the threshold as requiring ‘some material from which it could properly concluded that the complaint was false’ (
R v AM
[2009] EWCA Crim 618
at [22]), or “whether there was a proper basis to allege the complaints were false” (
R v Knight
[2013] EWCA Crim 2486
at [36]), or “some material from which it could properly be concluded that [a previous complaint] was
false”, see R v Conn [2018] EWCA Crim
1751. As this Court observed in
R v Al-Hilly
[2014] 2 CAR 530: “Each case is fact sensitive and the ultimate question is whether the material is capable of leading to a conclusion that the previous complaint was false’.
47.
HHJ Lamb QC found there was an insufficient evidential basis for finding that these complaints were false, and rejected the bad character application. In reviewing the relevant authorities, in particular
R v A
[2001] UKHL 25
,
R v V
,
R v AM
and
R v Knight
, and examining the evidence that the allegations were false, he came to the following conclusions:
“(i) No complaint was ever investigated;
(ii)
There is insufficient material capable of founding an inference that any one or more of the complaints is untrue;
(iii)
Extensive satellite litigation would be involved; and
(iv)
Such satellite litigation would subject NR to unnecessary, lengthy, speculative and intrusive cross examination.”
48.
Additionally, the judge was “not persuaded that the evidence of the complaints would have substantial probative value”. It is the appellant’s case that the judge erred in his rejection of the
Section 100
application, and that this evidence should have been before the jury.
49.
Section 41
of the YJCEA provides that:
“(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court— (a) no evidence may be adduced, and
(b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied –
(a)
that subsection (3) or (5) applies, and
(b)
that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either – (a) that issue is not an issue of consent; or
(b)
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c)
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar –
(i)
to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii)
to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence.
(4)
For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5)
This subsection applies if the evidence or question –
(a)
relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b)
in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6)
For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
(7)
Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence –
(a)
it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b)
it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.”
50.
It is the appellant’s case that the evidence was admissible under
Section 41(3)
(a) on the basis that the relevant issue was not an issue of consent but, rather, the appellant’s reasonable belief in consent. The evidence demonstrated a pattern of deliberately engaging in what is described as sexual self-harm, including instances of NR describing her encounters as rape, but subsequently voicing explicit doubts as to whether these episodes were truly rapes or whether she had in fact consented. This tendency to engage in high-risk sexual activity which she later misdescribed, was relevant to the jury’s assessment of whether the appellant held a reasonable belief in her consent. Her own description of her earlier behaviour might indicate how she behaved with the appellant, in such a way as to affect his reasonable belief in her consent.
51.
Counsel for the appellant applied to question the complainant about her reports of previous sexual abuse, summarised as follows:
“i) That she has variously described herself as ‘bisexual’ and ‘probably’ a lesbian but has admitted to having sexual relationships with men;
ii)
That she had complained of several previous instances of sexual assault and/or rape where she was unclear as to whether she gave consent, including a specific incident when she went back to a man’s house in a taxi after a night out and had sex;
iii)
That she had complained of another incident of rape when she started university involving another man but had also said that ‘I sort of let him have sex with me’ and that, although she told him that she did not want to have sex, it was ‘kind of consensual’;
iv)
Whether she had particular difficulty in recalling the detail of sexual encounters after she has drunk (even modest) amounts of alcohol;
v)
That she had discussed with therapists that she ‘acts out’ sexually, in the context of her experiencing self-hatred;
vi)
Whether she had developed a habit of allowing herself to be controlled in sexual situations without complaint;
vii)
That she had previously deliberately placed herself in what she believed to be risky or even dangerous sexual situations;
viii)
That these situations have included walking in isolated areas alone at night, leading to sexual attack in Spain;
ix)
That she had been so concerned about her own sexual decision making that she had discussed the issue with several mental health professionals.”
52.
With respect to admissibility under
Section 41(3)
(a), the judge held at [9]: that “there is nothing to show that NR’s history… had any influence on D’s (Edward Gabbai) thinking or belief” and, at [10] that, there is nothing to lead to “a conclusion of the jury would be unsafe if the listed material were withheld from the jury”. Regarding
Section 41(3)
(b), referencing Lord Hope in
R v A
, he held that “the phrase ‘at or about the same time’ will generally be interpreted no more widely than 24 hours before or after the offence”. The judge also dismissed any claim to admissibility reliant on
Section 41(3)
(c)(i) on the basis that no attempt had been made to show that NR had previously experienced anything like the physical activity meted out by D.
53.
As a result, the appellant was not able to establish a connection between the sexual decision making of the complainant and her desire to self-harm, and was not permitted to refer to any past incident of sexual behaviour. Hence the application was refused.
Analysis
54.
The facts in this case are most unusual, and the issue for the judge in applying
s.100
of the
CJA 2003
and
s.41
of the YJCEA most sensitive and difficult.
55.
As a matter of logic, the material which the defence argued should be before the jury was capable of giving rise to a number of inferences. First, that the complainant placed herself in risky situations and engaged in sexual encounters with strangers. Second, that she often engaged in sex when she was at the least ambiguous as to consent, but “did not say no”. Third, that she gave a history of rapes but had never pursued a complaint of rape. Fourth, that she herself doubted her own accounts of rape: “maybe it wasn’t rape”.
56.
Clearly, the second and third inferences bore on the issue of consent. Logically, however, in our judgment they also bore on her behaviour, relevant to the appellant’s reasonable belief in consent, perhaps particularly potentially confirming the appellant’s evidence and the video evidence of her behaviour. At the time of the ruling, reasonable belief in consent was an issue for the jury on all counts involving NR. The essence of the complainant’s recorded accounts of historic events, given before the evening in question, was that she engaged with strangers in sexual contact, and frequently did not say “no” even when she felt “no”.
57.
The third, and particularly the fourth inference bore directly on the complainant’s credibility in making the allegations being tried.
58.
In the form of agreed facts, the jury did have text messages between NR and her Mother, and messages between NR and a friend, in the course of which NR expressed some doubt as to the accuracy of her account of these events. These were before the jury, but without the information as to her history.
59.
In our view, this evidence was of a striking nature, and relevant as suggestive of previous false accounts. The evidence that the complainant had doubted her own past suggestions of rape, and was ‘Lying. Attention seeker” should have been admitted pursuant to
s.100
CJA 2003
. This provided an evidential foundation for a conclusion of falsity, of substantial importance in the case as a whole, and should have been before the jury.
60.
The position in relation to
s.41
of the YJCEA was more complex. Applying the successive steps laid down in
s.41
of the YJCEA, it is clear that some of the material sought to be introduced did bear on the sexual behaviour of the complainant NR, as opposed to her reliability as a witness, and thus required leave.
61.
In many cases, the issue of consent will be hard to distinguish from the issue of reasonable belief in consent. In this case the issues were distinguishable in our judgment. However, the provisions of
s.41(3)
(a) certainly applied.
62.
Insofar as this evidence bore on reasonable belief in consent, as opposed to consent proper, it can be distinguished from having as its “main purpose” the impugning of the credibility of the complainant, within the meaning of
s.41(4)
.
63.
Insofar as this evidence did bear on actual consent, we regard it as evidence of behaviour highly similar to the evidence to be adduced by the appellant, within
s.41(3)
(c). We bear in mind the high threshold for similarity: see
R v G
[2016] EWCA Crim 1633
. Although there was no suggestion of “rough sex” or role-play in the earlier episodes described by the complainant, that is not to exclude similarity “in any respect”, as the sub-section phrases it. The relevant similarities here are the admitted background of a chance meeting between strangers leading to an immediate sexual encounter, and to behaviour in the course of which the complainant (according to the appellant and the video) “did not say no”. However, the sexual behaviour concerned neither took place as “part of the event which is the subject matter of the charge against” the appellant (
s.41(3)
(c)(i) nor to any other behaviour “at or about the same time of the event” (
s.41(3)
(c)(ii)). Hence, even though in our judgment this evidence, insofar as it bears on
actual
consent, was of real materiality, it could not be admitted under this section.
64.
However, this does not alter the conclusion as to the evidence we consider admissible under
s100
CJA 2003
. Had this evidence been admitted, the interpretation of the video evidence might very easily have been affected. As we have said, the video evidence is key as it is in apparent conflict with the account of NR. That was properly a matter for the jury. Accordingly, we find this ground made out.
The Case Concerning VG
65.
In February 2016 the appellant and VG met on
Tinder
, the dating web application. They started a consensual sexual relationship soon after. Some of their sexual activities were violent, and sometimes their sexual intercourse was unprotected. On 22 March 2016 they went to an address in Stoke Newington and engaged in sexual intercourse, during which time the appellant wore a condom. After cuddling for a short period, the appellant began to kiss VG and touch her between her legs. It was VG’s account that the appellant became aggressive, throwing VG around, and pinning her down, biting her neck and ear, proceeding to pick her up, put her on all fours on the bed and penetrate her vagina with his penis. During this penetration, the appellant did not wear a condom. Eventually he withdrew and ejaculated onto her back.
66.
VG said she ‘had made it very clear that’ that she would only have sex with the appellant if he wore a condom. She described the sex on that evening as being particularly rough, including slapping and choking. She said that this level of violence shocked her, and made her fearful of challenging the appellant for not using a condom. The appellant’s case was that this roughness of the sex did not go beyond that with which he knew VG was comfortable, and that rough sex was something she had expressly said she enjoyed. He further submitted that she knew, or must have known, that he had removed the condom after the first act of sexual intercourse, and that if she had been unhappy about this there was nothing to stop her from saying so.
67.
It is important to emphasise that the prosecution case was not that this was rape because the sex was rougher than before. The vitiation of consent turned expressly and only on the absence of a condom.
Admissibility of Text Messages (Initial Ground 3)
68.
In support of the proposition that VG engaged in rough sex, and in seeking to establish that VG could not have been cowed by such behaviour as she was intimately familiar with rough sex, the appellant sought leave under
Section 41
YJCEA to question VG on a series of Facebook messages. These messages, between VG and another person (EP) pre-dated VG’s meeting of the appellant, and contained a discussion of various sexual scenarios, including numerous explicit references to violent sexual behaviour and practices. This, the appellant submitted, was of heightened relevance, given that the complainant denied an enjoyment of rough sex with the appellant.
69.
The application was refused by the HHJ Lamb QC on the basis that it offended
Section 41(6)
, as the messages were merely evidence of preference of particular sexual practices, and not specific instances of sexual behaviour. Further, that VG’s thoughts in and of themselves prove nothing that was relevant to the case. What may have passed through VG’s mind when conversing with EP 18 months before she met the appellant is irrelevant to the issue of belief in consent.
70.
In addition to the conversations with EP, it should be noted that the appellant was able to rebut the complainant’s claim regarding enjoyment of rough sex with the appellant, by reference to the messages between VG and her friend the morning after the relevant date. These were before the jury. In those messages she said that she enjoyed being hit, and enjoyed rough sex. In our judgment, the messages between VG and EP add little if anything to those later messages. The material concerning EP would not have materially enhanced the jury’s ability to accept or reject the proposition that VG was shocked by the level of violence on the relevant night, and did not bear on the critical issue of the use of a condom.
71.
As a result, this ground of appeal is dismissed.
Cross-Admissibility (Initial Ground 4, Additional Ground 1)
72.
The appellant seeks to advance two inter-related grounds regarding cross-
admissibility. The first (initial ground 4) is that the judge erred in directing that the evidence in the cases of NR and VG was cross-admissible at all. The second (additional ground 1) is that the prosecution failed to serve a bad character notice, which was required if cross-admissibility was to be relied upon, and the judge failed to give a ruling on the issue in advance of closing speeches.
73.
It is the appellant’s case that the allegations of NR and VG are of such a different character that the judge erred in directing the jury that they could use the evidence relating to one complainant to support a finding of guilt on the other.
74.
Under Section 101 of the CJA, entitled ‘Defendant’s bad character’, evidence in relation to one count of an indictment is capable of being admitted as bad character evidence in relation to any other count in the indictment if it satisfies any of the criteria in that Section. For present purposes the relevant criteria are:
“S.101
(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if –
…
(c)
it is important explanatory evidence,
(d)
it is relevant to an important matter in issue between the defendant and the prosecution,
(e)
it has substantial probative value in relation to an important matter in issue between the defendant and a codefendant,
…
(3)
The court must not admit evidence under sub
section (1
)(d) … 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.
(4)
On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.
75.
Section 103 CJA further makes it clear that:
“(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include –
(a)
the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b)
the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.
76.
Pursuant to Section 101(1)(d), evidence can be cross-admissible on the basis of coincidence or propensity. In coincidence cases, where one allegation strengthens the cogency of the evidence in relation to another allegation, the jury should be instructed that the evidence on each count may be relied on to preclude coincidence and thus to support another count. In such cases, the important matter in issue is “whether circumstantial evidence linking [the defendant] to [the offences], when viewed as a whole, pointed to his participation in and guilt of each offence”:
Wallace
[2007] EWCA Crim 1760
.
77.
Alternatively, where there is insufficient similarity in the facts relating to the various counts, the application under Section 101(1)(d) is likely to be a propensity argument,
and as such the jury should be directed to deal with the evidence sequentially. This means, as it was put by Latham LJ in
Freeman and Crawford
[2008] EWCA Crim 1863
, the jury should be directed to:
“…first determine whether it is satisfied on the evidence in relation to one of the counts of the defendant’s guilt before it can move on to using the evidence in relation to that count in dealing with any other count in the indictment.”
78.
This was further particularised by the court in
R v Hanson
[2005] EWCA Crim 824
, at
[7]:
“Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered: 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offence? 3. Is it unjust to rely on the conviction(s) of the same description or category; and in any event, will the proceedings be unfair if they are admitted?”
79.
In
N(H)
[2011] EWCA Crim 730
at [31] the Court of Appeal noted that it will be a rare that the jury might be directed to consider evidence on the basis of coincidence, and on the basis of propensity. In any event, in propensity cases the direction must relate to a specific issue, and not to a broad similarity. In R v
Jan Nicholas Ross
[2017] EWCA Crim 1125
at [28], for example, the issue was explained thus:
“Taking that notion of propensity, the question that arose here was: were the features of one or more of these offences likely to indicate that the appellant had a propensity – a tendency, an inclination, a disposition – to breach sexual boundaries in the context in which these matters arose?”
80.
At the trial, in addressing cross-admissibility, HHJ Lamb QC directed the jury in the following way:
“65D. [T]here are two ways in which the evidence of one count might support the prosecution’s case on the other. You should consider these ways in the following order.
First, consider count 4 where the prosecution rely not only on the evidence from NR, but on VG’s phone video. If, having considered the evidence on count 4, you are sure that the defendant is guilty of count 4, you should go on to consider whether that shows that he has a tendency to commit offence of the kind charged in count 2. As Mr Russell-Flint [counsel for the prosecution] put it, losing control in the moment and/or exploiting his physical, dominant role in the sexual activity, playing little or no regard to the wishes of his sexual partner.
If you are not sure that the defendant has such a tendency, then your conclusion that he committed the offence in count 4 does not support the prosecution case on count 2, but if you are sure that the defendant does have such a tendency, then you may take this into account when you are deciding whether the defendant is guilty of count 2.
Bear in mind, however, that even if a person has been a tendency to commit a particular kind, it does not follow that he is bound to do so, so if you are sure that D has a tendency to commit offence of the kind charged in count 2 or 4, this is only part of the evidence against him on that count and you must not convict him wholly or mainly on the strength of it.
The second way in which the evidence on one count might support the prosecution’s case on the other is this. The prosecution also rely on similarities between the allegations made by VG and NR. What have they both told you, say the prosecution? That D was posing as a caring and considerate sexual partner. He adopted the physically dominant role, he abused that position to sate his own desire.
66G. If you decide that this has or may have happened, the similarities between that complainant’s evidence and the evidence of the other complainant, would not take the prosecution’s case any further and you would have to take any influence of that kind into account when deciding how far you accepted the complainant’s evidence. However, if you are sure that there had been no such concoction or inference, you should consider how likely it is that two people independently of each other, would make allegations that were similar but untrue. If you decide that this is unlikely, then you could, if you think it right, use VG’s evidence as support for the evidence of NR or the other way around.”
81.
It is significant to focus on the different issues arising in the cases of VG and NR. VG’s allegation was based on the removal of a condom during otherwise consensual sex, whilst VG was in a relationship with the appellant, and had previously engaged in rough consensual unprotected sex. NR’s allegation was of extreme violence and forced penetration by the appellant – who was a complete stranger. In this way the two instances are entirely dissimilar. In our view, whether viewed through the prism of coincidence or propensity, VG’s allegation could not logically assist the jury with whether NR had consented to rough sex (or anal penetration), just as NR’s allegation could not assist the jury with the issue of whether VG had, on the relevant occasion, consented to sex without a condom.
82.
In our judgment, the jury was not entitled to find the counts mutually reinforcing. The similarity advanced was on the very limited basis that during rough sex the appellant went further than the complainant wanted. The suggested propensity was, as the prosecution had put it, ‘losing control in the moment and/or exploiting his physical, dominant role in the sexual activity, paying little or no regard to the wishes
of his sexual partner.’ Each case turns upon its facts and the facts here were too widely distinct for cross-admissibility be left to the jury.
83.
The already difficult question of jury directions on cross-admissibility was compounded in this case by the neglect of an important procedural step. As the appellant noted in their submissions on additional ground 1, under
Section 101(1)
CJA 2003
, cross-admissibility requires a bad character notice. In the absence of a bad character notice a defendant is entitled to have the case decided on the basis that the evidence for one count will not be used as evidence for another count. Moreover, the requirement for a notice is not merely technical. The Crown Court Compendium is clear that in such cases the direction must be discussed before closing speeches. The same issue arose in the recent decision in
R v Adams
[2019] EWCA Crim 1363
, where it was held that:
“…unless the procedure for admitting evidence of bad character is to be treated as a complete dead letter, that meant that the evidence was inadmissible and the appellant was entitled to have the case decided on the basis that evidence on each count was inadmissible in relation to other counts. That in turn made it necessary for the judge so to direct the jury.”
84.
In the present instance there was no explicit or decisive discussion of crossadmissibility in advance of speeches. The issue of cross-admissibility was finally addressed late. As Mr Russell Flint makes clear, the broad issue of crossadmissibility lay behind applications made earlier in the trial on joinder and severance. The Crown’s stance that the material was cross-admissible, save where collusion might have been possible, was tolerably clear. The thrust of this approach, as the Crown’s skeleton argument makes clear (paragraph 59), was that the defence involved the proposition that “two unconnected individuals, neither of whom had any knowledge of the other had either instigated, or at least been willing to indulge in, the idea of submissive or rough sex”: that is to say, coincidence.
85.
The position of the Crown was not contained in a notice, making it clear what they sought, in a manner to precipitate a conclusive argument on the point, in advance of closing speeches. There was no discussion with the judge at that point. This Court was informed that the fact the judge proposed to leave cross-admissibility to the jury only emerged during the first day of the summing-up, 4 April. The Crown emailed submissions to leading counsel for the appellant that evening, with a reply later that evening from Ms Forshaw. The judge provided both counsel with his direction or ruling on the point by email early in the morning of 5 April, and the summing-up addressed the point later that day.
86.
In our view, this was not a helpful way to proceed. The service of a bad character notice should and would have the effect of ensuring this issue is approached in a coherent and timely way.
87.
On the facts of this case, the prejudicial effect of cross-admissibility was likely to be high. The complexity of the summing up and the risks attendant on the crossadmissibility were compounded by the case in relation to the third complainant, HM. Owing to a fear of contamination, since HM was cognisant of the allegations of NR and VG prior to making her own complaint, HM’s evidence was deemed not to be cross-admissible, and the direction to the jury was necessarily therefore more complex.
88.
We conclude that this evidence should not have been ruled cross-admissible.
The Safety of the Convictions
89.
We have addressed the safety of these convictions, bearing in mind all the aspects of this trial which went awry. Taking them together, we have had no hesitation in concluding that these convictions were unsafe.
Conclusion
90.
For those reasons, the appeal is allowed. The convictions have been quashed. We will consider any applications concerning re-trial. This judgment must not be reported until that matter has been decided.
91.
This was a most difficult and demanding case for all concerned. The evidence presented unusual problems. We are very grateful to both counsel for the care with which they approached this appeal. Our particular thanks are due to Mr Russell Flint, who responded so swiftly to the grant of leave to appeal, allowing the matter to be disposed of in an expeditious appeal. | [
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6ad06e3643db5202b11e10ca5e005808c6fea88f56d96763ac44f2cd42c20faa | [2020] EWCA Crim 160 | EWCA_Crim_160 | 2020-01-30 | 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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No. 201903898 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 160
Royal Courts of Justice
Thursday, 30 January 2020
Before:
LORD JUSTICE COULSON
MR JUSTICE JULIAN KNOWLES
HER HONOUR JUDGE WENDY JOSEPH QC
REGINA
V
RICHARD TURNER
__________
Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
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_________
MISS G MAXWELL
appeared on behalf of the Appellant.
_________
J U D G M E N T
LORD JUSTICE COULSON:
1
The appellant is now 36. On 3 October 2019 he was sentenced to 27 months' imprisonment for various offences of fraud, together with a 14-day consecutive term of imprisonment as a result of an earlier failure to surrender to bail. He appeals against that sentence with leave of the single judge. The point that arises is a narrow one concerned with whether or not the appellant pleaded guilty to the fraud offences at the first opportunity and the overlap, if any, between the credit for his guilty plea and the term for the Bail Act offence.
2
The appellant has a bad record for fraud. The offences with which this case is concerned were committed when he was the finance manager of a company known as Perfect Associates. Following his dismissal, it transpired that he had created a number of false invoices and paid the figures on those invoices into his own account. The total sum of the fraud was £21,514. The judge took as a starting point the three-year term recommended by the relevant Sentencing Guidelines. As we have said, the appeal turns on the amount of credit that the judge gave him for his guilty plea with that starting point in mind.
3
The history in relation to the pleas is as follows. The appellant appeared before Stockport Magistrates' Court on 8 April 2019. At that time due to the absence of a charge sheet the appellant was advised not to enter a plea. No formal indication of a plea was recorded and the matter was sent to Minshull Street Crown Court. The plea and trial preparation hearing ("PTPH") was listed on 13 May. In advance of that an indictment had been uploaded on 9 May. The appellant, although bailed to appear on that occasion, did not attend. That gave rise to the Bail Act offence. Four months went past. On 9 September 2019 the appellant was produced before Minshall Street Crown Court under a bench warrant not backed for bail. The appellant entered a guilty plea in relation to the Bail Act offence. Although discussions took place in relation to the indictment, the appellant did not plead guilty. It appears that at least at one point during this process there was a question as to the available funding. The matter was listed on Friday 13 September and it was then that the appellant pleaded guilty to the fraud charges on the indictment.
4
Given that background, the judge said it was not appropriate to give the appellant full credit of 33 per cent for his guilty plea. That was because he had not pleaded guilty at the first available opportunity. He gave the appellant 25 per cent credit.
5
In a written advice on appeal, Miss Maxwell argues that there had been double counting. She says that because of the 14-day consecutive term in relation to the Bail Act offence, the judge could not also then reduce the amount of credit available for the guilty plea in the way that he did. Accordingly, her submission was that the three-year term for the fraud offences should have been the subject of a discount of one-third to reflect the guilty plea.
6
We reject that submission. It seems to us to be illogical. The correct sequence must be to consider first the fraud offences and the appropriate discount for plea. We have set out the history. It is plain that, on any view, the appellant did not plead guilty at the first reasonable opportunity. He did not do so because he absented himself from the PTPH on 13 May.
7
In support of her submissions this morning, Ms Maxwell relied on the Sentencing Guidelines and said that, in the circumstances the plea in September, that was the first reasonable opportunity to plead, taking into account the failure to attend on 13 May. In our view that submission is misconceived. The Sentencing Guidelines do not account for a defendant not attending when they are bailed to appear.
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8
Accordingly, it seems to us plain that, on the facts available to the judge, the reduction in the discount for plea from 33 per cent to 25 per cent was merited on the facts. Indeed, on one view it might be said that the appellant was fortunate that the credit was as much as 25 per cent.
9
Having dealt with the plea and the discount for it, that just leaves the Bail Act offence. In her oral submissions this morning, Ms Maxwell, as a secondary argument, submitted that in order to avoid double counting it would be appropriate for that sentence, namely the 14 days, to be made concurrent rather than consecutive. We have set out the history, and it seems to us that Miss Maxwell's secondary submission is correct. The principal reason why the discount for plea was less than 33 per cent was because the appellant chose to absent himself from the PTPH. In those circumstances there is double counting (or at least the risk of double counting) if there was a separate consecutive sentence for the Bail Act offence. Accordingly, we make the 14-day term in relation to the Bail Act offence concurrent and not consecutive.
10
Subject to that minor modification, the appeal against sentence is otherwise dismissed.
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52a0011c9eb6062594020539d38893a840b9e2da112008f7637f57fddc60ae6c | [2023] EWCA Crim 211 | EWCA_Crim_211 | 2023-03-02 | crown_court | The court ordered under s.37(4) of the Criminal Procedure and Investigations Act 1996 that the reporting restrictions in s.37(1) and (2) shall not apply to this judgment. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Neutral Citation Number: [2023] EWCA Crim 211 Case Nos: 202300002 B5, 202300004 B5, 202300003 B5 IN THE COURT OF APPEAL (CRIMINA | The court ordered under s.37(4) of the Criminal Procedure and Investigations Act 1996 that the reporting restrictions in s.37(1) and (2) shall not apply to this judgment.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation Number:
[2023] EWCA Crim 211
Case Nos: 202300002 B5, 202300004 B5, 202300003 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
Mr Justice Cavanagh
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
2 March 2023
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE HOLGATE
and
MR JUSTICE BRYAN
- - - - - - - - - - - - - - - - - - - - -
Between:
REX
Respondent
- and -
(1) ASHARI MOHAMED
(2) KHDEIR IDRIS MOHAMED
(3) MUSTAFA MOHAMMED ALDAW
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Richard Thomas KC and Charlotte Oliver
(instructed by
Graham & Co
) for the
First Appellant
Richard Thomas KC and John Barker
(instructed by
Tuckers
) for the
Second Appellant
Sonali Naik KC and Ronnie Manek
(with
Jennifer Twite, Ali Bandegani and Raza Halim
acting pro bono
) (instructed by
GT Stewart
) for the
Third Appellant
John McGuinness KC and Daniel Bunting
(instructed by
the Crown Prosecution Service
) for the
Respondent
Hearing date: 1 February 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Burnett of Maldon CJ:
Introduction
1.
These are appeals against rulings made by Cavanagh J sitting in the Crown Court at Canterbury in prosecutions of four men (three of whom are appellants) who are alleged to have steered small boats, or rigid hull inflatable boats (“RHIBs”) from France, full of irregular migrants, to or towards the United Kingdom. The preparatory hearing dealt with five points of law which commonly arise where persons who cross the English Channel in small boats, often with a view to claiming asylum, are charged with offences under
sections 24
(D1) or 25(1) of the
Immigration Act 1971
(“
the 1971 Act
”).
2.
The judge decided each of the points in favour of the prosecution. He granted the defendants leave to appeal under
section 35
of the
Criminal Procedure and Investigations Act 1996
(“
the 1996 Act
”).
The Background
3.
Ashari Mohamed is due to stand trial on 30 May 2023 on one count of assisting unlawful immigration to the UK contrary to
section 25(1)
of
the 1971 Act
. It is said that on 10 July 2022 he steered a RHIB containing 37 other persons who were not UK citizens to facilitate a breach of immigration law, namely
sections 1
, 3 and 24(D1) of
the 1971 Act
, knowing or having reasonable cause to believe that his act facilitated the commission of a breach of immigration law by those persons and that they were not UK citizens.
4.
Khdeir Mohamed is due to stand trial on 19 June 2023 on one count of assisting unlawful immigration to the UK contrary to
section 25(1)
of
the 1971 Act
. He is alleged to have steered a RHIB containing 35 other non-UK citizens to facilitate a breach of
sections 1
, 3 and 24(D1) of
the 1971 Act
with the requisite intention.
5.
Mustafa Aldaw is charged with attempting to arrive in the UK without a valid entry clearance contrary to
section 1(1)
of the
Criminal Attempts Act 1981
and
section 24
(D1) of
the 1971 Act
. The prosecution says that Mr Aldaw was travelling in a RHIB across the Channel with 38 other non-UK citizens. The boat was intercepted in UK territorial waters. Mr Aldaw along with the other passengers was transported by the authorities to the “approved area” in the port of Dover. The alleged offence under
section 24
(D1) has been charged as an attempt because Mr Aldaw did not make landfall before the RHIB was intercepted.
6.
Prior to amendment by the
Nationality and Borders Act 2022
(“
the 2022 Act
”),
section 24(1)
(a) of
the 1971 Act
provided for an offence of knowingly entering the UK without leave. The effect of
section 11(1)
of
the 1971 Act
is that a person arriving in the UK by ship or aircraft does not enter this country unless and until he disembarks, and on disembarkation he still does not enter the UK so long as he remains in an “approved area”, that is an area approved for immigration control, or if he leaves that area under immigration detention or bail. Consequently, a migrant who is intercepted or rescued at sea and taken to an approved area at a port does not enter the UK. He does enter if he arrives at a port without an approved area or lands on a beach (
R v. Javaherifard
[2006] Imm. App. R 185 at [14]-[16];
R v. Kakaei
[2021] EWCA Crim 503
, [2021] 4 WLUK 491;
R v. Bani
[2021] EWCA Crim 1958
, [2021] 12 WLUK 457).
7.
Likewise, a person steering a RHIB across the Channel does not facilitate entry without leave by migrants into the UK, contrary to
section 25(1)
of
the 1971 Act
, if he intends to steer the RHIB to a port with an approved area or towards an area where he expects the authorities to intercept the boat and take the migrants to an approved area within a port. The prosecution would have to show that the person steering the RHIB intended to deliver the migrants to a landfall other than a port with an approved area or had reasonable cause to believe that that was a possible outcome (
Bani
at [105]).
8.
Section 40
of
the 2022 Act
sought to address these issues in two ways. First,
section 24
of
the 1971 Act
was amended to add a new offence of
arriving
in the UK without entry clearance (
section 24
(D1)). Secondly, the definition of “immigration law” in
section 25(2)
was amended to refer to controls on “arriving” as well as “entering” the UK. The stated intention of Government in introducing the amendment was that the offence of facilitating a breach of immigration law would apply to assisting in the arrival or attempted arrival of persons without entry clearance (see para. 406 of the Explanatory Notes to
the 2022 Act
).
9.
The central issue in the preparatory hearing was whether those amendments to
sections 24
and 25 of
the 1971 Act
have been effective to change the law, to permit the prosecution of migrants who are intercepted or rescued at sea and are then brought to the approved area of a port, and those who facilitate such an arrival or attempted arrival.
The issues of law in these appeals
10.
The five issues of law determined by the judge were:
(1)
Whether, in a prosecution of a “facilitation” offence contrary to
section 25(1)
of
the 1971 Act
, the amendments made by
the 2022 Act
have meant that “the commission of a breach of immigration law” can include the offence of arrival without leave in
section 24
(D1) of
the 1971 Act
;
(2)
If the answer to (1) is “yes”, whether it must be proved that the defendant to a
section 25(1)
facilitation charge or a
section 24
(D1) unlawful arrival charge must be aware or have reasonable grounds to believe that the conduct of the passenger migrant whose arrival without leave is being facilitated is “criminal” (i.e. it is an “egregious” case and/or the passenger migrant is not a genuine or presumptive refugee) for a defendant to be guilty of facilitating that conduct;
(3)
The meaning of “arrival” for the purposes of
section 25
and 24(D1) of
the 1971 Act
; the mental element requirement for a
section 24
(D1) offence; and the meaning of “attempting to arrive”;
(4)
Whether
sections 30(3)
and 37 of
the 2022 Act
provide a defence to a person charged with an offence contrary to
section 24
(D1) of
the 1971 Act
.
(5)
Whether
section 24
(D1) has any application to a person who is seeking asylum on arrival to the UK?”
11.
In relation to issue (3) the judge ruled:
“(1)
“arrival” for the purposes of
sections 24
(D1) means arrival on land in the United Kingdom, whether in the approved area of a port or elsewhere;
(2)
a Defendant “arrives” in the United Kingdom if he or she is rescued at sea and transported to land by the maritime authorities or other rescuers;
(3)
it is not necessary to withdraw a
section 24
(D1) case from the jury if the RHIB from which the Defendant was taken did not have sufficient fuel to make landfall, and the Defendant’s sole intention was to remain afloat with a view to being rescued: it is still plainly open to the jury to draw the inference that the Defendant was attempting to arrive in the United Kingdom, albeit by means of being rescued in territorial waters by a vessel operated by the United Kingdom maritime authorities, and then by being conveyed by that vessel to landfall in the United Kingdom;
(4)
it is not the case that if the attempted arrival began in France, the United Kingdom has no jurisdiction. In such cases, it is plainly open to the jury to conclude that the attempt continued until such time as the Defendant was in United Kingdom territorial waters; and
(5)
for the avoidance of doubt, I have not been asked to rule whether there is jurisdiction for the United Kingdom criminal courts to deal with attempts or substantive offences under
section 24
(D1) or
section 25
of the [1971 Act], if they took place in international waters.”
12.
No application for leave to appeal was made in relation to the rulings on issue (3).
13.
Ashari Mohamed and Khdeir Mohamed have been granted leave to appeal in relation to the judge’s rulings on issues (1) and (2).
14.
In relation to issue (1) the judge ruled:
“….. arrival without leave in breach of
section 24
(D1) of the
Immigration Act 1971
amounts to a breach of immigration law for the purposes of the facilitation offence in
section 25
. This means that the relevant amendments that were introduced by
section 40
of [
the 2022 Act
] have achieved the objective for which they were designed, and that is set out at paragraph 406 of the Explanatory Notes …: there can be prosecutions under
section 25(1)
for facilitation of a
section 24
(D1) unlawful arrival offence, or for facilitation of attempted unlawful arrival.”
15.
In relation to issue (2), the judge ruled:
“….. it is not necessary, in order for there to be an offence under
section 25(1)
of the [1971 Act] of facilitating unlawful arrival contrary to
section 24
(D1), that the Defendant knew or had reasonable cause to believe that the migrant whose arrival was facilitated was an egregious case (in some way) or was not a genuine or presumptive refugee. In other words, the Prosecution does not have to prove an additional mental element, over and above those set out expressly in
sections 25(1)
(b) and (c).”
16.
Mustafa Aldaw has been granted leave to appeal on points (4) and (5).
17.
In relation to issue (4) the judge ruled:
“…..
sections 30(3)
and 37 of [
the 2022 Act
] do not provide a defence to a person charged with an offence contrary to
section 24
(D1) of the [1971 Act]. In particular,
sections 30(3)
and 37 do not provide a defence based on Article 31 of the Refugee Convention for offences (such as the offence under
section 24
(D1)) which are not specifically provided with such a defence by
section 31
of the
Immigration and Asylum Act 1999
.”
18.
In relation to issue (5) the judge ruled as follows:
“…..
section 24
(D1) applies to a person who is seeking asylum on arrival in the United Kingdom. The fact that the person is seeking asylum may have an effect on the prosecutorial decision as to whether it is in the public interest to prosecute, but that is a different matter.”
19.
The points of law raise issues of statutory interpretation. Several of the issues arise irrespective of whether a migrant intends to claim asylum.
20.
However, issue (5) directly raises the question whether
section 24
(D1) can apply to a person who seeks asylum on arrival in the UK. The judge was referred to the CPS Policy Guidance on public interest considerations in deciding whether to prosecute under
sections 24
and 25 of
the 1971 Act
. That Guidance considers the refugee status of an offender and the factors relating to Article 31 of the Refugee Convention (the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol). The judge considered matters relating to prosecutorial discretion and the Guidance to be irrelevant to the construction of the legislation. We agree.
21.
In ground 3 of her perfected grounds of appeal Ms Sonali Naik KC on behalf of Mr Aldaw sought to argue that if, as a matter of construction, there is no defence to
section 24
(D1) of
the 1971 Act
where the conditions of Article 31 of the Refugee Convention are satisfied, the legislation is incompatible with articles 8 and 14 of the ECHR. The Crown Court has no jurisdiction to make a declaration of incompatibility under
section 4
of the
Human Rights Act 1998
. The judge declined to express a view on the submissions made on those matters and he did not grant leave to appeal on that subject. Under
section 35(1)
of
the 1996 Act
an appeal only lies to this court against a ruling made by the judge in the preparatory hearing. Accordingly, as Mr. John McGuinness KC submitted for the prosecution, this court has no jurisdiction to entertain ground 3. In a note dated 25 January 2023 Ms Naik accepted this point but reserved the issue for another day should it properly arise.
22.
We will consider the four issues of law which are before the court in the following order: (5), (4), (1) and then (2).
The factual basis for the preparatory rulings
23.
The parties agreed that the preparatory hearing should proceed on the basis of seven assumed facts and one allegation by the prosecution:
“(1)
Each of the Defendants is a Sudanese national.
(2)
Each of the Defendants was travelling on a small boat, a RHIB, in the English Channel, which had set off from France.
(3)
Each boat had other migrant passengers on it.
(4)
Each boat was intercepted or rescued in UK territorial waters by the United Kingdom authorities.
(5)
Each Defendant was taken off the boat, along with the other migrant passengers, and was escorted to the “approved area” in the port of Dover.
(6)
Each Defendant claimed asylum when he landed. (There is a factual issue as regards whether Khedeir (sic) Mohamed claimed asylum when he landed or only later, but the Prosecution does not take a point on this).
(7)
None of the Defendants had a visa or entry clearance which permitted entry to the United Kingdom, and
(8)
The Prosecution alleges that each Defendant was piloting (steering) the small boat for all or part of its journey.”
Statutory framework
24.
The statutory provisions which touch on the issue with which this appeal is concerned are many and complex. They begin with
Section 1
of
the 1971 Act
:
“
General principles
(1)
All those who are in
this Act
expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with
this Act
to enable their right to be established or as may be otherwise lawfully imposed on any person.
(2)
Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of entry into, stay in and departure from the United Kingdom as is imposed by
this Act
; …..
(3)
…..
(4)
The rules laid down by the Secretary of State as to the practice to be followed in the administration of
this Act
for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
25.
Section 2 defines those persons who have a right of abode, mainly British citizens.
26.
Section 1(1)
and (2) establishes the fundamental distinction between persons who have a right of abode and are not subject to immigration control, and those who do not have that right and are subject to immigration control. Persons in the latter category may only live, work and settle in the UK “by permission” and subject to such regulation and control of their entry into and stay in the UK as is imposed by
the 1971 Act
.
Section 1(4)
authorises the making of rules by the Secretary of State on the practice to be followed for regulating the entry into and stay in the UK of persons without the right of abode, which shall include making provision for “admitting” persons, subject to restrictions or conditions for certain purposes such as employment or study.
27.
Section 3 provides:
“
3 General provisions for regulation and control
(1)
Except as otherwise provided by or under
this Act
, where a person is not a British citizen:
(a)
he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under,
this Act
;
(b)
he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
…..
(2)
The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of
this Act
for regulating the entry into and stay in the United Kingdom of persons required by
this Act
to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances ….”
28.
Section 3(1) lays down a fundamental principle of “regulation and control”, that a non-British citizen is not entitled to enter the UK without “leave to enter”, save where
the 1971 Act
otherwise provides. So, for example, a member of a crew of an aircraft or ship arriving in the UK may enter the UK without leave under the terms of
section 8(1)
. Diplomats are generally exempt from immigration control (
section 8(3)
). However,
the 1971 Act
does not contain any exemption from the prohibition in section 3(1) on a non-British citizen entering the UK without leave to enter for a person who intends to claim asylum on arrival in this country. The appellants’ counsel did not suggest otherwise.
29.
Section 3
A of
the 1971 Act
, inserted by
section 2
of the
Immigration and Asylum Act 1999
, came into force on 14 February 2000. It enables the Secretary of State to make an order with further provision for the grant of leave to enter. An order may provide for leave to be given or refused before a person “arrives” in the UK (
section 3
A(2)). An order may provide that an “entry visa” or “other form of entry clearance” is to have effect as “leave to enter” the UK (
section 3
A(3)).
Section 33(1)
of
the 1971 Act
defines “entry clearance” as “a visa, entry certificate, or other document which, in accordance with the immigration rules, is to be taken as evidence or the requisite evidence of a person’s eligibility, though not a British citizen, for entry into the United Kingdom ….”
30.
The Immigration (Leave to Enter and Remain) Order 2000 (SI 2000 No. 1161) implements those provisions in
section 3
A. The object of this regime is to enable immigration control to be exercised outside the UK before a person arrives in this country or at a port of entry. Entry clearance enables the holder not simply to arrive in the UK but also to enter the country.
31.
A person who requires leave to enter and does not have such leave (or entry clearance) is liable to be removed from the UK under
section 10(1)
of the
Immigration and Asylum Act 1999
(“
the 1999 Act
”).
32.
Section 11(1)
defines “entry” for the purposes of
the 1971 Act
:
“(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 2022 or on immigration bail within the meaning of Schedule 10 of the
Immigration Act 2016
.”
33.
Section 40(1)
of
the 2022 Act
inserted additional provisions into
section 24
of
the 1971 Act
, in particular:
“(B1) A person who —
(a)
requires leave to enter the United Kingdom under
this Act
, and
(b)
knowingly enters the United Kingdom without such leave,
commits an offence.
…..
(D1) A person who —
(a)
requires entry clearance under the immigration rules, and
(b)
knowingly arrives in the United Kingdom without a valid entry clearance,
commits an offence.
…..
(F1) A person who commits an offence under any of subsections (A1) to (E1) is liable—
(a)
on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or a fine (or both);
…
(d)
on conviction on indictment—
(i)
for an offence under subsection (A1), to imprisonment for a term not exceeding five years or a fine (or both);
(ii)
for an offence under any of subsections (B1) to (E1), to imprisonment for a term not exceeding four years or a fine (or both).”
34.
Section 25
of
the 1971 Act
(as amended by
the 2022 Act
) reads:
“(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 national of the United Kingdom,
(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 national of the United Kingdom.
(2)
In sub
section (1
) “immigration law” means a law which has effect in a member State or the United Kingdom and which controls, in respect of some or all persons who are not nationals of the State or, as the case may be, of the United Kingdom, entitlement to—
(a)
enter or arrive in the State or the United Kingdom,
(b)
transit across the State or the United Kingdom, or
(c)
be in the State or the United Kingdom.”
Section 25
(2A) defines a “national of the UK” to mean primarily a British citizen or a person who is a British citizen by virtue of Part 4 of the
British Nationality Act 1981
and who has a right of abode in the UK. This is similar to the exemption from immigration control in
section 1(1)
of
the 1971 Act
. By
section 25(4)
,
section 25(1)
applies to things done whether inside or outside the UK.
35.
Section 25(6)
provides that a person convicted under
section 25
on indictment is liable to imprisonment for life or to a fine, or both, and on summary conviction, to imprisonment for up to 6 months or a fine not exceeding the statutory maximum, or both.
36.
Section 25
A of
the 1971 Act
was introduced by the
Nationality, Immigration and Asylum Act 2002
(“
the 2002 Act
”). As amended, it provides:
“(1)
A person commits an offence if—
(a)
he knowingly … 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).”
As originally enacted this offence was only concerned with facilitating the “
arrival
” of an asylum-seeker. In 2008
section 25
A(1) was amended to add “entry” into the UK. The requirement in
the 1971 Act
that the offence be committed “for gain” was removed by
section 41(3)
of
the 2022 Act
.
The Refugee Convention
37.
Under article 1(A)(2) of the 1951 Refugee Convention, as amended by the 1967 Protocol, a “refugee” includes any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
38.
Article 31(1) of the Refugee Convention provides:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
39.
The Refugee Convention has not been incorporated into domestic law, but
section 31
of
the 1999 Act
creates defences to specified offences based on article 31(1) of the Convention.
Section 31
provides:
“(1)
It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—
(a)
presented himself to the authorities in the United Kingdom without delay;
(b)
showed good cause for his illegal entry or presence; and
(c)
made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.
(2)
If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, sub
section (1
) applies only if he shows that he could not reasonably be expected to have sought protection under the Refugee Convention in that other country.
(3)
In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—
(a)
Part I of the
Forgery and Counterfeiting Act 1981
(forgery and connected offences);
(aa)
section 4
or 6 of the
Identity Documents Act 2010
;
(b)
section 24
A of
the 1971 Act
(deception); or
(c)
section 26(1)
(d) of
the 1971 Act
(falsification of documents).”
40.
By
section 167(1)
a “claim for asylum” means a claim that it would be contrary to the UK’s obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the UK. By
section 31(6)
“refugee” has the same meaning as under the Refugee Convention. By
section 31(10)
the Secretary of State may by order amend
section 31(3)
to add offences to those listed.
Section 31
of
the 1999 Act
has not been extended to apply to offences contrary to
sections 24
, 25 or 25A of
the 1971 Act
.
41.
Sections 30
to 38 of
the 2022 Act
concern “Interpretation of the Refugee Convention”.
42.
Section 30(1)
of
the 2022 Act
provides that
sections 31
to 35 “apply for the purposes of the determination by any person, court or tribunal whether a person (referred to in those sections as an “asylum seeker”) is a refugee within the meaning of Article 1A(2) of the Refugee Convention”.
Sections 31
to 35 contain provisions for the interpretation of respectively “persecution”, “well-founded fear”, “reasons for persecution”, “protection from persecution” and “internal relocation” in a part of a person’s country of nationality or former habitual residence.
43.
Section 36
of
the 2022 Act
contains interpretation provisions for the purposes of Article 1(F) of the Refugee Convention, which disapplies the protection afforded to refugees where there are serious reasons to consider that a person has committed certain crimes (see
section 30(2)
).
44.
By
section 30(3)
,
section 37
of
the 2022 Act
“applies for the purposes of the determination by any person, court or tribunal whether Article 31(1) of the Refugee Convention (immunity from certain penalties) applies in relation to a person who is a refugee within the meaning of Article 1(A)(2) of the Refugee Convention.”
45.
Section 37
provides:
“(1)
A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.
(2)
A refugee is not to be taken to have presented themselves without delay to the authorities unless—
(a)
in the case of a person who became a refugee while they were outside the United Kingdom, they made a claim for asylum as soon as reasonably practicable after their arrival in the United Kingdom;
(b)
in the case of a person who became a refugee while they were in the United Kingdom—
(i)
if their presence in the United Kingdom was lawful at that time, they made a claim for asylum before the time when their presence in the United Kingdom became unlawful;
(ii)
if their presence in the United Kingdom was unlawful at that time, they made a claim for asylum as soon as reasonably practicable after they became aware of their need for protection under the Refugee Convention.
(3)
For the purposes of sub
section (2
)(b), a person’s presence in the United Kingdom is unlawful if they require leave to enter or remain and do not have it.
(4)
A penalty is not to be taken as having been imposed on account of a refugee’s illegal entry or presence in the United Kingdom where the penalty relates to anything done by the refugee in the course of an attempt to leave the United Kingdom.
(5)
In
section 31
of the
Immigration and Asylum Act 1999
(defences based on Art.31(1) of the Refugee Convention)—
(a)
in sub
section (2
), for “have expected to be given” substitute “be expected to have sought”;
(b)
after sub
section (4
) insert—
“(4A) But this section does not apply to an offence committed by a refugee in the course of an attempt to leave the United Kingdom.”
(6)
In this section—
“claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom;
“country” includes any territory;
“refugee” has the same meaning as in the Refugee Convention.”
Issue (5): Does
section 24
(D1) apply to a person seeking asylum in the UK?
46.
Ms Naik submitted that an offence under
section 24
(D1) of
the 1971 Act
can only be committed by a person who requires entry clearance under the Immigration Rules (HC 395) and knowingly arrives in the UK without that clearance. Mr Aldaw was not someone who required entry clearance because no such clearance is available to a refugee or asylum-seeker for the purposes of claiming asylum. Indeed, it is not possible to make a claim for asylum to the UK authorities outside the UK (
section 14
of
the 2022 Act
), whereas an application for entry clearance must be made outside the UK (Rule 28 of HC 395).
47.
Ms Naik relied upon paragraph VN 1.1 in Appendix Visitor: Visa National List in the Immigration Rules. Mr Aldaw is a citizen of Sudan and therefore a “visa national” on that list. That paragraph suggests that such a person requires entry clearance to travel to the UK as a visitor or for any other purpose for less than 6 months. Mr Aldaw was not seeking entry to the UK as a visitor or for any purpose lasting less than 6 months. He was seeking to arrive in and then enter the UK as a refugee. Accordingly, she submitted that Mr Aldaw did not require entry clearance. Therefore,
section 24
(D1) could not apply to him as an asylum seeker.
48.
Ms Naik also referred to
section 2
of the
Asylum and Immigration Appeals Act 1993
, which provides that nothing in the Immigration Rules “shall lay down any practice which would be contrary to the [Refugee] Convention”. We understood her submission to be that if the Rules require an asylum-seeker to obtain entry clearance, that would be inconsistent with Article 31(1) of the Refugee Convention. She also suggested that the absence of anything in the Rules giving effect to that provision, when read in conjunction with
section 24
(D1), offended
section 2
of
that Act
.
Discussion
49.
The argument advanced by Ms Naik assumes that a person who intends to claim asylum in the UK does not otherwise require entry clearance and, more particularly, that paragraph VN.1 is exhaustive of the circumstances in which a “visa national”, such as a citizen of Sudan, is required to obtain entry clearance. But it is necessary to consider the relevant parts of the statutory scheme as a whole.
50.
The general principle is that a person without a right of abode requires permission to live in the UK
and
is subject to the regulation and control of entry into the UK imposed by
the 1971 Act
(
section 1(2)
). Mr Aldaw did not have a right of abode in the UK. As a non-British citizen, he was also subject to the general prohibition on entry into the UK without the grant of leave in accordance with
section 3(1)
of
the 1971 Act
. The legislation does not provide an exemption from those controls because a person intends to claim asylum on arrival.
51.
Section 3
A of
the 1971 Act
enables the Immigration Rules to impose requirements for entry clearance to be obtained before arrival in the UK. Such entry clearance has the effect of a grant of leave to enter. This scheme for requiring entry clearance to be obtained before arrival in the UK is to be read together with
sections 1(2)
and 3(1) of
the 1971 Act
. Asylum-seekers are not excluded from the scope of the powers to require entry clearance to be obtained before arrival.
52.
The definition of “asylum-seeker” in immigration legislation is consistent with this analysis, namely a person who intends to claim that to remove him from, or require him to leave, the UK would be contrary to this country’s obligations under the Refugee Convention (see e.g.
section 25
A(2) of
the 1971 Act
,
section 167(1)
of
the 1999 Act
,
section 37(6)
of
the 2022 Act
and HC 395 rule 327). A person who does not have any necessary leave to enter, or for that matter entry clearance, is liable to be removed from the UK under
section 10(1)
of
the 1999 Act
. The definition of asylum-seeker recognises that that person might otherwise be removed from or required to leave the UK. Although there is no requirement for entry clearance to be obtained by an asylum seeker
in that capacity
, the statutory scheme does not suggest that a person who intends to claim asylum is exempt from requirements to obtain leave to enter, or entry clearance, which otherwise apply. Similarly, where the defence in
section 31
of
the 1999 Act
is available, a refugee must show that he had “good cause for his illegal entry or presence”.
53.
The parties provided to the court the core Immigration Rules dealing with entry clearance in their current form (rules 24 to 30C and interpretation provisions in rule 6.2). It was not suggested that these rules differ materially from the version in force at the time of the alleged offences for the purposes of the issues in these appeals. It does not appear to us that there is any material difference.
54.
Rule 6.2 of HC 395 defines “visa nationals” and “non-visa nationals”:_
“
“Visa Nationals”
means persons specified in Appendix Visitor: Visa National list as needing an entry clearance (a visa), in advance of travel to the UK for any purpose and
“Non-visa nationals”
are persons who are not specified in that Appendix and are required to obtain entry clearance in advance of travel for any purpose other than as a visitor for less than 6 months.”
A “visitor” is a person who is granted permission
inter alia
under Appendix V: Visitor after 9am on 1 December 2020.
55.
Rule 24 of HC 395 provides:
“The following persons are required to obtain entry clearance in advance of travel to the UK:
(i)
a visa national;
(ii)
a non-visa national (not a British or Irish national) who is seeking entry for any purpose other than as a visitor seeking entry for 6 months or less, or
(iii)
a British national without the right of abode who is seeking entry for a purpose for which prior entry clearance is required under these Rules.
Any other person who wishes to ascertain in advance whether they are eligible for admission to the United Kingdom may apply for the issue of an entry clearance.”
56.
Under rule 24A a person who requires entry clearance must on
arrival
in the UK produce to the Immigration Officer their passport and either entry clearance endorsed therein or an “eVisa”. A person who requires entry clearance and fails to satisfy Rule 24A “must not be granted leave to enter on
arrival
” (Rule 24B). Entry clearance which satisfies article 3 of SI 2000 No. 1161 has effect as leave to enter.
57.
An application for entry clearance will be considered in accordance with the provisions in HC 395 governing the grant or refusal of leave to enter (rule 26).
58.
The clear combined effect of rule 24 read with rule 6.2 is that visa nationals, such as a citizen of Sudan, require entry clearance before arrival in the UK for any purpose. That is so irrespective of whether they have an intention to claim asylum on arrival. That is hardly surprising. Ultimately it may be decided that a migrant does not fall within the definition of a refugee for one or more reasons and their claim for asylum rejected quite properly. For example, it may be decided that a claimant could reasonably have been expected to have sought protection under the Refugee Convention in another country in which he stopped before arriving in the UK. Alternatively, the claim for asylum may not be based upon a genuine ground falling within the Convention or may be fabricated.
59.
Appendix V to HC 395 expressly deals with persons who want to visit the UK for a temporary period, normally up to 6 months. A visa national (a person from a country in the Visa National list) must obtain entry clearance “as a visitor” before arrival in the UK (see also para. V1.1). A non-visa national may normally seek entry as a visitor on arrival in the UK. Accordingly, Appendix V has no bearing on the situation where persons wish to travel to the UK to enter for the purposes of permanent residence, whether a visa national or a non-visa national. A visa national is required to obtain entry clearance before travelling to the UK for
any
purpose. A non-visa national requires entry clearance where he seeks entry to the UK for “any purpose other than as a visitor seeking entry for 6 months or less” (rules 6.2 and 24). The court has not been shown any provision creating an exception to these requirements because the person concerned intends to claim asylum on arrival. Paragraph VN1.1 of the Appendix Visitor: Visa National List does not alter or affect any part of the above analysis.
60.
Accordingly, we conclude that
section 24
(D1) applies to a person who requires entry clearance under the Immigration Rules and who knowingly arrives in the UK without such clearance, even if he or she intends to claim asylum on arrival. That is also the position in relation to an attempt to commit such an offence.
61.
The provisions of HC 395 to which we have referred do not offend
section 2
of
the 1993 Act
. They simply lay down a general requirement to obtain entry clearance before arriving in the UK, or leave to enter upon arrival here, but not in the capacity of seeking asylum. Those provisions do not themselves create “penalties” for “illegal entry or presence” (see article 31(1) of the Refugee Convention). Those penalties are to be found in primary legislation,
sections 24
(D1) and (F1) of
the 1971 Act
, to which
section 2
of
the 1993 Act
does not apply.
62.
For these reasons we reject the submissions on behalf of the appellant Mr Aldaw and uphold the judge’s ruling on this issue.
Issue (4): Do
sections 30(3)
and 37 of
the 2022 Act
provide a defence to a charge contrary to
section 24
(D1) of
the 2022 Act
?
63.
Ms. Naik submitted that on a true construction of
sections 30
and 37 of
the 2022 Act
Mr Aldaw is entitled to rely upon
section 37
as a defence.
Section 24
(D1) inserted by
section 40
of the same Act must be read compatibility with
sections 30
and 37. Accordingly, there was no need for
section 31
of
the 1999 Act
to be amended to refer to
section 24
(D1) (or
section 25
). She submitted that
section 37
provides a defence to any criminal offence in circumstances where article 31(1) is applicable.
Discussion
64.
The judge rejected the appellant’s submissions on this issue as being contrary to the clear language of the statute. Ms Naik did not press this ground of appeal but did not abandon it. We agree with the judge’s ruling on point (4) and express our reasons shortly.
65.
Section 31
of 1999 Act provides a defence to the offences listed in sub-
section (3
). Although Parliament took the opportunity in
section 37(5)
of
the 2022 Act
to amend
section 31
, none of the provisions in
sections 30
to 37 of
the 2022 Act
are expressed as a defence to a criminal charge. Instead, as the heading of those provisions suggests, and as is clear from their content, they are concerned only with the interpretation of article 1(A)(1), article 1(F), article 31(1) and article 33(2) of the Refugee Convention in the circumstances stated.
66.
It should also be noted that
section 37
of
the 2022 Act
does not address all of article 31(1). It interprets certain parts of that provision concerned with whether a person has come directly from a territory or presented themselves without delay to the authorities and circumstances in which a penalty is treated as not having been imposed on a refugee on account of their illegal entry into or presence in the UK.
Section 37
lacks a key provision of article 31(1), namely the prohibition on penalising a refugee on account of his illegal entry or presence in the UK. It also lacks the requirement that the refugee “show good cause for their illegal entry or presence.”
67.
There is no rule or principle of construction which could enable the court to construe
sections 30
to 37 as creating a defence to a criminal charge.
68.
We therefore reject the ground of appeal on issue (4) and uphold the judge’s ruling.
Issue (1): Does “the commission of a breach of immigration law” include the offence of arrival without leave contrary to
section 24
(D1) of
the 1971 Act
?
69.
Mr Richard Thomas KC submitted on behalf of Ashari Mohamed and Khdeir Mohamed that a person does not commit an offence under
section 25(1)
of
the 1971 Act
unless he facilitates a breach of “immigration law” as defined in
section 25(2)
. He argued that the amendment by
the 2022 Act
of
section 25(2)
to refer additionally to arrival in the UK has not achieved the apparent intention of the draftsman that facilitating the commission of an offence under
section 24
(D1) is an offence contrary to
section 25(1)
. He submitted that the key word in the definition of “immigration law” in
section 25(2)
is “entitlement” (see [34] above). “Immigration law” refers to a law which
inter alia
controls the entitlement of persons who are not UK nationals to enter or arrive in the UK.
Sections 1(2)
and 3(1) of
the 1971 Act
are provisions which control the entitlement of such persons to enter the UK. But they have not been amended to control
arrival
in the UK. Thus, the creation of the criminal offence in
section 24
(D1) does not form part of “immigration law” for the purposes of
section 25(2)
because a criminal offence does not control entitlement. A criminal sanction is no different in this respect from a legal provision which regulates the procedure by which issues of entitlement are decided.
Discussion
70.
The appellants’ argument proceeds on the basis that
sections 1
and 3 of
the 1971 Act
constitute “the immigration law” to which
section 25(2)
refers. We understood Mr Thomas to accept during his oral submissions that there is no authority to support that proposition. He drew two authorities to our attention as being relevant to this issue:
R v. Kapoor
[2012] EWCA Crim 435
,
[2012] 1 WLR 3569
and
R v. Dhall
[2013] EWCA Crim 1610
, [2013] 9 WLUK 597. Each of these cases was concerned with
section 25(2)
before its amendment by
the 2022 Act
.
71.
In
Kapoor
the conduct said to have been facilitated by the defendants was disposal by asylum seeking migrants of fake Indian passports with which they had been provided for travel to the UK whilst they were in transit. It was alleged that under
section 25(1)
of
the 1971 Act
the defendants had facilitated a breach of immigration law, namely
section 2
of the
Asylum and Immigration (Treatment of Claimants etc) Act 2004
which, in effect, made it an offence for persons to present themselves at a leave to enter or asylum interview after having divested themselves of a passport in their possession during the journey to the UK (see [10], [22] and [32]).
72.
This Court held in [36]:
“In our view for the purposes of
s.25(2)
an immigration law is a law which determines whether a person is lawfully or unlawfully either entering the United Kingdom, or in transit or being in the United Kingdom. If a person facilitates, with the necessary knowledge or reasonable cause to believe, the unlawful entry or unlawful presence in the United Kingdom of a person who is not a citizen of the EU, then he commits the offence.”
Applying that test, the Court decided that
section 2
did not qualify as an “immigration law”. The offence in
section 2
was not concerned with determining whether the migrants had lawfully or unlawfully entered the UK (see also
Kakaei
at [48]).
73.
Accordingly,
Kapoor
does not support the proposition that “immigration law” in
section 25(2)
of
the 1971 Act
must fall within the ambit of
sections 1(2)
or 3(1) of
that Act
.
74.
In
Dhall
the Court did not make any decision about the scope of “immigration law” in
section 25(2)
because the appellant conceded that he had facilitated a breach of
sections 1
and 3 of
the 1971 Act
. That is also common ground in the present appeals. But
Dhall
is not authority for the proposition that “immigration law” in
section 25(2)
is confined to
sections 1
and 3.
75.
The appellants’ assertion that only immigration law falling within
sections 1
and 3 of
the 1971 Act
qualifies for the purposes of
section 25(2)
is unfounded. Nothing in the sections themselves support that proposition and they need, in any event, to be read with other provisions such as
section 3
A. Since 2000
section 3
A (together with the definition of “entry clearance” in
section 33(1)
) has enabled Immigration Rules to be made requiring entry clearance to be obtained before a person arrives in the UK. To adapt the language of
Kapoor
at [36], the regime created by
section 3
A of
the 1971 Act
falls within
section 25(2)
because it determines whether a person lawfully or unlawfully arrives in and then enters the UK.
76.
Consistent with this analysis, Parliament framed the new offence in
section 24
(D1) as being committed where a person who requires entry clearance under the Immigration Rules (i.e., before arriving in the UK) arrives in this country without a valid entry clearance.
77.
It also follows that the only amendment which needed to be made to
section 25(2)
, so that the facilitation offence in
section 25(1)
could apply to a breach of the regime created by
section 3
A and the new offence in
section 24
(D1), was the insertion of the words “or arrive in” in sub-paragraph (a).
78.
Section 24
(D1) of
the 1971 Act
operates in conjunction with
section 3
A (and indeed
section 3
) just as
section 24
(B1) operates in conjunction with
sections 1(2)
and 3. However, even taking
section 24
(D1) in isolation, we do not accept Mr Thomas’s submission that a criminal offence of that nature does not control “entitlement” to arrive in the UK. A person is not entitled to do something which is illegal by virtue of being a criminal offence. The imposition of criminal liability for the act of arriving (or attempting to arrive) in the UK without the necessary entry clearance controls entitlement to arrive in this country and, without more, is part of “immigration law”.
79.
For these reasons, which differ in part from those given by the judge, we reject the ground of appeal in relation to issue (1) and uphold the judge’s ruling.
Issue (2): Must the facilitator be aware or have reasonable cause to believe that the conduct of the passenger was criminal?
80.
Mr Thomas submitted below that it is necessary for the prosecution to prove that “the defendant knew or had reasonable cause to believe that the migrant whose arrival was facilitated was an egregious case or was not a genuine or presumptive refugee” to prove an offence under
section 25(2)
of
the 1971 Act
of facilitating the commissioning of an offence under
section 24
(D1).
Discussion
81.
The answer to that contention is that Parliament has set out in
section 25(1)
(b) and (c) of
the 1971 Act
the requirements for
mens rea
which the prosecution must prove. There is nothing in the language of the legislation to import into
section 25(1)
the additional mental elements for which the appellants have contended.
82.
Mr. Thomas’s submission was based upon an argument that not all conduct by a migrant falling within the scope of
section 24
(D1) is “criminalised”. By that he meant that, applying Crown Prosecution Service Guidance on the public interest test which is applied before launching a prosecution, not all such conduct is prosecuted. It is true that not all cases of this nature where the evidence supports a conviction will be prosecuted. The CPS might often consider prosecution not to be in the public interest. But that does not bear upon the statutory construction of
section 25
.
83.
The conduct facilitated need not be criminal at all. It need only be a breach of immigration law. For example, the conduct said to have been facilitated in the indictment against Ashari Mohamed and Khdeir Mohamed could have been expressed as breaches of the Immigration Rules under the regime established pursuant to
section 3
A of
the 1971 Act
. The appellants’ argument is untenable.
84.
For these reasons we reject the grounds of appeal in relation to issue (2) and uphold the judge’s ruling.
Conclusion
85.
In the result, none of the grounds of appeal has any merit. We dismiss the appeals and uphold the judge’s rulings. | [
"MR JUSTICE BRYAN"
] | 2023_03_02-5597.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/211/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/211 | 842 |
e4f81d68ecb57d2bc1c842428ccea1d4dd347adb0d03c7801e2635c286350ba8 | [2004] EWCA Crim 2725 | EWCA_Crim_2725 | 2004-10-13 | crown_court | 200201993/C4,200205213/C4,200205577/C4,200300943/C4,200206545/C4 Neutral Citation Number: [2004] EWCA Crim 2725 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 13th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - R E G I N A -v- SIRMED HUSSAIN THOMAS JOHN MICHAEL JOYCE ANTHONY DAVID MARSHALL - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limi | 200201993/C4,200205213/C4,200205577/C4,200300943/C4,200206545/C4
Neutral Citation Number:
[2004] EWCA Crim 2725
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 13th October 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
- - - - - - -
R E G I N A
-v-
SIRMED HUSSAIN
THOMAS JOHN MICHAEL JOYCE
ANTHONY DAVID MARSHALL
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR M BARRY
appeared on behalf of the APPELLANT SIRMED HUSSAIN
MR R PRICE
appeared on behalf of the APPELLANT THOMAS JOYCE
MR P DOCKERY
appeared on behalf of the APPELLANT MARSHALL
MR T MACKINNON
appeared on behalf of the APPELLANT HUSSAIN
MR P CADWALLADER
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.1.1.
MR JUSTICE RICHARDS: On 5th February 2002, at Manchester Crown Court, after a trial before His Honour Judge Ensor and a jury, Sirmed Hussain, Thomas Joyce and Anthony Marshall were convicted of conspiracy to supply a Class A drug (cocaine). Hussain and Joyce were sentenced to 8 years' imprisonment, Marshall to 11 years' imprisonment. On 6th August 2002 they were each made subject to a confiscation order in the following amounts: Hussain £235,000 with a consecutive term of 3 years' imprisonment in default of payment; Joyce, £400,000 also with a consecutive term of 3 years in default, and Marshall £2,520,000 with a consecutive term of 5 years in default. A co-accused by the name of Lally pleaded guilty and was sentenced to 4 years' imprisonment. Two other co-accused by the names of Jarvis and Walker were acquitted.
1.1.2.
All three appellants appeal with leave of the Single Judge against the confiscation orders made against them on 6th August 2002. Hussain also renews an application for leave to appeal against the custodial sentence of 8 years, following refusal by the Single Judge.
1.1.3.
We can deal relatively briefly with the facts relating to the conspiracy offence itself. The period during which the three appellants and their co-accused were alleged to have conspired together to supply cocaine was from 9th to 15th May 2001. The evidence relied on by the Crown included observations by police officers conducting surveillance of comings and goings at the addresses of Joyce and Marshall, meetings in car parks and handovers of carrier bags, and the fact that the appellants were found in possession of large quantities of cash. There was expert evidence concerning the presence of minute traces of cocaine in the dust recovered from the seats and boots of cars belonging to Joyce and Hussain, and traces of cocaine were found on scales at a house used by Joyce and on a knife found on Marshall. Sheets of paper, alleged by the Crown to be dealing lists, were found inside the handles of two domestic brushes at Marshall's house.
1.1.4.
As regards the chronology, on 9th May all three appellants were seen together at a car auction where Marshall bought a van. On 10th May Joyce called at Marshall's house four times, leaving each time within a short period with a carrier bag, following which he was seen to meet up with third parties. In the early evening of the same day Hussain visited Marshall's house before setting off to meet the co-accused Walker at a public house car park where he handed a carrier bag over to Walker.
1.1.5.
On 14th May Hussain called at Joyce's house and handed over a carrier bag. Joyce took the bag and other items to his car. Joyce later parked his car alongside Lally's car in a car park and handed over the bag which Lally then put into the boot of his car. Lally's car was followed by the police and was stopped. Under some cardboard in the boot the police found two blocks of cocaine, weighing just under 1 kilogram at 25% purity and with a value of about £100,000.
1.1.6.
In searches following the various arrests Joyce was found to have the sum of £5,000 in cash in his waistband. There was a cash counting machine and the sum of £1,900 at his girlfriend's house. Traces of cocaine were found on a set of scales at his home and cocaine dust was found in his car. Hussain was found with £2,000 in cash on him and a further £2,600 at home, together with two motorcycles acquired on hire purchase which were relied on as evidence of lifestyle. In addition cocaine dust was found in his car. In the case of Marshall the sum of £22,000 in cash was found at his home, together with a cash counting machine, plastic bags and the sheets of paper found inside the brush handles.
1.1.7.
In sentencing, the judge said that there was clear evidence of a wholesale business trafficking in cocaine, passing it on to retailers to sell to users. He stated that the roles of the accused in the enterprise had been different and he took this into account in the sentences imposed. Marshall was the leader of the enterprise. It was an extensive operation and Marshall must have had a close connection with the masterminds and importers of cocaine. Joyce was Marshall's lieutenant. He ran Marshall's errands and was in active participation with him. He was more than a courier and in particular was trusted to move the valuable consignment of cocaine on 14th May. Hussain participated in a similar way to Joyce and the judge did not believe that he could distinguish them. Hussain was not just a courier but trusted on 14th May to take the parcel of cocaine to Joyce for onward transmission. Lally had been caught with that one consignment and was a trusted ally of the others but the sentence on him would be reduced quite considerably because he had pleaded guilty and saved the authorities substantial expense and time.
1.1.8.
In support of Hussain's renewed application for leave to appeal against the custodial sentence Mr Barry, on his behalf, advances a number of points. He points out that this was a conspiracy lasting only about 5 days. The high watermark, so far as Hussain was concerned, was his carrying of what was subsequently discovered to be an amount of cocaine equivalent to 225 grams at 100% purity, though Mr Barry acknowledges that there was also other evidence concerning his involvement in the conspiracy. It is submitted that, having regard to the fact that Hussain was still relatively young (he was aged 26 at the time), this was his first experience of custody and he was of previous good character, and having regard to the sentence of 4 years imposed on Lally, albeit upon a plea, a sentence of 8 years on Hussain was manifestly excessive and involved an unjust disparity between Hussain and Lally.
1.1.9.
We reject those submissions. In our judgment, the judge cannot be faulted in his description of this conspiracy as a wholesale business or in his assessment of the seriousness of the offence. Even for a relatively young man of previous good character, a sentence of 8 years' imprisonment after conviction was properly open to the judge. He had heard the evidence at trial and was best placed to assess the respective roles and degree of involvement of the various accused. Neither his decision that no distinction should be drawn between Hussain and Joyce, nor his decision to draw the distinction he did between those two appellants and the co-accused, Lally, could be said to give rise to any objectionable disparity. Accordingly, the renewed application for leave to appeal against the sentence of imprisonment in Hussain's case is refused.
1.1.10.
We turn to the appeals of all three appellants against the confiscation orders made against them. At the material time the matter was governed by the
Drug Trafficking Act 1994
.
Section 4
of
that Act
lays down the assumptions required to be made for the purpose of determining whether a defendant has benefited from drug trafficking and, if he has, of assessing the value of the proceeds of drug trafficking. Section 5 deals with confiscation orders and provides:
"(1)Subject to subsection (3) below, the amount to be recovered in the defendant's case under the confiscation order shall be the amount the Crown Court assesses to be the value of the defendant's proceeds of drug trafficking.
...
(3) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant's case under the confiscation order shall be-
(a) the amount appearing to the court to be the amount that might be so realised; or
(b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might be so realised is nil."
Section 6 defines the amount that might be realised at the time that a confiscation order is made. It defines it as being the total value of all realisable property held by the defendant, and there is a further definition of realisable property.
1.1.11.
The confiscation proceedings in the present case were adjourned on 26th April 2002 and came back for hearing on 5th August 2002. In the meantime prosecutor's statements, under
section 11
of
the 1994 Act
, were served in relation to each appellant and financial statements were prepared on behalf of each.
1.1.12.
On 5th August, in the course of an introductory discussion, counsel for the Crown observed, in the context of the case against Joyce, that the contention as set out in the prosecutor's
section 11
statement was that the total benefit was £1.7 million and the minimum benefit some £142,000. Counsel stated that provided the benefit figure was greater than the realisable assets, that is the realisable property within the meaning of
the Act
, the court might be more concerned with the realisable assets than with the details of the benefit. The judge responded that that was right. He did not want to enter into a fine argument as to whether it was £1.7 million or £142,000 if there was less than £142,000 available for confiscation. Counsel for the Crown said that the Crown did not necessarily ask the court to go into the minutiae of the benefit figure but was quite content for the court to take a pragmatic approach if that was thought to be appropriate and consistent with the legislation.
1.1.13.
The court then heard evidence and argument. The officer who had prepared the
section 11
statements confirmed their contents and was cross-examined. Each of the appellants gave evidence and was cross-examined. Other witnesses were also called on the appellant's behalf. On 6th August the judge gave his judgment. In the context of this appeal, it is a great misfortune that, because his microphone was switched off, the transcript of his judgment includes reference to many inaudible passages, making it very difficult to follow the detail of what he said. Nor has the court before it any other note of the full judgment, though Mr Price, for Joyce, has read out one part of a note taken at the time.
1.1.14.
So far as one can tell, however, the judgment proceeded in this way. At the outset the judge said that he took into account that all the appellants had lied to the jury at trial and he rejected the further evidence of each of them at the confiscation hearing in its entirety. He said it was of no value to him. He took the same view of witnesses called by the appellants at trial and in the hearing before him. It had all been a complete pack of lies, a device to ensure that the ill-gotten gains from the drugs enterprise could be protected while they were able to do so. He expressed himself as satisfied that they had all benefited from trafficking in drugs and he went on to consider their individual involvement separately.
1.1.15.
In relation to Joyce the judge found that the total benefit he had received was of the order of £400,000. He appeared then to find that the realisable assets were £70,000 or, more precisely, £70,116, but to make a confiscation order against Joyce in the sum of £400,000.
1.1.16.
Next, in relation to Hussain, the judge found that the total benefit was £235,000. He appeared to find that the realisable assets were £63,447 but to make a confiscation order in the sum of £235,000. Finally, in relation to Marshall, the judge made a confiscation order in the sum of £2,520,000. The deficiencies in the transcript make it impossible to be sure at this stage what he was saying about benefit figures and realisable assets but it appears from later discussion that he had identified a benefit figure of £2,520,000 and a figure for realisable assets of £213,000.
1.1.17.
After the judge had delivered the judgment prosecuting counsel addressed him and took him through the figures that he had stated, pointing out that if the judge was saying that the realisable assets were less than the benefit figure, then the confiscation order in each case should be for that lesser sum. In the course of dialogue with the judge, however, counsel elicited that the judge was not satisfied that the true figure for realisable assets in the case of any of the appellants was less than the benefit figure. The judge referred to the need for the appellant to disgorge funds secreted away.
1.1.18.
The position apparently adopted in relation to the appellants emerges from this exchange between prosecuting counsel, Mr Cadwallader, and the judge in relation to Hussain:
"MR CADWALLADER: What worries me is your Honour's reference to realisable and your Honour is using the words realisable assets, as in the case of Mr Hussain £63,470 that is not in fact what your Honour is saying, your Honour is saying that is the sum that has come to light. Presumably it follows that your Honour is satisfied that there is money taking it up to £235,000 secreted somewhere.
Judge Ensor: Yes.
Mr Cadwallader: That makes it clear. What worried me was merely your Honour's use of the word realisable.
Judge Ensor: Perhaps I can put it this way, the enquiries have been made and today there is available an realisable.
Mr Cadwallader: That is clear."
1.1.19.
The main submission made on behalf of all the appellants is that the position was very far from clear and the judge had indeed fallen into fundamental error. The matter was put in this way by Mr Mackinnon on behalf of Hussain. Mr Mackinnon pointed out that the judge had started by referring to a pragmatic approach and indicating that the concentration should be on realisable assets rather than spending time on the minutiae of the total benefit figure. It is said that at no time during Hussain's evidence was it put to him by prosecuting counsel, in cross-examination, that he had hidden assets in addition to the specific items listed as potential assets in the
section 11
statement. It is further said that at no time did the judge suggest this, either during evidence or during the course of legal submissions. Reference is made to what was said in the judgment and the ensuing discussion. It is submitted that it is evident from the transcript - for all its deficiencies - that the judge got into a muddle about the application of
section 5
of
the 1994 Act
. In particular, it was only when prosecuting counsel suggested that the sole possibility for reconciling the judge's confiscation order with
section 5
was that the judge had concluded that there was money taking it up to the amount of the benefit figure secreted somewhere, that the judge had given any indication that this possibility was in his mind. During the entire two days of the hearing it is said that neither the prosecution nor the judge had previously mentioned that possibility of hidden assets and the defence had simply not been put on notice that this was a live issue. There had been specific examination of various items in the
section 11
statement but the matter had not gone beyond that. It is therefore contended that everything points to the conclusion that the judge found as a fact, in his judgment at the conclusion of the hearing, that the realisable assets of Hussain were those that he had stated as realisable assets, namely £63,447 rather than the higher benefit figure. That is the figure that ought to have been included in the confiscation order.
1.1.20.
For Joyce, Mr Price adopts Mr Mackinnon's submissions. He too says that he has no recollection of any reference having been made during the hearing to Joyce having had hidden assets or to there having been any similar discussion. Similarly, in relation to Marshall, Mr Dockery adopts the submissions already made. He has one additional point of detail specific to Marshall's case. His submission is not simply that the confiscation order should have been made in the sum of £213,000 mentioned by the judge as realisable assets, but in a lower sum because the judge was wrong to include one item in the figure for realisable assets. The reference is to a property which was assessed as having a value of £125,000. That property was purchased by the mother of Marshall's girlfriend for a purchase price of £48,000, of which £30,000 was funded by a mortgage. Marshall lived in the property with his girlfriend and her mother. It was not alleged by the prosecution that he had contributed to the deposit. The evidence against him related to cash lodgments in a bank account from which the monthly payments were made towards discharging the mortgage. Those cash lodgements were in a total sum of £47,392. Mr Dockery submits that, although the
section 4
assumptions allow that expenditure to be treated as having been met out of the proceeds of drug trafficking and therefore that sum can be taken into account, there was no evidence going back to the date of acquisition and nothing to support the proposition that the defendant had acquired a beneficial interest in the property such that the current market value of the property could be taken into account. On that basis it is submitted that the £125,000 should be reduced so as to take account only of the cash lodgements of £47,392. That would produce a figure for realisable assets of £135,392.
1.1.21.
For the Crown, Mr Cadwallader, who has appeared before us as he did before Judge Ensor, starts by reminding the Court of the provisions of
section 5(3)
of
the 1994 Act
. He submits that the burden of proof under that provision is on the appellants and that the standard of proof is on the balance of probabilities. The possibility of there being realisable assets beyond the known assets identified in the
section 11
statements was, it is submitted, flagged up in those statements. For example, in the
section 11
statement relating to Hussain, it is said that the onus is on the defendant to provide the court with full details of all his realisable property. The only person who can fully appraise the court of the true extent of realisable assets is the defendant. In the case of Marshall the
section 11
statement also goes on to state that he appeared to have been involved in drug trafficking on a substantial scale for a considerable period and to have gone to some lengths to conceal his records and disguise the proceeds of his drug trafficking in order to avoid the making of a confiscation order.
1.1.22.
So it is said that the issue had been raised. It is further submitted that the whole of the cross-examination of the appellants and their witnesses was designed to show that the case being put forward by the appellants was false, albeit Mr Cadwallader acknowledges that he cannot say that the cross-examination referred in terms to hidden assets. He submits that it is for each appellant to persuade the court, on all the evidence, that they had no other realisable assets. That they failed to do. The judge found that they had lied to the jury and that they had lied at the confiscation hearing itself. Their evidence had all been a device to ensure that the ill-gotten gains from the drug enterprise were protected. Once the judge rejected the defence evidence then, it is submitted, he had no choice but to make an order in the total amount of the benefit figure. No other evidence had been led that could justify his making an order in a lesser sum pursuant to
section 5(3)
.
Section 5(1)
confers no discretion and required the result that the judge produced in this case.
1.1.23.
Mr Cadwallader accepts that the judge, having dealt with the matter in this way at the outset of his judgment, then became muddled. What he submits, however, is that it is tolerably clear that the judge then proceeded in this way. First, he identified the benefit. Then he found the appellants had not discharged the burden of proving that their realisable assets were in a lesser sum than the total benefit, so it followed that a confiscation order had to be made in the full amount of the benefit. Third, the judge went on to deal with known realisable assets; he should not have done that and that was the muddle, but it does not alter the point that on the facts, as found, the judge had no choice but to make confiscation orders in the total amount of the benefit.
1.1.24.
With regard to the separate point advanced by Mr Dockery, in relation to the property purchased by the mother of Marshall's girlfriend, Mr Cadwallader concedes that the point is well-founded.
1.1.25.
As to the correct general approach to the making of confiscation orders under
section 5
, Mr Cadwallader is plainly correct. In particular,
section 5(3)
places the burden squarely upon the defence to satisfy the court that the amount that can be realised is less than the amount of the total benefit. This was confirmed in
R v Ilsemann
(1990) 12 Cr App R(S) 398, in relation to the materially identical provisions of the
Drug Trafficking Offences Act 1986
. Taylor LJ, giving the judgment of the Court, said this:
"[Counsel for the defendant]...has submitted that as the figure of £214,000 odd is agreed to be that amount which the Crown can prove, the court ought to have accepted, on a balance of probabilities, that that amount was the amount it should regard as being the amount capable to be realised under
section 4(3)
and ought therefore to have made the confiscation order in that amount. He put it on this basis, that if the Crown put that forward and the defence agree it, then why should the court not accept it?
In our judgment that is a misconception. The Crown were not putting this figure forward for agreement as the amount realisable: all they were doing was putting it forward as the amount they were able actually to prove without conceding that it was all that was realisable. If the appellant wished to say that that was all that was realisable, then it was for him to satisfy the court to that effect. He did not do so, either by seeking to call evidence or by putting in any statement which the Crown might or might not have agreed. Accordingly the court was left without anything to put against the figure of £396,385.99. Accordingly the learned judge made an order in that amount. In our judgment he acted perfectly properly and no criticism can be made of the confiscation order that he made."
That reasoning was followed in
R v Barwick
(13th October 2000) in which Holman J, giving the judgment of the Court stated at paragraph 44, this time in relation to the similar terms of the
Criminal Justice Act 1988
governing the making of confiscation orders:
"44. We stress that the scheme of
the Act
requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, e.g. a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount 'appearing to the court' to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise..."
1.1.26.
Nothing we say about the particular facts of the present case should be taken to detract in any way from those general principles.
1.1.27.
The present case illustrates the problems that can occur if thos principles are not borne clearly in mind. Although we see considerable attraction in Mr Cadwallader's submissions that the judge's decision can be analysed in the way that he put forward, in effect as turning on the burden of proof, we have to say that we are very troubled by the judge's approach. The reasoning elicited by prosecuting counsel in enquiries made after the judgment had been given does not sit happily with the way in which matters were expressed in the judgment itself. In the judgment the judge made what were, on their face, specific findings about realisable assets, with not a hint that these were really just the figures for known assets and that, applying the burden of proof under
section 5(3)
and not being satisfied of the non-existence of secreted assets, he considered the true figure for realisable assets to be the total amount of the benefit. Account must also be taken of what was said at the outset about the need to adopt a pragmatic approach and to concentrate on realisable assets rather than dealing with the minutiae of the benefit figures if the realisable assets were lower. From what we have heard from counsel - we do not have a transcript of the evidence itself - it is not altogether clear whether or to what extent the possibility of hidden assets was explored in evidence, let alone to what extent the judge was applying his mind to the statutory test in
section 5
by reference to such evidence.
1.1.28.
It seems to us that there was a real muddle here and that it is far from clear that the judge had the correct statutory test in mind. Whatever conclusions might have been open to him had the matter been dealt with properly, we are not satisfied that he followed a process of reasoning that properly justified the making of confiscation orders in the full amount of the benefit. In circumstances where the judge has not applied his mind as he should have done to the statutory test, we do not feel able to accede to Mr Cadwallader's argument that confiscation orders in the full amount of benefit are a necessary result of the judge's rejection of the appellant's evidence. In the circumstances, this is not a satisfactory basis for the making of confiscation orders. Accordingly, for the reasons that we have given, we will quash the confiscation orders actually made and we will substitute orders in the following amounts. In the case of Hussain, the correct figure for the confiscation order is £63,447. We will specify a period of 21 months' imprisonment in default of payment. In the case of Joyce, the correct figure for the confiscation order is £70,116. Again, we will specify a period of 21 months' imprisonment in default of payment. In the case of Marshall, allowing for the additional specific point to which we have referred and which we accept, the correct figure is £135,392. In his case we will specify a period of 27 months' imprisonment in default. To that extent, and for those reasons, these appeals are allowed. The periods in default, as was specified below, are to run consecutively to the custodial terms imposed for the substantive offence.
1.1.29.
We turn to consider a separate matter relating only to Sirmed Hussain. On 9th October 2002, at Manchester Crown Court, he was convicted on a count of possessing a controlled drug of Class A, namely cocaine, with intent to supply. On 22nd November 2002 he was sentenced by His Honour Judge Humphries to a term of 4 years' imprisonment to be served consecutively to the sentence of 8 years' imprisonment imposed on 5th February 2002, in respect of his involvement in a conspiracy to supply cocaine, the matter with which this Court has just dealt. That meant a total sentence of 12 years' imprisonment. He now renews applications for leave to appeal against both conviction and sentence, following refusal of leave by the Single Judge.
1.1.30.
The facts are briefly these. In December 2001 police arrested a man named Jones in possession of cocaine. A search of the flat to which Jones had a key revealed about 2 kilograms of cocaine at 100% purity found in a holdall. Also discovered were scales, a Pyrex jug containing crack cocaine, a microwave oven, a vacuum packing machine, press and plastic bags. The jury were invited to infer that this was a crack cocaine factory.
1.1.31.
The Crown alleged that the applicant, Hussain, had assisted in making crack cocaine or had been involved with the drug supplied. There was no direct evidence of involvement. Reliance was placed on the fact that his fingerprints had been found on a number of items in the flat which it was said showed his recent connection with the premises and with what was occurring there. The prints found were on a cardboard box in a closet, on the jug which had the crack cocaine in it, on a microwave oven, on plastic bags and a bin bag and on tape near the packaging machine, together with bags which had contained cocaine. There were also fingerprints discovered on a magazine at the premises.
1.1.32.
The applicant remained silent during interview and did not give evidence at trial. The defence at trial pointed out that all the items on which his fingerprints had been found were portable and the fingerprints could not be dated. It was suggested that the applicant could have touched the items elsewhere before the items were placed in the flat. There was no evidence as to when the drugs had arrived in the flat, nor indeed any evidence that the applicant had been at the flat when they did arrive or at all, let alone when they were packaged. It was contended that the prosecution case was based on speculation and guesswork and that the argument put forward by the prosecution was not a valid one.
1.1.33.
A submission of no case to answer was put forward on that basis, following the conclusion of the prosecution case. That submission was rejected, and the case went forward to the jury. The same defence was relied on before the jury.
1.1.34.
In sentencing the applicant the judge said that there was no reason to believe that he was the leader of the enterprise, or that most of the drugs were his but he had played an important part. He had a previous conviction for the conspiracy offence, with which this Court has just dealt. The new offence was committed whilst he was on bail for the earlier offence so the sentence had to be consecutive. The judge said that he would have imposed a sentence of 8 years' imprisonment, but he reduced it having regard to the principle of totality. In that regard he took into account not just the sentence of 8 years imposed on the applicant for the earlier conspiracy but also the consecutive sentence that the applicant might have to serve in default of payment of monies under the confiscation order.
1.1.35.
Mr Barry, in relation to the renewed application for leave to appeal against conviction, reminds the court that the relevant provision of the
Misuse of Drugs Act 1971
is
section 37(3)
, which states that for the purposes of
the Act
"... things which a person has in his possession shall be taken to be anything subject to his control which is in the custody of another."
1.1.36.
What is submitted in this case is that there was no sufficient evidence upon which it could be said that the applicant was in control of the drugs that were found in the holdall at the flat. In particular, there was no evidence about the timings of the fingerprints that were found on the various items. Accordingly it is said that there was no proper inferential basis upon which it can be said that the applicant was controlling the drugs in the holdall. To the extent that it is said that this was a matter for the jury, what Mr Barry submits is that the jury were invited to make a series of inferences that simply went too far. This was too tenuous a basis upon which to be sure that the applicant had been in possession of the relevant drugs.
1.1.37.
We reject those submissions. In our judgment, there was, here, a clear case to go forward to the jury. The series of fingerprints of the applicant, found on the various items to which we have referred, provided a basis upon which it was open to the jury to make the necessary inferences to sustain a finding of possession, notwithstanding the points made by the defence and put to the jury very clearly in the summing-up about the absence of evidence as to the time when the fingerprints were put on the articles and as to the time when the articles were taken to the flat, or the time when the drugs in question arrived at the flat. In our judgment, not only was this a case that could properly go forward to the jury but there is no arguable ground for doubting the safety of the conviction reached upon the evidence that we have summarised. Accordingly, the renewed application in relation to conviction is refused.
1.1.38.
So far as concerns sentence, Mr Barry accepts that a consecutive sentence was here appropriate given, in particular, that the new offence was committed while the applicant was on bail for the earlier conspiracy offence. He accepts that the matter is made more serious by the fact of repeat offending within a very short time of that earlier offence. Nonetheless, he submits that if the cases had been dealt with at the same time the overall sentence imposed on the applicant should not have gone much beyond double figures. It is submitted that the sentence of 4 years that was imposed for the new offence was excessive, because it produced an excessive total when added to the 8 years for the earlier offence.
1.1.39.
We have no hesitation in rejecting those submissions. It seems to us that the judge was entirely correct in what he indicated would have been the sentence if this offence had stood alone. He took proper account of the principle of totality in halving that sentence and, in our judgment, the resulting total was richly deserved. Accordingly, we also refuse the renewed application for leave to appeal against sentence.
1.1.40.
THE VICE PRESIDENT: Mr Price, you had something to say?
1.1.41.
MR PRICE: I am sorry about that. May I take it that the 6 months to pay runs from today and stands as part of the varied order?
1.1.42.
THE VICE PRESIDENT: That would be very generous, bearing in mind the order was made 2 years ago.
1.1.43.
MR PRICE: Once an application is lodged everything is suspended.
1.1.44.
THE VICE PRESIDENT: Yes, very well. That applies to everybody- in so far as that order was made in relation to everybody, the 6 months applies in relation to all.
1.1.45.
MR MACKINNON: My Lord, I hope that applies to Mr Hussain's order.
1.1.46.
THE VICE PRESIDENT: In that I said it applied to "all", I think that is a safe assumption, Mr Mackinnon. | [
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] | 2004_10_13-333.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2725/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2725 | 843 |
db8a5b0b9b5e9531dc599476b386bb0619cdefd114629cbfdb47e4f59324e004 | [2018] EWCA Crim 498 | EWCA_Crim_498 | 2018-03-06 | crown_court | No: 201800938/C1 Neutral Citation Number: [2018] EWCA Crim 498 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 6 March 2018 B e f o r e : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION SIR BRIAN LEVESON MRS JUSTICE CARR DBE MRS JUSTICE YIP DBE - - - - - - - - - - - - - - - - - - - R E G I N A v AHMED HASSAN INTERLOCUTORY APPEAL UNDER S.35(1) OF THE CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 - - - - - - - - - - - - - - - - - - - Computer Aided Tr | No:
201800938/C1
Neutral Citation Number:
[2018] EWCA Crim 498
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 6 March 2018
B e f o r e
:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
SIR BRIAN LEVESON
MRS JUSTICE CARR DBE
MRS JUSTICE YIP DBE
- - - - - - - - - - - - - - - - - - -
R E G I N A
v
AHMED HASSAN
INTERLOCUTORY APPEAL UNDER S.35(1) OF THE CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996
- - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - -
Mr T Maloney QC and Mr K Missouri
appeared on behalf of the
Applicant
Miss A Morgan and Mr B Lloyd
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - -
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
J U D G M E N T
1.
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 5th March 2018, that is to say yesterday, this applicant was due to stand trial in the Central Criminal Court before Haddon-Cave J and a jury charged with attempted murder and causing an explosion, contrary to section 2 of the Explosive Substances Act 1883. By reason of the nature of the offence, a preparatory hearing had been convened under section 29(1C) of the Criminal Procedure and Investigations Act 1996, during the course of which the judge was asked to rule upon the admissibility of the evidence of a psychologist which had been obtained in circumstances to which we shall later refer. That hearing was conducted on 23rd February with judgment handed down on 27th February.
2.
On 1st March the applicant served Notice of Appeal to which the prosecution responded on the following day. The applicant by his counsel then replied to that response also on that day. At what should have been the beginning of the trial, Haddon-Cave J refused the applicant permission to appeal but could not start the trial until any further application to this court had been resolved. In the circumstances, Mr Maloney QC on behalf of the applicant now applies for leave to appeal against the ruling. The application has been referred to the full court by the Registrar. It is a matter to note that the court is in a position to move swiftly when the need arises, but it is a procedural step to be taken only in the most exceptional circumstances, not least because of the enormous inconvenience that it causes to the court and the organisation of its other business.
3.
The provisions of section 37 of the Criminal Procedure and Investigations Act 1996 apply to these proceedings, as a result of which the report both of proceedings and of this judgment is prevented until the conclusion of the trial, save for the specified basic facts such as the name of the accused and the offence. The court does not order that the provisions do not apply. Given that the trial is due to start tomorrow, there is no basis for lifting the restrictions in whole or in part in order to permit the decision to be be reported, albeit anonymously.
4.
In short, the applicant is alleged to have manufactured an explosive device which he intended would be detonated on a crowded London Underground train, the Crown contending that he thereby intended to kill those in close proximity and injure many others. The device was constructed using Triacetone Triperoxide ("TATP") which is unstable and unpredictable as its main charge. The initiation mechanism of the device was attached to a timer allowing the applicant to abandon the device.
5.
He carried out this plan on 15th September 2017, leaving the device in a carriage on a tube train. The device was detonated as the train arrived at Parsons Green Tube Station, causing a partial explosion. It is a matter of great fortune that the main charge of the device did not function or react as the Crown contended this applicant intended.
6.
The applicant is an Iraqi national and during his application for asylum in early 2016 he told immigration officers that he had been taken by force by members of ISIS and had been trained by them. He said they had threatened to kill his family if he had not done what he was told. He denied that he had been sent to Europe to work for the group. He was referred to Prevent and oversight was maintained by a Channel Panel.
7.
CCTV from 15th September showed the applicant leaving home shortly before 7 am carrying a bag which it is contended contained the device. Shortly before 8 am he boarded an Eastbound District Line train travelling towards Parsons Green Station. He left the device in the carriage when got off at Putney Bridge Station at 8.17. At 8.19 the device partially detonated causing flames to engulf the area between the rear of carriage six and the front of carriage seven, causing obvious fear and panic amongst the passengers on the train and at the station. CCTV of the applicant's movements thereafter appeared to show that he had taken steps to avoid detection.
8.
An examination of the device revealed that it was potentially viable as an improvised explosive device containing several hundred grams of TATP and several kilograms of shrapnel. A viable initiation mechanism had been incorporated into the device using a timer to provide a delay between the instigation of the countdown and the initiation of the device. It had failed fully to function. If it had, it could have caused extensive and indeed fatal harm to people and extensive damage to property. The failure may have been because it was not well constructed or because of defects in the manufacture of the TATP. The applicant was further linked to the device by scientific evidence. On arrest, he admitted that he had constructed the device.
9.
In his first interview the applicant said that he had done what he had done in anger, describing it as an act of aggression and over reaction to curry favour with those in Iraq. In a later interview he maintained that he had done so because he was bored and lonely and acted to highlight his distress to others. It is perhaps this latter interview that is reflected in the terms of his defence case statement which Mr Maloney explains remains the basis of the defence which asserts as follows:
"3. The defendant will assert that his actions amounted to 'a hoax'. That is to say, he never intended to create and deploy a device which would cause serious injury to a person or serious damage to property. He did not intend to kill anyone or maliciously cause an explosion that would be likely to endanger life or cause serious injury to property.
4. The defendant used information found on the internet to create the device in question.
5. In creating a TATP, he [that is to say the applicant] deliberately used weaker strength hydrogen peroxide and dilute sulphuric acid in order that the TATP would not explode.
6. In addition, he made modifications to elements of the device designed to avoid generating the kind of pressure that would lead to an explosion. Thus, he did not place a lid on the blue jar and he made a hole within the Tupperware container and the foil surrounding it.
7. He did not intend that the knives and other metal items found in the device would injure people. He believed that they would not be expelled from the device."
10.
Thus, there will be two main issues at the trial now due to commence tomorrow. The first is the viability of the explosive device which the applicant made and placed on the London Underground train on 15th September. The second, whether the applicant had the relevant intention to commit the offences as alleged or, as he contends, he had deliberately modified the device so that it would not result in the commission of those offences.
11.
The central issue at the preparatory hearing was the admissibility of psychological evidence from Dr Timothy Green and in particular whether the evidence was relevant to the question of intent.
12.
In a comprehensive ruling, which it will be clear from the chronology that we have provided was handed down but a few days after the argument was ventilated and which runs to 70 paragraphs, Haddon-Cave J ruled against the admissibility of the evidence. Thereafter he ruled that the application for leave to appeal was out of time and, in any event, without merit. Although Mr Maloney argued before Haddon-Cave J that after his ruling delivered at 11.03 on 27th February an appeal subsequently lodged at 4.49 on 1st March was in time, he has not sought to challenge the judge's finding that it was out of time and thus required leave.
13.
In that regard, as to time, the judge pointed to the chronology which involved the preliminary hearing on 19th October 2017. On 19th January 2018 at the PCMH it was claimed that a report from a consultant psychologist would be relied upon for context only and would not go to the issue of intent. This was repeated in a defence note dated 22nd January and in oral submissions. Only on 14th February was Dr Green's report served, one day after it was supposed to have been delivered, and even more serious only on 23rd February was it suggested that it would be relied upon as relevant to the proof of intent. With the trial date due to start on 5th March, that date was immediately in jeopardy, for had it been suggested that this evidence would or could go to the defence of the charge, the prosecution would inevitably have had to seek and would have obtained the opportunity to seek its own evidence. It is not difficult to see why the judge was not prepared to exercise his discretion to extend time.
14.
Turning to the merits, having extensively reviewed the authorities, the judge expressed the general principle that the admissibility of psychological evidence was limited to cases of alleged duress and suggestibility in confessions. It is a mistake to refer to that general principle as a rule. The rule is no more than a requirement that, in order to admit the evidence, it must satisfy the appropriate criteria in law.
15.
Mr Maloney relied below on two decisions of this court to suggest that psychological evidence could also be admitted on the question of intent.
Thompson
[2014] EWCA Crim 836
considered the admissibility of expert evidence about Asperger's Syndrome in the context of sexual offences. The offences required proof that there was "intentional touching" and that the touching was "sexual". The content and characterisation of the activity were important. The appellant in that case was obsessed with hygiene and was rule bound such that over-thorough towelling of a boy who had been bathing and inappropriate touching need not have been sexual. The diagnosis of Asperger's Syndrome was relevant to the question, first, what the appellant did, and second, with what intention he did it. The evidence was not admitted to suggest the appellant was not capable of forming the necessary intent because it may have assisted the jury in considering the nature of the act or its purpose. The prosecution, it is important to underline, had suggested the appellant must have been aware he was taking an extreme risk by behaving as he did and that itself pointed to a sexual motive for his behaviour. The expert evidence of his Asperger's Syndrome was thus centrally relevant to this question. We agree with Haddon-Cave J that the judgment of the Court of Appeal in that case repays careful reading. The facts of this case and the issues to be determined are very different to those in
Thompson
.
16.
This fact-focused approach is consistent with the very recent decision in
Grant-Murray
[2017] EWCA Crim. 1228
at paragraphs 37 to 64 in which
Thompson
was considered. This was a decision on renewed applications for leave to appeal against convictions for joint enterprise murder. One of the applicants, Henry, sought leave to adduce fresh evidence relating to a new assessment suggesting that he had suffered from autism. Despite multiple referrals pre-trial, Henry had never previously been so diagnosed. It was submitted for Henry that knowledge of autism would be relevant to the assessment of Henry's state of mind at the time of the incident and to his credibility. It was also argued that it would be important for the jury to know of the diagnosis, just as knowledge of Asperger's Syndrome was found to be similarly relevant, and of assistance to the court in
Thompson
. Lord Thomas, CJ commented at 53 that
Thompson
was not of any real assistance as it was the duty of the court to consider in each case the relevance of such evidence to the issues in the case. A court is not assisted by cases that may, as
Thompson
did, turn on their own facts. On the facts of
Henry,
the court declined to grant leave for this fresh evidence to be adduced. When considering its possible impact the court concluded that having regard to all the evidence autism could not have had any effect on the issue of Henry's thinking process at the time of the murder or the assessment of his credibility.
17.
Grant-Murray
serves to underline the basic proposition that the question of admissibility and relevance will in each case turn on the nature of the issues arising on the specific facts and the extent to which the particular material in question can assist a jury. Thus, for example, as was the case in
Thompson
, expert evidence may be relevant if it will assist a jury in the interpretation of conduct that to a "neuro-typical mind" may suggest one motive, but in the context of a developmental disorder may appear different.
18.
Mr Maloney does not dissent from the proposition that the question of admissibility turns on the facts of each case but argues that this case falls on the side of the line that permits the evidence to be admitted.
19.
The other case on which Mr Maloney relies is
Huckerby
[2004] EWCA Crim. 3251
where psychiatric evidence of PTSD was admitted on the basis that it might provide the jury with an explanation for the appellant's behaviour at the time of the robbery, said by the prosecution only to be explicable on the basis that the appellant was an insider. The evidence was admitted. Potter LJ (as then he was) said at paragraph 105:
"Huckerby was not raising a defence of duress; as such he did not seek to 'confess and avoid' participation in the crime. Nonetheless, the absence of a satisfactory explanation for his behaviour having been erected into a main plank of the prosecution case, the situation was analogous to a plea of duress, in the sense that the jury were invited by the prosecution to investigate the mind and motivation of the defendant and to conclude that he willingly followed the instruction of the robbers, as opposed to having his will overcome by fear."
20.
We reject the proposition that the evidence of a psychologist is admissible to assist the jury on the question of what the applicant or indeed any defendant actually intended, in this case when he made and deployed the explosive device. Indeed, Mr Maloney does not suggest that Dr Green can give evidence of what the applicant's intention was, but only how his mind might have operated which itself could impact on the jury's consideration of the issue.
21.
In reality, however, the objection to Dr Green's evidence is far more potent than that, perhaps because of the limitations of what Dr Green is able to say in the light of the issues in the case and of the overly broad questions put to him. Thus, the context is provided by what the appellant had said and how his instructions have been reflected to the court both in his interview and in the defence case statement which we have set out above.
22.
Pulling these strands together, it is said that the defendant deliberately intended a hoax. He did not intend to deploy a device that would injure anyone or cause an explosion that would be likely to endanger life. In order to achieve that end he deliberately used weaker strength chemicals to avoid an explosion. The only proper interpretation of the defence is that the appellant knew perfectly well that if he did create an explosion it would be likely to endanger life, but, on his account, he took steps to avoid that happening. Compare that with Dr Green's report. The highest it is put (in language which we consider more in keeping with defence advocacy) in the report considered by the learned judge, is at 8.3 in these terms:
"Mr Hassan's need for attachment and positive reinforcement to combat depressive and anxious cognitions and feelings leaves him vulnerable to overwhelming feelings of anxiety regarding his self-worth and self-esteem. This may be seen to have resulted in his acting as he did at the time of the index offence, where it might be suggested he felt overwhelming distress and had no effective means of highlighting this to others or of communicating his need for assistance. This impoverishment in capacity to communicate distress to others is in keeping with a presentation of Asperger's disorder. I would suggest that Mr Hassan was isolated and frightened at the time of the alleged offence and, lacking the ability to develop any appropriate problem solving strategies to seek help due to his high functioning Autism, he engaged in a behaviour that he believed would draw attention to his plight, without fully understanding or being able to consider the consequences of his actions."
With great respect to Dr Green that flies in the face of what is contended in the defence case statement.
23.
The question is what the applicant intended and it is not suggested that he was not perfectly capable of forming an intent to kill or endanger the lives of others. If Dr Green was purporting to answer that question, which Mr Maloney in any event challenges, he is not entitled to do so. If he is not, one could question how the jury would be assisted by what he has said in the context of what the issues identified by the defence case statement are.
24.
After the ruling of the learned judge, Dr Green provided another lengthy report in which he sought to deal with some of the concerns the judge had raised. The judge was not prepared to consider this further evidence but in order that this judgment is a complete analysis we include from this report at paragraph 4.2:
"Mr Hassan is not capable, in my opinion, to clearly distinguish in his thinking that he could have caused harm. Indeed, his thinking is of such a concrete nature that he could believe that he had constructed a device that would draw attention but would do no harm at all. Such a style of thinking is entirely consistent with a diagnosis of Asperger's Disorder."
The doctor then moves back into advocacy mode by continuing:
"Mr Hassan appears shocked that he has caused psychological distress to people who were present, as well as to the broader community. It is the nature of an individual with an Autistic mind to not be able to understand 'the grey areas' as it were, not to be able to consider the actions upon a continuum of what might be risky, but instead to be caught in rigid and concrete thinking that is the defining characteristic of individuals with Asperger's Disorder. In short, it is my opinion that it is likely that Mr Hassan may not have forseen deaths of persons in the train nor the risks to such persons nor serious injury to them or property: he may well have been, as a result of the autistic functioning of his mind, specifically his Asperger's Disorder presentation, too single-mindedly focused on his task of making a scene to highlight the fact that he was experiencing a lack of support."
That again runs entirely counter to the assertion at paragraph 5 of the defence statement that the applicant deliberately used weaker strength hydrogen peroxide and dilute sulphuric acid in order that the TATP would not explode and indeed made other modifications to avoid generating the kind of pressure that would lead to an explosion. Again, Dr Green adduced the phrase "not capable to clearly distinguish that he could have caused harm" which is equivalent to his earlier phrase "not fully understand". For our part we do not see what the jury could make of this graded opinion.
25.
In any event a further difficulty is how this evidence, were it to be given, would help the jury in the context of the defence case statement that the device had been carefully calibrated not to cause harm. It is as if Mr Maloney wants to argue that his client should be acquitted because he tried to be careful to construct a device that would be a hoax and would not cause injury or endanger anyone, but if the jury reject that submission, he should be acquitted because he could not fully understand the consequences of his actions or clearly distinguish he could have caused injury. These defences are, with respect, inconsistent.
26.
In our judgment, irrespective of what might be the position in other cases, the learned judge was right to reject this evidence as inadmissible and right to refuse leave to appeal. For such material to be admitted so late in the day it would have to be clear and compelling. Instead not only was it out of time it is, in our judgment, inadmissible as a matter of law and in any event inconsistent with the way the case is being put in the defence statement. It would not serve to elucidate but merely confuse. On all these grounds leave to appeal is refused.
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Tel No: 020 7404 1400 | [
"SIR BRIAN LEVESON",
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"MRS JUSTICE YIP DBE"
] | 2018_03_06-4192.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/498/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/498 | 844 |
c1ffee7d8f724b751f200d468394c79ac98f0148abed9cd1b31622f31583672b | [2011] EWCA Crim 2663 | EWCA_Crim_2663 | 2011-11-04 | crown_court | Neutral Citation Number: [2011] EWCA Crim 2663 Case No. 2011/04251/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 4 November 2011 B e f o r e: MR JUSTICE BUTTERFIELD and MR JUSTICE HENRIQUES - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - DEAN KEAR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telep | Neutral Citation Number:
[2011] EWCA Crim 2663
Case No.
2011/04251/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 4 November 2011
B e f o r e:
MR JUSTICE BUTTERFIELD
and
MR JUSTICE HENRIQUES
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
DEAN KEAR
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J House
appeared on behalf of the Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
MR JUSTICE BUTTERFIELD:
Mr Justice Henriques will give the judgment of the court.
MR JUSTICE HENRIQUES:
1. The appellant, Dean Kear, is 29 years of age. On 16 June 2011 at the Crown Court at Leicester he pleaded guilty to unlawful wounding. On 15 July 2011 he was sentenced to two years' imprisonment. The period of 69 days spent on electronically monitored curfew was ordered to count towards the sentence. The appellant appeals against sentence by leave of the single judge.
2. In reviewing the facts we are conscious that Mr House, counsel who appears on behalf of the appellant, took issue with certain aspects of the Criminal Appeal Office Summary. The appellant must be assured that factually we approach this appeal on the basis contended for by Mr House. That basis is culled from the CCTV evidence, as opposed to the evidence of eyewitnesses, which may well have been coloured by the swift events before them.
3. On the evening of 6 March 2011 the victim of the wounding was drinking in the Rafters Public House in Barwell. He was leaning against the bar with his arms crossed, in conversation with the appellant and a witness, Daniel Headley. For much of the time the appellant was standing with his hands in his pockets. At some stage a female, Chantelle Pratt, came between the appellant and the victim, but there was no contact between them. Witnesses describe the appellant as being threatening and saying words similar to, "I'll knock you out". After Chantelle Pratt had involved herself, the appellant moved a short distance away and picked up his drink from the bar, a pint tankard, and drank from it. At that stage the appellant was standing between two other males. The victim stepped away from the bar towards the appellant in a manner which to the appellant appeared aggressive. The appellant reacted to this and struck a single blow to the victim's face with his left hand which held the pint glass. The glass shattered on impact. The victim suffered a laceration above the right eye which required eleven sutures. He also suffered minor grazes, a cut to the side of his nose, and some of the glass went into his mouth, causing minor injuries.
4. As a result of the incident a general brawl developed in the public house. The appellant played no part in it and left.
5. He was arrested in the early hours of the following morning. In interview he remained silent. When re-interviewed and shown the CCTV evidence he accepted it was him. He said that he had little recollection of events.
6. The appellant was initially indicted with an offence contrary to
section 18 of the Offences against the Person Act 1861
. At the plea and case management hearing he pleaded guilty to the offence contrary to section 20. An offer to do so had been made prior to the hearing.
7. His case both then and now is that while he accepted striking the blow and accepted that it was unlawful, it was an overreaction to the conduct of the victim. It was a case where the appellant had stepped away from a confrontation that was developing before the victim approached him in an apparently aggressive manner. He had pleaded guilty at the earliest opportunity.
8. The appellant accordingly relied on the factual basis as outlined by Mr House -- a spontaneous overreaction to an apparently aggressive approach. He already had the glass in his hand; he did not pick it up to use it.
9. He had one minor conviction in 2003 under the Public Order Act when he received a conditional discharge. He had recently endured the breakdown of a long-term relationship in which his partner had had an affair. Matters generally had not been easy. He had a disrupted childhood. In October 2010 his general practitioner prescribed medication for depression and anxiety. A psychiatric report indicated no mental illness. Of his own volition he had attended for counselling from a voluntary organisation, for which he had paid. He produced ten character references to the effect that he was industrious and well regarded.
10. At the hearing both counsel agreed that the sentencing guidelines were of little assistance, not least because it is impossible to ascertain whether the injury fell into the category of greater harm. On any view the use of a weapon was an aggravating factor.
11. As presently constituted this court is not without experience of glassing cases and very much has in mind that the maximum sentence for an offence contrary to this section is one of five years' imprisonment.
12. There is, prior to the sentencing guidelines, no shortage of authorities on glassing cases. Whilst there is necessarily some variation, factually it is to be noted that in the following cases where glasses were broken in victims' faces and defendants pleaded guilty, sentences were passed as follows: in
R v Robertson
[1998] 1 Cr App R(S) 21, two-and-a-half years' imprisonment;
R v McGee
[2008] 2 Cr App R(S) 53, 27 months' imprisonment;
R v Kent
[2009] 2 Cr App R(S) 39, two-and-a-half years' imprisonment; and
R v Key
[2010] 1 Cr App R(S) 45, two-and-a-half years' imprisonment. In the three latter cases it could properly be argued that the facts were more serious than the present case, but in those cases the sentences were longer.
13. In the present case there are two aggravating factors, both recognised by the Sentencing Council: the injury was to a very vulnerable part of the body -- the victim might easily have lost an eye. The second factor indicating higher culpability is the use of a weapon. In addition, this was violence on licensed premises.
14. The sentence passed is exactly the sentence that both members of this court would themselves have imposed. It reflects all the mitigation and gives full credit for the plea. It reflects also the aggravating factors.
15. Accordingly, notwithstanding Mr House's most excellent efforts both in writing and orally today, this appeal is dismissed.
_____________________________ | [
"MR JUSTICE BUTTERFIELD",
"MR JUSTICE HENRIQUES"
] | 2011_11_04-2855.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2663/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2663 | 845 |
141374c71d31bd312f696a027132b76f48dc11a6267ec0d5462605f8a65746e4 | [2014] EWCA Crim 2205 | EWCA_Crim_2205 | 2014-10-31 | crown_court | Neutral Citation Number: [2014] EWCA Crim 2205 Case Nos: 2014/00337/A7 & 2014/01247/A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 31 st October 2014 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE WYN WILLIAMS and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - ON APPEAL FROM THE CROWN COURT AT STAFFORD MR JUSTICE WILKIE Between: Regina Respondent - and - Jamie Reynolds Applicant ON APPEAL FROM THE CROWN CO | Neutral Citation Number:
[2014] EWCA Crim 2205
Case Nos: 2014/00337/A7 &
2014/01247/A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Friday 31
st
October 2014
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE SWEENEY
- - - - - - - - - - - - - - - - - - - - -
ON APPEAL FROM THE CROWN COURT AT STAFFORD
MR JUSTICE WILKIE
Between:
Regina
Respondent
- and -
Jamie Reynolds
Applicant
ON APPEAL FROM THE CROWN COURT AT BRADFORD
MR JUSTICE COULSON
Between:
Regina
Respondent
- and -
Anwar Rosser
Applicant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
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A Merrill Communications Company
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Tel No: 020 7404 1400, Fax No: 020 7831 8838
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- - - - - - - - - - - - - - - - - - - - -
Michael Duck QC
for the
applicant Reynolds
Ali Naseem Bajwa QC and Vikki Kerly
for the
applicant Rosser
Richard Whittam QC
for the
Respondent in both appeals
Hearing date: 16 October 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ:
The duty of the judge under the
Criminal Justice Act 2003
1.
In these two appeals, both applicants were sentenced to life imprisonment for murder. Each applicant had murdered a person under the age of 18; in the case of Reynolds it was accepted that the murder of the 17 year old girl had been carried out with a sexual and sadistic motivation; in the case of Rosser, it was accepted that the murder of the 4 year old boy had a sadistic motivation but it was denied it had a sexual motivation.
2.
In each case, the judge had to consider whether a whole life order should be imposed under
s.269
and Schedule 21 of the
Criminal Justice Act 2003
. Paragraph 4 (1) of the Schedule provides that the appropriate starting point where the seriousness of the offence is exceptionally high and the offender is over 21 is a whole life order. Cases normally falling within that category are described in paragraph 4(2) as including:
(b) “The murder of a child involving abduction or sexual or sadistic motivation.”
A child is defined as a person under 18.
3.
Paragraph 10 of Schedule 21 sets out some of the aggravating circumstances the court is to consider; paragraph 11 sets out some of the mitigating factors. When determining whether a whole life order should be made the court does not take account of the need to protect the public against the future risk of offending.
4.
In
Attorney General’s Reference No 69 of 2013 (McLoughlin)
[2014] EWCA Crim 188
, this court set out the background to
the 2003 Act
in a challenge under the
Human Rights Act 1998
to the scheme set out in
the Act
and associated legislation. It held that the scheme was consistent with the Convention and considered the cases before it. At paragraph 49 the court observed:
“A court must only impose a whole life order if the seriousness is exceptionally high and the requirements of just punishment and retribution make such an order the just penalty.”
At paragraph 59, the court concluded:
“These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence….”
5.
Before turning to the circumstances of each case, it is necessary to refer briefly to the decisions of this court in
R v Jones (Neil)
[2005] EWCA Crim 3115
, [2006] 2 Cr App R(S) 19 where this court (Lord Phillips CJ, Cresswell and Mackay JJ) heard four appeals together so that it could give assistance as to the application of Schedule 21 and to
R v Oakes and others
[2012] EWCA Crim 2435
,
[2013] 2 Cr App R (S) 22
where this court (Lord Judge CJ, Hallett, Hughes, Leveson and Rafferty LJJ) gave further assistance. Even though the assistance given in those decisions will be considered by a judge before determining whether a whole life order is required, we would simply emphasise four points.
i)
The guidance given in Schedule 21 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. See
Jones
at paragraph 6.
ii)
Where a whole life order is called for, often, perhaps usually, the case will not be on the borderline; the facts will leave the judge in no doubt that the defendant must be kept in prison for the rest of his life: see
Jones
at paragraph 10.
iii)
The court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term: see
Jones
at paragraph 15. The Guideline of the Sentencing Guidelines Council which states (in its 2007 Revision) at paragraph 6.6.1 “Where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea”, must be read along with the observations in
Jones
.
iv)
The whole life order is reserved for the few exceptionally serious offences where, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment requires the imposition of a whole life order; see
Oakes
at paragraph 29.
6.
We were referred to the decision of this court in
Mullen
[2008] EWCA Crim 592
and other cases. Those cases merely illustrate the application of the principles to the facts of a specific case. Such decisions are of no assistance in determining whether a whole life order is required. In each case the judge must determine by a detailed consideration of all the relevant circumstances whether such an order is required by the application of the statutory guidance set out in Schedule 21 and assistance on the guidance given by this court in decisions such as
Jones
and
Oakes.
7.
As detailed consideration of the circumstances is required, it is therefore regrettably necessary to set out the horrific circumstances of each of the murders, because only by an objective analysis of the circumstances can a judgment be made as to whether the requirements of just punishment necessitated a whole life order in each case.
THE APPLICATION BY REYNOLDS
The planning of the murder and its execution
8.
Reynolds, then aged 22, knew his parents were going to be away from the family home in Wellington, Shropshire during the week beginning Sunday 26 May 2013. In the preceding weeks, he sent messages to a number of girls he knew, inviting them to come to the house to participate in what he described as a photographic shoot. A few of the girls showed an interest but his primary interest was in Georgia Williams, a 17 year old school girl with red hair who lived with her parents nearby. That was because, following on from incidents with other girls to which we refer at paragraphs 23-27 below, he was carefully planning the sexually motivated and sadistic murder of Georgia.
9.
That planning began no later than 27 January 2013 when Reynolds had started to write on his I-phone a story entitled:
Georgia Williams in Surprise.
He revised the piece several times, the last occasion being on 2 May 2013. In it he described how he convinced Georgia to come to his house wearing her red hair up in a ponytail and wearing red lipstick. He then described in pornographic terms how he had oral sex with her in the kitchen; how he blindfolded her, tied her hands and told her he had a surprise for her; how he took her upstairs to a position just beneath the loft; how he stood her on a box and slipped a noose around her neck; how when he removed the blindfold, she asked to be let down; how he then tightened the noose around her neck and told her that she was to dance for him; how, as he sexually assaulted her, he told her he liked his girls dead; how he then kicked the box away and again assaulted her sexually as she slowly died from strangulation; how he could not wait to have sex with her dead body. It was clearly his carefully planned intention to act out in reality a substantial part of this story. It is important to note that this was one of several stories he had written with a similar sadistic or pornographic theme.
10.
From 27 January 2013 onwards, Reynolds began to tell Georgia in texts how he liked her and how he was interested in her. She had no interest in him. He feigned an interest in artistic photography and, in texts sent to her, he indicated to her that there would be a simulated hanging as an artistic scenario. Just before 26 May 2013 he sent her a text in which he said, “Fake hanging. Just want to double check to make sure you are cool with it because it is totally safe”. He indicated that she should wear red lipstick and her hair in a ponytail. He also took steps to obtain Georgia’s password to her telephone.
11.
On 26 May 2013, Reynolds worked until 4.15 p.m. at the shop in Wellington where he had a part time job. He then went for a drink. He was described as being in good spirits. On his return home that evening he constructed a hanging mechanism – a red rope looped over an oar placed across the aperture to the loft. He photographed it and saved it to his computer. As later forensic examination showed, between 6.15 p.m. and 6.31 p.m., he accessed, from his collection of 72 videos and 16,800 images of extreme pornography, videos of partially clothed women being either strangled, their hands being tied behind their back, or hanged from a beam. Another video he accessed showed a man strangling a woman and then having sex with her dead body. He continued to send texts to Georgia about what she should wear; he also sent texts to other girls in case Georgia did not come.
12.
When Georgia left home, she told her parents that she was going to see Reynolds whom they knew. She said she was going to model for some photography. She was wearing jeans, a T shirt and jacket.
13.
After Georgia’s arrival at about 7.55 p.m. at Reynolds’s house, she changed at Reynolds’s request into a black leather jacket and shorts; Reynolds had bought a number of these and earlier made videos of himself masturbating over them. She then tied her hair back and put on red lipstick. A number of photographs taken by Reynolds showed her posing and smiling in the hallway and in the kitchen dressed in the leather jacket and shorts. There can be no doubt that Reynolds portrayed all of this as necessary for the photograph session. The next set of photographs Reynolds took were 4 minutes later. These showed Georgia standing on a box with the red rope around her neck. She was dressed in the same clothes, her hands were at her side and free. Another photograph 1 minute and 20 seconds later showed her hand held behind her back either with handcuffs he had purchased or cable ties. She was still smiling.
14.
Reynolds murdered Georgia between 8.28 p.m. and 8.50 p.m. by pulling the loose end of the rope which was around her neck, forcing her onto her tiptoes and tying it to the banister. At that point the blood supply to her brain would have been compromised but this would not have killed her. Consequently, he applied further pressure to tighten the rope by putting his knee in her back and pulling down. At some point he probably kicked away the box Georgia had been standing on. He then watched her slowly die.
15.
The pathologist’s report confirmed that the trauma to Georgia’s neck was far too great to be compatible with ordinary hanging. The marks were more typical of ligature strangulation. An expert in knots concluded that the noose was typical of a genuine hangman’s noose.
16.
Over the two hours following her murder, Reynolds engaged in sexual activity with her dead body and photographed himself doing so in different rooms in the house, including on the bed in his parents’ room and in the kitchen. By the time he photographed Georgia’s body in the kitchen, she was completely naked as was he. It is clear from the forensic evidence that he had vaginal intercourse with her dead body and took photographs of sexual assaults that he made upon her dead body. Semen was found in her mouth, vagina and anus. Her underwear, some jewellery and her mobile phone have never been found. These had been hidden by him, together with the rope, the handcuffs and clothing he had purchased for her, as trophies for later use with the photographs he had taken. His objective was to derive further sexual and sadistic pleasure. Subsequent to his sentence, he stated he had stopped at a layby in North Wales and may have thrown items away. A police search found a bag concealed in a layby; it contained the rope used to kill Georgia, the clothes he had purchased for her to wear and the handcuffs. Her jewellery and mobile phone were not found. A further inquiry of Reynolds has provided no useful information.
The further deception of her parents
17.
After murdering Georgia, Reynolds had sent social media messages to other girls he had lined up to come to his home over the following days, putting them off from coming by giving explanations in relation to problems with his camera.
18.
Just after midnight, having earlier discovered the password, he used Georgia’s telephone to send a message to her mother, “Ended up going out. Don’t know when I’ll be back”. He sent another message saying, “Phone is about to die too”. When her mother saw the messages the following morning, she enquired by text as to where Georgia was, who she was with and how she was getting home. Reynolds used her mobile telephone to reply, “Stayed with friends, I’ll see you tonight.” Georgia’s sister was also anxious and sent a message to Reynolds. Reynolds replied that Georgia had left the previous evening and suggested she had gone to meet some people.
19.
On the morning of 27 May 2013 Reynolds’s sister went to the family house. She spoke to Reynolds and he appeared normal. She saw nothing untoward.
His disposal of the body
20.
By that time it appears from the subsequent investigation that Reynolds had already moved Georgia’s body into the back of his stepfather’s van. Later that morning he drove off in the van. He took with him her body, a sleeping bag and tent, his external hard drive with the photographs he had taken of Georgia alive and dead, videos of strangulation, hanging and sexual violation of dead women as well as some of the CDs which contained extreme pornography. He drove to North Wales, passing through the Nant-y-Garth Pass to Rhyl and then to Wrexham where he went to a cinema to see a film Georgia’s boyfriend had invited Georgia to see with him. After seeing the film, he drove towards Ruthin and back to the Nant-y-Garth Pass. There he drove up a track into an isolated wooded area. He could not get very far before the van got stuck. He then dragged her body from the van into the trees. He left her body, completely naked, lying in a stream.
21.
On 28 May 2013, as there had been no word from Georgia, her parents contacted the police. An alert was put out for Reynolds. He was tracked to the Premier Inn in Glasgow. In the meantime the police in Shropshire had entered his home and found his IT equipment which gave an insight into what had happened. Georgia’s body was found the following Friday. It had been attacked by animals and insects.
22.
When interviewed, Reynolds initially denied any knowledge of her whereabouts after her leaving his house on Sunday. As the police disclosed some of the evidence they had discovered in the intervening period, he claimed loss of memory. He then offered limited pieces of information. After Georgia’s body had been found he was asked if he accepted he was responsible for her death. He replied, “Even though I don’t remember it, it does certainly look that way. I hate myself for it. I don’t. I never wanted to hurt her”.
Similar conduct by Reynolds
23.
It is clear from what we have already set out that this was a carefully planned, sadistic and sexually motivated murder. That is confirmed by further evidence of other incidents involving Reynolds.
24.
The first was in January 2008 when he was 17. He invited a 17 year old female with red hair to his house to take part in what he described as a media project when his parents were away. When she arrived, she declined his invitation to go upstairs or into the kitchen; he attacked her, grabbing her round the neck. She fought back and ran from the house. When she got home she checked her social media messages and saw he had sent her a message before she got to the house suggesting she wear black, knee-length boots. He apologised subsequently for what he had done. He said he had received counselling but he had relapsed. That was untrue. He was arrested and in interview minimised the whole episode. However, two weeks later Reynolds’s stepfather found images in Reynolds’s bedroom and handed them to the police. They were images of naked females being strangled and suffocated. There were also pictures of females with digitally added nooses round their necks. Reynolds was issued with a final warning by the police and required to undergo counselling. In a review of the medical notes relating to this incident, subsequently carried out by Professor Pickett, a consultant psychiatrist retained by the Crown after the murder of Georgia, the professor concluded that this incident was an attempt to control the victim with a view to a sexual or asphyxiation attack. Despite steps taken by Reynolds’s step-father, Reynolds continued to access extreme pornography.
25.
The second incident was two years later in 2010. Reynolds began contacting a second female who also had red hair. He continued to pester her, but she refused to engage with him. When she confronted him in a car park in August 2011 and told him to his face to stop, he reacted violently by reversing at speed into her parked car. In one of the stories, to which we have referred at paragraph 9, Reynolds had written about her; he had an innocent picture of her to which he had added digitally a rope round her neck.
26.
The third incident was in February 2013. Reynolds invited a third female with red hair to his house. His parents were away. Reynolds had photographs of this female to which he had added a rope around her neck, ties round her wrists and ankles and two images of penises ejaculating over her. He had given the image the title, “Hanging [the name of female 3]”. This female went to his house and when, at around midnight, she went to leave she found the doors locked. Reynolds claimed he had lost the key. He suggested she should stay the night but she refused. He pretended to search for the keys and found them after she had started to scream and climb out of the window. She got out and went home. Over the next four weeks Reynolds sent her messages apologising and saying he had only been joking. After she had left, Reynolds made a note to himself on his telephone which read, “Remove oar from loft. Cable ties out of drawer. Trousers back in wardrobe.” The note was clearly a reminder to replace the paraphernalia which he was subsequently to use to hang Georgia as we have set out at paragraphs 11 to 14. He wrote a story on 26 April 2013 about this female entitled “Taxi Strangler”.
27.
The police investigation found pictures of other females with the digital addition of ropes round their necks or hanging from a gibbet or the subject of sexual images, together with stories of strangulation and sexual assault.
28.
There can be no doubt on the facts of this case that a material factor in the criminality that led to the three incidents we have described and the sadistic murder of Georgia and the degradation inflicted on her body was the ready accessibility of extreme pornography of the type we have had to describe.
The psychiatric reports
29.
There were reports from two psychiatrists.
i)
Professor Pickett, who, as we have mentioned, had been retained by the Crown, concluded Reynolds did not meet any of the statutory criteria for a defence of diminished responsibility. He found that there was no evidence of significant or substantial mental illness; there was nothing to suggest that he had any symptoms of psychosis prior to his remand for the murder of Georgia. Violence during his early childhood had occurred but he had thereafter been well cared for by his natural mother and stepfather; his early upbringing did not account for his behaviour. He might have suffered a brief depressive reaction after being apprehended for the assault on the first female in 2008. He also concluded that he had necrophiliac propensities. His only explanation for Reynolds’s behaviour was that he wanted to hang a girl and have sex with her corpse to fulfil his longstanding necrophiliac fantasy. He concluded that Reynolds posed a grave risk to women and would continue to do so for the rest of his life. As he was intelligent, plausible and capable of learning new tactics and strategies, he clearly had the potential to progress to being a serial killer.
ii)
Dr Katina Anagnostakis, a consultant forensic psychiatrist retained by those acting on behalf of Reynolds, concluded that he had suffered from paraphilia for several years, at least since his mid-teens. Typical features of paraphilia include an individual experiencing recurrent, intense sexual urges and fantasies involving unusual activities or objects. She concluded that in Reynolds’s case he had an interest in violent, sadistic pornography, a propensity to access such material through a number of means, urges to enact some of his violent fantasies, a preoccupation with violent pornography and a lack of control over his propensity to act on it. Although there was no evidence that Reynolds had a psychotic illness at the time he murdered Georgia, he was experiencing high levels of psychosocial stress which heightened his sexual preoccupations; he suffered low mood.
Victim personal statements
30.
It is clear from the statement of Georgia’s father provided to the trial judge that Georgia had been part of a warm and loving family. At school she was a student mentor and counsellor and had become Head Girl. She was a corporal in the RAF Air Cadets and loved outdoor life. Her dream was to join the Air Force. He described how the actions of Reynolds had not only taken Georgia’s life but taken the life of her family as well. Her father said he was not ashamed to say that each day he cried endlessly. His wife cried herself to sleep each night and was violently woken by dreams and images of what had happened to Georgia.
31.
It is clear from a further statement provided to this court that the family’s grief and suffering will never abate.
The course of the proceedings
32.
Reynolds was sent for trial on 1 June 2013. A trial was fixed for 9 December 2013; on 2 December 2013, a few days before, he pleaded guilty. Although the evidence we have set out showed that there was no conceivable defence to the act of killing Georgia, he did not even admit that. Georgia’s parents had to endure the prospect of a trial and the Crown had to prepare for trial. On 18 November 2013, Dr Katina Anagnostakis submitted her second report in which she said that there was insufficient evidence of psychotic illness or personality disorder. It was only after that report that it was indicated he would plead guilty.
33.
The plea of guilty was taken before Wilkie J at the Crown Court at Stafford. On 19 December 2013 Wilkie J sentenced him to life imprisonment with a whole life order. The only issue before the judge had been whether a substantial minimum term with a 30 year starting point or a whole life order should have been imposed.
34.
The judge concluded, after considering the detail of the circumstances of the offence which we have summarised, that the seriousness of the offence was exceptionally high and fell within paragraph 4(2)(b) of Schedule 21. There had been a significant degree of planning and premeditation. The method of murder was designed to give him sadistic and sexual pleasure. Meticulous preparations had been made. The victim was plainly vulnerable. Horrible mental and physical suffering had been inflicted before death; he had watched her suffer and die. He had violated the body after death; there had been concealment and dismemberment of the body. He had kept trophies. He concluded that this was not a marginal or borderline case.
35.
The judge concluded that the only mitigation was the plea of guilty and the fact that Reynolds was only 22 years of age. The guilty plea counted for little given the overwhelming evidence, its lateness and the lack of any genuine remorse. His young age had to be taken into account, not only because the impact of a whole life term would be much greater, but the court had always to have regard to maturity, insight and understanding which might affect culpability. In his case his actions were not accounted for by immaturity but were in character, as he had been obsessed for at least five years with sexual violence against women, strangulation and sexual violation after death. The psychiatric reports provided no evidence that lowered his culpability.
The submission made on behalf of Reynolds
36.
Mr Michael Duck QC on behalf of Reynolds submitted to us that the judge had failed to take into account the reason for the lateness of the plea. It had been indicated at the pre-trial hearings that there were issues as to fitness to plead and diminished responsibility. Until both had been investigated, no plea could be made. As soon as the second report had been received from Dr Katina Anagnostakis, Reynolds had been seen in conference on 25 November 2013 and the Crown told that there would be no trial; he should therefore have received credit for an early guilty plea as it was proper to explore the possibility of a plea of diminished responsibility.
37.
The judge had failed to give proper weight to the fact that Reynolds was 22 years of age and the fact that Georgia was 17 years old – only just a child within the statutory definition. Nor had the judge given sufficient weight to the evidence of the psychiatrists.
Our conclusion
38.
As we have explained at paragraphs 5 and 6, a trial judge must take into account all the circumstances of the case. We have no doubt that Wilkie J did. As to the mitigating factors, the judge rightly gave little weight to the guilty plea; Reynolds did not admit he committed the killing until a few days before the trial; the evidence was overwhelming and we can find nothing in the psychiatric evidence that in any way justifies the failure to admit the killing, even if the mental element needed investigation. He showed no remorse.
39.
As to Reynolds’s young age, it was clear from the evidence we have set out that the determination to commit the kind of grotesque murder he carried out was of long standing; the planning for the murder was very careful, the suffering inflicted was indescribable and motivation both sadistic and sexual. There is no psychiatric evidence that in any way provides any exculpatory explanation. Where there is a difference between the psychiatrists, we prefer the evidence and clear analysis of Professor Pickett. Not only does it set out the lack of any exculpatory explanation, but clearly demonstrates that Reynolds was a clever, resourceful and manipulative man who was determined to carry out a murder for sadistic and sexual pleasure. The fact that Georgia was 17 years old was not a material consideration; Parliament provided that she was to be considered as a child. In any event, she was without doubt vulnerable to the premeditated plans of Reynolds, as one of the perverted sexual attractions was the closeness in age which facilitated the commission of the offence.
40.
It is unnecessary for us to elaborate upon the aggravating factors – the long standing desire to commit such a crime, the detailed planning, the females he had in reserve, the way in which he watched Georgia slowly die, his degradation of her body by his sexual violation of it, the taking of trophies and the dumping of the body.
41.
Quite apart from the future danger Reynolds poses (which is not a matter for the sentencing judge), the judge was plainly entitled to conclude, for the reasons we have given, that the only just punishment for the murder of Georgia was a whole life order. There is no basis on which it can properly be argued that a whole life order was not required. The application is refused.
THE APPLICATION BY ROSSER
The murder of Riley Turner
42.
On 19 January 2013 Rosser, then aged 32, after drinking in a pub in the Keighley area, went with two friends to visit Sharon Smith and her partner Guy Earwaker. They lived nearby with Sharon Smith’s son, Riley Turner, his twin brother and baby brother. Riley and his twin were four years of age. The friends left. Rosser asked if he could stay the night; he had known them for some months and they had helped him furnish his flat. He said that persons to whom he owed money were waiting outside. Although drunk he was coherent; he was able to walk and in control of his actions. They agreed to let him sleep on the sofa on the ground floor, as they took pity on him.
43.
At about 1 a.m. Sharon Smith and her partner went to their bedroom, checking on Riley and his brother; each had his own bedroom. Their baby son was in their bedroom. At some time between 4 and 4.30 a.m. Sharon Smith woke to find Rosser was at the side of her bed, curled up in a ball with his head down. She woke her partner and told Rosser to get out. He asked for some tobacco, said he had been there for some time and was sorry. He went.
44.
Almost immediately after, Sharon Smith asked her partner to check that Rosser was not in the bathroom as she needed to use it; her partner got up. As he left the bedroom he noticed on the floor the blade of an electric knife that he had been using earlier in the day in the kitchen. He saw the light was on in Riley’s bedroom. He went into the room and saw Riley covered in blood; shocked and unable to speak, he went back to the bedroom. Sharon Smith went into Riley’s room. She found Riley dead with his throat cut and multiple stab wounds to his body. His pyjama bottoms had been taken off.
45.
As Sharon Smith had asked her partner to check the bathroom almost immediately after Rosser had left their bedroom, Rosser must have killed Riley before entering their bedroom.
46.
Subsequent investigation and a post mortem examination showed that Riley had been fit and healthy at the time of the attack upon him. The findings in relation to his murder can be summarised as follows.
i)
Bruising of the skin on the chin and jaw and asphyxial features present in the eyes indicated that Rosser had placed his hands around Riley’s neck and strangled him.
ii)
There were 30 separate stab wounds to multiple parts of his body. 14 of these were to the neck, including a large stab wound to the centre of the neck which had penetrated deeply into the neck, severing the trachea. Two stab wounds penetrated deeply into that wound and partially severed the spine. There was an immediate and severe haemorrhage.
iii)
In addition there were five stab wounds to the back. There were a further five stab wounds to the chest and penetrating wounds to the chest wall; both lungs had been deeply penetrated.
iv)
There were six stab wounds to the abdomen; the knife had penetrated the anterior wall of the stomach.
v)
There was one stab wound to the left side of the boy’s scrotum through which the left testis was protruding.
vi)
Inside Riley’s rectum was a marker pen. Injuries to the rectum indicated that repeated rectal insertions by an object had been performed. These were associated with multiple penetrating injuries to the bowel wall with some significant haemorrhage into the adjacent tissues indicating that they were inflicted whilst the boy was still alive or near to the time of his death.
vii)
There was a bite mark on the outside of the upper left thigh; there was no doubt that during the attack Rosser had bitten Riley hard.
viii)
Analysis of the pair of pyjama bottoms showed they were stained with urine and blood. The expert view was that his pyjama bottoms were removed after they became wet with urine and after he had sustained at least some of his injuries.
ix)
A coat hanger was also found on Riley’s bed. This had on it faeces and blood from Riley; the expert view was the coat hanger had been inserted into the child’s anus to a substantial depth.
x)
The cause of death was manual strangulation with multiple stab wounds and incised wounds.
47.
A brown handled knife used to stab Riley was found at the side of the bed in Sharon Smith and Guy Earwaker’s room. That knife had been taken by Rosser from a public house at which he had been working; the clear inference was that Rosser took the knife to the scene. It was not, however, the prosecution case that Rosser took it to the scene to attack one of the occupants; it could never be known whether that was his motive; however, the prosecution accepted that it was a realistic possibility that he carried the knife as a general part of the paranoia he was experiencing and expressing at the time. Two more knives were found in Sharon Smith and Guy Earwaker’s bedroom, a silver handled knife and a black handled knife in addition to the knife that Guy Earwaker had found earlier and the brown handled knife. It was apparent that after killing Riley, Rosser entered their bedroom with the four knives. It was clear from the whole of the forensic evidence that the knife Rosser used to kill Riley and inflict the other injuries was the brown handled knife he had brought with him to the house.
The apprehension of Rosser
48.
When they were in Riley’s bedroom the front door slammed; Rosser must have waited to listen to their distress. Guy Earwaker realised what Rosser had done and that he was leaving. He went after him but he got away. Later that morning he broke into a caravan where he was discovered. He responded, “I have ruined my life”. The police were called and he was arrested. He told the police, “I know I have done summat but I don’t know what. After what I have done I am a piece of shit”.
Basis of plea
49.
Rosser pleaded guilty on the basis that he had no recollection of killing the victim but accepted that the evidence proved he killed the victim and he must have done so unlawfully and with an intention to kill. His actions were unpremeditated. He did not accept there was a sexual motivation in any of the terrible things he did to the victim. He could not find the words to express the depth of his remorse or to frame an appropriate apology for what he had done and the loss he had caused. He was as sorry as it was possible to be and entirely accepting of the punishment the court had to impose.
The impact on Sharon Smith and Sharon Smith’s mother, Riley’s grandmother
50.
In the personal statements made by Sharon Smith and her mother each described utter shock and fear. Sharon Smith described how she had panic attacks when a man walked past or was behind her. She described the effect on Riley’s twin and the upset and anger that he felt. She felt guilty at having allowed Rosser to stay the night. Sharon Smith’s mother set out how the murder of Riley had ruined the family. She had lost faith and trust in anyone.
Previous convictions and psychiatric state
51.
Rosser was 33 years old at the time of the murder. He had a number of convictions for criminal damage, dishonesty, two minor offences of violence and driving offences, including the offences of driving with excess alcohol. In December 1996 he received a caution for assault occasioning actual bodily harm. In addition a complaint was made to the police that in or around 1996 Rosser attacked a boy at a party whilst he was asleep in a bedroom upstairs, smashing a trophy into his head and causing a laceration that required 14 stitches.
52.
A number of psychiatric reports were before the court. These showed that at the age of nine, Rosser had been referred to Child and Family Mental Health Services after fire setting; a consultant psychiatrist recorded that he was an impulsive child who caused trouble if he was bored, as well as being deceitful and a persistent liar. Albeit the fire setting had not recurred, he had been bullying others at school. In July 2003 he was diagnosed with a depressive disorder and as suffering from alcohol dependency syndrome.
53.
The psychiatric reports showed that Rosser was fit to plead and that there was no mental or other condition that gave rise to circumstances of diminished responsibility. The conclusion was that he suffered from a personality disorder, specifically an anti-social personality disorder; he was diagnosed as suffering from psychopathy. He had at the time of the killing of Riley an alcohol dependency syndrome.
54.
Dr Kent, a psychiatrist instructed on behalf of the Crown, concluded that the murder had all the hallmarks of a sadistically motivated offence, perhaps linked to sadistic sexual fantasies and deep-seated sexual pathology not revealed by the perpetrator. He expressed the view that he presented a high risk of serious or grave harm to the public and would do so for the foreseeable future.
The decision of the judge
55.
Rosser was sent for trial on 22 January 2013; he pleaded guilty on 13 February 2014 at the Crown Court at Bradford before Coulson J. The very significant delay was brought about by the failures of the defence to provide their expert reports in accordance with the directions of the court. Coulson J was rightly critical of the delays which he was satisfied caused real and unacceptable suffering to Riley’s family. We will ask the Criminal Procedure Rule Committee to consider whether amendments to the Rules are required or what other steps should be taken to ensure that experts comply with the orders of the court so that unacceptable delays of the type experienced in this case are avoided.
56.
The only issue before the court was whether a significant minimum term should be passed or whether the judge should impose a whole life order as the murder fell within paragraph 4(2)(b) of Schedule 21.
57.
The judge concluded that there was a sadistic motivation from the catalogue of injuries and from Rosser’s conduct in going into the parents’ bedroom and in waiting downstairs after committing the murder, so he could hear the reaction of Riley’s mother and her partner when they found the body. In addition the murder had a strong sexual component and had been carried out in breach of trust as he had been allowed to stay the night. The judge concluded that it had been premeditated. Rosser had gone upstairs with four knives (including a knife he had stolen from the restaurant at which he worked) and at that time clearly intended to kill or cause really serious bodily harm.
58.
None of the many experts suggested his antisocial personality disorder and psychopathy significantly reduced his criminal culpability or that his responsibility was in any way diminished. He knew full well what he was doing. His intoxication that night, even if triggered by the alcohol dependency syndrome, was self-induced; the evidence was that he was able to hold a rational conversation that evening.
59.
The judge concluded that the aggravating factors significantly outweighed the mitigating factors of his personality disorder, his considerable remorse and his guilty plea. As to the guilty plea, the evidence against Rosser was irrefutable and could count for little. There was nothing in the material before the court that could or should lead the court to depart from the statutory starting point of a whole life order. He was in no doubt. The judge therefore imposed a whole life order.
The submissions made on behalf of Rosser
60.
It was first submitted that the judge had been wrong in his conclusion as to there being a sexual component as an aggravating factor. There was no DNA evidence relating to the commission of a sexual offence recovered from Riley or from the scene of the murder; there was no evidence of any inappropriate sexual materials being recovered from Rosser’s premises; Rosser had no convictions for sexual offences and he had not been charged with any sexual offences. It had been unfair for the judge to conclude that the murder involved a sexual component. The judge had also acted unfairly in concluding the murder was premeditated; the judge’s findings as to the bringing of the knives to the house was wrong; the Crown had not opened the case on that basis.
61.
It was submitted that Rosser’s convictions were minor. The judge had been wrong to make no allowance for Rosser’s alcohol dependency syndrome. The intoxication had not been self-induced. The judge had not made a sufficient distinction between a mental condition that would allow a partial defence to murder and a mental condition that could be taken into account in assessing the culpability of Rosser. The Crown had accepted that the personality disorder played a major part, in combination with drink, in causing Rosser to kill Riley.
62.
The judge had made no proper allowance for the remorse and guilty plea. The judge had not taken into account the fact that when a defendant had pleaded guilty to murder the court should take into account the plea in deciding whether it was appropriate to order a whole life term.
Our conclusion
63.
It was not and could not be disputed that the murder involved sadistic motivation. We cannot accept the argument that the judge was wrong in finding it also had a sexual component. Although Rosser did not commit sexual acts which would have resulted in his DNA being deposited on Riley, the conclusion that the murder was sexually motivated was well founded; Rosser inserted a metal coat hanger to a depth of 15 centimetres into Riley’s anus either before he died or shortly thereafter and left a marker pen in his anus; he cut into his testicles and left one exposed. These actions went beyond the sadistic infliction of the other injuries into the deliberate commission of acts that were sexually motivated.
64.
Nor can we accept that the judge was wrong to find a degree of premeditation, though as the judge said, the murder was not long planned. Rosser went upstairs with four knives with the plain intention to kill. Nor can we accept that the judge was wrong in his view as to the significance of the violent offence in 1996 or of his past conduct which was characterised by violent behaviour after drink.
65.
We accept that there may be cases where the fact that a plea of guilty has been tendered may be of relevance in determining whether just punishment requires a whole life order. In the circumstances of this case, it is of no relevance. As the judge rightly observed the evidence against him was irrefutable. There was, however, considerable remorse which the judge properly took into account.
66.
The criticism of the judge in respect of the account he took of Rosser’s antisocial personality disorder and psychopathy is misplaced. The judge took it into account, but made clear that its extent should not be overstated as none of the experts suggested that the disorders significantly reduced culpability.
67.
It is evident, in our view, that the judge took into account all the circumstances of the case; he was entitled to give to each of those circumstances the weight he gave them. This was plainly a murder of a young child that was sadistically and sexually motivated. The judge was entitled to conclude that the only just punishment for the murder of Riley was a whole life order. There is no basis on which it can properly be argued that a whole life order was wrongly imposed. The application is refused. | [
"MR JUSTICE SWEENEY"
] | 2014_10_31-3496.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2205/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2205 | 846 |
c27184e65c5f32d70f8e108e1faf5711db70101eac8ebbe2f4968d3a280801de | [2019] EWCA Crim 2011 | EWCA_Crim_2011 | 2019-11-12 | crown_court | Neutral Citation Number: [2019] EWCA Crim 2011 2019/03476/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th November 2019 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE WARBY and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - JOHN THOMAS SMITH ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, | Neutral Citation Number:
[2019] EWCA Crim 2011
2019/03476/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 12
th
November 2019
B e f o r e:
LORD JUSTICE HOLROYDE
MR JUSTICE WARBY
and
HER HONOUR JUDGE MUNRO QC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E G I N A
- v -
JOHN THOMAS SMITH
____________________
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__________________________
Mr M Watson
appeared on behalf of the Appellant
______________________
J U D G M E N T
(
Approved
)
______________________
Tuesday 12
th
November 2019
LORD JUSTICE HOLROYDE:
1.
The appellant appeals by leave of the single judge against a sentence of eight months' imprisonment for an offence of affray. He contends that the sentence should have been suspended.
2.
The offence was committed in busy licensed premises on the evening of 11
th
November 2017. It was captured on CCTV. The footage was seen by His Honour Judge Taylor in the court below and has been seen by this court. The appellant appears to have been part of an extended family group, which included at least one child. He was clearly intoxicated.
3.
Some of the customers were dancing near the bar. The appellant went to the bar and appeared to be amused by the manner in which one of those customers, Mr Osbourne, was dancing. He parodied Mr Osbourne's movements and then took hold of him behind. Others intervened to pull the appellant away. He began to shadow-box. There followed a confrontation between the appellant and others at the bar who were in Mr Osbourne's group. A physical maul developed. The appellant's father tried to intervene, but then the appellant threw Stuart Wade onto a pool table. The appellant was pulled away by others, but then punched Victoria Wade in the face. She fell against the pool table and then onto her knees on the floor. The appellant engaged with Larry Smith and punched him, causing him to fall to the floor unconscious, although he did not support the prosecution. The appellant left the building, but then re-entered and punched Mr Osbourne to the floor. This ugly scene was witnessed by other customers, including children.
4.
Mr and Mrs Wade were taken to hospital. Mr Wade had a small, superficial laceration over his right temple, which was cleaned and dressed. Mrs Wade had significant tenderness over the back of her neck, along her spine and over the bridge of her nose. She was given pain medication. Both were discharged.
5.
In a Victim Personal Statement made about six months later, Mrs Wade said that she remained anxious as a result of this incident. She had initially been medicated for about two weeks and had experienced panic attacks. She still felt unable to go out and socialise. She had not returned to the scene of the incident, even though she had previously been a customer there for about twelve years. She became upset if she thought about what had happened.
6.
The appellant was aged 22 at the time of the offence. He is now 24, a married man with three young children. He was employed in a roofing business which he had established. His only previous convictions were for two offences of assaulting a constable, committed when he was aged 20, for which he had been fined. As a 17 year old, he had received a formal reprimand for using disorderly behaviour.
7.
The judge had the assistance of a pre-sentence report which assessed the appellant as posing a low risk of re-offending and a low risk of causing serious harm to others. The judge also had a character reference from a teacher who knows the appellant well. She referred to his hard work, his devotion to his family, and his efforts to raise funds for a charity.
8.
The case had, unfortunately, taken a long time to come before the court. It had twice been listed for trial, but not reached. The appellant asked to be re-arraigned and entered a guilty plea at a hearing on 29
th
August 2019 in advance of the trial which was due to begin on 2
nd
September 2019.
2
9.
There is at present no definitive guideline for sentencing in cases of affray, although one will come into effect in the near future.
10.
In his sentencing remarks, the judge said that he had no doubt, having watched the CCTV, that the appellant used sustained violence and was the cause of this incident. He said that it was conceded that the offence crossed the custody threshold and that the question he had to decide was whether he could suspend the sentence. Despite the very strong mitigation, he said, what he had seen on the CCTV meant that he could not do so. He took a sentence after trial of ten months' imprisonment, which he reduced by two months by way of credit for the guilty plea. Thus, he imposed the sentence of eight months' imprisonment.
11.
On behalf of the appellant, Mr Watson, who represents him today as he did in the court below, submits that the judge failed properly to follow the Sentencing Council's definitive guideline on the imposition of custodial sentences and was in error in his decision not to suspend the sentence. Mr Watson draws attention to the four-step process which the guideline requires sentencers to follow when imposing a custodial sentence:
(a)
Has the custody threshold been passed?
(b)
Is it unavoidable that a sentence of imprisonment be imposed?
(c)
What is the shortest term commensurate with the seriousness of the offence?
(d)
Can the sentence be suspended?
12.
In his very helpful oral submissions, Mr Watson has indicated that he takes no issue about the first three of those stages. He accepts that it could indeed be said that the length of the custodial term was on the lenient side. He does, however, focus his submissions on the fourth stage of the process. He draws attention to the requirement in the guideline that at that stage the sentencer should weigh a number of factors. Mr Watson submits that the judge should have given much greater weight than he did to the presence in this case of all three of the factors which are listed as indicating that it may be appropriate to suspend a sentence: first, a realistic prospect of rehabilitation, particularly bearing in mind that the appellant had been on bail for almost two years without further incident; secondly, strong personal mitigation; and thirdly, the fact that immediate custody would result in a significant harmful impact upon others, in particular because the appellant would lose his employment and would thus deprive the family of its income.
13.
In pointing out that the judge did not explicitly refer to the imposition guideline in his sentencing remarks, Mr Watson acknowledges that no submissions were made expressly drawing the judge's attention to it. We, nevertheless, think it clear from the transcript as a whole that the judge correctly considered the four steps which the guideline indicates. It is rightly conceded – and was in the court below – that the offence passed the custody threshold. As we have said, no complaint is made about the length of the sentence imposed. The credit given for the guilty plea may be said to have been generous, given that the appellant had had more than one opportunity to enter that plea much sooner than he did. Thus, the real issue in this appeal is the same issue as was the focus of the judge's attention, namely, whether the sentence must take effect immediately.
14.
We accept the submission that the factors listed in the guideline as favouring suspension were present. That, however, does not conclude the issue in favour of the appellant, because the guideline also requires consideration of factors indicating that it would not be appropriate to
2
suspend the sentence, one of which is that appropriate punishment can only be achieved by immediate custody.
15.
The appellant is plainly a hard-working man with many good qualities and, in the ordinary way, he lives a law-abiding life. On this occasion, however, he committed a serious offence. He used violence against more than one victim; he caused harm to one of those victims which still affected her months later; and he returned to the scene after the incident had apparently ended in order to strike a final, powerful blow before leaving. His previous convictions, though few in number, were an aggravating factor. His own intoxication and the fact that he started a violent incident in licensed premises were further aggravating factors.
16.
There was strong mitigation available but, with respect to Mr Watson's submissions - which have made the relevant points on the appellant's behalf as well as they could be made - we do not think that the matters of mitigation carry as much weight as is suggested. This is not a case in which a suspended sentence would afford a prospect of rehabilitation which an immediate sentence would obstruct or prevent. The passage of time since the commission of the offence must be seen in the context of the appellant's maintaining of his not guilty plea until almost the end of that long period. The impact upon the appellant's family is, of course, regrettable, but must be balanced against the seriousness of the offence.
17.
Having reflected upon the submissions, we have come to the conclusion that the judge was in all the circumstances entitled to find that appropriate punishment could only be achieved by immediate imprisonment. We are, therefore, unable to say that the sentence was either wrong in principle or manifestly excessive in length.
18.
Grateful as we are to Mr Watson for his submissions, the appeal accordingly fails and is dismissed.
__________________________________
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________________________________
3 | [
"LORD JUSTICE HOLROYDE",
"MR JUSTICE WARBY"
] | 2019_11_12-4758.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2011/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2011 | 847 |
ccd3f432a86c9d43c0866300927ed81e4e45d6106805fd831af048dc70cd5d6d | [2003] EWCA Crim 3556 | EWCA_Crim_3556 | 2003-12-08 | supreme_court | Case No: 200201065 S4 Neutral Citation Number: [2003] EWCA Crim 3556 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION Royal Courts of Justice Strand, London, WC2A 2LL Date: Monday 8 th December 2003 Before : LORD JUSTICE KAY MR JUSTICE SILBER and MR JUSTICE LEVESON - - - - - - - - - - - - - - - - - - - - - Between : RUTH ELLIS Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Case No:
200201065 S4
Neutral Citation Number:
[2003] EWCA Crim 3556
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Monday 8
th
December 2003
Before :
LORD JUSTICE KAY
MR JUSTICE SILBER
and
MR JUSTICE LEVESON
- - - - - - - - - - - - - - - - - - - - -
Between :
RUTH ELLIS
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr D Perry and Mr R Whittam
instructed for the Crown
Mr M Mansfield QC and Ms A Shamash
instructed for the Appellant
Hearing dates: 16
th
and 17
th
September 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Kay:
1.
On 21 June 1955 following a trial at the Central Criminal Court that lasted for 2 days, Ruth Ellis was convicted of the murder of David Blakely. She was sentenced to death. She did not appeal against her conviction. The death sentence was carried out on 13 July 1955 and she was, as a result, the last woman to be hanged in the United Kingdom. At the time the case attracted considerable publicity and the decision by the then Secretary of State not to reprieve her was one with which many people disagreed. In the debate that was then raging about the use of the death penalty, the carrying out of the death penalty upon her was almost certainly one factor that influenced thinking on the issue.
2.
This case is not, however, in any way about the decision as to whether she should have been executed but raises the more fundamental question whether she should have been convicted of the offence of murder in the first place. Following her execution and for the many years thereafter, members of her family campaigned about the injustice that they perceived had befallen her. In due course the case was referred to the Criminal Cases Review Commission ("the CCRC"). By a decision dated 21 February 2002, the CCRC concluded that there was a real possibility that the conviction would not be upheld if a reference was made to the Court of Appeal and accordingly, despite the fact that there had been no appeal at the time or since, made such a reference. This is, therefore, the first opportunity that the Court of Appeal has had to consider the conviction.
3.
It was never in issue that Mrs Ellis had shot Mr Blakely. Indeed her statement under caution made to the police soon after the shooting included within its first few words Mrs Ellis saying "I am guilty". It seems from other documents that we have seen that she probably considered herself to be guilty of murder and a letter written to the victim’s mother at the time rather confirms that that was her thinking. However at trial she pleaded not guilty and her very experienced defence team sought to persuade the jury that the proper verdict was one of guilty of manslaughter by reason of provocation rather than guilty of murder. A ruling made by the trial judge, Mr Justice Havers, before closing speeches were made to the jury, effectively rendered that argument an impossible one to maintain. As a result, Mr Melford Stevenson QC, who was leading counsel for the defence, considered that he could no longer address the jury and invite them to acquit of murder. He, therefore, made no closing speech and the jury after hearing the judge’s summing up, which confirmed his earlier ruling, convicted Mrs Ellis of murder in under a quarter of an hour.
4.
The appeal with which the court is now concerned primarily focuses on the ruling of the judge about provocation and the consequent directions to the jury. A further point was taken in the grounds suggesting that, not withstanding that the statutory defence of diminished responsibility had not been created at the date of trial, the court can still conclude that factors that might today have permitted such a defence to succeed, render the conviction in 1955 unsafe.
5.
At this stage we should perhaps set out in some detail the evidence at trial, very little of which was disputed.
Facts
6.
Mrs Ellis was 28 years old. She was a married woman, who had separated from her husband and had 2 children. The deceased, Mr Blakeley, was aged 25. He had only worked intermittently and spent most of his time racing motorcars and building cars. The couple met in the middle of 1953 and a friendship developed between them. At that time the deceased was engaged to another woman.
7.
Shortly after their meeting, Mrs Ellis became the manageress of a small club in Knightsbridge. She had a small flat above the club where she lived with her son, her daughter living with her ex-husband. The deceased moved into her flat almost immediately, living there from Monday to Friday. Mrs Ellis told the jury that he was very concerned about her and seemed very devoted to her. She was asked if she was "very much in love with him then" and she replied that she was not really.
8.
In December 1953, Mrs Ellis realised that she was pregnant. The deceased offered to marry her but because she was not really in love with him and thought that it was unnecessary to marry him, she decided instead to terminate the pregnancy and an abortion was carried out in February 1954.
9.
They carried on seeing each other until the following June. Mrs Ellis said that at this time she "did not take the affair seriously" and she explained that the deceased was still engaged to the other girl and it was not until he broke off his engagement that she thought their relationship was serious. She said that she "gave him an inkling" that she wanted to break off their relationship, telling him that it was not good for the business which she was running that she was living with him. She said that he did not like it all when she said this.
10.
In the middle of 1954, she met another man called Desmond Cussen, who was a member of the club. In the June, the deceased went away for 2 weeks to Le Mans to race his motorcar and Mrs Ellis began an affair with Desmond Cussen. She believed that this would bring to an end her relationship with the deceased but on his return he came to see her and she did not tell him about her affair with Cussen. She said that he was getting "rather jealous" by this stage and wanted to know what she had been doing. She added "but, of course I did not tell him". Their relationship resumed.
11.
Shortly after his return, he asked her to marry him. He told her that he had broken off his engagement to the other girl. Her husband had started divorce proceedings against her and she decided not to contest these so that she could marry the deceased.
12.
After he had asked her to marry him, she said that he became very possessive and jealous but he seemed devoted to her. She did not altogether trust him because one night he stayed away and returned with love bites on his back. She asked him to leave and he did. The next day he came to the club and apologised, saying that he loved her.
13.
They resumed their relationship but he started causing trouble in the club, objecting to her working there. She was having to give him money all the time and was paying for all his drinks in the club.
14.
By October 1954, he had become violent towards her on occasions. She said that it was always because of jealousy in the bar. He would hit her with his fists and she was bruised on many occasions. She made numerous efforts to end the relationship. She described herself as having begun to "feel ill with it all".
15.
Eventually, in the December, she moved out of her flat and into Mr Cussen’s home. She said that she thought that this would be one way of breaking off her affair with the deceased. She had not resumed her sexual relationship with Mr Cussen. However she found it impossible to avoid the deceased because he would appear at her club. Sometimes she went with him to a hotel for the night, which she explained was "because I was in love with him". She said that they were still on close affectionate terms but they would quarrel and they still had fights, in which he would hit her.
16.
In February 1955, there was an incident at Cussen’s home, when the deceased visited her whilst Cussen was away. They had been out drinking together and had both had a lot to drink. He had driven her home but did not want to leave her. There was a fight and as she put it this time "I had really been hurt". She had sprained her ankle and was badly bruised. He sent her flowers and apologised. As a result they made up their quarrel.
17.
The two again rented a room together, but Mrs Ellis suspected that the deceased was having an affair. She began to follow him. By this time she too had become jealous and anxious. After spending a night outside another woman’s home, she saw him coming out in the morning. She told him that they were finished and he moved out. However, a week later he came back and they resumed living together.
18.
In March, Mrs Ellis found that she was pregnant. The deceased was initially happy about it and wanted her to have the baby. However at the end of March he was again violent to her and on this occasion punched her in the stomach. A few days later she miscarried although she said that she was not sure if this had been caused by his violence.
19.
In spite of her recent miscarriage, on 1 April, Mrs Ellis went to watch the deceased race at Alton Park. When his car blew up before the race, he blamed her.
20.
The week before the killing was noteworthy in that Mrs Ellis had become ill following the miscarriage and was bedridden for much of the week. The deceased was kind and appeared devoted. The couple planned to spend the Easter weekend together. On the Good Friday, the deceased left the flat that they shared in the morning, promising to return at 8 pm to take her out for a drink with racing colleagues, the Findlaters. However he did not return.
21.
Eventually she telephoned the Findlaters to enquire as to his whereabouts. Anthony Findlater told her that the deceased was not at his home. As the evening wore on Mrs Ellis began to suspect that the deceased was indeed at the Findlaters. She asked Mr Cussen to drive her to Hampstead. Outside the Findlaters house she saw the deceased’s car. First she rang the doorbell and when no one answered she went to the nearest telephone box. Whoever answered the telephone put the receiver down on her. She said that she was "absolutely furious" with the deceased and that she wanted to see him and ask for his keys back. Mrs Ellis kept telephoning and could hear a female giggle in the background.
22.
She responded to the situation by pushing in the windows of the deceased’s car. The police were called and on their advice, she left.
23.
She described to the jury how that night she did not sleep. She was "still in a temper" and she was very upset and not well. The next day she went back to the Findlaters’ house. She said that by this time, she was "behaving just like a typical jealous woman". She stood in the doorway to a house opposite watching their front door. She was invited into the house, which was for sale, and whilst the occupier made her tea, she sat and watched the Findlaters’ house and saw the deceased enter the building with the Findlaters.
24.
She went home but remained obsessed by his absence and the unexplained change in his behaviour. She decided to go back again. She stood in the street listening to the noise inside the house, gaining the impression that there was a party going on. She waited outside until she saw the deceased leave the house, putting his arm around a young woman, whom she presumed was the Findlaters’ nanny. She left the area for a short while, returning again just after midnight to find that they had all returned and the lights were off. By now she was persuaded that the deceased might be having an affair with somebody else. She finally returned home.
25.
She told the jury that she was very upset. At 9 am on the Sunday morning, 10 April 1955, she telephoned the Findlaters again. She thought that if the deceased was sleeping alone in the lounge, he would be the one to answer the telephone so that the other occupants would not be disturbed. When Mr Findlater eventually answered the telephone, she said "I hope you are having an enjoyable holiday because you have ruined mine".
26.
Again she anticipated that the deceased would ring but he did not do so. She said that she had completely forgotten what she did for the rest of that day. At about 7.30 pm she put her son to bed. She was very upset and had "a peculiar idea" that she wanted to kill the deceased. According to Mr Cussen she asked him to drive her to Hampstead. In her evidence, she said that she took with her a gun.
27.
In her statement to the police, she said about the gun:
"I then took a gun which I had hidden and put in my handbag. This gun was given to me about three years ago in a Club by a man whose name I do not remember. It was security for money but I accepted it as a curiosity. I did not know it was loaded when it was given to me but I knew next morning when I looked at it. When I put the gun in my bag I intended to find David and shoot him.
I took a taxi to Tanza Road and as I arrived, David’s car drove away from Findlater’s address. I dismissed the taxi and walked back down the road to the nearest pub where I saw David’s car outside. I waited outside until he came out with a friend I know as Clive, David went to his car to open it. I was a little way away from him. He turned and saw me and then turned way from me and I took the gun from my bag and I shot him. He turned round and ran a few steps round the car. I thought I had missed him so I fired again. He was still running and I fired a third shot. I don’t remember firing any more but I must have done."
28.
In evidence, Mrs Ellis did not go into this detail simply saying that it was correct that she had taken the revolver up to Hampstead and shot him. She was asked why she did it and she replied:
"I do not really know, quite seriously, I was very upset."
29.
She said that she had not been able to control the peculiar idea that she had formed before leaving the home of Mr Cussen.
30.
The evidence showed that she had fired all six of the rounds that were in the gun, four of which had struck the deceased. He died before reaching hospital.
31.
By way of cross-examination, the Crown asked Mrs Ellis just one question. They asked what her intention was at the time of the shooting and she responded that it was obvious that she had intended to kill the deceased.
32.
The defence called a psychologist, Mr Whitaker. His evidence was that the situation in which she found herself was one that she was likely to think was absolutely intolerable for her. She was convinced that he would return to her despite further unfaithfulness and that when he did so she would be unable to resist taking him back. He gave evidence that women were far more upset by unfaithfulness than men, finding it less easy to "separate their sexual experiences with men from their total personal relationships", and that they were as a result "more prone to hysterical reactions than men". His evidence was that the situation in which she found herself was one that she was likely to think was absolutely intolerable for her. She was convinced that he would return to her despite further unfaithfulness and that when he did so she would be unable to resist taking him back.
Ruling
33.
At the conclusion of the evidence, the judge took the opportunity to discuss with counsel the law in the absence of the jury. At the request of Mr Melford Stevenson, Mr Christmas Humphries QC, leading counsel for the Crown, said:
"My learned friend has asked me to assist him by putting my case to your lordship as it stands at this moment and, of course, I am quite happy to do that. It is contained in the one question that I put to the accused woman, that if she, when she fired that revolver at close range into the body of David Blakely, intended to kill him, and did do, that is murder, save for one thing, and that is the law relating to insanity. But she is sane, and in those circumstances it is for my learned friend to suggest anyway, in which, those facts and if that law is right, she can be other than guilty of murder."
34.
The judge then said to Mr Stevenson that he understood that he was intending to address the jury on the question of provocation. Mr Stephenson replied that he was. He continued:
"The submission I make at the moment to your lordship – and I hope thereafter I will make to the jury – is, first of all, the basic question, so far as provocation is concerned, whether on a particular set of facts the jury can take the view that the understanding of the accused person was unsettled so that the ordinary control of the act which in most people in a normal state inhibits violent conduct, inhibits any anti-social behaviour, is completely displaced, so that for the time being the ordinary controls are gone, and nothing but an impulsive desire to do something such as killing occupies the mind for that time. My Lord, that is a loose, but I hope an accurate, description of the ambit of provocation."
35.
Counsel later made it clear that he was relying on "a long course of conduct on the part of the dead man who had been the centre of an emotional crisis by a woman like this one". He accepted that the judge had to decide whether there was any evidence that could possibly amount to provocation.
36.
The judge, having heard argument, considered the matter over night and gave his ruling in the following terms:
"I feel constrained to rule that there is no sufficient material, even on a view of the evidence most favourable to the accused, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self control, to the degree and method and continuance of violence which produces the death, and consequently it is my duty as a judge, as a matter of law, to direct the jury that the evidence in this case does not support a verdict of manslaughter on the ground of provocation."
37.
As we have already indicated, following that ruling, Mr Stevenson did not consider that he could properly address the jury. The judge in his summing up to the jury dealt with the matter in the following terms:
"The House of Lords, which, as you know, is the highest appellate tribunal of this land, has decided that, when the question arises whether what would otherwise be murder may be reduced to manslaughter on the ground of provocation, if there is no sufficient material, even on a view of the evidence most favourable to accused, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through the transport of passion and loss of self control, to the degree and method and continuance of violence which the produces the death, it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter.
I have felt constrained, members of the jury, to rule in this case that there is no sufficient material, even on a view of the evidence most favourable to the prisoner, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through a transport of passion and loss of self control, to the degree and method and continuance of violence which produces the death, in this case, and consequently it is my duty, as a matter of law, to direct you, and I do direct you, that the evidence in this case does not support a verdict of manslaughter on the ground of provocation. It is not, therefore, open to you to bring in a verdict of manslaughter on the ground of provocation."
The submissions in support of the appeal
38.
The appellant’s primary submission is that on the law as it was at the time of trial, the judge was wrong to withdraw the issue of provocation from the jury. It is contended that applying the law as it was in 1955, there was evidence upon which a jury properly directed could have returned a verdict of manslaughter by provocation.
39.
Mr Mansfield contends that Counsel for the Crown conducted the trial on the basis that if the appellant accepted that she had an intention to kill she would automatically be guilty of murder. He relies upon the initial observation made by Mr Humphreys QC when the judge invited counsel’s views on the law, which we have already set out. He submits that during the discussion that followed the judge adopted this view of the law. Referring to
Holmes v DPP
[1946] AC 588
he commented:
"Have you got this passage as part of your headnote: ‘Consequently, where the provocation inspires an actual intention to kill…or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognised, viz, the actual finding of a spouse in the act of adultery’?"
40.
He then added:
"That seems to me to be one of the main difficulties in your case."
41.
Mr Mansfield argues that this was a misunderstanding of the law as it then was and as it is now. He submits that any doubt about the matter had been resolved by the Privy Council in
AG for Ceylon v Kumarasinhege
[1953] AC 200
at p205, where Lord Goddard had made the matter clear:
"But as the Court of Criminal Appeal set out in their judgment what they conceived to be the English law relating to manslaughter their Lordships feel bound to observe that in one respect the court were in error. They said in reference to English law, "if it is established or clear from the evidence that through provocation of howsoever grievous a kind may have been offered, nevertheless, if it could be shown that the accused caused the death with an intention to kill, the offence is one of murder not manslaughter. This is one of the fundamental differences between our law and that of England." A little further down in the judgment they said "in the case of murder, there must be an intention to kill, in the case of manslaughter, no such intention can exist." With all respect to the court, that is not the law of England."
42.
Mr Mansfield further points to observations in
Lee Chun-Chuen v The Queen
[1963] AC 220
at p227 where Lord Morris of Borth-y-Gest sought to explain the meaning of Viscount Simon’s words in
Holmes
:
"It is plain that Viscount Simon must have meant the word "actual" to have a limiting effect and that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally incompatible with manslaughter because that would eliminate provocation as a line of defence…"
43.
Mr Mansfield submits that the rationale behind the trial judge’s decision to withdraw provocation from the jury was undermined by his misunderstanding of the law as it then stood. It is suggested that the ruling was not reasoned in detail and the judge did little more than quote from part of Viscount Simon’s speech in
Holmes
. He further complains that in his ruling the judge made no reference to the evidence that he had considered nor did he identify the basis for his decision. The defence of provocation was not withdrawn because there was no evidence of provocation or loss of self-control. The burden of proving that the killing was unprovoked was on the Crown. The defence did not need to make out a prima-facie case of provocation but merely to point to material which could induce a reasonable doubt.
44.
In these circumstances it is submitted that given the decisive effect of this ruling on the outcome of the trial, it was incumbent on the judge to provide a soundly reasoned explanation for the conclusion he had reached. In view of the manner in which the point was argued by the Crown, and the Judge’s intervention during legal argument, it is suggested that the Judge proceeded or may have proceeded under a misapprehension of the law. Mr Mansfield, therefore, argues that it would be wrong now to infer from the limited reasoning in the judge’s ruling that contrary to the way in which the argument proceeded, he had applied the right test in law.
45.
Thus Mr Mansfield invites the court to say that since there was unchallenged evidence that at the time of the killing Mrs Ellis was unable to control the impulse to kill the deceased, the issue of provocation should have been left to the jury.
46.
In the alternative, even if the judge was right to rule as he did in accordance with the law of provocation as it was understood at the time of trial, the court should have regard to developments in the law of provocation since that date and that if the law as it is understood today is applied, this is a case where the issue of provocation clearly should have been determined by the jury.
47.
It is accepted that the court has to consider the fact that significant statutory changes were made to the law relating to provocation by
section 3 of the Homicide Act 1957
which provided:
"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion, it would have on a reasonable man."
48.
It is further accepted that in
R v Derek Bentley
(2001) 1 Cr.App.R. 307
, Lord Bingham C.J. set out the approach to developments in the law since trial (paras. 4 and 5 at p.310 ):
"(1) We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the
Homicide Act 1957
.
(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood.
(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time."
49.
It is submitted that the Common Law as to provocation has evolved to reflect changes in the values of society and that the court is required to have regard to those changes that have taken place since. At the forefront of such changes is the recognition of the need to have regard to the personal characteristics of the defendant in considering the reaction of the reasonable man. Further it is suggested that the law has developed to reflect a much better psychological understanding of what has come to be known as "slow burn provocation" in relation to the concept of the reasonable person. "Slow burn provocation" in this context means provocation over a prolonged period that has a gradually mounting effect on the person, who is subjected to it, so that a point is reached where a relatively minor provocation pushes the person too far and he or she acts in a way that might be seen as a disproportionate response to the final part of the provocation but is to be understood, and thus viewed, as the response of a reasonable person, to all that has happened over the prolonged period.
50.
In the case of Ruth Ellis, it is submitted that when these factors are taken into account, there would have been clear issues of provocation for the jury to resolve. In addition, we were invited to admit fresh evidence that would go these issues. We will return to the question of fresh evidence later in this judgment.
51.
The third argument advanced, although Mr Mansfield did not orally address us upon it, is that the statutory defence of diminished responsibility introduced by the
Homicide Act 1957
falls into a unique category. It is suggested that it had its origins in the common law defence of insanity and thus, by some reasoning that we do not fully understand, the court is entitled to set aside the conviction for murder, notwithstanding that there was no such defence provided by the law until some years after the trial.
52.
It should be noted that the CCRC in referring this case to the court expressly concluded that there was "simply no basis to import the defence (which came into being in 1957) backwards in time – either as a matter of statute or of Common Law". However as the legislation presently stands, grounds of appeal may be drawn other than those resulting in the reference without any requirement to obtain the leave of the court to argue a ground even where the CCRC has decided that it is without any merit.
The Crown’s Response
53.
Mr Perry, on behalf of the Crown, argues that the conviction was safe. It was not in any sense an unfair trial, since it was properly decided on the basis of the law as it existed before fundamental changes were made to it by the
Homicide Act 1957
. The judge’s ruling was, it is submitted, a perfectly proper one on the substantive law at the date of trial and in
Bentley
, this court has already decided that the law at that date is the law to be applied in an appeal such as this many years after the event. In so far as there have been developments in the approach of the courts since that date, they have to be seen in the light of the statutory changes that
the 1957 Act
introduced and that they are, as a result, consequential upon the changed law.
54.
Mr Perry suggests that there were two essential issues in this case that the judge had to consider in giving his ruling:
i. Did provocation arise at all in this case where there was not suggested to have been any act in the two days before the shooting that could be seen as an act of provocation as recognised by the law at that time?
ii. Even if there were an act or a series of acts that might have raised the possibility of a defence of provocation, was there any evidence that could have led a jury to conclude that Mrs Ellis had suffered a "sudden and temporary loss of self-control"?
55.
Mr Perry submits that the Common Law doctrine of provocation was formulated to introduce a balance between the respect that the Common Law has always afforded to the sanctity of life and a recognition that it would be unduly harsh to treat those driven by provocation to so lose their self-control that they took the life of another. To achieve this balance, a variety of different judicial mechanisms were employed so as to maintain the defence within limits seen to represent an acceptable balance between the competing considerations.
56.
The first such mechanism was judicial control as to what conduct on the part of the deceased could amount to a sufficient provocation to justify a reduction of the offence from murder to manslaughter. Thus it was established that mere words would not at Common Law suffice (see for example
Holmes
). Mr Perry submits that the only provocative conduct recognised by the Common Law as sufficient for these purposes was some form of violent act by the deceased and the only exception that was recognised was the finding by a man of his wife in the act of committing adultery.
57.
Another important mechanism by which judicial control was exercised was by the requirement that, even if the accused had responded to an act of the kind that satisfied the last requirement, the plea could be dismissed if the response was wholly disproportionate to the provocative act.
58.
Each of these controls could be exercised by the judge in deciding whether there was material that could be considered by the jury in this regard. The Royal Commission on Capital Punishment that made recommendations that resulted in the passing of the
Homicide Act 1957
, concluded that the balance that had been struck had become too rigid in society as it had developed since the Common Law rules had been made and that there ought to be changes in the law so as to relax these controls. Parliament accepted that view and changed the law in two material respects. First it relaxed the restrictions on the actions of the deceased that could amount to provocation, permitting regard to "everything both done and said". Secondly, it provided that if there was evidence that the accused had lost his self-control as a result of things that were done or said or both, the issue should be left to the jury for them to decide whether it was sufficient to have caused a reasonable man to act as the accused had. Thus the judicial control over proportionality was removed and that issue was one left to the jury to determine free of such control.
59.
Mr Perry submits that changes in the approach to provocation of necessity have resulted from those statutory changes. He argues that once words alone could be a basis for provocation the courts were bound to consider the importance of the characteristics of the accused since the provocative words might be directed to those characteristics. Hence such changes were a direct response to the statutory changes to the law. Attention was drawn in this regard by the CCRC to the observations of Lord Diplock in
Camplin
: (1978) 67 Cr. App R. 14 at p.20; [1978] A C 705 at p.717:
"But so long as words unaccompanied by violence could not in law amount to provocation the relevant proportionality between provocation and retaliation was primarily one of degrees of violence. Words spoken to the accused before the violence started were not normally to be included in the proportion sum. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed."
60.
Mr Perry submits that the judge was quite right to rule as he did in this case on the existing law. There was no act that could properly be seen as a provocative act in response to which Mrs Ellis had acted. She had responded in a pre-meditated way to the situation in which she found herself, which may have caused her distress, but it was that situation rather than any act or acts of the deceased which caused the distress. It may have been "a transport of passion" but it was a calm, deliberate, pre-meditated killing. The plea of provocation is inconsistent with planning and here there was evidence of such planning. She had formed the intention to kill at the very least two hours before she carried out the killing, she had armed herself with a firearm for that very purpose and she had gone in search of David Blakely intending to find him and kill him.
61.
Further, her response to the situation was a wholly disproportionate one and the judge was entitled to conclude that no reasonable jury could have concluded, even on the version of the facts that were most favourable to Mrs Ellis, that her reaction was not one that a reasonable woman would have had.
62.
As to the issues raised in respect of a defence of diminished responsibility, Mr Perry argues quite simply that there was no such defence at common law, and it is not possible to take the purely statutory defence of diminished responsibility created by
section 2 of the Homicide Act 1957
and apply it as if it had been enacted at the date of the killing or the date of trial.
63.
In any event, if the need had arisen, he would have argued that the evidence did not reveal any diminished responsibility.
Our Conclusions
64.
We deal first with the submission that the court should view the conviction as unsafe because on the evidence then available, or on evidence that could now be put forward, Mrs Ellis would today have been able to invite a jury to consider a defence of diminished responsibility.
65.
As Lord Bingham C.J. made clear in
Bentley
in the passage to which we have earlier referred, we must apply the substantive law of murder as applicable at the time, disregarding the changes brought about by the
Homicide Act 1957
. One of the changes to which he expressly referred was the provision of the defence of diminished responsibility. We are clearly bound by that decision, but in any event we do not have the slightest difficulty in concluding that the decision was right.
66.
We have no doubt that the Commission was entirely right when it concluded that this was an argument that could not be sustained and it did not altogether surprise us that Mr Mansfield, whilst not altogether abandoning the point, did not think that it merited oral argument before us.
67.
We turn, therefore, to the points that deserve rather more detailed consideration relating to provocation. We think it necessary first to consider what the law is that we have to apply to the issue of provocation. Clearly in this regard too,
Bentley
establishes that it is the substantive law at that date. However Lord Bingham made clear that where the Common Law has itself developed, the court will have regard to such developments in determining an appeal whenever the conviction occurred.
68.
Thus it is necessary to ask whether the material changes with which this case is concerned are simply developments of the Common Law or whether they result directly or indirectly from the changes effected by the
Homicide Act 1957
.
The 1957 Act
was undoubtedly legislation to change the law relating to homicide as is made clear in its long title, and this is equally clear from examination of the relevant provisions and comparison with the existing law.
Section 3
did not in any sense codify the existing law in relation to provocation but amended it. It was thus a statutory change to the substantive law and not a development of the Common Law.
69.
Further we are satisfied that the changes upon which reliance is placed as to the relevance of the characteristics of the accused are a necessary consequence of the change in the substantive law and cannot be seen as merely the development of the pre-1957 Common Law. That was made clear by the House of Lords in
Camplin
and we have already made reference to the speech of Lord Diplock in this regard.
70.
Thus we are satisfied that we have to examine the ruling of Havers J. by the law as it was before
the 1957 Act
came into force.
71.
As we have made clear Mr Mansfield submits that the ruling was one that was based on a misunderstanding of the law, since the case had been conducted by the Crown on the basis that there could be no reliance on provocation where the killing was carried out intentionally. We accept that the Crown’s approach was that this was the law. That seems apparent to us from the opening, from the cross-examination limited to one question and from the observations made by Mr Humphreys to the judge when he invited assistance on the law.
72.
We are also prepared to accept for the purposes of this appeal that the prosecution’s view did not represent a correct interpretation of the Common Law in that regard. In fairness to counsel, we should make clear that it was a view of the law which was widely accepted. By way of example, the editions of Archbold’s Pleading, Evidence and Practice in Criminal Cases stated the law in these terms at the time and continued to do so until its 35
th
edition published in 1962 (see
R v Martindale
[1966] 1 WLR 1564
at p 1567).
73.
The question that we have to address is not whether the Crown’s view may have been wrong but whether the judge’s ruling was in any way based upon such an approach. Mr Mansfield submits that the basis of the ruling is not clear but we cannot accept that that is so. The judge’s ruling both at the time when it was given and his direction to the jury in this regard were both expressly on the basis that there was no evidence upon which a jury could conclude that a reasonable person provoked as Mrs Ellis was would have reacted as Mrs Ellis had done "to the degree and method and continuance of violence which produces the death" (words clearly derived from
Holmes
). It is clear that he was saying that whatever view the jury took of the facts, the provocation such as it would be open to them to consider could not pass the proportionate response test.
74.
Thus in no sense was he ruling that, because Mrs Ellis had admitted that the killing was intentional, her guilt must follow as the Crown had submitted. He may have taken that view at one stage during argument but if he did, having reflected on the matter over night, that was not the basis upon which he ruled that the issue of provocation was not to be considered by the jury. It follows that this mistaken view of the law had no impact upon the conviction of Mrs Ellis for murder and we have to consider the basis upon which the judge actually ruled.
75.
There was clearly unchallenged evidence that over a significant period of time, the deceased had subjected Mrs Ellis to violent conduct within their relationship, culminating in the incident that preceded, and may have resulted in, her miscarriage. If Mrs Ellis had reacted immediately to one of these violent episodes then there can be little doubt, both on the law as it was at the time of trial and as it is now, that there would have been a clear issue of provocation that the judge would have been obliged to leave to the jury. In considering the proportionality of the response the jury would have been obliged to consider not only the final instance of violence which had resulted in the violent response leading to death but also the whole history of violence against which background the violent response had to be seen to be fully understood. Thus a violent response, which might, if it were a response to a single isolated incident, be judged to be disproportionate, might nonetheless be considered not to be unreasonable if the whole background was taken into account. This is the whole basis of the concept of "slow burn provocation". However, there would remain a necessity for there to be a triggering event and the response had to be considered as a response to that triggering event, albeit set against any earlier violent background.
76.
It was, therefore, necessary for the trial judge in considering, as he was bound to do under the pre-1957 law, whether there was evidence upon which the jury could conclude that this was or may have been a case of provocation as recognised by the Common Law, to determine what, if any, conduct may have triggered the shooting of the deceased.
77.
At this stage of the consideration the judge was bound to recognise that the Common Law imposed limitations upon the conduct that might be recognised as a basis for a finding of provocation. We have already made clear that prior to the statutory changes introduced in 1957, mere words could not amount to provocation for these purposes. What, therefore, was the conduct upon which reliance could be placed as resulting in the extremely violent reaction of Mrs Ellis? We posed this question to Mr Mansfield in argument and he listed a number of events over the relevant weekend. Essentially they were that, having assured Mrs Ellis that he would return to her on the Friday evening, the deceased did not do so and failed to communicate to her any explanation for his sudden abandoning of her in this way. Further he had deliberately concealed from her his whereabouts, refusing to speak to her on the telephone and causing his friend to give misleading information as to where he was.
78.
The first question for the judge to resolve was, therefore, whether these were events of a kind that the law recognised as a sufficient trigger even when set against the earlier background so as to justify a conclusion that this was a case of provocation such as to justify a reduction in the crime committed from murder to manslaughter. We have no difficulty in concluding that they were not, on the law as it was at the relevant time. Everything alleged is in reality an omission rather than a positive act. Mr Mansfield argues that although omissions they nonetheless involved positive acts. For example the failure to go back to Mrs Ellis is an omission seen in that sense but it involved the positive act of going to the Findlaters home. Whilst we recognise the force of this argument what "provoked" Mrs Ellis was not the going to the Findlaters home but the failure to come back to her.
79.
Having regard to the restricted view of the Common Law as to what could amount to provocation for these purposes, we find it wholly impossible to see that any of the events of the relevant weekend could under the Common Law be a sufficient basis for a conclusion that Mrs Ellis had been provoked in a way that would justify reducing murder to manslaughter.
80.
The position is perhaps made clear by consideration of slightly different facts. If the deceased had chosen instead of avoiding speaking to Mrs Ellis to confront her on the telephone and tell her that he was finished with her and was not returning to her and had done so in highly abusive and unpleasant terms, there could be no question of such conduct being sufficient to amount to provocation for these purposes. The position would clearly be covered by the rule of Common Law that mere words would not suffice. It would, it seems to us, be quite remarkable if the actions of the deceased in this case involving no such abusive and unpleasant confrontation could be seen as a sufficient provocation when the other instance was not.
81.
In
Stingel v The Queen
(1990) 171 CLR 312
, the High Court of Australia considered and rejected an appeal by a 19 year old appellant who had had a long standing relationship with a girl which she had chosen to break off. He remained obsessed and infatuated with her and would not leave her alone. In due course he observed the girl with another young man in a car in the course of sexual activity and approached and shot dead the young man. At his trial for murder, the judge withdrew the issue of provocation from the jury and the High Court of Australia on appeal upheld this decision. The decision was referred to with approval by Lord Hoffman in
R v Smith (Morgan)
[2001] 1 AC 146
at page 169. He said:
"Male possessiveness and jealousy should not today be an acceptable reason for loss of self control leading to homicide, whether inflicted upon the woman herself or her new lover. In Australia the judge was able to give effect this policy by withdrawing (the) issue from the jury. But
Section 3
prevents an English judge from doing so. So, it is suggested a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like
Stingel
cannot rely upon the defence."
82.
We can see no proper basis for distinguishing between male and female behaviour in this regard. In England in 1955, the position was that which was applicable in Australia at the date of
Stingel’s
trial and thus the judge was able "to give effect to the policy by withdrawing the case from the jury". Whilst we think that the situation of Mrs Ellis was more likely to excite sympathy than that of
Stingel
,
Stingel’s
case nonetheless underlines that even the modern approach is to require something more than mere possessiveness and jealousy. We have no doubt that under the law as it was before the
Homicide Act 1957
, this was even more clearly the case.
83.
Whether it is right that the only circumstances in which the Common Law recognised conduct other than violent conduct as a sufficient basis for a finding of provocation was the finding of a spouse in an act of adultery or whether other exceptional circumstances might have sufficed, it is clear to us that the events of the Easter weekend leading to the killing in this case could not justify any such conclusion that there was provocation of the kind recognised by the law in this regard.
84.
Thus there was no event of the requisite kind that could have triggered this killing after the physical violence preceding the miscarriage. This attack had taken place approximately a fortnight before the killing. It was never suggested by Mrs Ellis that she had acted as a result of this earlier violence and it would, in reality, on the evidence have been quite impossible for her so to do. It is an essential feature of such provocation that there is "sudden and temporary loss of self control" as was made clear in the direction of Devlin J in
R v Duffy
(Note)
[1949] 1 All ER 932
, which was subsequently treated as a classic direction to the jury:
"Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."
85.
Whilst the Common Law has never sought to impose any time limit between the provocative act and the killing, it could not possibly be said in this case that a loss of self control, even if it did in part relate to the violent act a fortnight before, was a sudden or temporary response to that violence. Any conclusion to the contrary would clearly be wrong. Thus there was no event recognised by the law as a provocative act of the relevant kind to which a proportionate response might have been to take a gun and kill the deceased in the manner that Mrs Ellis did. The judge was, therefore, entirely right on the law as it was prior to the statutory changes brought about in 1957 to withdraw the issue of provocation from the jury.
86.
That conclusion effectively disposes of this appeal but we should perhaps mention a number of other matters. Mr Mansfield sought to place before the court fresh evidence which he suggested would impact upon the decision of the court. The principle part of that evidence was psychiatric evidence relating to the condition of Mrs Ellis at the time. We declined to admit that evidence because we could not see that it could have any bearing upon our decision. It would have had most relevance to the issue of diminished responsibility. However, bearing in mind our conclusions that, even if it were possible to put forward evidence that today would give rise to a real issue of diminished responsibility, it was not possible to raise such an issue in respect of a pre-1957 case, this could not possibly have led to our allowing the appeal and as such the evidence could have had no relevance to our consideration of the appeal. Further it was suggested that the evidence had some relevance to the issue relating to provocation. However, since we concluded that the characteristics of the accused person only became relevant to the issue of provocation because of the statutory changes to the law, again this evidence could not affect our conclusion in relation to a case before those statutory changes, even if the evidence were accepted to be right. For these reasons we declined to hear this evidence.
87.
The respondent also sought to place fresh evidence before us. That evidence, if accepted to be right and admissible, might have led to a conclusion that this killing was even more premeditated than it must have seemed at the time of trial. In her evidence, Mrs Ellis had been unable to explain how she spent the day before the killing. This was perhaps remarkable because she seemed to remember so well all other matters in considerable detail. The evidence the Crown would have wished to raise, the source of which was the solicitor who acted for her at trial and who is himself now deceased, would have explained this gap in her recollection. It would have shown that she had gone out with Desmond Cussen during that day and amongst other things had engaged in target practice at a tree in preparation for the killing that night. Clearly if this evidence was right, it would suggest that this was a case very, very far removed from the sort of case in which the law recognises a sudden and temporary loss of self control justifying a conclusion of provocation reducing murder to manslaughter.
88.
We considered that there were significant problems that would have to be overcome before the Crown could rely upon this evidence and, even if it was in law admissible, it would have been very difficult to know what weight could safely be attached to the evidence when there was no opportunity to see the evidence tested by cross-examination before us. In the circumstances, we considered that the interests of justice did not require us to embark upon this difficult exercise and we declined to hear this evidence as well.
89.
For the reasons that we have given we heard no new evidence and it follows from our earlier conclusions that we are satisfied that this appeal is without merit. Mrs Ellis was properly convicted of murder according to the law at the time when she committed her offence. If her crime were committed today, we think it likely that there would have been an issue of diminished responsibility for the jury to determine but we are in no position to judge what the jury’s response to such an issue might be. As we have made clear, it is no part of our function to enter into the debate as to whether Mrs Ellis should have been spared execution.
90.
We would wish to make one further observation. We have to question whether this exercise of considering an appeal so long after the event when Mrs Ellis herself had consciously and deliberately chosen not to appeal at the time is a sensible use of the limited resources of the Court of Appeal. On any view, Mrs Ellis had committed a serious criminal offence. This case is, therefore, quite different from a case like
Hanratty
[2002] 2 Cr. App. R. 30
where the issue was whether a wholly innocent person had been convicted of murder. A wrong on that scale, if it had occurred, might even today be a matter for general public concern, but in this case there was no question that Mrs Ellis was other than the killer and the only issue was the precise crime of which she was guilty. If we had not been obliged to consider her case we would perhaps in the time available have dealt with 8 to 12 other cases, the majority of which would have involved people who were said to be wrongly in custody. The Court of Appeal’s workload is an ever-increasing one and recent legislation will add substantially to that load. Parliament may wish to consider whether going back many years into history to re-examine a case of this kind is a use that ought to be made of the limited resources that are available. The exercise of the CCRC’s discretion in deciding whether to refer cases is one that is a frequent source of challenge by way of Judicial Review and it may be that an express power to consider factors of this kind would enable the CCRC to take into account more readily the public interest in making its decision. | [
"LORD JUSTICE KAY",
"MR JUSTICE SILBER",
"MR JUSTICE LEVESON"
] | 2003_12_08-156.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3556/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3556 | 848 |
51f8ca7e994943d53e9aa95649825f63041918f5d6d260208a04bfb9a8a5a3b7 | [2010] EWCA Crim 1578 | EWCA_Crim_1578 | 2010-07-09 | crown_court | Case No: 2009/04585/C1 Neutral Citation Number: [2010] EWCA Crim 1578 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT His Honour Judge Pawlak T20080986 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/07/2010 Before : LORD JUSTICE LEVESON MR JUSTICE TOMLINSON and MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - Between : Colin Anthony Miller Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Case No:
2009/04585/C1
Neutral Citation Number:
[2010] EWCA Crim 1578
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
His Honour Judge Pawlak
T20080986
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/07/2010
Before :
LORD JUSTICE LEVESON
MR JUSTICE TOMLINSON
and
MR JUSTICE DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between :
Colin Anthony Miller
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Alper Riza QC
(instructed by
Kayders Solicitors
) for the
Appellant
Robin Miric
(instructed by
the CPS
) for the
Crown
Hearing dates : 24/06/2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Leveson :
1.
On 31 July 2009, in the Crown Court at Wood Green before Judge Pawlak and a jury, this appellant was convicted by majority verdict (10:2) of five counts of rape of a female child under 13. On 18 September 2009, he was sentenced, on each count, to an indeterminate sentence of Imprisonment for Public Protection under
section 225 Criminal Justice Act 2003
, with a minimum term of 7 years. For a further offence of failing to comply with notification requirements (to which he had pleaded guilty), he was sentenced to a term of 6 months imprisonment concurrent. In relation to a ruling on the admissibility of evidence of propensity, he appeals by leave of the single judge; a further ground of appeal in relation to the summing up is renewed.
2.
The background can be shortly summarised. In 1987, the grandmother of the complainant (“Z”) came to the UK, followed, in 1994, by her mother and uncle (the appellant). Z, then a baby, stayed in Jamaica but, shortly after her twin brothers were born in 1994, she came to this country. In October 2001, Z’s mother married a man who then became Z’s step-father (“the step-father”).
3.
An allegation that Z’s mother had assaulted her surfaced in March 2004 and was investigated by social services. On 25 July 2004, Z went to Jamaica for some seven weeks and then returned to Britain: there was no further social services involvement with the family. In February 2006, Z’s mother took her to Jamaica and returned to Britain alone although she, the stepfather and Z’s brothers then visited Jamaica for 19 days from 28 March 2006.
4.
Some time before August 2006, Z made her first complaint, relating to the step-father, to Z’s aunt and, on 1 November 2006, Z was seen by a doctor as a result of vaginal discharge on her knickers seen by her aunt. A letter dated 26 December 2006, written in pencil by Z to her mother, and a copy of that letter written in pen and dated 23 January 2007 surfaced in the early part of 2007. The letter detailed abuse that she had suffered as well as intimating that she had also been abused as a younger child. Sometime in March 2007, the aunt showed the letter to Z’s grandmother, then on holiday in Jamaica. During the same month, the complaint was repeated to another female relative over the telephone. Finally, in April 2007, Z’s mother received the January letter in England.
5.
On 10 February 2008, Z, then aged 14, landed at Gatwick Airport having travelled alone from Jamaica. While at the airport, she informed a member of the airline staff that she was frightened to go home; she complained that, when she had been living in London two years previously, she had been raped by her uncle. She also complained about her stepfather. Z repeated the allegations to two armed officers.
6.
Not surprisingly, this complaint was taken very seriously and, on 14 February, she was interviewed by the police. In brief, she said that she had first been raped in March 2005, after her 11
th
birthday, at her grandmother’s address, where the appellant was living. She used to stay at her grandmother’s home on Friday nights before going to the local church on Saturdays and she was then raped almost every week from then until September 2005 when the appellant left the house. In short, she alleged that she and one of her brothers would sleep in the appellant’s room. One night the appellant came into the room, crawled over her brother so that he was in the middle of the bed, and kissed her. She told him he was bad. He didn’t say anything and they fell asleep. Later he woke up and started rubbing her leg before turning her over onto her back and lying on top of her. He removed her and his underwear, still managing to hold her down, and put his penis in her vagina. She tried to get him off but he was too strong. Afterwards, he said “Don’t tell or else”. He put her brother back in the middle of the bed and just went to sleep. Her brother slept through it. The rapes carried on almost every week.
7.
At the time that she complained of rape, Z also alleged that the stepfather had indecently assaulted her, also on a regular basis, commencing a couple of months after the rapes started. On 11 July 2008, the appellant was arrested at his girlfriend’s address; he was interviewed and responded in terms that foreshadowed his defence: he had never had sex with Z and although he had slept at his mother’s house, he had not done so very often.
8.
The appellant and the stepfather (who had also been arrested and interviewed) were jointly indicted. The appellant initially faced six counts to represent the series of rapes that she alleged; the judge directed an acquittal in respect of one count because Z had been unable to recall that there was a period of time, encompassed by that count,
when her grandmother was in fact in America: thus the jury considered five allegations. For the sake of completeness, we add that the stepfather was charged with a series of eight counts of sexual assault: he was acquitted on all counts by the jury.
9.
For the purposes of this judgment, and the analysis of the grounds of appeal, it is unnecessary further to rehearse the detail of the allegations or the evidence called either by the prosecution or the defence. What is important, however, is that the Crown sought also to rely, as evidence of propensity, on the fact that, in November 1997, the appellant had been convicted of an offence of rape. The defence contended that this single conviction, in very different circumstances, was not capable of amounting to evidence of propensity and, therefore, did not fall within the gateway described in s. 101(d) and 103(1) and (2) of the
Criminal Justice Act 2003
(“
the Act
”).
10.
The circumstances of that conviction for rape were undeniably serious. In short, with two or three others, on 24 February 1997, the appellant (albeit then only 16 years of age) had participated in a ‘gang’ rape of a 15 or 16 year old girl of his acquaintance in a car park; he had been the first to rape the girl. The allegation had been contested on the grounds that intercourse was consensual but he had been convicted by a jury and sentenced to a term of 5 years detention under
s 53(2) of the Children and Young Persons Act 1933
.
11.
Before outlining the argument advanced before the trial judge and repeated in this court, it is necessary to explain the rather unusual course that was taken before the judge. In the normal course of events, in order to justify a ruling in its favour, the Crown had, first, to establish pursuant to s. 103(1)(a) of
the Act
that the appellant had a propensity to commit offences of the kind with which he was charged (in circumstances when it was not the case that having such a propensity made it no more likely that he was guilty of the offences or any one of them). In addition, where, as here, the Crown sought to rely on the appellant’s conviction for an offence of the same category and description as the one with which he was charged, such reliance was not possible if the court was satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case: see s. 103(2) and (3) of
the Act
.
12.
In fact, Mr Alper Riza Q.C., for the appellant, did not ask the court to rule on whether the length of time since the conviction or any other circumstance rendered it unjust to admit it. Because it had been decided that it was part of the defence case (should it be necessary to deploy it) that Z knew of the conviction, and had deliberately targeted the appellant to add credibility to a false allegation, he only asked the judge to rule on whether the conviction was capable of amounting to evidence of propensity without going on to consider s 103(3) of
the Act
(or, for that matter,
s 78 of the Police and Criminal Evidence Act 1984)
. On the basis that the judge ruled that it was, Mr Riza made it clear that he would then wish to agree to the evidence being admitted (under s 101(1)(a) of
the Act
) so as to be able to make the forensic point that it had been agreed that the jury should hear this prejudicial material because it went some way to explaining why the appellant had been targeted by Z either deliberately or in her imagination.
13.
The argument advanced by Mr Riza was grounded in the approach identified in
R v. Hanson
[2005] 2 Crim. App. R. 21, in which the Vice President, Rose LJ made it clear (at para. 9):
“There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged. … Circumstances demonstrating probative force are not confined to those sharing striking similarity.”
14.
He submitted that the previous conviction for rape was incapable of showing propensity for sex with young girls. At that time, the appellant was 16 and the victim 15; there was (or at least it would be reasonable so to assume) a degree of peer pressure. The fact that a teenager indulged in non-consensual sex, thereby demonstrating obvious lack of self control, did not reveal a propensity for such conduct in a mature adult, more in control of his sexual drive. In any event, this was very different from an alleged paedophilic rape of the 11 year old niece at his mother’s home by a man then aged 25.
15.
The judge’s ruling was clear. He said:
“Mr Riza asked me to confine myself to saying whether the conviction for rape was capable of demonstrating a propensity and the essence of that rape was the taking advantage sexually of a 16 year old girl against her will. This case concerns a younger girl, again taken advantage of, if the allegation is true. The conviction for rape demonstrates a clear propensity for sex with a young girl in circumstances where for whatever reason she is not consenting. It may also show an appetite for such unlawful sex. It is therefore clearly capable of demonstrating a propensity.”
16.
In this court, Mr Riza has repeated the argument to which we have referred, adding what he described as the evidence based observations (albeit in a very different context) from the Definitive Guideline of ‘Overarching Principles – Sentencing Youths’ issued by the Sentencing Guidelines Council. That, of course, concerned the approach which the court should adopt when approaching the question of sentencing young people, but he pointed to the requirement (at para 3.5) to consider whether a young offender’s conduct “has been affected by inexperience, emotional volatility or negative influences” and to one of the factors that had led to a different approach to the sentencing of young people who offend identified in these terms:
“offending by a young person is frequently a phase which passes fairly rapidly and therefore the reaction to it needs to be kept well balanced …”
17.
Mr Riza argues that the possibility that the appellant was passing through such a phase points away from propensity and should militate against labelling a man, seven years further on in his life, as having a propensity to sexual violence. Mr Robin Milic, for the Crown, on the other hand, contends that the fact that the appellant was then a teenager is simply one of the factors to be taken into account and that although there is a difference between gang rape and paedophilia, both involved the use of real and additional pressure, in the case of gang rape by added numbers and in the case of rape of a child by age and relationship.
18.
We do not find the reference to the overarching principles in relation to youths of assistance. They are designed to identify to sentencing judges what ought to be considered when sentencing youths for offences committed while going through the phase to which reference is made. A conviction while a young person might be the consequence of immaturity; time will tell whether the offender does change and avoids offending when an adult. But that does not alter the proposition that such a prior conviction may be evidence of propensity and, in our judgment, the fact that both the conviction and these allegations contain within them an underlying abuse of power in the way that Mr Milic suggests is sufficient to justify the conclusion that the judge reached (that it was capable of being evidence of propensity), notwithstanding the differing ages of the victim in the first case and Z in the second.
19.
Whether the lapse of time might have caused the learned judge, under s. 103(3) of
the Act
, to consider that it would be unjust to admit the conviction was not tested but, for the avoidance of all doubt, we can well understand the way in which Mr Riza wished to use the suggestion of Z’s knowledge of the conviction to defuse its impact by contending that he was chosen by her because of his vulnerability arising out of it. In that way, however, the jury were driven back to decide, in relation to these allegations, their view of the credibility of Z and the appellant. This ground of appeal fails.
20.
Mr Riza also sought to renew his application to advance a second ground of appeal (for which the single judge did not grant leave). This concerned the observations of the learned Judge during the course of his summing up which concerned the approach which should be adopted to Z’s failure to complain of rape earlier than she had.
21.
The learned judge dealt with this issue by warning the jury, in conventional terms, about the potential prejudice caused to a defendant confronted by an allegation many years later and the difficulties that might arise, observing that the jury need only imagine what it would be like to have to answer questions about events said to have taken place some years ago to appreciate the problems which may be caused by delay. He cautioned the jury to forget generalisations or stereotypes but to approach the task dispassionately and not because of feelings of sympathy for a complainant or for a defendant. He went on:
“You are entitled to consider why these matters did not come to light sooner. The defence say that it is because they are not true. They say that the allegations are entirely fabricated, untrue and they say that had the allegations been true you would have expected a complaint to be made earlier and certainly once either defendant … was out of the way .. of the complainant. The defence say that she could have complained to her mother or her grandmother before she left the country or to her mother on the plane, or to the headmaster of the school … or to the social worker who came on one occasion to speak to her (although again bear in mind there is no evidence that the complainant was ever given any contact details or instructions as to how to make such a complaint, or that she could have complained sooner to a family or extended family member once she was safe in Jamaica.
On the other hand the prosecution say that it is not as simple as that. When children are abused they are often confused about what is happening to them and why it is happening. They are children and if a family member is abusing them in his own home or their own home, to whom can they complain? A sexual assault, if it occurs, will usually occur secretly. A child may have some idea that what is going on is wrong but very often children feel that they are to blame in some way, notwithstanding circumstances which an outsider would not consider for one moment them to be at blame or at fault. A child can be inhibited for a variety of reasons from speaking out. They may be fearful that they may not be believed, a child’s word against a mature adult, or they may be scared of the consequences or fearful of the effect upon relationships which they have come to know, or their only relationship.
The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent and uncertain. The child may not like the abuse if it happens but there may be aspects of the abuser, if there is one, that cause the child to view them with some degree of affection. The relatives may be the only relatives the child has. The fallout from any disclosures can be unpredictable and sometimes very worrying, particularly if the child does not believe that she will be believed. If the adult has an imposing personality or is someone of who [
sic
] they are perhaps afraid or who may have overborne them or who has power over them or who may even have expressly warned them not to tell, these are all matters which could inhibit disclosure.
Experience shows that people react differently to the trauma of a serious sexual assault where it has happened. There is no one classic response when it happens and I speak not only of children. Some may be compliant and submissive, some may disassociate themselves from what is happening; they may blank it out, they may freeze, others may protest and resist, they may scream and shout. Some may complain to the first person they see while others may feel shame and shock and not complain for some time. A late complaint does not necessarily mean it is a false complaint and that is a matter for you to consider in the context of all the evidence in this case.
If a child or children are abused they are often subject to very mixed emotions and that may explain delay in making a complaint. Whether any of that applies here is very much a matter for you. There are sometimes in life, sometimes earlier, sometimes later, moments which can trigger a disclosure when suddenly it is easier to reveal what Mr Miric called “a dirty secret” when the need arises to disclose and speak out because of the situation in which they may find themselves. Never, you may think, an easy thing to do and you may think requiring some courage to do so.
Now let me make it clear that I make these observations to you not as directions of law but as things which in common sense and common experience and with a knowledge of the world you may like to consider in assessing whether there is some sinister or innocent explanation for the delay and whether it affects the honesty and truthfulness or accuracy of a child’s evidence.”
22.
This discussion of the position is very much longer than we would have expected but it is important to provide the context that it occupies some three pages of transcript in a summing up that extends to some 94 pages; further, it is not one way. Mr Riza argued that, insofar as these observations were evidence-based, no issue could be taken with them, but most of them were not properly based on evidence that was adduced before the jury. He went on to suggest that, in giving guidance to the jury about the content of, rather than the approach to be taken in applying, common sense, experience and knowledge of the world, he encroached unlawfully on jury territory.
23.
In recent years, the courts have increasingly been prepared to acknowledge the need for a direction that deals with what might be described as stereotypical assumptions about issues such as delay in reporting allegations of sexual crime and distress (see, for example,
R v. MM
[2007] EWCA Crim 1558
,
R v. D
[2008] EWCA Crim 2557
and
R v. Breeze
[2009] EWCA Crim 255
). Subsequent to this conviction, the Judicial Studies Board published a new Benchbook which deals with this issue in this way:
“The experience of judges who try sexual offences is that an image of stereotypical behaviour and demeanour by a victim or the perpetrator of a non-consensual offence such as rape held by some members of the public can be misleading and capable of leading to injustice. That experience has been gained by judges, expert in the field, presiding over many such trials during which guilt has been established but in which the behaviour and demeanour of complainants and defendants, both during the incident giving rise to the charge and in evidence, has been widely variable. Judges have, as a result of their experience, in recent years adopted the course of cautioning juries against applying stereotypical images how an alleged victim or an alleged perpetrator of a sexual offence ought to have behaved at the time, or ought
to appear while giving evidence, and to judge the evidence on its intrinsic merits. This is not to invite juries to suspend their own judgement but to approach the evidence without prejudice.”
24.
Mr Riza submitted that this approach offended the common law principle that judicial notice can only be taken of facts of particular notoriety or common knowledge and so provided to juries during the course of a summing up as established without evidence. That, however, is precisely what dealing with these generalisations is intended to do. As Latham LJ explained in
R v. D, supra,
(at para. 11):
“The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. This was the reasoning behind the directions suggested in
Turnbull
in relation to identification and
Lucas
in relation to the treatment of lies. We think that cases where the defendant raises the issue of delay as undermining the credibility of a complainant fall into a similar category save clearly that the need for comment is in this instance to ensure fairness to the complainant. But any comment must be uncontroversial. It is no part of the judge’s task to put before the jury Dr. Mason’s learning [who had delivered a lecture on the topic to the Judicial Studies Board] without her having been called as a witness. However, the fact the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape is sufficiently well-known to justify a comment to that effect. The suggested direction ... provides an example in very general terms of an appropriate form of directions which should be tailored to the facts of the case. In the present case, the judge was entitled to add to that general comment, the particular feelings of shame and embarrassment which may arise when the allegation is of sexual assault by a partner. He was also entitled to remind the jury of the way in which the complaint in fact emerged, as explained by the complainant herself.”
25.
The single judge did not consider it arguable that the direction in this case even arguably exceeded the boundaries set by Latham LJ and this court in the cases to which we have referred. Because, as we have suggested, the direction is somewhat lengthy, and in terms of balance possibly descends into rather more example than was necessary, we grant leave to argue the point but reject it.
26.
Mr Riza also complains that the judge did not inform counsel before speeches that he would be giving these directions so that counsel was not able to address any of the points made or make any application for a special warning as a counter-weight in order, for instance, to inform the jury that until recently, the courts held the opposite view about the evidence of children. In our judgment, although directions of this type have been given for some years, it would have been better had the judge discussed them as part of the routine analysis of the ‘directions’ to be contained within the summing up which should take place before counsel’s speeches in almost every case and certainly every case of this type.
His failure to do so, however, does not undermine the safety of the convictions and, taken overall, there was no unfairness in the summing up.
27.
We add only this. In this case, the jury were clearly aware of the need to exercise especial care when considering the evidence of Z. Her step-father was, as we have recounted, acquitted of all the allegations that he faced and although there is rightly no suggestion that the convictions of the appellant are inconsistent with those acquittals, the jury’s attitude to the step-father clearly revealed a willingness to look sceptically at the evidence that Z gave. Having done so, however, they returned, by majority, adverse verdicts in relation to the five counts.
28.
We do not consider that these verdicts are unsafe and, as a result, this appeal is dismissed. | [
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cc107249ede344e660be4b0c47d233724edd75c8c41d2459545ae5c28ccd924a | [2024] EWCA Crim 474 | EWCA_Crim_474 | 2024-04-24 | 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 202400218/A5
Neutral Citation Number:
[2024] EWCA Crim 474
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 24 April 2024
Before:
LORD JUSTICE MALES
MR JUSTICE HILLIARD
RECORDER OF NORTHAMPTON
(HIS HONOUR JUDGE MAYO)
(Sitting as a Judge of the CACD)
REX
V
RAJAK MIAH
__________
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 H AHMAD
appeared on behalf of the Appellant.
_________
J U D G M E N T
1.
MR JUSTICE HILLIARD: On 18 October 2022, in the Crown Court at Leeds, the appellant (then aged 27) pleaded guilty to possessing MDMA (count 2). On 4 December 2023, at the same court, the appellant pleaded guilty on re-arraignment to possessing cannabis with intent to supply (count 1); offering to supply cannabis (count 4); possessing cannabis with intent to supply (count 5) and possessing ketamine with intent to supply (count 6). On 21 December 2023, he was sentenced to concurrent terms of 18 months’ imprisonment on each count, with no separate penalty on count 2. He now appeals against sentence with leave of the single judge.
2.
On 15 May 2020, police officers stopped a vehicle in Leeds. The appellant was the front seat passenger. The driver was in possession of cash and five mobile telephones. The appellant was in possession of cannabis, MDMA and cash. Two further mobile telephones were found in the vehicle. The drugs were analysed. Fifteen bags of cannabis weighed 44.9 grams, with a street value of £430. The MDMA weighed 0.88 grams and had a value of £40. Examination of the mobile telephone showed that the appellant was involved in the supply of cannabis. At his home address, the police found dealer cards and three more mobile telephones. When interviewed, the appellant said that the drugs were for his own use. He was released under investigation.
3.
On 8 March 2021, police officers stopped a vehicle in Chapeltown Road, Leeds. The appellant was the sole occupant. He was in possession of £1766 in cash, two mobile telephones, three bags of cannabis and four bags of ketamine. The drugs had a street value of £140. Telephone contact showed that the appellant was dealing in drugs. When interviewed, he again said that the drugs were for his own use.
4.
The appellant had three convictions for three offences. None of them involved drugs. He was in breach of a community order for possessing a bladed article when he committed the first offence.
5.
A pre-sentence report said that the appellant was understanding and remorseful of his behaviour. He said that he had lost his job during the pandemic. His own drug use at the time had left him with a drug debt. He was told to sell drugs to pay off the debt. He had married in 2023. His wife was expecting a baby in March 2024. He stayed with his wife occasionally at her flat. He had been approved for a mortgage and was expecting to move into a new house in March 2024. He no longer took drugs. He was self-employed in his own property refurbishment business which he had had for 2½ years. If a community penalty was considered, an order with an unpaid work requirement was recommended.
6.
The appellant’s wife had written a letter to the judge. She had been in a relationship with the appellant for 3 years. He had sought to make something of his life with his refurbishment business. She was anxious about how she would manage without his financial and practical support during pregnancy and with a baby.
7.
When he passed sentence, the judge referred to the fact that the appellant had offended when subject to a community order and after he had been released under investigation. He said that the offences involving the supply of Class B drugs fell into category 3 significant role
of the applicable sentencing guidelines. Each offence had a starting point of 12 months’ imprisonment, with a range extending up to 3 years’ imprisonment.
8.
The judge raised the starting point for the first offence to 15 months’ imprisonment because the appellant had been subject to a community order and for the second offence to 18 months, because the appellant had been released under investigation at the time. Taking account of totality, the judge decided to impose concurrent sentences of 20 months’ imprisonment for each offence, which he then reduced by 10 per cent because of the pleas of guilty which had been entered on the morning of the appellant’s trial.
9.
The judge said that the custody threshold had clearly been passed. He considered whether the sentences could be suspended. He concluded that they could not. The appellant had continued to offend in breach of a community order and when released under investigation. The judge said that there was no rehabilitative element that he could consider which would stop the appellant from offending. He referred to the absence of “over and above strong personal mitigation”. Immediate custody would have an impact upon his wife but in the judge’s view that was not “overly significant”.
10.
It is now argued on the appellant’s behalf by Ms Ahmad that the sentence should have been suspended and that the judge did not give sufficient weight to the appellant’s personal mitigation, to the fact that no rehabilitation activity requirement was proposed in the pre-sentence report and to the current level of the prison population. Reliance is also placed on a positive prison report which we say at once is to the appellant’s credit and which says that he will be released on home detention curfew on 7 May, so in 13 days’ time. We are grateful to Ms Ahmed for her submissions and we have given them careful consideration.
11.
The judge was right to conclude that the case crossed the custody threshold. That is agreed. Nor is any complaint made about the length of the sentence. The judge evidently had well in mind the sentencing guidelines for the imposition of community and custodial sentences. He expressly referred to the appellant’s personal mitigation and to the impact that immediate custody would have upon others. There were grounds for some optimism when the appellant had not offended since March 2021, had developed new responsibilities in his personal life and had achieved some success in his business. Nonetheless, the obstacle faced by the appellant then and now is that, as the judge identified, he had not only offended while subject to a community order, but he had then continued to offend after being released under investigation. The prospect of rehabilitation was only one matter that fell to be considered in accordance with the Imposition Guideline. The constraints the appellant was under, or should have been, and his failure to have regard to them made the offences more serious. In our judgment, it was reasonably open to the judge to conclude that they made the offences so serious that only immediate custody would constitute appropriate punishment, after considering all the circumstances of the case and all the factors in the Imposition Guideline, which it was his role then to balance.
12.
In these circumstances, and notwithstanding Ms Ahmad’s submissions, this appeal must be dismissed.
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acb1094c3a8ff50a7ef035c3e573f2a866f3304c2067d7180b2c037914c69971 | [2009] EWCA Crim 1088 | EWCA_Crim_1088 | 2009-05-15 | crown_court | No: 200806517 A8 Neutral Citation Number: [2009] EWCA Crim 1088 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 15 May 2009 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE SHARP DBE HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - R E G I N A v SAMANTHA JANE WATSON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Li | No:
200806517 A8
Neutral Citation Number:
[2009] EWCA Crim 1088
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 15 May 2009
B e f o r e
:
LORD JUSTICE TOULSON
MRS JUSTICE SHARP DBE
HIS HONOUR JUDGE WADSWORTH QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)
- - - - - - - - - - - - - - - -
R E G I N A
v
SAMANTHA JANE WATSON
- - - - - - - - - - - - - - - -
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 J De Burgos
appeared on behalf of the
Appellant
Miss H Kubik
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON: Sharp J will give the judgment of the court.
2.
MRS JUSTICE SHARP: On 22 September 2008, at the Crown Court at Leicester, before HHJ Head, the appellant, who was then 26 years old, was convicted after a five-day trial of causing death by dangerous driving. On 17 October 2008, she was sentenced to five and a half years' imprisonment, with a direction under
section 240 of the Criminal Justice Act 2003
that 25 days spent on remand should count towards the sentence. She was also disqualified from driving for five and a half years, and thereafter was ordered to take an extended re-test.
3.
The appellant had indicated a willingness to plead guilty to the offence of careless driving, but that plea was unacceptable to the prosecution. No separate penalty was imposed for an offence of using a vehicle with no insurance. She appeals against sentence by leave of the single judge, who granted the necessary extension of time.
4.
The facts were these. On 14 April 2007, the appellant was driving her boyfriend's Mitsubishi Lancer Evolution motor car, which is a high performance car and has been described as a rally car of some potency. Her boyfriend was a Mr Bulmer. The appellant volunteered to drive his car because Mr Bulmer had been drinking, but she had no experience of driving such a powerful car.
5.
At about 8pm in the evening she had been driving in a legitimate and sensible convoy, as the judge was to describe it, along an "A" road and a motorway with other vehicles. All those involved in the convey were friends or acquaintances and part of a car club. Mr Bulmer was in the front passenger seat, and a young man named Daniel Jordan, then aged 15, was in the rear passenger seat. During that part of the evening the appellant was seen to weave or snake across lanes, and accelerated away from the other vehicles at speed. She subsequently boasted about the high speeds she had been driving at, and her passenger, Mr Jordan, said the speeds had been in the order of 150 miles per hour.
6.
By about 11pm she had left the convoy and was negotiating a bend on a "B" road in Leicestershire, Copt Oak Road in Markfield. A Ford Mondeo car was being driven by a police officer, Detective Sergeant Cure, towards the appellant on the opposite side of the road. Mr Bulmer had previously told the appellant to slow down, but she had ignored his warnings.
7.
On the appellant's own evidence she was not keeping to the near-side of the centre white line but straddling it. The Mitsubishi appeared to lose control as it came over the bend. Detective Sergeant Cure tried to avoid the car in the very short time available, but a collision was inevitable, and then occurred. The road on which the collision occurred was subject to the national speed limit of 60 miles per hour.
8.
The prosecution expert, with whom the defence expert agreed, gave cogent evidence that the median value for critical speed of the bend was about 73 miles per hour. If the Mitsubishi had been travelling any faster than that, the nature of the bend was such that it would not have negotiated the bend at all, but would probably have ended up leaving the road, rather than colliding with Detective Sergeant Cure's vehicle. It is probable that Mr Bulmer, who was not wearing a seat belt at the time of the collision, died instantly. Mr Jordan suffered a broken arm, and Detective Sergeant Cure sustained a broken ankle which developed complications. The appellant sustained serious injuries for which various operations were subsequently required. She suffered fractures of both her thigh bones, her left heel, her left knee cap and her right fibula in the accident. As a result of her injuries, she now walks with the aid of a stick, and one leg is shorter than the other by about two centimetres.
9.
She was subsequently arrested, but denied that she had been driving erratically or dangerously. Enquiries revealed she was not insured to drive the car, but it was accepted that this was not a culpable error, and in passing sentence the judge accepted the appellant was probably unaware of the fact that she was not insured.
10.
In sentencing the appellant, the judge took account of the Definitive Sentencing Guidelines for the offence of causing death by dangerous driving. The judge also accepted the inevitable impact Mr Bulmer's death had on the appellant because of their relationship. On the day in question, the deceased had been drinking so the appellant had volunteered to drive the car. Although she had no insurance, it was probable she did not know that. However, he said the car was a very powerful car, which was wholly outside the appellant's driving experience, and as a committed car enthusiast she was well aware of its power and potential. She had repeatedly driven erratically when the car was in a convoy with two others, and she had bragged about driving the car at high speeds.
11.
Before the fatal accident occurred, the deceased had told her to slow down. The precise speed she had been driving at the time of the accident was not known, but she had lost control of the car on a bend on a country lane with which she was unfamiliar, with bends and undulations and without lighting, and had crashed into an oncoming car.
12.
The judge took account of the following aggravating features: prolonged driving at excessive speed prior to the accident of up to 150 miles an hour, as the evidence suggested; the fact that the appellant had been alive to the fact because she had bragged about it; the weaving from side to side or snaking; and the severe injuries to two other people.
13.
In this context it should be mentioned that, so far as Detective Sergeant Cure is concerned, the injuries he has sustained have been long-lasting. They have affected his mobility and we have seen and considered his victim impact statement.
14.
The judge also had regard to the disregard of a warning to slow down, and to two previous convictions the appellant had for speeding, although apart from those matters she was of previous good character.
15.
He also referred to the following mitigating features: her own severe injuries; her remorse, although it was noted that that had not prevented her from saying one of the witnesses was lying; and her close relationship with the deceased. The judge took account of the contents of the pre-sentence report and her record. We should add that the pre-sentence report concluded that the appellant was an engaging, intelligent and well qualified young woman, who had been a manager for a mobile phone company at the time of the collision. It described her devastation, grief and remorse for her actions, which led to the death of her partner and the injuries to the other persons involved.
16.
In the event, the judge concluded in all the circumstances that this case fell into the intermediate category of seriousness for which custody was inevitable.
17.
On behalf of the appellant, Mr De Burgos realistically confines his submissions to this: despite the aggravating features to which we have referred, the mitigating features were such that the sentence should have been lower. He submits that, in effect, the aggravating features which justified putting this case into level 2, which has a range of four to seven years, should not be taken account of again in putting the sentence at five and a half years.
18.
In the offence Guidelines it is said that a level 2 offence is driving that creates a substantial risk of danger, and is likely to be characterised by the following factors:
"• Greatly excessive speed, racing or competitive driving against another driver OR
• Gross avoidable distraction such as reading or composing text messages over a period of time OR
• Driving whilst ability to drive is impaired as a result of consumption of alcohol or drugs, failing to take prescribed medication or as a result of a known medical condition OR
• A group of determinants of seriousness which in isolation or smaller number would place the offence in level 3."
19.
These factors are of course illustrative only. A substantial period of imprisonment was clearly merited on the facts of this case. Taking a realistic view of the matter, the judge was, in our view, entitled to regard what happened on this particular evening, and the appellant's driving in particular, as thrill-seeking and showing off at speed despite warnings, albeit the most serious instances of this occurred some time before the collision. There were additional significant matters, particularly the injuries to Detective Sergeant Cure to which we have referred.
20.
In the light of those matters, we are of the view that the judge was entitled to conclude that this offence fell into the category of seriousness described as level 2.
21.
The Guidelines also recognise as specific mitigation factors which were present in this case: a close relationship with the victim; and injuries to the defendant him or herself. In this case, it is clear from the information we have seen that the appellant, a young woman, was not only seriously injured at the time of the collision, but that she will suffer serious disability and pain for the remainder of her life.
22.
We are of the view that it may be that the judge in this case was influenced as to the sentence he passed by the aggravating factors to which he had regard in putting this offence into level 2. It is of course important to take care that aggravating factors which merit putting an offence into a higher category are not then double counted to add to the sentence.
23.
Difficult as these cases are, balancing the aggravating factors and mitigating factors to which we have referred, one against the other, we do not think in all the circumstances this case merited going above the starting point for level 2, and we would put it slightly below the starting point which is five years. In our view, the sentence should be one of four and a half years' imprisonment. The sentence of five and a half years will therefore be quashed, and a sentence of four and a half years' imprisonment will be substituted.
24.
To that extent only this appeal is allowed.
25.
LORD JUSTICE TOULSON: Miss Kubik, when Sharp J referred to the acceptance by the appellant that it was a case at least of careless driving, you appeared to show some dissent. It does not affect the judgment, but if the transcript needs correcting for the sake of accuracy, you have an opportunity to mention it.
26.
MISS KUBIK: Thank you. The date of the offence preceded the implication of the change in the law to allow for causing death by careless driving. So for the date of the offence, all that the defendant was able to offer as an alternative to causing death by dangerous driving was simple careless driving. So it simply needs to be amended to that.
27.
MR DE BURGOS: My Lord, I can confirm that.
28.
LORD JUSTICE TOULSON: Thank you. | [
"LORD JUSTICE TOULSON",
"MRS JUSTICE SHARP DBE",
"HIS HONOUR JUDGE WADSWORTH QC"
] | 2009_05_15-1942.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1088/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1088 | 851 |
f336e70b94655d4b945993bac683a1ee90d2a7fa5af959f1f153bd3ec2c76d29 | [2017] EWCA Crim 874 | EWCA_Crim_874 | 2017-07-04 | crown_court | Neutral Citation Number: [2017] EWCA Crim 874 Case No: 201605016 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court at Carlisle HHJ Batty T20147129 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2017 Before: LORD JUSTICE HAMBLEN MRS JUSTICE MCGOWAN and HIS HONOUR JUDGE WAIT - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Newton Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Appellant d | Neutral Citation Number:
[2017] EWCA Crim 874
Case No:
201605016 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Crown Court at Carlisle
HHJ Batty
T20147129
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
04/07/2017
Before:
LORD JUSTICE HAMBLEN
MRS JUSTICE MCGOWAN
and
HIS HONOUR JUDGE WAIT
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
Newton
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
The Appellant did not appear and was not represented
Mr Oliver Weetch
(instructed by
Ashley Smith & Co
) for the
Appellant
Hearing date: Friday 16 June 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Judgment of the Court:
1.
John Robert Newton, appeals against sentence by leave of the Single Judge, who also granted an extension of time of 579 days and a representation order for counsel.
2.
On 27 October 2014 in the Crown Court sitting in Carlisle the appellant pleaded guilty before His Honour Judge Batty QC to 5 offences. On 6 March 2015, he was sentenced by the same judge as follows:
Committing an offence with intent to commit a sexual offence,
s 62 (1)
Sexual Offences Act 2003
Extended sentence of 12 years custody with an 8 year extension
Breach of a Sexual Offences Prevention Order,
s 113 (1)
(a)
Sexual Offences Act 2003
18 months imprisonment
Voyeurism,
s 67 (3)
Sexual Offences Act 2003
18 months imprisonment
Assault occasioning actual bodily harm,
s 47
Offences Against the Person Act 1861
18 months imprisonment
Assault by beating,
s 39
criminal Justice Act 1988
4 months imprisonment
Having committed an offence during the 2 year operational period of a suspended sentence of
9
months’ imprisonment
, imposed on 28
th
February 2014 at the Crown Court at Carlisle for offences of voyeurism and theft, the suspended sentence
was activated with a reduced term of 6 months imprisonment concurrent.
3.
This is a case to which reporting restrictions apply and nothing should be published which would identify the complainant throughout the rest of her life.
FACTS
4.
On 26 August 2014, the complainant, aged nine, was playing with friends in a park. At about 5:30pm she went to use the lavatory in a cafe next to the children’s play area. The appellant bumped into her as she entered the lavatory. She went into a cubicle and locked the door behind her. The appellant entered the neighbouring cubicle, stood on the lavatory seat and using his mobile phone, began to film the complainant holding his phone over the communicating wall. The complainant shouted “no” and immediately pulled her trousers up.
5.
The appellant pushed his way into her cubicle using sufficient force to break the lock on the door. She could see that his penis was exposed over the waistband of his trousers which had been pushed down. He pulled up his trousers. He came into her cubicle and took hold of her by her arms and forced her to sit on the toilet. He asked what was in the bag that she was carrying, pulled out her purse, looked to see what it contained and then put it back into the bag. Again, he took hold of the complainant’s arms and ordered her to remove her trousers. She refused. She tried to push past the appellant to escape but he grabbed her by the side of her trousers scratching her hip in the process. In due course his DNA was found on the waistband of her trousers.
6.
The appellant pushed the complainant back into the cubicle and back onto the toilet seat. He kept ordering her to remove her trousers. He threatened that if she refused or shouted for help he would hit her. At that stage the complainant heard someone enter the toilet area and she shouted for help. The appellant punched her to the area around her left eye causing bruising, he slapped her across the right ear causing reddening and swelling and then hit her over the head. The first blow was of such force that it made her fall off the toilet seat.
7.
The lady who had entered the toilets realised that something very untoward was happening and so went out to call for help. The appellant ran past her and pushed her causing her to fall to the ground. She again entered the lavatories and the complainant immediately ran to her crying and distressed. A man who was in the park tried to chase after the appellant but lost sight of him.
8.
The complainant was taken to hospital where she was found to have a bruise to her left forehead, abrasions to the area of her left pelvis and a bruise to her left middle finger.
9.
The description given matched the appellant and police officers arrested him at his home address.
10.
The judge read a Victim Personal Statement from the family of the complainant dealing with the distress, fear and anxiety from which she and all the family had suffered. This court has also seen a more recent statement from the victim’s father, expressing his concerns and the continuing effect the offences and the publicity surrounding it has upon the complainant and her family.
Antecedent history
11.
The appellant was aged 28 at sentence (born 19/03/1988). He had 14 convictions spanning from 2001-14. His relevant convictions are for indecent assault on a female aged 16 or over in 2005 and voyeurism in 2014 for which he received a Suspended Sentence and a Sexual Offences Prevention Order to which he was subject at the time of the current offences.
12.
He was therefore in breach of that suspended sentence order of nine months suspended for 2 years, imposed on the 28 February 2014. On that occasion the appellant had gone into the lavatories at a supermarket and placed a mobile device above the ceiling tiles with the camera facing towards the lavatory. It was noticed by member of the public and the appellant was identified. A Sexual Offences Prevention Order was imposed. The index offences were committed in breach of two of the prohibitions in that order, namely entering a women’s lavatory and using a device capable of recording images.
Sentence
13.
In passing sentence the learned judge observed that the complainant in this case had been targeted because of her vulnerability and youth. She had sustained injury. The appellant had admitted that his intent was to carry out a sexual assault on the complainant by an act of digital penetration. The learned judge rightly observed that these were very worrying offences set against a background of a troubling history of offending and in breach of a suspended sentence and SOPO.
14.
It was rightly conceded that there was ample material upon which to reach a finding of dangerousness. A psychiatric report on the appellant concluded that the risk of repetition of similar offences must be viewed as high; the risk of committing further offences against younger females was unlikely to diminish.
15.
The appellant had admitted his responsibility and indicated that he would plead guilty at an early stage. He suffered from mild learning disability and ADHD which had markedly improved now that he was older. He also had Alcohol Dependence Syndrome.
16.
The learned judge was entirely right to consider that a very lengthy prison sentence was the only appropriate way of dealing with the appellant. Committing an offence with intent to commit a sexual offence contrary to
s.62(1)
Sexual Offences Act 2003
, is dealt with in the Sexual Offences Definitive Guideline. It states, “the starting point and range should be commensurate with that of the preliminary offence actually committed with an enhancement to reflect the intention to commit a sexual offence.”
17.
The preliminary offence committed was false imprisonment. The appellant had targeted a young child alone in a public lavatory, he attempted to film her whilst she was using the lavatory, he forced his way into the cubicle and exposed his penis to her, he searched her purse to rob her of money, he then struck her on three occasions, at least one of them with sufficient force to knock her to the ground. During his false imprisonment of the complainant in the lavatory it was his intention that he would sexually assault her by an act of digital penetration.
18.
The combination of these features including an element of enhancement to reflect the intended sexual assault means that the judge was right to impose a very substantial term of imprisonment. Given the length of that sentence he ordered that six months of the nine month suspended term should be activated but ordered that it should be served concurrently to the total term. The Judge set the term for this offending at 18 years after a trial which he reduced to 12 to reflect the early indication of the plea of guilty. In addition, he imposed the maximum term of extended licence on release of eight years. The effect of the extended sentence is that the appellant will serve at least two thirds of any sentence before being eligible to be considered for parole and will remain on licence for eight years after eventual release.
19.
Although a very long sentence was entirely justified it is the view of this court that the term of 18 years before credit for his guilty plea was manifestly excessive in all the circumstances. This was not a completed or attempted rape, the detention of the child did not last for an extended period as it was in a public place and although the violence used was gratuitous and frightening it caused no serious physical injury. As the learned judge observed, this was not the worst case in this category of offending.
20.
Taking account of all the relevant features, the appropriate term after a trial was one of 15 years, and applying the appropriate credit for his plea of guilty, we therefore substitute a term of 10 years. To that extent this appeal is allowed.
21.
The learned judge was entirely right to impose an extended sentence and, although it is the maximum period under the legislation, the licence period of eight years cannot be said to be either wrong in principle or manifestly excessive. | [
"LORD JUSTICE HAMBLEN",
"HIS HONOUR JUDGE WAIT"
] | 2017_07_04-4010.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/874/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/874 | 852 |
60f3dc809d6d037f7db8a9fc1e2dff9f89b17732295bd35c84ee4e9343798dd6 | [2022] EWCA Crim 1576 | EWCA_Crim_1576 | 2022-10-11 | 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
[2022] EWCA Crim 1576
CASE NOS 202101482/B1 & 202101524/B1
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 11 October 2022
Before:
LADY JUSTICE WHIPPLE DBE
MRS JUSTICE McGOWAN DBE
MRS JUSTICE HILL DBE
REX
V
TAHIR ZAMAN
__________
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 A ROSE
appeared on behalf of the Applicant
________
J U D G M E N T
LADY JUSTICE WHIPPLE: Having heard submissions from Mr Rose this morning, we have decided to adjourn this application for permission to appeal against both conviction and sentence. We are grateful to Mr Rose who has appeared before us
pro bono
.
Mr Rose was in contact with the Criminal Appeals Office last night to tell us of late instructions he had received not to pursue the application for permission to appeal against conviction. He tells us this morning, based on the little information he has been able to garner since that communication, that the instructions originated from a third party family member and not directly from the applicant himself, Tahir Zaman.
In light of that, Mr Rose has asked for and we have indicated that we are willing to grant a short adjournment. The reason for that is that he has not seen his client in person. His client is serving a life sentence and is detained at HMP Full Sutton. Mr Rose, and possibly leading counsel also, wish to discuss matters with Mr Zaman in order to confirm the instructions which have been communicated.
In the particular circumstances of this case we consider that to be a reasonable request to which we accede. We adjourn this matter for 28 days in order to permit the applicant either to file a Notice of Abandonment under Criminal Procedure Rules 36.13 or otherwise to indicate to the court the intention to progress these applications, one or both.
Although the application for the adjournment was made in relation only to the conviction appeal and it would in one sense be possible to go forward and deal with the application for permission to appeal against sentence today, because that application raises discrete issues, it is our considered view, which Mr Rose supports, that it is better to adjourn both conviction and sentence matters. We consider the sentence appeal (should it proceed) to be straightforward so that it can be dealt with relatively efficiently by the court at a future occasion if it is persisted in, but there is now the opportunity for Mr Rose to take instructions on sentence as well as conviction and in the circumstances we consider it to be more appropriate to keep the conviction appeal and sentence appeal applications together as part of a single case and prospectively part of a single hearing.
In reaching the conclusion that we should adjourn, we are acutely aware that there may be others concerned in the outcome of this appeal. On any view this is a very serious case. It involves the murder of Murtaza Nazir on 28 August 2020. But given that this is the applicant's last chance of obtaining permission to appeal, and in light of the wider interests of justice, we consider a short adjournment is appropriate.
We direct that a transcript of these remarks be available for the next court that deals with this matter. The matter is not reserved to any member of the current constitution.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | [
"LADY JUSTICE WHIPPLE DBE",
"MRS JUSTICE McGOWAN DBE",
"MRS JUSTICE HILL DBE"
] | 2022_10_11-5459.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1576/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1576 | 853 |
dbde86b8e32ee20c3031042aae2fa694a553b4e4dc4f6d16bbc222e9d5e5149e | [2010] EWCA Crim 2637 | EWCA_Crim_2637 | 2010-11-12 | crown_court | Case No: 2010/00661/C1 Neutral Citation Number: [2010] EWCA Crim 2637 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT The Common Serjeant Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/11/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE IRWIN and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : R - and - Inglis - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A Newman QC and Mr G | Case No:
2010/00661/C1
Neutral Citation Number:
[2010] EWCA Crim 2637
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
The Common Serjeant
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
12/11/2010
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE IRWIN
and
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
Inglis
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr A Newman QC and Mr G Harrison for the Appellant
Miss M Moore QC and Mr R O’Sullivan for the Respondent
Hearing date : 20
th
October 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
On 7 July 2007, when he was 21 years old, Thomas Inglis, a fit young man, was being taken to hospital in an ambulance. On the way the back door opened three times. On the third occasion he fell out and suffered catastrophic head injuries.
2.
Two months later, on 4 September 2007, his mother, Frances Inglis, the appellant, tried to kill her son by injecting him with heroin as he lay in his bed in hospital in Romford. He suffered cardiac arrest. Although he was resuscitated, he suffered further consequential deterioration in his condition. The appellant was arrested. After she denied any responsibility for the presence of heroin, she was charged with attempted murder. In the interests of Thomas’s safety she was granted bail subject to a condition that she should not visit him.
3.
Just over a year later, on 21
st
November 2008, having carefully planned how to gain access to her son in breach of bail, the appellant killed Thomas by again injecting him with heroin. It is as well to emphasise at the outset that this was not, and it has never been suggested that it was, an assisted suicide.
4.
On 20 January 2010 at the Central Criminal Court, before the Common Sergeant of London and a jury, the appellant was convicted of attempting to murder her son in September 2007, and after the judge concluded there was no evidence on which to leave the defence of provocation to the jury, of murdering him in November 2008. She was sentenced to the mandatory term for murder of life imprisonment. The minimum term to be served before parole could be considered was assessed at 9 years, less 423 days spent on remand.
5.
This is an application for leave to appeal against conviction and sentence. We must address the facts in some detail.
6.
Thomas Inglis was born in April 1986, one of the three sons of Alex and Frances Inglis. The marriage ran into difficulties and in 1996 they parted. Some features of the appellant’s medical history at that time are relevant. In December 1995 an examination revealed that she had “the hallmarks of a depressive illness”. By the following March her situation had not changed, and she remained “distressed and depressed” and was advised to take an anti-depressant. In June it was reported that she had ceased taking the medication because she was worried she would become dependent on anti-depressants. Some 10 years or so later, but before the accident to Thomas, in June 2006, a fresh diagnosis of post traumatic stress disorder was made. In the meantime the appellant, who had been a learning support assistant, took up a place on a nursing diploma course, which covered the principles of drug administration and pharmacology.
7.
At the date of his accident Thomas was in sound health, living an independent life with his girlfriend. In the early hours of 7 July 2007 he was involved in a fight in which he received a blow to the head. Against his wishes he was required to go to hospital. An ambulance was called. On the way to hospital the back doors of the ambulance opened twice. When they opened on a third occasion, Thomas fell out of the back and sustained severe head injuries. He was taken to the neuro-intensive care unit of the Queen’s Hospital Romford, in a deep coma, and put on a life support machine. A decompression operation was carried out almost immediately. Part of the front of the skull was removed to relieve pressure on the brain. Without the operation he would have died.
8.
Immediately after the accident, the appellant was examined by the doctor on call. The appellant reported that Thomas was in a “vegetable state”, and she herself was very depressed and tearful… “hopeless and helpless,” but denying suicidal thoughts.
9.
A further decompression life saving operation to remove more of the skull was carried out on 10 July. One result of the operations was severe disfigurement. We have seen photographs showing the condition of Thomas’s face and skull. They are indeed distressing, and it is clear that the appellant was shaken by the physical appearance of her son. She was later to say that the first time she saw her son her heart broke. Following this second operation, the supervising consultant, Mr Vindlacheruvu, had a discussion with the family, suggesting that the early signs were encouraging, and he told them that it was possible that Thomas could end up leading an independent life. He added that he had seen patients in worse condition who had eventually recovered sufficiently to be able to run their own businesses.
10.
The family views about the operations, and in particular the second operation, were distressingly contradictory. The appellant was opposed to it. Thomas’s father, who believed that without the operation his son would die, agreed to it. That provided the necessary consent. So it was undertaken. The appellant regarded the operation as subjecting her son to yet further and completely unnecessary suffering. In recording her attitude to it we are not to be taken as implying that her attitude accurately reflected the reality, but it undoubtedly accounted for her perception that the operation was “an act of madness”. The appellant totally rejected what she regarded as the unfounded optimism of Mr Vindlacheruvu. At the time the rest of the family did not.
11.
During the meeting with Mr Vindlacheruvu on 17 July, the appellant was observed to be very distressed, and she was unable to stay to the end of the meeting. That evening she went round to see a neighbour. She appeared to be irrational, and quite unlike herself. She reported that Thomas was in a “cabbage” state, and she asked the neighbour to find someone who could find some pure heroin so that his life could be ended. She said that she wanted to take him out of his misery and end his pain. Very sensibly, the police were called. They took the appellant home, and spent several hours with her, trying to calm her and reassure her.
12.
Something of her perception about the consequences of the accident, and indeed the operations, is revealed in the evidence of her eldest son, Alexander. He suggested that his mother was “frantic and stressful to be around, because of her emotional swings and crying”. Although the doctors suggested otherwise, she was adamant that Thomas could not get better. She was convinced he would be a vegetable, and had become obsessed with the thought. She felt that Thomas should never have been resuscitated and should have been allowed to die a natural death. The operation was “evil”. Alexander expressed his concern for the safety of his brother “because of what she says, the way she acts, she thinks that she has to release Thomas from his suffering…she thinks he is in pain, when it is obvious he is not”.
13.
At the same time, the family as a whole were unified in their concern about the circumstances of the accident, and how, as they understood it, it had come about that Thomas had been taken to hospital against his wishes, and how and why the rear doors of the ambulance had opened on no less than three occasions.
14.
In August 2007, Thomas was assessed by the Regional Rehabilitation Unit. He was not ready to transfer into that unit until he was able to swallow on his own, and he was assessed as likely to need dependant care in the long term. The appellant and the family visited Thomas daily. By September, the family was increasingly concerned about the appellant. She was constantly crying. She was desperately but unsuccessfully hoping to find someone to agree with her view that there was no hope for Thomas, and that it would be better if he were dead and at peace.
15.
The appellant’s belief that Thomas should be released from his suffering never changed. Over the days before she first injected Thomas with heroin, the appellant had been crying for the whole day “non-stop…just acting weird”. When she was examined for the purposes of addressing the charge of attempted murder, the conclusion of Dr Gillian Mezey, a distinguished forensic psychiatrist, was that in the period leading to the offence the appellant was “becoming depressed” (and that) “this would have affected her perceptions and judgment”. She believed that she needed to relieve Thomas of his suffering, which in her mind was being prolonged and exacerbated by the interventions of the medical team. She had convinced herself that she was the only person who had his interests at heart or who genuinely cared for him.
16.
On 4 September when the hospital was short staffed, the appellant arrived to visit her son. She expected to see him in a chair, but he was still in bed. She was left alone with him. Some time later it was appreciated that she had left and that Thomas had become very ill. The team responsible for his care was called. He had suffered cardiac arrest. His lips were blue and he was not breathing. The heart monitor showed that he was clinically dead. He was resuscitated. The cardiac arrest was not expected, and there was no obvious cause for it. The incident was reported to Thomas’s parents, and his father queried whether the appellant may have had something to do with what had happened.
17.
During the following days the appellant was heard to repeat the view that Thomas should never have been resuscitated at the hospital. Then, on 21 September, the results of tests on samples taken from Thomas on 4 September revealed the presence of constituent parts of street heroin. The police were called. The appellant was arrested and interviewed. She denied any knowledge of how heroin had got into the deceased body and denied that she had ever had any idea of ending Thomas’s life. It is a feature of the interviews with the appellant that she was content to allow suspicion to fall onto Thomas’s father or his brother or those responsible for his care at hospital. She was, however, later to accept that she had lied to the police, and in her defence statement she admitted that she had injected her son with heroin, but denied any intention to kill him. When she gave evidence at her trial she said that she had lied to the police deliberately, believing that if she told the truth she would be deprived of bail, and so would be unable to visit her son and kill him.
18.
After she was charged with attempted murder, the appellant’s bail was extended, but for the sake of Thomas’s safety, it was made an express condition of the continuation of her bail that she should not visit him. In May 2008, her solicitors indicated that she intended to plead guilty to attempted murder on the basis that her actions represented an act of mercy, and her intention was to put Thomas out of his misery. Accordingly the only issue for decision was sentence.
19.
In the report prepared for the purposes of the sentencing hearing, Dr Mezey recorded that the appellant did not accept that her “behaviour and actions were unjustified and she did not express remorse for what she has done. She continues to believe that she is acting in Thomas’s best interests in administering heroin. These views and perceptions are likely to be affected by her continuing level of mental disturbance”. It was recommended that she should receive psychiatric treatment and specific focussed psychotherapy to help her come to terms with her son’s accident.
20.
It is clear from all the evidence that while arrangements were being made for the hearing of the attempt murder charge, and the sentence which would follow conviction, the only remorse the appellant suffered arose from the fact that her attempt to kill Thomas had failed, and that her intention to kill him, and to find the opportunity to do so, was and remained settled.
21.
Two important questions connected with the attempted murder of Thomas remain. The first relates to the extent to which this injection of heroin aggravated Thomas’s condition, and the second, the development of the appellant’s mental condition after the failure of that attempt to kill Thomas.
22.
It is overwhelmingly likely that Thomas’s condition deteriorated as a direct result of the cardiac arrest which followed the injection of heroin. The report from Mr Peter Kirkpatrick FRCS recorded the severe brain injury sustained by Thomas on 7 July 2007, and the expeditious decompressive craniectomy surgery which proved life saving. Prior to the cardiac arrest on 4 September, “the indications were for a reasonable neurological recovery”, but Mr Kirkpatrick explained that after patients have suffered injuries similar to those sustained by Thomas, and life saving operative treatment, even if they can become “largely independent in their physical capabilities, they may have significant cognitive difficulties”, needing structured support. He doubted whether Thomas could have gone on to improve to such an extent that he could have found employment. After the incident of cardiac arrest, Thomas’s condition had declined. He was in a “desperate state of disability and the prognosis …(was) exceedingly poor”.
23.
We should add that we have studied the report prepared on behalf of the appellant by Dr Derek Wade. He had not seen all the relevant medical records on Thomas at the time when he expressed his opinion about the extent of Thomas’s problems before his mother first administered heroin. As to Thomas’s condition the evidence of Mr Kirkpatrick is convincing. We have no doubt that the cardiac arrest following this first injection of heroin produced a significant deterioration in his condition. The medical report prepared by Dr Wade after this deterioration had occurred, and as far as we can ascertain for the first time, suggested that the prognosis for the future was such that an application might eventually have to be made to the High Court for permission to withdraw hydration and nutrition from Thomas.
24.
Thomas was removed to the rehabilitation centre at Northwick Park in October 2007. The staff of the centre were well aware that the appellant was not allowed to visit him, and so they discussed the arrangements for caring for Thomas with his father. Among other matters this included the possible withdrawal of hydration and nutrition for Thomas if he persisted in the vegetative state for at least 12 months. His father expressed the view that Thomas should not be resuscitated. When the appellant was told about the possibility that hydration and nutrition would be withdrawn her response was that this was unacceptable.
25.
In May 2008 Thomas was moved to the Garden Hospital at Sawbridgeworth. The staff here had also been informed that the appellant was not allowed to visit him. Conditions at the Garden Hospital appeared to the rest of the family to be an improvement. There were reports that by using his eyes Thomas appeared to be responding to contact.
26.
After a while his father started visiting him at hospital accompanied by the appellant, who was described as his aunt. At much the same time a photograph of Thomas with his mother, which had been kept in his room, was removed, plainly so as to prevent her identification.
27.
Between June and November 2008 the appellant was in a state of heightened arousal, depression, irritability and anxious anticipation. Her ability to plan and prepare to bring Thomas’s life to an end was not in any sense incompatible with the diagnosis of continuing severe depression, and this condition, together with additional symptoms of post traumatic stress disorder, would have damaged her perception of Thomas’s condition as well as her ability fully to understand the likely prognosis.
28.
On 21 November the hospital was short-staffed. The nurses were late doing their medication rounds. The appellant arrived at about 1.40pm. She was carrying heroin, syringes and superglue. She asked to see Thomas. No suspicions were aroused. According to her account, once they were alone she injected him with a fatal dose of heroin, telling him, “everything is fine. I love you”. She calculated that it would take about an hour for Thomas to die, and she did not want anyone to see him before he had died, lest they interfere and seek to resuscitate him. After about 20 minutes a nurse walked into the ward. The appellant panicked and yelled at her to “get out”, threatening her that she had “aids”. When the nurse left the room the appellant shut and then locked the door. She put superglue she brought for the purpose into the lock and then barricaded the door with an oxygen tank and a chair. Gradually Thomas stopped breathing. Eventually the door was pushed in by a male member of staff, who then had to restrain her because she was screaming and crying, terrified that Thomas would be brought round, and desperate to prevent it. When she eventually heard that he had died, she felt a sense of relief that her son was “finally at peace”.
29.
The appellant’s mental condition after the failed attempt to kill her son meant that she had “never faltered in her conviction that Thomas was suffering and that ending his life was the only way to stop this”. The appellant told Dr Mezey that she had been informed that it would be possible, if there was no improvement in Thomas’s condition, for the hospital to withhold treatment, and nutrition and hydration. She believed that this was a “barbaric” solution, and that it would result in Thomas’s suffering a prolonged and lingering death, whereas when she injected him with heroin, his end was relatively “quick and peaceful”. She had become increasingly determined to release him from his suffering. She perceived this to be her duty as his mother.
30.
Dr Mezey diagnosed that the appellant had continued to suffer from depressive disorder, with additional symptoms of post traumatic stress disorder. She became more determined to release him from his suffering. At the time when she administered the fatal dose of heroin these symptoms would have “affected her perception of the severity of Thomas’s condition and her view of his prognosis. She perceived Thomas’s situation as hopeless. She was convinced that he was suffering extreme pain and indignity…she believed that there was no prospect of improvement or alleviation of his condition”.
31.
It is not without significance that after Thomas’s death the appellant’s mental state improved. It was observed that she had become markedly less angry, agitated and distressed than she had been when she was examined when she was on bail facing the charge of attempted murder. She described to Dr Mezey how, once his life had ended, a burden had been lifted from her, and so after her initial distress at his death, she began to experience a sense of relief. As far as she was concerned, his real death had occurred after the accident in July 2007. Her mental condition continued to improve until the date of her trial.
32.
When she gave evidence at trial, the appellant explained that she had become increasingly concerned about the consequences of the possible withdrawal of hydration and nutrition in due course. She thought that this would be a dreadful death, dreadful for Thomas, and this time, she wanted to do the job properly. She looked through the nurses’ notes to see what their routine was so that she would have long enough to be alone with Thomas. She equipped herself with heroin and syringes. She tested one of the syringes on herself. She took nicotine patches with her because she knew she would be arrested. In addition to the syringes and heroin, she packed superglue with which, if necessary, to block the door. She told Thomas that she loved him. She injected him in each thigh, and told him it would be fine. She had no choice. She had to do it. She accepted that she had closed and locked the door, using the superglue, and put oxygen cylinders against it. She agreed that she had told nursing staff anything she could to keep them away. She wanted her son to leave what was a living hell. She felt that he had already lost his life. She did not see it as murder. There was no malice, only love in her heart. She knew the law would see it as wrong, and she knew that in our society it was wrong. Nevertheless she thought she had to do it. She wanted to relieve his suffering because he did not have the quality of life he wanted.
33.
To her, for an offence to be murder, it had to be carried out with hatred. She was not taking his life. He was suffering a living death. She agreed in her evidence that she had thought the whole thing through. She intended him to lose his life. She did not, at any stage, appear to understand that by the first injection of heroin she had made her own contribution to the sad condition or possible long-term outcome from which she wished to relieve him.
34.
The appellant did not suggest, and there was no shred of evidence that the administration of heroin to Thomas occurred when she was, or may have been, deprived of her self control. The only moment when she showed any signs of not being fully in control of her actions was when she faced the possibility that her efforts to kill Thomas might be frustrated by the intervention of members of the hospital staff seeking to prevent his death. This was consistent with her disregard of any views or wishes which did not accord with her own.
Appeal against conviction
35.
Having allowed all the evidence said to bear on the issue of provocation to be deployed before the jury, the judge withdrew the issue on the basis that there was no relevant evidence. Mr Alan Newman QC drew our attention to a number of features of the evidence which, so he contended, should lead us to conclude that the judge’s decision was wrong. Mr Newman highlighted the early problems, in the immediate aftermath of the accident, which made it difficult for the appellant to cope with conflicting information provided to her about how Thomas had fallen out of the ambulance, or been allowed to fall out of the ambulance, and her concern that the first set of operations was carried out to cover up the negligence of those responsible for conveying him to hospital by ambulance. She believed that a most unrealistic and disturbing opinion was expressed to the family about the likely prospects of a successful brain operation, which led to the consent being given to an operation which, in her view, was quite unnecessary and added to his suffering. Mr Newman argued that these considerations provided the context, on which were superimposed as time went by, clear signs that Thomas was undergoing pain and terror and panic as he lay helplessly in his bed, coupled with the appellant’s knowledge that because there was no improvement in his condition, and her belief that none could be expected, the stage would eventually arrive when an application would be made to the High Court for the treatment supporting Thomas’s life to be withdrawn, and which, if allowed, would lead him to suffer an agonising death from malnutrition and dehydration.
36.
We do not need to decide whether any of these matters, whether taken individually or cumulatively, fell within the ambit of provocative conduct for the purposes of
section 3 of the Homicide Act 1957
. Assuming that all of them were established, or even that the appellant’s perception of these facts and their consequences may have been correct, notwithstanding Mr Newman’s valiant efforts, we agree with the judge. There is no doubt at all that the appellant was subjected to great stress and anguish, but dealing with it briefly and starkly, there was, as our analysis of the evidence underlines, not a scintilla of evidence that when the appellant injected the fatal dose of heroin into her son she had lost her self-control. Rather, it was to the contrary: all the evidence demonstrated that the appellant applied her mind to her objective, which was to kill her son, and that she did so with scrupulous and meticulous care, and that in doing so she fulfilled her long-standing objective. Of course, we accept that the appellant is a decent woman, of positive good character, and that acts of violence of any kind, let alone fatal or potentially fatal actions, were quite outside her normal character. However, in relation to her son and his injuries, she was resolved that she should relieve him of his suffering. When she did so, she knew exactly what she was doing, and why she was doing it, and how it was to be done, and how it was imperative that its success should be assured. Far from lacking or losing self-control (an essential ingredient for the defence of provocation) the appellant was completely in control of herself. The appeal against conviction is not arguable.
Mercy Killing
37.
On any view this case is a tragedy, not only for the appellant, who has lost a precious and loved son, but for the father and brothers of the deceased and the extended family. There is a wider public interest in the case because the issues to which it gives rise are immensely sensitive and difficult, and they have attracted an increasing measure of public interest and concern. Therefore we must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder. The offences of which the appellant was convicted, and for which she fell to be sentenced, were attempted murder and murder. The sentence on conviction for murder is mandatory. The judge had no alternative but to order imprisonment for life. He then had to assess the length of the minimum period to be served before the possibility of release from prison on licence could arise for consideration. In making that assessment he was obliged to have regard to the statutory provisions in
schedule 21
of
the 2003 Act
.
38.
We must also emphasise that the law does not recognise the concept implicit in the defence statement that Thomas Inglis was “already dead in all but a small physical degree”. The fact is that he was alive, a person in being. However brief the time left for him, that life could not lawfully be extinguished. Similarly, however disabled Thomas might have been, a disabled life, even a life lived at the extremes of disability, is not one jot less precious than the life of an able-bodied person. Thomas’s condition made him especially vulnerable, and for that among other reasons, whether or not he might have died within a few months anyway, his life was protected by the law, and no one, not even his mother, could lawfully step in and bring it to a premature conclusion. Until Parliament decides otherwise, the law recognises a distinction between the withdrawal of treatment supporting life, which, subject to stringent conditions, may be lawful, and the active termination of life, which is unlawful.
39.
We cannot decide the case on the basis of whichever of the contradictory strands of public opinion in this extremely sensitive area happens to coincide with our own views, assuming that is, that if we had allowed our personal feelings to impinge on our discussions, that there would be any coincidence of views. How the problems of mercy killing, euthanasia, and assisting suicide should be addressed must be decided by Parliament, which, for this purpose at any rate, should be reflective of the conscience of the nation. In this appeal we are constrained to apply the law as we find it to be. We cannot amend it, or ignore it.
40.
In the result, we cannot improve on the Law Commission’s careful analysis of this profoundly sensitive issue in the Report on Murder, Manslaughter and Infanticide [2006] Law Com. 304 Part 7:
“All “mercy” killings are unlawful homicide.
7.4 The law …does not recognise either a tailor-made defence of “mercy” killing or a tailor-made offence, full or partial, of “mercy” killing. Unless able to avail him or herself of either the partial defence of diminished responsibility or the partial defence of killing pursuant to a suicide act, if the defendant intentionally kills the victim in the genuine belief that it is in the victim’s best interest to die, the defendant is guilty of murder. This is so even if the victim wished to die and consented to being killed…
7.6 The current law does not recognise the “best interests of the victim” as a justification or excuse for killing. What it does, instead, is to acknowledge to a very limited extent, that the consent of the victim can be relevant in the context of suicide pacts…
7.7 Under the current law, the compassionate motives of the “mercy” killer are in themselves never capable of providing a basis for a partial excuse. Some would say that this is unfortunate. On this view, the law affords more recognition to other less, or at least no more, understandable emotions such as anger (provocation) and fear (self-defence). Others would say that recognising a partial excuse of acting out of compassion would be dangerous. Just as a defence of necessity “can very easily become simply a mask for anarchy”, so the concept of “compassion” – vague in itself – could very easily become a cover for selfish or ignoble reasons for killing, not least because people often act out of mixed motives”.
41.
In reality, in a true case of mercy killing, provocation is unlikely to provide any defence. The more likely defence would be diminished responsibility. Either defence would reduce murder to manslaughter: it could not result in an acquittal. However, whereas the judge must leave the defence of provocation to the jury if there is evidence to sustain it, whether or not the defendant or his legal advisers have invited the jury to consider it, the defence of diminished responsibility must be raised by the defendant. If the defendant chooses not to canvass diminished responsibility, there is rarely anything the judge can do about it.
42.
Diminished responsibility was not advanced as a partial defence in this case. As we have explained the medical reports suggested that at all the relevant times the appellant was depressed and suffering from post traumatic stress disorder. We should make it clear however that we have not seen any medical report that argues a possible defence of diminished responsibility. When we inquired why the issue had not been examined further, on his instructions Mr Newman told us that the appellant was desperate that all the facts relevant to her son’s accident and treatment should emerge at trial, and that the only way that could be achieved was for her to plead not guilty. We found that difficult to follow, but it did not appear that any advantage would accrue from any further investigation into the appellant’s thinking on this topic.
43.
As long ago as 1976, the Criminal Law Revision Committee put forward for consideration what would then have been a new offence of “mercy” killing which, if proved, would have been punishable by a maximum term of imprisonment for 2 years. The proposal was heavily criticised, not least because it did not address the state of mind of the victim. Rather it concentrated on the situation facing the defendant.
44.
In its final report the Criminal Law Revision Committee observed:
“It was said that our suggestion would not prevent suffering but would cause suffering, since the weak and the handicapped would receive less effective protection from the law than the fit and well because the basis of the suggested new offence would rest upon the defendant’s evaluation of the condition of the victim. That evaluation might be made in ignorance of what medicine could do for the sufferer. We were reminded, too, of the difficulties of definition.”
(Offences Against the Person (1980) Report 14, para 115)
45.
In 1989 the report of the Select Committee of the House of Lords on Murder and Life Imprisonment addressed the issue of “mercy” killing. Rather than suggesting that “mercy” killing should be treated as anything other than murder, it recommended that in such cases the mandatory sentence of life imprisonment should be abolished. The recommendation has not been adopted.
46.
The terms of reference for the Law Commission’s 2006 report excluded consideration of some of the fundamental questions relating to the law of euthanasia and suicide. No public response was sought to the question whether “mercy” killing should be a specific, identifiable defence, distinct from murder, or whether, if it remained part of the law of murder, a partial defence of “mercy” killing should be created. This led to criticism that the consultation paper prepared by the Law Commission was too cautious. The Law Commission rejected the criticism, explaining “that there would need to be a much wider debate before concluding that the concept of “compassion”, as a motive, is in itself a sufficiently secure foundation for a “mercy” killing offence or partial defence…it is too important and socially significant a subject for us to make a recommendation without explicitly consulting on the question”.
47.
In the context of murder, the concept of mercy killing has achieved an express, if fleeting mention. The mandatory sentence for an offender aged 21 or over who is convicted of murder is life imprisonment.
Section 269 of the Criminal Justice Act 2003
provides a statutory scheme for the setting of minimum terms in murder cases. The judge is required to have regard to the general principles set out in
schedule 21
of the Act. These address a number of different starting points depending on the level of the seriousness of the offence, and the starting point for present purposes would be a 15 year minimum term, the equivalent of the term served on the imposition of a 30 year determinate sentence.
48.
Having identified the starting point, the court will take into account any aggravating or mitigating factors. The aggravating features identified in paragraph 10 include (although they are not confined to):
…“(a) A significant degree of planning or premeditation,
(b) The fact that the victim was particularly vulnerable
because of …disability.
(c)…
(d) The abuse of a position of trust… ”
49.
In the normal case of murder, these factors do, as a matter of common sense, and would, whether they had been included in any statutory provision or not, provide aggravating features of the offence. However, as we shall see these factors will be present in virtually every mercy killing.
50.
We now address the specific mitigating factors identified in paragraph 11. These include the first and only reference to mercy killing:
“…
(f)
A belief by the offender that the murder was an act of mercy…”
We begin by emphasising that the express words used in this paragraph are indeed “the murder”, which emphasises that a mercy killing which is not committed in circumstances of provocation or diminished responsibility is indeed murder. In short, the latest statute to address the problem of mercy killing, currently in force, expressly includes as mitigation for the offence the offender’s subjective belief that he or she was acting out of mercy, but that belief and motivation, however genuine, does not and cannot constitute any defence to the charge of murder.
51.
These statutory provisions present a problem. On the face of it, the identified features of aggravation and mitigation are quite distinct. They appear in separate paragraphs of the schedule. Yet in the context of a mercy killing all the considerations we have identified coalesce. It would be wholly unrealistic to treat precisely the same actions as both aggravating and mitigating factors. In the vast majority of cases where the offender genuinely believes that the killing is an act of mercy, he or she will intend death, there will often be significant planning or premeditation, and the victim will always be particularly vulnerable (because otherwise the question of killing as an act of mercy would not arise) and, almost inevitably, at the time when the killing takes place, the perpetrator will be in a position of trust.
52.
This is a prescriptive statutory sentencing regime, which on occasion creates difficulty and dilemma. There is no doubt that Thomas was helpless or that the appellant was in a position of trust when she attempted to kill him. She had been forbidden access to him under her bail conditions. When she was alone with him and administered the heroin on the second occasion, the appellant was in just as much a position of trust as she would have been if her access to her son had been permitted. He was no less vulnerable than before. The premeditation was lengthy.
53.
Having reflected on the realities of what we believe to be the first case of murder involving a mercy killing to reach this court, we are satisfied that the factors specified in paragraph 10(a), 10(b) and 10(d) of
schedule 21
to
the 2003 Act
, which would normally aggravate the offence of murder, should not be taken to aggravate a murder committed by an individual who genuinely believes that her actions in bringing about the death constitute an act of mercy. If it were otherwise this express feature of mitigation would be deprived of any or any significant practical effect. At the same time, just because this feature of mitigation is based exclusively on the offender’s subjective belief about her motivation, the sentencing court must do its best to examine her motivation as a whole.
54.
Specific additional statutory features that are also relevant to mitigation in this case include:
“(c) The fact that the offender suffered from any mental disorder or mental disability which [although not constituting diminished responsibility] lowered his degree of culpability, and
(d) The fact that the offender was provoked, (for example by prolonged stress) in a way not amounting to a defence of provocation. ”
For the reasons set out in our narrative of the facts we have concluded that both these features of mitigation are present in this case. The appellant’s condition of depression and post traumatic stress disorder diminished her ability to view her son’s condition, and all the events that surrounded it, in an objective way, and reduced her ability to cope with the awful stresses and strains likely to be imposed on any loving parent.
Appeal Against Sentence
55.
We must focus on all the critical facts and find a balance between them in which justice is appropriately tempered with mercy. Not all the crucial facts provide the appellant with mitigation. Some aggravate her offences.
56.
Thomas was helpless. He may have been able to communicate something of the severity of his fear and panic to those who loved him, but we do not and never shall know what his response to any suggestion of euthanasia or an assisted suicide might have been, whether in September 2007 or again in November 2008. It may provide something of a comfort to the appellant and those who loved him if they have come to terms with Thomas’s death by convincing themselves that if he could have communicated his wishes he would indeed have asked for his life to be ended. But, we do not know, and we are not prepared to make any such assumptions. As we have explained, this was not an assisted suicide in which the appellant did for her son what he could not physically do and desperately wanted to do for himself.
57.
The appellant’s actions were deliberate and premeditated, and her compulsive objective was indeed to kill her son. She was motivated throughout by her personal, unremitting conviction that she should release him from the living hell his very limited life had become and which it would continue to be, and also because she herself, in all probability because of her fragile personality and depressive disorders, was unable to cope personally with the catastrophic consequences of the accident. She has never felt any sense of guilt or remorse, and she was and remains convinced that, irrespective of what anyone else might think, her son’s life had to be brought to an end.
58.
There are a number of features which obviously mitigate the offence, and we have largely set them out in our narrative account of the facts. We have recorded that the appellant has no sense of remorse for what she has done. In this particular case the absence of remorse does not extinguish the mitigation that she has already suffered and will continue hereafter to suffer the terrible grief of the loss of Thomas, as she would put it, as a result of the accident in July 2007. The mitigation consequent on her grief should not be reduced by the absence of remorse for the killing. She was ill equipped psychologically to cope with the disaster which befell Thomas, and for that reason, the consequent stresses and strains on an already fragile personality were disproportionately grave. In our view her mental responsibility for her actions, driven as she was by a compulsive obsession, was diminished if not sufficiently for the purposes of the defence of diminished responsibility, certainly to an extent that reduced her culpability. This combination of factors led to her long obsession with the belief that as his mother she owed a duty to Thomas to end his suffering. And there is no doubt about the genuineness of her belief that her actions in preparing for and eventually killing Thomas represented an act of mercy or that the grief consequent on the loss of her son is undiminished by her responsibility for his death. These are powerful considerations, far removed from the ordinary case of murder.
59.
However the appellant’s culpability is reduced, it is not extinguished. She had resolved to kill Thomas within a very short time of the accident, almost in its immediate aftermath, and well before the long-term results of the operations and treatment could be known, and indeed while the remaining members of Thomas’s family were still hoping that he would survive. She was convinced that she, and she alone, knew what was best for Thomas, to such an obsessive extent that any view to the contrary, however it was expressed, was to be rejected out of hand. This was not a moment or two of isolated thinking, but a settled intention. She tried to kill Thomas and did eventually kill him without a thought to the feelings of anyone else, including his father and his brothers, and indeed the members of the medical professions who were doing their very best to care for him. What is more, she assumed that she knew what Thomas’s wishes would have been, and close as the bond between mother and son no doubt was, he was an adult whose mother would not always have been able to speak for him. When the first attempt failed, she ignored the potential consequence to others of denying her involvement in the offence, justifying the possibility that blame might pass unfairly to anyone else on the basis that she must continue to be free to achieve her objective. The process of preparing for trial for attempted murder, and the intimation that there would be a guilty plea, obscured the fact that she was making arrangements to deceive those responsible for her son’s care into believing she was not his mother. And perhaps most significantly of all, her unsuccessful attempt to kill Thomas produced a deterioration in his condition without which, as far as we can see, the possibility of the withdrawal of hydration and nutrition would have been most unlikely to arise. In short, harsh as it is to have to say it, she had contributed to the very sorry condition from which, on the day of his death, Thomas was suffering, as well as the risk of the awful death from which she intended to relieve him. Because of her early fixed obsession, she never sought advice or information from medical experts on how the suffering of the patient might be reduced if the decision was made to apply to the court to allow him to die. As it is, her intention that Thomas should die was fixed long before that sad final state was reached because, as far as she was concerned, within a very short time of the accident, Thomas had to die. At that time no one else shared her view, and she decided that she must kill him herself. On the first occasion she failed to kill him, but added to his disabilities, and, on the second she was better prepared, and succeeded.
60.
We cannot allow any discount for a guilty plea (because there was none).
61.
This case involves one of the most difficult sentencing decisions faced in this court. We cannot interfere with the mandatory sentence of life imprisonment. Having reflected on all the relevant considerations, we have decided that the minimum term ordered by the trial judge should be reduced to a period of 5 years. To that extent the appeal against sentence will be allowed. | [
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"MR JUSTICE HOLROYDE"
] | 2010_11_12-2547.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2637/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2637 | 854 |
60d7d29e33351653835ad758db83a1cf8b71d5c2a34da98314a03c520cb15f8f | [2008] EWCA Crim 2789 | EWCA_Crim_2789 | 2008-11-26 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 2789 Case No: 2007/04087/A8 (1) 2007/04728/A6(2) 2007/05439/A6(3) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK HIS HONOUR JUDGE BING (1) ON APPEAL FROM THE CROWN COURT AT LINCOLN HIS HONOUR JUDGE HEATH (2) ON APPEAL FROM THE CROWN COURT AT CANTERBURY HIS HONOUR JUDGE O’MAHONEY (3) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/11/2008 Before : THE LORD CHIEF JUSTICE MR JUS | Neutral Citation Number:
[2008] EWCA Crim 2789
Case No: 2007/04087/A8 (1)
2007/04728/A6(2)
2007/05439/A6(3)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE BING (1)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HIS HONOUR JUDGE HEATH (2)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HIS HONOUR JUDGE O’MAHONEY (3)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/11/2008
Before :
THE LORD CHIEF JUSTICE
MR JUSTICE OWEN
and
MR JUSTICE CHRISTOPHER CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Stannard (1), Andrew (2) and Clarkson (3)
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Oliver Weetch for Stannard (1)
Christopher Lewis Amor for the Crown(1)
Stephen Clayton for Andrew (2)
Philip Howes for the Crown (2)
Catherine Donnelly for Clarkson (3)
Eloise Marshall for the Crown (3)
Hearing dates : 9
th
October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice:
1.
These cases were heard together. Factually they are unconnected, but they raise questions of interest about the provisions governing the sentence of imprisonment for public protection created by
section 225 of the Criminal Justice Act 2003
(
the 2003 Act
). We treated each case as an appeal against sentence for which leave had been given. None involved a Reference by Her Majesty’s Attorney General under
section 36 of the Criminal Justice Act 1988
. Throughout this judgment unless the sense requires otherwise, we shall describe the sentence of imprisonment for public protection as “the sentence”. The sentence was imposed on one of the appellants when the court lacked jurisdiction. However two of them were fortunate that they were not so sentenced, notwithstanding that the jurisdiction was available.
2.
We are sympathetic with judges up and down the country who are required to pass sentence on defendants before the court for offences falling within the “dangerous” offenders provisions of
the 2003 Act
and committed both before and after 4 April 2005 when the Act came into force. Distinct statutory provisions apply. Thus, the sentence was created by
the 2003 Act
: it did not exist and therefore could not be imposed for offences committed before 4 April 2005. It can only arise for consideration where an offence or offences committed after that date fall within the circumstances prescribed in
section 225
of the Act. Inevitably, in some cases the pre 4 April 2005 offences are more serious then the later ones, in others less so. If the later offences are more serious, and the statutory conditions are established (and we must now add, sentence was passed before 14 July 2008 when the amending provisions in the
Criminal Justice and Immigration Act 2008
(
the 2008 Act
) came into force) the sentence is mandatory: since that date, it has become discretionary.
3.
We were told in the course of argument, and it is plain that the courts below approached the sentencing decisions on the basis that where the conduct encompassed within the pre 4 April 2005 offences was of greater gravity than that of the post 4 April 2005 offences, the judge should not apply the provisions of
the 2003 Act
. Indeed we were told by counsel that this submission reflected common practice. The foundation for the practice appears to have been the well known judgment of this court in
R v Lang and others
[2005] EWCA Crim 2864
, where Rose LJ addressed many of the complex issues relating to the sentence in the context of a number of cases which were brought together for the consideration of the court where specified violent or sexual offences were committed on or after 4 April 2005. During the course of his judgment Rose LJ noted that in relation to offences committed before 4 April 2005, the earlier provisions, including discretionary life sentences, automatic life sentences, longer than commensurate sentences and extended sentences continued to be available. He went on :
“A defendant being sentenced for offences committed both before and after April 4 is required to be sentenced by reference to the two different regimes. It will generally be preferable to pass sentence on the later offences by reference to the new regime, imposing no separate penalty for the earlier offences. But this may not be possible if the later offences are less serious than the earlier ones”.
As we shall see, this observation provides a very flimsy basis for the practice described to us by counsel
4.
In
R v Johnson and others
[2006] EWCA Crim 2486
judges and practitioners were reminded that Rose LJ himself emphasised that the observations in
Lang
should not be treated as a substitute for the provisions of the Act, and accordingly some areas of “potential misunderstanding arising from Lang” were explained and amplified. The problems which arise in the present appeal were not before the court in
Johnson,
where however it was emphasised:
“…even a cursory glance.. makes it plain that the sentence is concerned with
future
risk and public protection. Although punitive in effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending…when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public.”
5.
In
Lang
itself Rose LJ drew attention to
section 143(2)
of
the 2003 Act
. When the defendant has previous convictions, the court is required to treat each previous conviction as a feature aggravating the seriousness of the instant offence if it is reasonable to do so. He said:
“the provision requires the court to look beyond the instant offence (and any offences associated with it) in order to see whether there are aggravating factors which it should have in mind when addressing the seriousness of that instant offence”.
6.
The judgment in
Lang
did not further address the phrase “any offence associated with it”, but the reference is significant.
Section 161
of
the 2000 Act
provides that an offence is associated with another if
“(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is
sentenced for it at the same time
(italics supplied) as he is sentenced for that offence… ”
7.
The further statutory provision, not addressed in detail for the present purposes in
Lang
was
section 229
of
the 2003 Act
in relation to the assessment of dangerousness. Ignoring altogether the statutory assumption in s 229 (3) (now thankfully abolished by
the 2008 Act
) the court was nevertheless required to take account of “all such information” about the nature and circumstances of the offence, any pattern of behaviour of which it formed part, and most important for present purposes, “any information about the offender which is before it”. The importance and wide ambit of this provision was explained in
Considine
[2007] EWCA Crim 1166
.
8.
Two further considerations arise. It is now well established that the totality of the offending may be reflected in the assessment of the notional term when an indeterminate sentence is imposed on one or more counts of the indictment. (
R v O’Brien
[2006] EWCA Crim 1741
,
R v O’Halloran
[2006] EWCA Crim 3148
, and
R v C
[2007] EWCA Crim 680
, in relation to extended sentences.) This reflects an elementary principle. Where more than one offence is before the court, the sentence as a totality should reflect the overall criminality, as demonstrated by all the offences, with such aggravating and mitigating features as there may be. It is a further principle that where an offender is sentenced to life imprisonment, but also falls to be sentenced for other offences for which life imprisonment is either not available or inappropriate, concurrent determinate sentences should be imposed. Since
section 83A
of
the 2000 Act
came into effect, the minimum term to be served by the offender has been determined by taking account of the offences for which determinate sentences have been passed (
Lundberg,
16 CAR (S) 948).
9.
These considerations bear on an element of public confidence in the administration of criminal justice. To impose no separate penalty for a relatively minor offence when the offender is sentenced for more serious offences is sometimes a convenient way of avoiding some of the extraordinary complexity of current sentencing provisions. However it can rarely be appropriate for a serious offence to be treated in this way. Generally speaking, every victim of a serious or specified offence should be vindicated, and an order for no separate penalty will tend to convey to the victim that the court did not properly address the impact of the crimes. The problem is plainly less acute where the indictment addresses offending against a single victim.
10.
On analysis, all these considerations serve to demonstrate that the practice identified by counsel is unsound. Moreover, and crucially, it disregards the unequivocal language in
section 225
. If “serious offences” within the meaning of the dangerous offenders provisions in
the 2003 Act
are committed by a person aged 18 or over and, on the basis of all the information before it (which undoubtedly includes the evidence relating to any offences committed before 4 April 2005) the court is satisfied of the significant risk described in
section 225(1)(b)
but a sentence of imprisonment for life is not appropriate, in any sentencing decision made before 14 July 2008, the sentence of imprisonment for public protection “must” be imposed. This is a mandatory requirement, which cannot be avoided merely because the pre 4 April 2005 offending was even more grave than the serious offence or offences committed after that date. To the extent that the observations of Rose LJ in
Lang
have been thought to provide the basis for the practice advocated in these appeals, it has, in our judgment, been misread. What Rose LJ was saying was that, speaking generally, sentences should be imposed by reference to the new regime. The order “no separate penalty” would apply to the earlier offences. His reference to “this” in the last sentence was a reference to the imposition of no separate penalty, not a suggestion that the new regime should not be applied where the later offences were less serious than the earlier ones. Nothing he said suggested that the statutory provisions relating to the post 4 April 2005 offences should or could be disapplied.
Raymond Stannard
11.
Raymond Stannard is now 72 years old, a man of previous good character. On 17
th
April 2007 in the Crown Court at Snaresbrook before His Honour Judge Bing he pleaded guilty to one count of rape (count 1) and two counts of indecent assault contrary to the
Sexual Offences Act 1956
(counts 2 and 4). He also pleaded guilty to two counts of sexual assault contrary to the
Sexual Offences Act 2003
(counts 6 and 7). The first three offences were committed before 4 April 2005, and the fourth and fifth offences were committed afterwards.
12.
Stannard was first sentenced on 8
th
June 2007, but on 18
th
June the sentence was varied. In the result he was sentenced on count 1 to an extended sentence under
section 85 of the Powers of Criminal Courts (Sentencing) Act 2000
of 10 years, comprising 6 years custody and 4 years extended licence. On count 2 a similar extended sentence of 7 years, comprising 3 years custody and 4 years extended licence, to run concurrently with the sentence on count 1, was imposed. On count 4 an identical sentence to that imposed on count 2 was imposed, but ordered to run consecutively. On counts 6 and 7 no separate penalty was order. Thus the total sentence was an extended sentence of 13 years, comprising a total custodial term of 9 years and a total extension period of 4 years.
13.
The facts can be briefly summarised. In November 2006 Stannard was arrested after an 11 year old boy alleged that he had exposed himself. When interviewed the boy, GA alleged that in April 2003 he had been lured by the promise of an ice lolly to the applicant’s flat. At the flat the child’s trousers and underpants were pulled down, and his penis was sucked and licked. The applicant then raped him. It became apparent from GA’s interview that there might be other offences and other victims. As a result of those investigations it was revealed that in 2004 the applicant had approached another 8 year old, SC and handled his penis. It was also alleged that he had assaulted JC, then aged 7 or 8 years at the time, on two separate occasions, on one holding his penis, and on the second sucking it. These last offences occurred between January and November 2006.
14.
As we have recorded, the applicant has no previous convictions. The victims of his offences were children who lived near his home. When questioned, his responses indicated that he did not understand or accept that he was in a position to control these children, nor to comprehend why his behaviour was dangerous. According to the writer of the pre-sentence report the impact and nature of these offences could not be underestimated, and he stated expressly that in his judgment the applicant clearly satisfied the dangerousness test for the purposes of imprisonment for public protection. We have no doubt that that assessment was right.
15.
The judge was invited by counsel, and he approached the sentencing decision on the basis that the seriousness of the earlier offences outweighed that of the later offences, and that in those circumstances imprisonment for public protection would be inappropriate. He accepted the submission. He then focussed on the totality of the sentence, reflecting that the offences had taken place over a three year period, and that each victim was a very young boy. The case was disturbing and troublesome and the sentences would reflect grave public disapproval of the offences. Account would be taken of the early guilty pleas, the judge acknowledging that the defendant was an elderly man who had not previously been convicted. The criticism which can fairly be made of the sentence imposed on this appellant was that the judge applied the old rather than the new sentencing regime. If he had, he would have made an order of imprisonment for public protection, and then fixed the appropriate minimum term to be served on the basis that the custodial element of the sentences, which were expressly intended to reflect the overall criminality, should be assessed at 9 years, and thereafter halved. The extension period would have been irrelevant. As it is, we cannot interfere with the sentence actually imposed, in order to increase it or to alter it (
R v Reynolds and others
[2007] EWCA Crim 538
)
. Notwithstanding the appellant’s age the actual sentence was not manifestly excessive. The error in principle was to his advantage.
16.
In summary, because the earlier offences were regarded as more serious than post 4 April 2005 offences, the court did not properly address the question whether the appellant represented a significant risk of serious harm to members of the public occasioned by the commission by him of further offences. This was wrong. The assessment should have been made to reflect the appellant’s total offending as it reflected on the future risk he represented. If, following the assessment of dangerousness in accordance with
section 229
of the Act, it appeared that he was indeed dangerous, then imprisonment for public protection was mandatory for the post 4 April offences, and the subsequent minimum term should have reflected the totality of the offender’s criminality. In this particular case, an appropriate determinate sentence should have been imposed in respect of the pre 4 April 2005 offences to indicate the court’s view of the appropriate sentence, but those sentences would inevitably be subsumed in the determination of the appropriate minimum term when the entire criminality would fall to be considered.
17.
We note that no order disqualifying the appellant from working with children was made under section 28 of the Criminal Justice and Court Services Act although the qualification conditions applied, and the court did not explain why such an order was not made.
Russell Andrew
18.
Andrew is 41 years old. His convictions revealed what had previously been concealed, that he had for many years been committing criminal offences without being caught.
19.
On 1 June 2007 in the Crown Court at Lincoln before His Honour Judge Heath he pleaded guilty to a very large number of counts of sexual offences. On 9
th
August he was sentenced to a total sentence of 17 years’ imprisonment. The sentences were compiled as follows:
Indecent assault on a male (count 1), 3 years’ imprisonment concurrent to count 4: Indecency with a child (count 2) 12 months’ imprisonment: buggery (counts 4 and 5) 6 years’ imprisonment on each count concurrent: rape (count 7 and 8), 6 years’ imprisonment current on each count, but consecutive to the sentence on count 4: indecent assault on a female (count 9) 2 years’ imprisonment concurrent: taking indecent photographs of a child (count 15), 12 months’ imprisonment, consecutive to counts 4 and 7: taking indecent photograph of a child (count 16), 12 months’ imprisonment consecutive to counts 4,7 and 15: making indecent photographs of a child (count 17-34), 3 years’ imprisonment on each concurrent, but consecutive to counts 4,7 15 and 16: distributing indecent photographs of a child (counts 35 and 36) 3 years’ imprisonment on both to run concurrently: possessing indecent photograph of a child (count 37), 3 years’ imprisonment concurrent.
Of these offences, counts 32,33,34 and 37 were committed after 4 April 2005.
20.
The total sentence was 17 years’ imprisonment. A Sexual Offences Prevention Order and an order disqualifying the defendant from working with children were made, and a forfeiture of obscene publications was ordered.
21.
The main victims of the appellant’s crimes were his nephew, born in February 1983, and his niece born in June 1987. The offences came to light in September 2005, when a search warrant was executed under the Protection of Children Act at the appellant’s home. A large amount of material was seized from his bedroom. The material included his computer, floppy discs, CDs with printed images of naked young females. When interviewed after arrest the appellant immediately admitted that he was interested in child pornography, claiming that he had become curious in 2004 and acquired child pornography over the internet and had then saved it. He accepted that the police would find that he had accessed many images on different sites and that he had saved material on discs. He was asked whether little boys or little girls “turned him on”. He replied “mostly little girls, but not exclusively”. In June 2006 his sister told her daughter, who was now nearly 20, that the appellant was the subject of a police investigation into child pornography. Although the young woman said initially that the appellant had not touched her, the extent of the abuse to which she had been subjected was eventually revealed.
22.
The appellant babysat for the girl when she was a young child. He would treat the children to sweets and fizzy drinks. He would put her to bed first. He would then rape her, either vaginally or anally. Afterwards she would be tucked into bed. Counts 7 and 8 were sample counts to reflect this course of conduct over a 4 year period between June 1991 and June 1995 when she was aged between 4 and 7. She was also abused when she stayed at her grandmother’s home. Count 9 was a sample count to reflect indecent assault between June 1995 and June 1997, when the appellant licked her vagina and breasts. She recalled that she had been shown child pornography when she was about 8 years old, and that she had resisted his requests to take photographs of her either naked or in her underwear, and when she was 15 she recalled another occasion when he was so engrossed in the child pornography on his computer that he was unaware that she was watching him.
23.
Thereafter the appellant’s nephew contacted the police and revealed that he too had been sexually abused when the appellant was babysitting. The sexual activity began when the appellant would handle the boy inside his pyjama trousers, and then take his penis into his mouth. Thereafter the abuse proceeded to buggery. Counts 1 and 2 were sample counts to reflect indecent assault over a 3 year period between February 1987 and February 1990 when the boy was aged between 4 and 6 years, and counts 4 and 5 were sample counts to reflect offences of buggery over a 3 year period from February 1991 to February 1994 when the child was aged between 8 and 10 years. The boy also disclosed that he had refused requests by the appellant to be allowed to take photographs of him naked.
24.
When interviewed about these offences the appellant declined to comment. His computer was examined. The examination revealed that he had downloaded many images and in a folder that contained 20,000 pictures there were 526 sub-directories. The appellant had attempted to join a news group catering for paedophiles and had sent an email with attachments of indecent images to that group. The first time he sent an email he was unsuccessful, but on the second occasion he succeeded. This activity was reflected in counts 35 and 36. Count 17-34 and count 37 reflected the finding that in total 152,998 indecent images of children were found in the appellant’s computers and discs. Of these 132,224 were at level 4, 12,326 at level 2, 3,051 at level 3, 5186 at level 4, and 211 at level 5. The police also found a zip drive containing a number of photographs of the appellant while on holiday with his friends. However the photographs included 50 photographs of a young girl, many of them taken while she was asleep, and her nightclothes in disarray, so that the disturbance of the clothes revealed her vagina. Inquires led to a family with which the appellant was friendly. These photographs were photographs of their daughter, who was born in January 1996. Counts 15 and 16 represented 20 photographs of her on holiday in Norfolk and 14 on holiday in Suffolk.
25.
The chatroom logs on the appellant’s computer were analysed. He plainly had had conversations of a wholly inappropriate sexual nature with people who purported to be underage males and females during the course of which he described intercourse with very young children, including the daughter of his friends.
26.
In March 2007 the appellant was re-interviewed. He admitted downloading the images in his computer for his own pleasure. He also accepted that he had taken photographs of his friends’ daughter without his friends or their daughter knowing anything about it.
27.
The pre-sentence report acknowledged that a custodial sentence was inevitable. It was said, on the face of it surprisingly, that there was only a medium risk of re-offending. Given the activity we have described, and the appellant’s admission to the writer of the report that he had a sexual attraction to pre-pubescent children, the risk seems to us to have been very high. A psychiatric report confirmed that the appellant had a lifelong interest in underage children, and that this was deeply entrenched. However, equally surprising, the psychiatrist too suggested that the appellant appeared to be merely at medium risk of committing a further sexual offence, while at the same time noting that he would probably have continued to offend if he had not been caught.
28.
Judge Heath regarded these offences as a “shocking” series of appalling offences against children, committed by a man who was not suffering from any mental illness. He had not gone out looking for children and attacking them, but had taken advantage of the opportunity to abuse his nephew and niece when babysitting for them. In other words, in addition to all the other aggravating features, these offences constituted a very serious breach of trust.
29.
The judge noted that the earlier offences were the most serious offences, but the photographs taken of the daughter of the appellant’s friends themselves also constituted a breach of trust. Moreover, although he relied increasingly on the internet for his sexual gratification, these later offences themselves were far from trivial.
30.
The judge concluded that a sentence of life imprisonment would be inappropriate. The judge was invited to address the issue of imprisonment for public protection. He decided that a very long determinate sentence was merited. He believed that the best that could be said for him was that the appellant had pleaded guilty at the earliest opportunity and he was entitled to appropriate credit.
31.
In our judgement, although it is undoubtedly true that the offences of rape and forced buggery of two small children represented the worst in this unpleasant catalogue of crime, the appellant’s sexual obsession with small children was amply demonstrated by the photographs taken of his friends’ child, and the vast quantity, and in some instances particularly nasty material of sexual abuse of children which he kept in his possession. In summary, it is abundantly clear that this appellant has an overwhelming and uncontrollable sexual obsession with small children. While the most serious offences were committed before 4 April 2005, the offences committed after that date were far from trivial in themselves, and they demonstrated his continuing obsession. Judge Heath, an experienced judge, sought to reflect the need for protection from the appellant by imposing a very heavy total sentence (reflecting the requirement that one of the purposes of sentencing is public protection (section 142(1)) and a stringent sexual offences prevention order, the terms of which do not need to be recited. Nevertheless in relation to future risk, very few judges would not have concluded that imprisonment for public protection was required.
32.
The submission is that the sentence was manifestly excessive because, among other considerations, insufficient account was taken of the appellant’s guilty pleas, and that the judge adopted too high a starting point and failed sufficiently to reflect that the serious offending had come first in time, and had gradually become less serious. This argument has superficial attraction, until the vast scale, and context, of the more recent offending is properly understood, and the overall criminality revealed by the offences is given its required weight. The sentence imposed by Judge Heath was undoubtedly severe, but after careful reflection we have concluded that it would be inappropriate to interfere with it. As already indicated, this appellant may count himself fortunate that an indeterminate sentence was not imposed.
Terence Clarkson
33.
Clarkson is now aged 62. He had made four previous court appearances, but they were not of the seriousness with which this application, referred to the court by the Registrar, is concerned.
34.
On 15
th
August 2007 in the Crown Court at Canterbury, before His Honour Judge O’Mahoney and a jury, the appellant was convicted of 5 counts of indecent assault contrary to
section 14 (1) of the Sexual Offences Act 1956
(counts 1-5), 1 count of indecency with a child, contrary to
section 1 (1) of the Indecency with Children Act 1960
(count 6) and 1 count of sexual assault of a child under 13, contrary to
section 7 (1) of the Sexual Offences Act 2003
(count 8). Counts 1-6 all occurred well before the
Criminal Justice Act 2003
came into force: the dates alleged in count 8 of the indictment were 1
st
January 2005 – 10
th
April 2005, in other words, this count related to an offence alleged to span the period before and a very short period after
the 2003 Act
came into force.
35.
On 12
th
September 2007 on count 8 he was sentenced to imprisonment for public protection and, on the basis of a determinate term of 5 years’ imprisonment, the minimum term to be served before his release could be considered was set at 2½ years’ imprisonment, less time spent on remand. No separate penalty was imposed in relation to counts 1-6.
36.
A number of distinct orders relating to those convicted of sexual offences were made, but they had no application to the issues which arise in this appeal.
37.
In counts 1-5 the complainant, SM was a little girl aged appropriately 7 years at the time of the offences. On a number of different occasions between March 1996 and January 1998 the appellant touched her vagina over her clothing. He was in a position of trust because the child’s father had asked him to help look after her following the breakdown of his own relationship. Count 6 related to an incident during this time when he took her into the bathroom, exposed himself to her, and asked her to kiss his penis. However she would not do so.
38.
Count 8 concerned a girl aged 12 at the time, a friend of the appellant’s daughter who had been staying overnight with her at her father’s home. The appellant encountered her on the staircase. He put his hand inside her trousers, commenting “so you have got a bit of fluff then”. The incident ended when the appellant’s daughter came out into the hallway.
39.
The pre-sentence report referred to a developed pattern of behaviour, which the appellant continued to deny. The writer concluded that notwithstanding the absence of previous convictions, there was a serious risk of further harm occurring.
40.
The judge found that there were serious offences, and in particular, that an offence of interfering with a child at an important stage in her sexual development was capable of causing and was likely to cause serious psychological harm. The basis of the appeal was that the judge was wrong to regard count 8 as the most serious offence on the indictment. It was further contended that there was no evidential basis to support the finding that the appellant was “dangerous”. It was also submitted that, in accordance with the common practice, the appellant should have been sentenced on the regime that would have been appropriate for the more serious earlier offences, that is those committed before 4 April 2005. We have dealt with this submission earlier in the judgment. A more difficult problem has been identified.
41.
Inquiries were made by the Registrar on behalf of the court, and it is accepted by the Crown that it was not possible to date the offence in count 8 with sufficient accuracy to justify the conclusion that it must have occurred after
the 2003 Act
had come into force. Accordingly the problem in this case is that if we cannot be satisfied that the provisions in
the 2003 Act
applied to this case, there should have been no order of imprisonment for public protection. Accordingly, the court lacking jurisdiction to make such an order, it must be quashed. The minimum term is therefore no longer appropriate.
42.
Determinate sentences must be imposed. An overall sentence of 5 years’ imprisonment was said to be excessive, both inherently, and because of the more stringent arrangements in relation to release on licence will apply to the appellant who is now to be sentenced under the pre 2003 Act regime. Such an argument was rejected in
R v Smith
[2007] EWCA Crim 941
, on the basis among other considerations that if the appellant had been sentenced under
the 2003 Act
regime imprisonment for public protection would have required “very serious consideration”. That undoubtedly applies in the present case, and but for the jurisdiction issue, and in the context of the sentencing regime in force at the date of sentence, we might well not have interfered with the order made by the judge. The question that remains is whether the sentence was too long in a case which proceeded as a trial. We have considered the Sentencing Guidelines Council guidance. Having done so, notwithstanding the absence of a guilty plea, but acknowledging the appellant’s serious breaches of trust, we have concluded that the appellant’s criminality should be reflected by a sentence of 3 years’ imprisonment. The sentences will be 2 years’ imprisonment on counts 1-5, and 12 months’ imprisonment on count 6, to run concurrently, and 12 months’ imprisonment on count 8, to run consecutively. | [
"MR JUSTICE CHRISTOPHER CLARKE"
] | 2008_11_26-1738.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2789/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2789 | 855 |
89ae4e26e601d3a8b8e58b1349fcebc0971d01d9827a193c087e7b58c259dfff | [2005] EWCA Crim 3245 | EWCA_Crim_3245 | 2005-12-21 | supreme_court | Case No: 2003/6683/D4 Neutral Citation Number: [2005] EWCA Crim 3245 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL (Mr Justice Leveson) Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday 21 st December 2005 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE JACK and MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - Between : PETER HERON Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - | Case No:
2003/6683/D4
Neutral Citation Number:
[2005] EWCA Crim 3245
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
(Mr Justice Leveson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Wednesday 21
st
December 2005
Before:
LORD JUSTICE SCOTT BAKER
MR JUSTICE JACK
and
MR JUSTICE DAVID CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :
PETER HERON
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Edward Fitzgerald Q.C. and Mr Paul Taylor
(instructed by
Messrs Levys
) for the
Appellant
Mr John Benson Q.C. and Mr Stuart Driver
(instructed by
The Crown Prosecution Service
) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Scott Baker:
1.
On 27 October 2003 in the Crown Court at Liverpool before Leveson J and a jury the appellant was convicted of murder by a majority of 10 to 2. He was also convicted of two offences of causing grievous bodily harm with intent contrary to
Section 18
of
the Offences Against the Person Act 1861
. He was sentenced to life imprisonment for murder with concurrent 10 year sentences for each of the
Section 18
offences. He appeals against conviction with the leave of the single judge. There were two co-defendants, Cassidy and Murphy, both of whom were convicted by a majority of 10 to 2 of the same three offences. Murphy was additionally convicted of a fourth offence, theft of a motor car. Neither Cassidy nor Murphy has sought leave to appeal.
2.
A summary of the material facts is as follows. Just after 10pm on 3 December 2002 a masked gunman burst into the Thatched House Public House in Wavertree in Liverpool. He was accompanied by another masked male who was, apparently, unarmed. The gunman fired shots into the public house. One bullet injured Peter Hogg in the leg; another went through the body of John Navis, astonishingly causing him little by way of internal injury, but then it entered the abdomen of, and fatally wounded, Raymond Craven.
3.
The Crown’s case was that Craven was not the intended target. Rather, it was alleged, the real target was Liam Navis who was present in the pub. This assertion was based on what the Crown identified as a feud which had developed between the co-defendant Cassidy and Navis. The origin of this feud appears to have rested in earlier instances of disagreement or violence between the two men.
4.
In September 2002 the Navis family, who run the Waldeck Public House, refused entry to an after hours “lock in” to Cassidy and Murphy. An argument ensued.
5.
On 30 November 2002, two days before the shooting, there was a further incident in which it was alleged that Cassidy, again in the presence of Murphy, punched Navis.
6.
The Crown did not allege that the appellant was present at either of these incidents. On 3 December 2002 Navis sent out word that he wanted a “straightener,” i.e. a fight, with Cassidy. He told a mutual acquaintance, Andrew Schofield, of this desire, and Schofield was partly responsible for the arrangements for the fight. It was to take place at 5pm that afternoon at a park called the Mystery behind a boy’s club on Wellington Road, Wavertree.
7.
There followed a fatal misunderstanding. When Cassidy arrived for the arranged straightener he was accompanied by the appellant. The fight was close to a gym run by the appellant’s brother and was within walking distance from the appellant’s parents’ home in Grosvener Road. Whether it was the presence of the appellant, or some other sighting, Navis and his associates called for back up, which prompted a number of men to leave the Merryweather Public House to lend support to Navis. Their arrival at the Mystery, said the Crown, prompted Cassidy to believe he was being set up, that is lured to a quiet spot for something far removed from a one to one fight.
8.
The evidence suggested that both parties thought they had been set up by the other. Somebody, either Cassidy or the appellant, is alleged to have said “it’s a set up” as the two walked away.
9.
The Crown’s case was that the appellant’s mobile phone was then used to telephone Murphy. The Crown alleged that Cassidy was angry at the failed straightener. There is evidence that Cassidy telephoned Schofield moments later using Murphy’s mobile telephone. They exchanged mutually unpleasant observations about each other. From this dispute, it was alleged that Cassidy turned to murder.
10.
The case that Cassidy decided to go to the Thatched House armed with a firearm was primarily built through the evidence against Murphy. He, Murphy, admitted that he had stolen a Suburu motor car a few days earlier. He had then placed false plates on this vehicle. This he had done by obtaining the registration number of a similar vehicle which was advertised in the Automart. He was recorded by CCTV in the stolen car going to a petrol station in Wavertree at around 4.30pm on the day of the murder.
11.
When the gunman and his accomplice ran away from the Thatched House, they boarded the stolen Suburu as witnessed by Mr Russell, the landlord of the Prince Alfred Public House, situated directly opposite the Thatched House. There was, on Mr Russell’s evidence, a driver already in place.
12.
The car was seen again, minutes later, approaching Greenbank Park a relatively short distance away from the Thatched House. There it was abandoned and set alight.
13.
Shortly before the shooting, a group of students including Suzanne Prescott and Rebecca Brady from Liverpool University, were making their way from one of the halls of residence in Greenbank Lane to the Brook House Public House on Smithdown Road. As they did so, they saw a silver sporty car drive into Greenbank Park. This visit was said by the Crown to be a reconnaissance exercise, as it was to this very area that the getaway car went after the shooting.
14.
After the shooting at approximately 10.15pm the Suburu was seen and heard to drive into Greenbank Park where the occupants disembarked and set the vehicle alight. Another group was making its way from the Brook House Public House back to the halls of residence. Amongst their number were two students. The first of these was Alison Brighton. She was a first year student at the university. Her evidence was as follows. She walked along Greenbank Road and then a couple of metres into Greenbank Lane, when her attention was attracted by a speeding silver car. It was a silver saloon with at least two people in the front. The vehicle went past her and braked as she crossed the road from the park side of the road to the side where the halls of residence were situated. She described the driver of the car, as quite dark eyes a round face and Asian, definitely not white. She said the driver was darker than the passenger and she felt that she would be able to identify the driver, whom she had in her view for a second or so as the car drove past. She said: “I’m saying I was certain of my identification.” Under cross-examination she was referred to two witness statements in which she had given slightly fuller descriptions of the driver. She adopted these statements in evidence. In one of them she said she couldn’t see the front seat passenger but described him as white. She said that the driver was “round faced”, that his hair was dark and that he was not wearing anything on his head. She had the driver in her close view for a second or so as the vehicle passed her.
15.
The second student was Ryan Penniston. As he made his way home, he too saw the car. Curiosity caused him to look through the railings of the park to see where the car had gone. As he did so, he could see the shadow of the outline of the car; he heard a noise which suggested that two doors had opened and closed. Then he heard the words “Which way now, Pete?” It was the Crown’s case that this question was asked of the appellant.
16.
Cell site evidence of the activities on Murphy’s phone suggested that the call made on his mobile phone at 10.28pm was made in the vicinity of Greenbank Park. This information, served on the morning of the first day of the trial, caused particular embarrassment to Murphy because it contradicted the terms of his defence statement that he was at home at the material time, and he was compelled to explain in evidence the fact that his defence statement was false.
17.
Two weeks after the shooting, upon learning that the police had been looking for him, the appellant went to a local police station to ask if the desk sergeant knew what it was about. A check was made and he was arrested. He made no comment when interviewed.
18.
The Crown’s case against the appellant relied on three strands.
(1)
His friendship and association with his co-defendants Cassidy and Murphy, and in particular that he had accompanied Cassidy to the striaghtener at 5pm on the day of the shooting.
(2)
The use of a mobile phone whose number bore the last three digits 233 (hereafter referred to as “233”) attributed to him which not only evidenced his association with Cassidy and Murphy but also ceased to be used entirely on the early morning of 4 December – following the killing – a feature common to the phones of Cassidy and Murphy.
(3)
The question “Which way now, Pete” overheard by Ryan Penniston as the occupants fled from the Suburu in Greenbank Park moments before it was set alight.
19.
None of these three strands alone was sufficient to found a prima facia case of participation in these offences by the appellant, but taken together they were held by the judge to provide evidence on which a jury, properly directed might convict. The judge so held, rejecting a submission at the close of the Crown’s case that there was no case against the appellant to be left to the jury.
20.
Six grounds of appeal are relied upon. The single judge gave leave to appeal on three. The other three, which emerged later, concern non-disclosure by the Crown of material information or alternatively non appreciation of the significance of that material information on the part of the defence team or some members of it. We granted leave to appeal on the three additional grounds prior to adjourning the appeal part heard in September.
Ground 1 the judge was wrong to reject the submission of no case
.
21.
The judge dealt with this at pages 3 – 6 of transcript 1A. He began with 233 which the appellant neither, admitted nor denied was his mobile phone. The judge said it was open to the jury to conclude this mobile was used by the appellant. He was plainly right on the evidence and Mr Fitzgerald Q.C., who has appeared for the appellant on this appeal, does not really suggest otherwise. Privileged material that has recently been disclosed in relation to other grounds of appeal confirms that it was his.
22.
The judge referred to the mobile phone activity between 233 and Murphy and Cassidy’s phones. He said:
“I am satisfied that it is open to the jury to conclude....233 was used by him…….
In addition to the contact between 233 and Cassidy’s mobile telephone there is contact between 233 and Murphy’s mobile phone. There were three calls from Murphy’s number to 233 between 9am and 11.08 on 3 December. Shortly after this time, for at least one call Cassidy was using Murphy’s phone to speak to Andrew Schofield at 11.49. Further, after the abandoned striaghtener at 5pm, when Cassidy and (the appellant) were seen together, within 25 minutes the 233 phone was used to contact Murphy’s phone. This was at 17.23. At 17.43, twenty minutes later, Murphy’s phone was used by Cassidy again to telephone Andrew Schofield……..
Cassidy’s phone was able to receive incoming calls, as it did from the Murphy phone at 19.40.”
23.
He then pointed out that after the killing 233 went silent. Not only was there no contact with Cassidy and Murphy, but there was no contact between 233 and the appellant’s family members. As we have already mentioned all three defendants’ phones stopped transmitting after 3 December.
24.
The judge said there was evidence that went beyond mere association. The appellant was sufficiently friendly to accompany Cassidy to the straightener at 5pm on the evening of the killing and when one added Penniston’s evidence: “Which way now, Pete?” provided evidence on which the jury could convict.
25.
Obviously the defence made great play about Alison Brighton’s evidence, pointing out she was firm and clear in her evidence that the driver of the getaway vehicle had dark eyes, a round face and was Asian, a description that manifestly did not match the appellant. But, he added, it was open to the jury to be sure she was wrong. It would also, we would observe, be open to the jury to conclude she was right but that there was a fourth man in the car who was the recipient of the question, “Which way now, Pete?”
26.
In our view the judge was right not to withdraw the case from the jury.
Ground 2 misdirections to the jury.
(a) Ryan Penniston’s evidence.
27.
Mr Fitzgerald submits the judge should have given the jury a warning about the dangers of accepting Ryan Penniston’s evidence in the same way as if it had been identification evidence. That is he should have given a
Turnbull
direction but, as David Clarke J pointed out in argument, it was not a case of a witness identifying a voice. There were in our view no special dangers in accepting Penniston’s evidence. It was simply a matter for the jury to decide whether they accepted what he said he had heard. If they did, it was a matter for the jury to evaluate the weight of that evidence in the context of the appellant’s association with Murphy and Cassidy.
(b)
Failure to correct the fourth person suggestion.
28.
We are satisfied that the Crown never advanced the case on the basis that there was a specific number of people in the car or indeed that the appellant was in any particular seat. Our conclusion is confirmed by the judge’s observation at p. 11 of the transcript of the submission of no case. The evidence that connected the appellant with the car was the question, “Which way now, Pete?” What the appellant is seeking to suggest is that there were only three people in the car and that Alison Brighton’s description of the driver rules out the appellant. However, it is clear to us that the Crown throughout left both options open.
29.
It was never in the appellant’s interest to advance the possibility of there being a fourth man for the obvious reason that he did not want to have to explain away two individuals either of whom could have been the recipient of the “Which way now, Pete?” question. It was in his interests for there only to be one individual and to rely on Alison Brighton’s evidence.
30.
It is interesting to see how the Crown put the position in its final speech. Mr Benson said at page 1 line 27:
“But who were the men in the car? That is what you are here to try. Or, more accurately put: are you satisfied so that you are sure that three of the men in the car – if there were more than three, the Crown cannot discount the possibility there might have been a fourth, I will come to that in due course – when it arrived and when it left were Lee Cassidy, James Murphy and (the appellant)?”
And at page 3, line 25:
“Alison Brighton, an important witness, who no doubt my learned friend Mr Lawson-Rogers will refer to at some length, was she correct when she said the driver of the Suburu car was Asian? If there were only at that time three men in the car, we can say no, honest witness but a mistaken witness.”
And at page 15, line 6:
“Members of the jury, we therefore suggest that you can be sure that James Murphy was in that car and you can therefore be sure that Lee Cassidy was in that car. I said at the outset, I said at the very beginning of this case, the prosecution alleged that there were at least three in that vehicle. Who else was there? As a matter of common sense, it is going to be someone, is it not that they know and someone they can trust?”
And at page 17, line 20:
“We, on behalf of the prosecution, invite you to conclude that there were at least three. We cannot exclude there may have been somebody in the passenger seat whilst that vehicle was sitting in Prince Alfred Road.”
Then when the judge came to sum up he said at page 9 line 26:
“They left at least a driver in the vehicle who you may consider was getting ready for a quick getaway.”
And at page 10, line 14:
“The gunman was supported by the second man in the public house and at least by the getaway driver.”
And finally at page 41, line 13:
“Mr Benson argues that Alison Brighton, honest witness though she was, has made a mistake and you can be sure of it. Alternatively, and in any event, he says it does not exonerate (the appellant) because the evidence of his involvement is based on his links with the other men and the comments made. There need not only have been three persons present.”
31.
What of the evidence as to the number of people in the car? It seems to us that the eye witness evidence left entirely open whether there were three or four people in the car. What the jury may have decided by inference from the evidence that they accepted is, of course, a different matter and one cannot prey into the jury’s thought process which is of course dependent on the evidence they accepted and the evidence they rejected.
32.
Mr Russell’s evidence was not challenged by the defence. It was read and summarised by the judge at page 36 of his summing up:
“He saw the large silver vehicle in the middle of the road with the rear in line with the last door of the Thatched House. The lights were on and the engine was running. You may think he was ready for a quick getaway. Two men ran towards it. One got into the offside behind the driver. He was smaller than the second man, who tried to get in through the same door but then ran round the back. The car was rocking as if trying to drive off, or waiting to drive off. He saw the man hanging out of the window. It had taken a minute or two for the two men to get in the car.”
33.
Alison Brighton described the driver in clear terms that did not match the appellant. But she also described in her statement, which supplemented her evidence, that she did not see the front passenger except that he was white.
34.
No complaint was made about the way the case was left to the jury on the fourth man possibility, and in our view there can be no justified criticism of the way the judge summed up the case. It was not in the appellant’s interest to highlight the possibility of a fourth man. The appellant’s case was run on the basis that if Alison Brighton’s evidence was correct, and there was no reason to suppose she was mistaken, then the appellant was ruled out of the vehicle. That, however, overlooked the “Which way now, Pete?” evidence, assuming the jury accepted it.
(c) Inadequate directions as to the phone alleged to be the appellant’s.
35.
The appellant put the Crown to proof that the 233 phone was his by not admitting that it was his. We do not think that anything the judge said would have caused the jury to misunderstand that it was for the Crown to prove that it was. It was inevitable that if the jury thought the phone was plainly the appellant’s they might have gone on to ask, “why did he not admit it?” They were entitled to do so.
(d) The judge invited the jury to speculate.
36.
The judge told the jury that, “you know, of course, that Pay-As-You-Go phone do not require subscriber names”. There was no evidence to that effect, but it is a matter of common knowledge. The judge referred at some length to the evidence concerning a phone called the 799 phone. It was part of the evidence and he was entitled to do so.
Ground 3 lurking doubt.
37.
Given that there was a case to leave to the jury and given that the appellant elected not to give evidence, it is difficult to see how the court can be persuaded that there is a lurking doubt about the safety of this conviction in the absence of some specific factor to create one. The judge gave the jury the appropriate warning about the appellant’s failure to give evidence. That failure was of course capable of being regarded by the jury as adding support for the Crown’s case.
38.
In our judgment, if we are not persuaded for some specific reason that the conviction is unsafe, the appellant does not succeed on lurking doubt or any general feeling of unease about the conviction.
Grounds 4, 5 & 6 – the “new” evidence
39.
We turn to grounds 4, 5 and 6 which relate mainly to information about one Gerard Cole, part of which was either undisclosed by the prosecution or unknown to the defence advocates at the time. These grounds are expressed as follows:
(4) there is now available evidence that was not known to the appellant or his lawyers at the trial that points to the involvement of one Gerard Cole as the driver of the getaway vehicle instead of the appellant.
(5) there was material non-disclosure in that the matters referred to in Ground (4) above were not disclosed to his lawyers before the trial by the Crown.
(6) further, or in the alternative, the existence of this evidential material relating to Cole’s potential involvement as the getaway driver which was not known about by the defence or adduced before the jury at trial renders the verdict unsafe.
40.
These grounds are interlinked. What makes the matter not entirely straight forward is that some information about Cole was disclosed and appreciated by the defence team; some was disclosed but its possible significance not appreciated by some, at least, of the defence team and some was simply not disclosed, full stop. It is against this somewhat unusual background that the court is called upon to consider the exercise of its powers under section 23 of the Criminal Justice Act 1968 to permit the introduction of fresh evidence that was not adduced at the trial.
41.
The submission is, broadly, that if the defence lawyers had been aware of this material the defence might, depending on the instructions of the appellant, have been run differently resulting in his acquittal. Therefore the conviction is unsafe and the appeal should be allowed.
42.
Put shortly it is suggested that Cole matched more closely than the appellant Alison Brighton’s description of the driver of the getaway vehicle and that his mobile phone records, which were not disclosed, showed frequent traffic with Cassidy and Murphy’s mobiles as well as the appellant’s mobile. A good case could have been made out that he, rather than the appellant, was the third man or at least enough doubt could have been thrown on the Crown’s contention that the appellant was the third man.
43.
The appeal was originally listed for hearing over two days in September. There came a point during the hearing when we were so unclear about what material had been in the hands of the appellant’s counsel, what material had not been disclosed but should have been, what use the defence team would have made of all the material about Gerard Cole had it been disclosed, and in particular what if any difference it would have made to the way the defence was run, that we adjourned the hearing in order to have the assistance of Mr Lawson-Rogers Q.C. who was the leading counsel for the appellant at this trial, and also his junior.
44.
The material we now have falls broadly under the following heads.
(1)
Cole’s mobile phones records which show:
a)
that during the period 1 November 2 to 4 December 2002 Cole’s mobile phone.
(i)
called Cassidy’s mobile phone 103 times;
(ii)
is called by Cassidy’s mobile phone 53 times;
(iii)
called Murphy’s mobile phone 65 times;
(iv)
is called by Murphy’s mobile phone 76 times.
b)
also, on 3 December 2002 at 11.30pm Cole’s mobile phone called Murphy’s mobile telephone. At 12.41 on 5 December Cole’s mobile phone called a landline attributable to Cassidy.
c)
On 30 November 2002 Cole’s mobile telephone called The Thatched House public house on two occasions.
These telephone calls have to be seen against the context that the appellant’s mobile phone, 233, made and received the following calls in the same period;
i)
to Cassidy’s mobile phone 78 times
ii)
from Cassidy’s mobile phone 43 times
iii)
to Murphy’s mobile phone 16 times
iv)
from Murphy’s mobile phone 27 times
Much of the material had been disclosed at the trial. Cole’s mobile telephone records, however, had not. They were not disclosed, so it appears, because they were regarded as “sensitive” and in any event not material to be disclosed because it was not considered that the records might undermine the case for the prosecution. There was no PII hearing and it is our view that the records should have been disclosed. The matter does not on the face of it appear to have been properly considered by the prosecuting authorities, but for reasons that will become apparent it is not necessary to go into that issue. There is no suggestion of bad faith.
(2)
The complete document message form M.163, an internal police document, i.e. all three pages of it. What appears to have happened was this. The document was disclosed, but due to an administrative error the defence solicitors were only sent the first page. However, they never asked for the subsequent page or pages, although it would have been obvious on inspection of the front page that that was not the complete document. The front page contained information about Cole, including his mobile telephone number. The second and third pages contained some further information about him.
(3)
Police action 27, which indicates that the police were interested in any Asian associates of Cassidy (no doubt because of Alison Brighton’s evidence) and in which Cole is described as “is IC3 but is Asian-looking”. It appears the defence did not have this document because the defence solicitor was unable, because of other commitments, to complete the inspection exercise.
(4)
Various witness statements touching on Cole’s description or involvement in various events relating, broadly, to the background to the shooting.
45.
We have been provided with a helpful statement from Detective Chief Inspector Carr, which summarises the police interest in Cole during the investigation. DCI Carr was initially deputy senior investigating officer into the murder of Raymond Craven and later the senior investigating officer. This statement was prepared in November 2005. It was not of course in existence at the time of the investigation but it helpfully summarises information that could have been gleaned from various documents in the unused material. In summary, what he says is this.
46.
It was known at the time that Cole was a close associate of Cassidy. It was also known that Cole was of mixed race. There was not, and indeed never has been, any evidence or intelligence to connect Cole to the murder. The police never had reasonable suspicion on which to arrest Cole for the murder. Nevertheless, DCI Carr felt it prudent to commence administrative preparation for an identification procedure for Cole, should one become necessary. One never, in the view of the officer, became necessary. DCI Carr saw no reason to distinguish Cole from any other associates of Cassidy, Murphy or the appellant, who were of mixed race or dark skinned. Cole was, however, arrested on an unrelated matter. The arresting officer obtained an account of his movements on the night of the shooting and these were later confirmed by his girlfriend. The officer also formed the view that Cole was not of Asian appearance. Cole volunteered his mobile telephone number, something not done by either Cassidy, Murphy or the appellant. A search warrant was executed at Cole’s home address but nothing was found that could link him to the murder. His telephone billing was examined and showed, as we have mentioned, a pattern of contact with Cassidy and Murphy over a considerable period of time. That pattern was no different on the night of the shooting to any other night of the preceding weeks. All that could be deduced from the billing was that Cole had possibly been used as a conduit for communication between the parties in the dispute both before and after the shooting. Unlike Cassidy, Murphy and the appellant, Cole continued to use his mobile telephone after the shooting. It was decided there were no grounds for arresting Cole for the murder and no grounds to justify proceeding with an identification process. Surveillance was mounted upon a motorcar known to have been used by Cole. The reason for this was that there was evidence that Cassidy had been seen as a passenger in the vehicle and the police wished to locate Cassidy.
47.
We refer to the various categories of material beginning with Cole’s mobile phone records. It is important to have in mind the limited nature of what was not disclosed, namely calls from Cole. Calls to Cole could be found on the disclosed records relating to Cassidy and Murphy. Junior counsel for Cole at the trial, Mr Richard Pratt, recollects that he knew Cole’s mobile phone number. It was on the front page of M163. In any event, the appellant would have known it. No efforts were made by the defence team to seek further information about Cole’s mobile phone activity on the night of the killing or to analyse what was available by way of incoming calls. Mr Lawson-Rogers said that they had no reason to do so. The point can also be made that neither did the appellant suggest it. What Mr Lawson-Rogers says is that if the defence had been provided with Cole’s mobile phone records and had appreciated that Cole was a possible match to the driver of the get-away vehicle, there would have been discussion with the appellant about the possibility of introducing Cole into the case as a candidate for the driver of the get-away vehicle.
48.
As to M163, it is said not have reached counsel, even the first page, which certainly reached the appellant’s solicitors. What the document reveals is:
•
Cole’s mobile phone number.
•
that he had been on 8 December 2002 arrested on suspicion of another matter .
•
he was a good friend of the deceased.
•
he was last in the Thatched House Public House two weeks before the killing in company with Cassidy, Murphy and Thomas.
•
he is a friend of Cassidy.
•
he first learned of the murder at 23.00 hours on 3 December 2002 when he telephoned a friend called Pane. Pane was a taxi driver and was with Craven after he was shot.
•
At 00.45 hours on 4 December 2002 he was stopped by an armed response unit in Earle Road, Wavertree driving his Vauxhall vectra. The police said they were looking for a silver car.
•
he told the police that he did not have any mobile phone or land line number for Cassidy; a statement which it is now said was untrue.
The document reveals a number of other matters that are of no relevance to the present appeal.
49.
Turning to police action A27, this was raised on 4 December 2002 at 20.10 hours. It requested, “research any Asian associates of Cassidy or the injured parties.” The result records that Cassidy knew Cole who is “IC3 but is Asian looking.” This was in the unused material but did not reach counsel.
50.
There are several other actions and messages that, broadly, bear out the summary by DCI Carr to which have referred.
51.
It is a matter of some debate to what extent Cole matched the description “Asian looking”. Certainly the photographs we have been shown of Cole do not indicate he is remotely “Asian looking”.
52.
The fourth category we have described as various witness statements. Schofield was a cousin of Liam Navis and gave evidence at the trial. He was involved in the arrangements for the straightener and went to its intended scene. His witness statements referred to Cole, describing him as a mate and saying that Cole was also mates with Cassidy and Murphy. In one of his witness statements he referred to having met Cole and Payne at about 2pm on 3 December 2002. Cole told him Cassidy had just been in the Heron gym and Cassidy was fuming over Liam Navis offering him a straightener. Later in the same statement he said Billy Navis had told him that on 30 November 2002 Cole had phoned Craven at the Thatched House and told him, “you are all going to get shot.” Whether this was a threat or a warning is unclear. What is clear is that the whole of the defence team was aware of this hearsay statement but that it did not precipitate any action on their part any more than did the statement of Elaine Navis in which she said Craven had received a call from Cole in which Cole had said “ he’s gonna smoke everyone in the Thatched.”
53.
The defence team also had a statement from Danielle Lloyd in which Cole was described as, “of tanned complexion, mixed race but not black”. Cole had introduced her to Murphy and Cassidy. They also had a statement from Maria Magill, Cassidy’s girlfriend. She said: “he is of mixed race black/white, his skin is light so he just looks tanned….he has short dark hair.”
54.
There is one other piece of material to which we should refer. It does not relate directly to any of the grounds of appeal, because it emerged very late in the day. But it is another plank in the appellant’s argument that if its existence had been appreciated the case might have been run differently. This material came to the attention of the appellant’s advisers and the Crown the day before the adjourned hearing of the appeal. It comprises a message followed by an action. The message is that Shirley Jane Hennessy, a barrister, contacted the police on 6 December 2002 to report that she had seen a number of males at about 22.15 on the night of the murder running from Greenbank Park and about thirty feet away from her. The lead male was white, around 5ft 10 inches tall, aged seventeen to nineteen with short blond collar length hair, slightly spiky on top. He was wearing a red bomber jacket and dark trousers. The other males were white and of similar size and age. She was not prepared to make a written statement. An action was raised to ascertain the number of males, to which the answer was four. The lead male with the spiky hair appeared to have had it dyed blond.
55.
Mr Lawson-Rogers has no recollection of ever having seen this material. It is said the police made repeated but unsuccessful efforts to obtain a statement from Miss Hennessy, and what we do not know is why neither of the other defendants ever, so far as we are aware, pursued the matter. The material was available to all defendants in the unused material. The description of the lead male did not fit either Cassidy or Murphy. As far as the appellant was concerned it was never in his interests to introduce the possibility of a fourth man. We were never addressed at any length upon what might have been done with the Hennessy material had its significance been appreciated. We are not persuaded of the likelihood of any use being made of it on behalf of the appellant as it would not have helped, and might well have hindered, the argument that he did not match the description by Alison Brighton of the driver.
56.
We are grateful to Mr Lawson-Rogers for coming to court and giving evidence. He told us he never saw M163 and he had no discussion with the appellant about Cole being “Asian looking”. He never saw Cole’s mobile phone records for the obvious reason they were not disclosed. His junior’s position was the same. It was an important part of the appellant’s defence to challenge the allegation that he was the driver. The defence was aware of Cole being an associate of Cassidy and Murphy but they were not aware of the police interest in him. They would, subject to the appellant’s instructions, have deployed this and adduced the fact that Cole was not put on an identification parade. Put shortly, he said, “because we never made the link, we never undertook the exercise.” To suggest someone else was the driver would not have made the case against the appellant any worse. Evidence could have been obtained from the officer in charge of the case by cross-examination.
57.
When cross-examined by Mr John Benson QC for the Crown, Mr Lawson-Rogers made a number of, in our view important, concessions. First that he would be surprised if they had not asked the appellant for his help in identifying who was the third man. But re-examination he said that as the appellant was not there, “we would not have asked who was the driver?” Secondly, that the telephone evidence was the real problem and that all three phones had gone silent after the killing. Third, that the appellant was never going to give evidence and that he did not admit 233 was his mobile. Fourth, the appellant never made any suggestion who else might be in the frame for having assisted Cassidy and Murphy. As to Mr Russell’s evidence, as he only seemed to identify three people, they were content for his evidence to be read.
58.
We have been provided with a statement from the appellant saying that, if he had known all he now knows about Cole being a suspect and his phone calls on the day of the murder, he would have wanted the issue raised in court. We attach little weight to this statement; we attach rather more to the evidence of Mr Lawson-Rogers.
59.
The appellant, in waiving privilege, disclosed among other things, the notes of a consultation on 22 September 2003 and a proof dealing with various aspects of the evidence. His case was that he was not responsible for the shooting and he did not believe Cassidy or Murphy were either.
60.
Paragraphs 5 and 6 of the consultation notes are revealing as to the intended tactics at the trial. Paragraph 5 records the desire to keep a low profile and distance the appellant in the eyes of the jury from the co-defendants. A submission would be made (as it was) at the close of the prosecution case. It was a weak case. Paragraph 6 records:
“If we introduce speculation as to other possible murderers, there is a danger that we move closer to Cassidy and Murphy and might detract from the standpoint that we know nothing about these events. We want nothing to do with it.”
61.
The note also records that the appellant had heard that Cassidy was involved, so thought it was better to get rid of his telephone. Also, it was a small community where everybody knew everybody else. The word on the street was that Cassidy and Murphy were responsible and the appellant recognised he might be blamed by association.
62.
Apart from Cole’s mobile phone records it does not seem to us that the Crown failed in its disclosure obligations. In any event it seems to us there was sufficient material available to the defence for enquiries to be made about his mobile phone records. The defence had been supplied with his number (junior counsel at any rate knew about it) and the appellant could, at the least, have ascertained details of calls made to Cole from the material that had been disclosed. Most, if not all, of the material the appellant now has could, so it seems to us, with reasonable diligence on the part of the appellant’s then solicitors, have been available at the trial. That, however, does not provide the answer to this appeal.
63.
Mr Benson’s submissions can be summarised as follows. First, there was sufficient material known to counsel for the defence to have pursued the Cole aspect of the case had the defence been minded to do so. In this regard, a distinction has to be drawn between counsel’s position and the appellant’s position. The appellant knew a good deal more about Cole than did counsel, not of course the various documents that did not percolate through to counsel, but this was a close knit community and Cole was well known to the appellant.
64.
Mr Benson submits that the Cole aspect was not pursued, and, perhaps more importantly never would have been pursued, because of the appellant’s loyalty to his close friends and associates Cassidy and Murphy. Mr Benson submits, and we can see some force in this, that the introduction of Cole would necessarily have strengthened the case against Cassidy. The judge advised the jury to start with Murphy; if the case against him was established to go on to Cassidy and if it was established against both of them then to go on to the appellant. The jury appear to have accepted this advice because they returned verdicts first against Murphy and later against Cassidy and the appellant. The stronger the case against Cassidy the stronger the case against the appellant. The jury must have accepted the “Which way now, Pete”? evidence and the only candidate was the appellant. Cole’s name was not Pete. The material now disclosed by the defence reveals, as the Crown submitted all along, that 233 was the appellant’s phone. The phone records show how closely he was associated with Cassidy and Murphy and the fact that Cassidy, Murphy and the appellant all disposed of their mobiles shortly after the shooting, whereas Cole did not, was always, and would remain, a telling point against the appellant.
65.
If the appellant introduced Cole into the case he faced not only the anger of Cole but also that of Murphy and Cassidy. It seems to us that it would have been very difficult to introduce Cole into the case even as to a partial match to Alison Brighton’s description of the driver, without a very high risk of damaging Cassidy’s case (and in consequence his own). There would also, it seems to us, be a serious direct danger to the appellant by introducing Cole’s mobile phone records into the equation. First it would draw attention to the appellant’s closer association with Cassidy and Murphy and second, in the light of the “Which way now, Pete?” evidence it would bring the possibility of a fourth person in the car very much more into play. If Cole was going to be introduced into the case, it was going to have to be done as a positive assertion that he was the driver; it would be almost impossible, and probably ineffective, to advance such a case on a vague assertion. Any assertion that Cole was the driver, or even a vague floating of the possibility before the jury, would have entitled the Crown to adduce any evidence tending to exclude him from involvement in the crime.
66.
If all the additional material had been in the hands of and its significance appreciated by Mr Lawson-Rogers we think it likely he would have taken the appellant’s instructions upon what use might be made of it. We think it possible, but unlikely, that the appellant’s instructions would have been such that the trial took a significantly different course. We think it likely, although we cannot be certain, that the case would have been conducted in the same way as it was.
67.
Nevertheless, we go on to ask ourselves this question. What if the instructions to Mr Lawson-Rogers were to make the best use of it he could? It is impossible to predict with any precision how the trial would then have unfolded. Prudent counsel would proceed on a step by step basis, backing off when more damage than good was likely to be caused.
68.
This case does not fit into the ordinary category of one where the court is asked to consider fresh evidence on appeal. Nevertheless, we think the correct approach is to consider these grounds of appeal on the basis that all the material to which we have been referred, regardless of whether its existence was not disclosed or its potential significance not appreciated, is properly to be regarded as fresh evidence.
Section 23(1)
(c) of the
Criminal Appeal Act 1968
entitles the court to receive any evidence which was not adduced in the proceedings below if it thinks it necessary or expedient in the interests of justice to do so.
69.
The court is required, when considering whether to receive any such evidence, to have regard in particular to four considerations. These considerations are:
(1)
whether the evidence appears capable of belief;
(2)
whether it appears that the evidence may afford a ground for allowing the appeal;
(3)
whether the evidence would have been admissible on an issue which is the subject of the appeal;
(4)
whether there is a reasonable explanation for the failure to adduce the evidence at the trial.
However, the overriding consideration is the interests of justice.
70.
Taking these considerations in turn, the evidence appears capable of belief. It would have been admissible on the issue whether the appellant was one of the murderers. Apart from the mobile phone records of Cole, which should have been disclosed but were not, we do not think there is a reasonable explanation for failure to adduce the remainder of the evidence. Had the defence solicitors done their job properly it would have been in the hands of leading and junior counsel. The most critical question is whether the evidence, taken as a whole, may afford a ground for allowing the appeal.
71.
We have kept in the forefront of our minds the words of Lord Bingham in
R v
Pendleton
[2002] 1WLR72, 83F:
“But the test advocated by counsel in
Stafford
and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gives somewhat inadequate recognition. First, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in any case of difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”
72.
We are, as we have said, sceptical about the use to which the material would have been put. Mr Lawson-Rogers said in evidence that he knew nothing about Miss Hennessy, but that if he had he would probably have tried to have her interviewed. She had of course said she was not prepared to make a statement. But assuming this hurdle was overcome, and she was prepared to give evidence, where did that take the appellant’s case? Whilst on the one hand it might be said that her descriptions of the men, such as she gave, did not match the appellant or Murphy or Cassidy, she identified four men and the evidence was damaging to the appellant’s case, that the Crown was only suggesting three, and that Alison Brighton’s description of the driver did not fit him. We certainly did not get the impression from Mr Lawson-Rogers that the appellant would have been rushing to try and call Miss Hennessy as a witness.
73.
What then of the material relating to Cole? The fundamental difficulty for the appellant to bring Cole into the case was his friendship with Murphy, Cassidy and the appellant and the potential, and possibly unforeseeable, damage it might do to all their cases. There was some suggestion that the murder was committed by a wholly unrelated gang and may have been drug related. Murphy said he had sold the car on the afternoon of the murder to four men, one of whom was Asian. The introduction of Cole, a close friend of Murphy and Cassidy, as matching Alison Brighton’s description of the driver, was not going to help them.
74.
Introducing Cole, even peripherally, by cross-examining the officer in the case, seems to us to be an exercise that was unlikely to be productive. Any evidence that he could have given could not undermine the three strands of the case against the appellant. These were (1) friendship and close association with Cassidy and Murphy and presence at the proposed straightener hours before the shooting; (2) his mobile phone traffic with Cassidy and Murphy and the common feature of all the phones going silent, and (3) Penniston’s evidence, “Which way now, Pete?” which the jury plainly accepted. Furthermore the description of Cole in A27 as “Asian-looking” although superficially attractive as matching Alison Brighton’s description of the driver (dark, round eyes, Asian) is not borne out by the photographs of Cole, a matter which the police appreciated as their enquiries progressed.
75.
Also, Cole was never a suspect for the offence except in the very broadest sense of the word. He was never arrested and there was no evidence whatsoever to connect him with the crime (unlike the appellant). It is difficult to see how the police could have justified putting Cole on an identification procedure.
76.
Even if the appellant managed to introduce evidence about Cole to persuade the jury that he might have been the driver rather than the appellant, that still left Penniston’s evidence, which placed the appellant in the get-away car. The defence would still have faced the problem of explaining why the appellant was not a fourth person. What would the jury have concluded if they considered the position on the basis that Cole might have been in the car? The introduction of Cole, a man with darker skin, would have lessened or removed the problem which the jury faced with Alison Brighton’s evidence as to an Asian looking man who was definitely not white. It would not have affected the position regarding the evidence of Ryan Penniston, “Which way now, Pete?” That was evidence which we know the jury accepted and which they considered would in the circumstances only have been directed to the appellant: he could not otherwise have been convicted. The introduction of the Cole material would not have affected that conclusion.
77.
We have accordingly come to the conclusion that the test in
Pendleton
is not met. We consider that the fresh evidence, however introduced, would not reasonably have affected the decision of the jury to convict. We do not think the evidence would afford any ground for allowing the appeal and we decline to admit it. In our judgment the verdict is safe, with or without the fresh evidence.
78.
There is one further point with which we should deal. Mr Fitzgerald submitted, in the alternative, that because the issue of Cole as a suspect was never addressed by the appellant’s legal advisors he did not have a fair trial. We do not think that this way of putting it adds anything to the conventional approach to questions of fresh evidence which we have followed. If the evidence would not have affected the outcome, its omission does not mean that the trial was unfair.
79.
Accordingly the appeal against conviction is dismissed. | [
"LORD JUSTICE SCOTT BAKER",
"MR JUSTICE DAVID CLARKE"
] | 2005_12_21-673.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3245/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3245 | 856 |
808940855688b6db5428cd7c770dc6f9f6adcdfb37688d6815c649f540cc3233 | [2023] EWCA Crim 795 | EWCA_Crim_795 | 2023-07-07 | crown_court | Neutral Citation Number: [2023] EWCA Crim 795 Case No: T20167220 202201714 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT DERBY HHJ SHANT KC SITTING WITH A JURY Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 7 th July 2023 Before: LADY JUSTICE CARR MR JUSTICE JAY and SIR NIGEL DAVIS - - - - - - - - - - - - - - - - - - - - - Between: GARY BENNETT Applicant - and – THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2023] EWCA Crim 795
Case No:
T20167220
202201714 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT DERBY
HHJ SHANT KC SITTING WITH A JURY
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Friday 7
th
July 2023
Before:
LADY JUSTICE CARR
MR JUSTICE JAY
and
SIR NIGEL DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between:
GARY BENNETT
Applicant
- and –
THE KING
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Richard English
(instructed by
Draycott Browne Ltd
) for the
Applicant
Andrew Vout KC
(instructed by
CPS
) for the
Respondent
Hearing date: 30
th
June 2023
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
MR JUSTICE JAY:
INTRODUCTION
1.
On 16
th
December 2016 Mr Gary Bennett (“the applicant”) was convicted at the Crown Court sitting at Derby (before HHJ Nirmal Shant KC and a jury) of three sexual offences against a child. The three offences were exposure (Count 1), causing a child to watch a sexual act (Count 2) and rape (Count 3). There was a determinate sentence of 1 year imprisonment (on Count 2) with a Special Custodial Sentence under
section 236
A of the
Criminal Justice Act 2003
of 11 years comprising a custodial term of 10 years extended by 1 year on Count 3 consecutive.
2.
The standard ancillary and consequential orders were made.
3.
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.
4.
The applicant now renews his application for an extension of time (1,965 days) in which to apply for leave to appeal against conviction following refusal by the single judge.
THE APPLICATION FOR AN EXTENSION OF TIME
5.
Crim PR 36.4 requires that a person seeking an extension of time to give notice of appeal under
section 18(3)
of the
Criminal Appeal Act 1968
must give reasons for his application. In the present case, the reasons given in the Advice on Appeal amount simply to this: that trial counsel having advised the applicant orally that he had no grounds to appeal his conviction, there was then delay in instructing a new legal team, obtaining the relevant papers, obtaining copies of transcripts and in fulfilling the
McCook
procedure.
6.
Anticipating that scanty reasons of this sort would be unlikely to be persuasive in a case of such very considerable delay, shortly before the hearing began the applicant’s solicitor helpfully provided the Court with a chronology. The following key points are made (and we add our comments where appropriate):
(1)
Trial counsel and solicitors gave no advice on 16
th
December 2016 about the 28-day time limit for appealing.
(2)
In March 2017 the applicant was “encouraged” by a prison officer to take advice about a possible appeal. Mr Richard English for the applicant accepts that it may well be that his client was made aware of the time limits at that stage.
(3)
Between April 2017 and April 2020 a firm of solicitors acted informally for the applicant in relation to a possible appeal. It is unclear why the applicant’s relationship with them was not placed on a formal basis, particularly given that a different firm of solicitors was instructed on a privately-funded basis in April 2020. In any case, these solicitors did not progress the case with due expedition, and in 2019 nothing happened at all.
(4)
Following the instruction of Draycott Browne Ltd in the summer of 2020, matters proceeded slightly more speedily, although we note that there was delay between December 2020 and September 2021 which has not been explained.
7.
We are driven to conclude that the delay that has accumulated is very considerable and much of it cannot be excused or justified. We doubt whether trial counsel and solicitors would have failed in their duty to mention the 28-day time limit, but in any event the applicant knew about that by March 2017. Thereafter, it was the applicant’s obligation and responsibility to ensure that an appeal was expeditiously pursued, and that failure cannot be attributed solely to his lawyers – particularly a firm that was never formally instructed.
8.
Against that unfavourable backdrop, the applicant relies on the decision of this Court in
R v Ashley King
[2000] 2 Cr. App. R. 391 in support of the contention that an extension of time may be granted even if no proper explanation has been given for the delay. That, however, was an exceptional case involving the potential involvement of the CCRC, and reference must be made to more recent authority, including the decisions of this Court in
R v Hughes
[2009] EWCA Crim 841
,
R v Thorsby
[2015] EWCA Crim 1
,
R v Wilson
[2016] EWCA Crim 65
,
R v Roberts & Others
[2016] EWCA Crim 71
,
R v James & Others
[2018] EWCA Crim 285
,
R v Gabbana
[2020] EWCA Crim 1473
,
R v Patterson
[2022] EWCA Crim 456
and
R v FG
[2022] EWCA Crim 1460
. In short, the Court will always examine all the circumstances of the case including the length of the delay, the reasons (if any) for it, and the overall interests of justice including the public interest in finality, the interests of victims, the practicability of a retrial, and any potential injustice to the defendant. Certainly, asserted strong merits cannot of themselves be assumed by prospective appellants and their lawyers to be some sort of trump card in securing an extension of time.
9.
In the present case, the delay is, as we have stated, very considerable, no proper explanation has been given for much of it, there is no realistic prospect of a retrial and the applicant has now served the custodial element of his sentence. In these circumstances, we consider that it is incumbent on the applicant to demonstrate at least a compelling case on the merits in order to persuade us to grant the necessary extension of time.
10.
The merits of the applicant’s grounds of appeal will be examined within this legal framework, but before doing so we must set out the relevant facts.
THE FACTS
11.
The applicant is now aged 62 and was a man of previous good character.
12.
At the time of these allegations the complainant, whom we will refer to as MN, was six or seven years of age. She was nine at the time of trial. When she was four years old (in 2007/8) she had been adopted by GN and BH. Their relationship ended in 2014 although MN maintained contact with both parents.
13.
BH’s mother, CS, was the long term partner of the applicant, and they lived together at an address in Derbyshire. The applicant and his partner regularly saw the complainant and a biological daughter of BH, S, who had her own room at their address.
14.
The trial concerned three allegations. The complaint was made after the second occasion (Counts 2 and 3). MN later reported an incident that she said had occurred months beforehand when the applicant pulled his trousers and pants down, exposing and then touching his penis (Count 1).
15.
Taking these Counts in the order of their complaint rather than their occurrence, on the afternoon of 26
th
August 2015 the applicant was alone at the home that he shared with CS when BH dropped by unexpectedly with MN. In due course, the applicant and MN were both seated on the reclining armchair in the living room with the television on and BH had gone into one of the bedrooms to use his phone and to rest. BH made two phone calls: the first lasting 39 minutes, starting at 15:46 and ending at 16:25; the second of 15 minutes duration, starting at 16:34 and ending at 16:49. In between these calls he came out of the bedroom into what he described as the living room, and saw the applicant and MN sat on the chair watching a film of a cartoon type. BH saw nothing untoward. BH’s evidence at trial was that there may have been previous occasions when MN was alone with the applicant.
16.
Later than evening, MN was back at the house of her maternal grandmother, J. MN told J that the applicant had showed her his laptop and she described seeing two women giving oral sex to a man. MN said that the applicant had her arm round her at the time and she was sitting next to him. MN said that the applicant told her that CS used to do what the women were doing when they were in bed, but she was too old now. MN said that he had told her to keep it a secret and not to tell anyone. In answer to J’s question, MN said that the applicant had not touched her and that he had not made her touch him.
17.
The next morning, MN gave her mother, GN, a similar account. Slightly later, her account to GN was that at one stage the applicant had his hands on her thighs. Subsequently, and with MN now knowing that the police had been called, GN told MN that it was really important to tell them everything and asked her whether she had done so. MN replied that she did not want to say. When GN asked, “say what?”, MN said “suck his things, like on the DVDs. He made me do such things”.
18.
On 27
th
August 2016 MN gave a recorded ABE interview. She said that they were watching TV when the applicant showed her two clips of pornography on his laptop. Her description of what she saw was consistent with her account to J. MN’s description of the first video was that it was “horrible” and showed a lady “biting other people’s privates” and then another lady came in and showed her how it was done. MN clarified that by “privates” she meant “the willys”. As for the second video, “it were just someone sucking them in bed”. MN explained that they only watched a quarter of the second video. The applicant then called her into the dining room where he put his penis into her mouth and told her to suck it. The applicant told her not to tell anyone and they then went back to watch “Care bears” on the TV. She left with her father shortly afterwards. She had not told him there and then because he would “moan”.
19.
On the same day the applicant took an overdose and wrote a note in which he apologised for being a “total prick – idiot - fool” and stated that he could not hold his head up if people believed MN. He apologised for all the upset that he would have caused. He was hospitalised until 29
th
August.
20.
The applicant was arrested and interviewed
on 1
st
September 2015. At that time he stated that he knew nothing of the allegations other than that he had accidentally shown MN pornography on his laptop. He said that he had logged on to his laptop, with the intention of checking his shares, and the clip popped up. He had been watching it earlier. He then turned his laptop round so that MN could not see what was on it. He said that he did not know whether MN had looked back to have a look at what he was viewing, “because she might just have looked back”. He did not immediately close the lid and had some difficulty in turning the machine off. The applicant was almost certain that there was only one film, not two. He had asked her not to tell her father. He recounted the rest of the visit. He adamantly denied that they had been inside the dining room or that he had acted in the way alleged.
21.
The applicant was asked by police officers to explain the plot line of the video. The applicant’s explanation was strikingly similar to MN’s. The inferences to be drawn from that coincidence are obvious.
22.
The applicant was further interviewed
on 19
th
February 2016 when he denied that what MN alleged took place in the dining room ever happened. He asserted there was never a time it could have happened.
23.
MN gave a further ABE interview on 26
th
October 2016. This was after MN had told a teacher about an event that became the subject-matter of Count 1. MN said that she and the applicant were watching a DVD in the living room and he pulled his trousers and pants down. The applicant then had his hand on “them”, by which she meant his genitals.
24.
The applicant was reinterviewed on 8
th
November 2016 and he denied that this had happened. The complainant was telling stories.
25.
The applicant’s laptop was interrogated. This showed that the machine was in use on 26
th
August 2015 at various times but the periods between 14:27 and 14:36, and 16:13 and 16:20, were important for the Crown’s purposes. As for the first period, the applicant was viewing websites relating to DIY and share prices, and not pornography. At 14:36 the machine entered what is known as a “clamshell sleep”, i.e. the lid was closed. The lid was reopened at 16:13 and reclosed at 16:20. The Crown’s case was that it was during this seven minute window, which corresponded with BH’s first phone call, that the applicant deliberately showed the pornographic clips to MN.
26.
The applicant’s account at interview was that he was viewing pornography for about five minutes before 14:36 using the Google private browsing function. He then closed the lid of the machine. This explains why, when he reopened the laptop lid at 16:13, the same webpage was running.
THE TRIAL
27.
The trial began on Tuesday 13
th
December 2016. The judge gave the jury the standard directions about open justice, not discussing the case with anyone and not conducting research on the internet. That was the limit of her directions.
28.
The jury heard from BH, MN, J and GN. We were taken to sections of the transcript of MN’s evidence. It is clear that MN became distressed at various points towards the end of her cross-examination (she had shown no distress during the ABE interviews and when giving her earlier complaints), including when she told the jury that the applicant’s computer was on his knee (at which point there was a six minute break) and when she was asked whether she saw the applicant’s willy (at which point there was a three minute break). MN also became distressed when she was asked what the applicant had done with his willy. After being told by the judge to take a deep breath, the applicant said that “he made me suck”.
29.
Counsel then told the Court that he did not think that it would really assist to ask any further questions.
30.
The document at O3 on the DCS shows that the following additional questions were on counsel’s list to be asked:
“What did [the applicant’s] willy look like?
Did [the applicant] really put his willy in your mouth?
MN: have you seen things on [the applicant’s] computer and made up that [the applicant] did those things to you?”
31.
The applicant gave evidence which in some but by no means all respects was consistent with his police interviews. On 26
th
August 2015 at 14:36 he had been looking at the Wickes website and then at a money site. He then said that he opened the “motherless site”, presumably adopting his usual practice of private browsing, took a quick look and then shut the lid as he was going to the garage to put up some shelves. He did not shut the site because he was not expecting visitors.
32.
Later, when sitting with MN, the applicant said that he got bored whilst she was watching a television programme. He opened the lid of the laptop, inserted the password and the adult pornography came on. It was the same clip that he had seen before going into the garage. His evidence continued:
“She was to the left-hand side of me. I panicked. I turned the laptop to one side, and I did my best to turn it off. I was fumbling with it. I didn’t think to close the lid. I believe I managed to turn it off. I was feeling awful. There was a 7-year-old girl sitting to the side of me, and I said, “Sorry, you should not have seen that”. She asked what it was and said, “Is that what adults do?” I said, “That’s what adults do. C used to do it, but she’s now too old.”
33.
The applicant’s explanation for this last comment was that he wanted to make her laugh. The applicant denied that they had gone into the dining room, that he put his penis in her mouth or had ever exposed himself. He said that he had suffered depression. Later that night it was reported to him that it was being said that he had deliberately shown her pornography. The following morning he had taken the pills and written the note. He explained that he used tools to access the pornography rather than the browser in order not to leave a history because others had access to the laptop. The plot in the relevant clip was that a boyfriend’s mother came to show his girlfriend how to perform oral sex. The fact that MN could tell the plot may have meant that she had watched more than he realised but he had not shown it deliberately. The applicant gave evidence that he asked MN if she wanted him to tell her father. This differed from his police interview but he had just been released from hospital when questioned and may not have got everything right. Before these allegations he had enjoyed his relationship with MN.
34.
The applicant was pressed in cross-examination about various aspects of this account. We do not have a transcript and are therefore reliant on the judge’s summing-up, which on one issue (at page 32E-G) is not altogether clear. However, the key points made by the Crown were that the laptop was on for seven minutes in the presence of MN; that the pornographic clip or clips was or were playing throughout that period; that MN had every opportunity to view this imagery, which was the applicant’s intention; that MN was able to give a clear description of what she saw; and that this matched what was very soon to occur in real life.
35.
Mr Andrew Vout KC, who was trial counsel when he was still a junior, also cross-examined the applicant about his internet use shortly before 14:36. His account at interview was that he had been on a pornographic site for about five minutes before that time. His evidence to the jury was that he just took a quick look. In any case, what may be described as the public browsing history showed that he was on DIY and share-related websites until 14:36. The interrogation of the computer was, therefore, inconsistent with the police interview and suggested that it was unlikely that there was any private browsing before 14:36. It was put to the applicant that the correct sequence of events was that he searched for the pornographic site using private browsing when MN was seated next to him, and that he did so deliberately: there was no accidental popping up of a clip that he had been watching earlier. The applicant’s answer to this question was that there was no change of account; it was just a mistake as to how long he had viewed this material previously.
36.
Before delivering her legal directions to the jury, the judge discussed their proposed content with counsel. The transcript shows the following exchange between both counsel and the judge:
“MR VOUT: One other thought I just had: distress. The complainant became quite distressed. We all saw that.
JUDGE SHANT: Well, she became distressed when she was giving evidence which is rather different to the direction one normally gives. It's distress when making the complaint originally.
MR VOUT: That's true.
JUDGE SHANT: This is -- I don't propose to say anything about this distress. It's for them to work out how it affects her evidence as it were.
MR VOUT: Your Honour is quite right.
JUDGE SHANT: Yes, the distress direction is related to it being part and parcel near the time of the original complaint.
MR VOUT: Yes.
JUDGE SHANT: And whether it's referable to the complaint or not and that sort of thing so. Mr Stockwell, is there anything you want to say about that?
MR STOCKWELL: No. Thank you, your Honour.”
37.
The upshot was that the judge’s legal directions made no reference to MN’s evident distress whilst she was giving evidence.
THE GROUNDS OF APPEAL
38.
There are four grounds of appeal. Ground 1 is that the
judge failed to direct the jury about how to treat MN’s visible distress when she was giving her evidence. Ground 2 is that the judge failed to direct the jury that they should consider the evidence dispassionately and that they should not be affected by emotion and sympathy. Ground 3 is that the judge, in her summing up, failed to direct the jury regarding the potential unfairness caused to the defence by the fact that cross-examination of MN had to be abandoned due to her levels of distress. Ground 4 is that the judge failed properly to direct the jury regarding the complaint evidence by failing to point out all of the inconsistencies in the complainant’s account.
39.
These grounds were developed both in writing and orally. Mr David Emanuel KC had drafted the Advice on Appeal, but the oral argument was advanced by Mr English. We are grateful for his precise, measured and well-directed submissions.
40.
Mr English’s overarching submission was that his grounds had to be considered both individually and cumulatively. It was the overall impact of the judge’s errors which, in the circumstances, was material and fatally undermined the safety of the convictions.
41.
As for Ground 1, it was submitted that the judge was required to give the standard distress direction as set out in the Crown Court Compendium, which direction was not limited to distress evinced during a complaint. Counsel relied in particular on the decision of this Court in
R v JS
[2019] EWCA Crim 2198
in support of the proposition that the failure to give such a direction renders a conviction unsafe. Given that the allegations were of such a distressing and upsetting nature, it was essential that the jury were directed that the distress they witnessed could not amount to some sort of corroboration or confirmation of the allegations.
42.
In oral argument, and having accepted that a distress direction was not required in all cases, Mr English submitted that MN became highly distressed at a critical stage in her cross-examination when she was being pressed on the central factual issue in the case.
43.
As for Ground 2, reliance was placed on
R v Razaq Assadullah
[2004] EWCA Crim 2917
and
R v David G
[2006] EWCA Crim 500
in support of the contention that it was important that the jury be directed that sympathy and emotion should form no part of their decision-making. This is particularly so in a case involving alleged sexual abuse of a young child where there was a clear risk of jury emotion running high.
44.
As for Ground 3, it is accepted on behalf of the applicant that the judge did direct the jury to the effect that counsel’s questions in cross-examination were all appropriate, that he was constrained by the Court in relation to the questions that could be put, including being unable to put to MN directly that she was lying, and that the jury could well understand why in the circumstances the cross-examination was stopped short. Counsel’s argument was that the judge said nothing about the fact that the abandonment of the questioning in the context of MN having become so distressed was not to be held against the applicant in any way. It is further submitted that the jury should have been directed specifically about the unfairness to the applicant flowing from the need to abort the cross-examination, and that the judge should also have told the jury that the final question on counsel’s list that was not asked was whether MN had made up the allegation because she had seen those very actions performed on the applicant’s computer. In this context, the judge made matters worse by informing the jury that counsel had been unable to ask a particular question when in fact he had asked it. Mr English submitted that the jury should have been expressly directed that they should not speculate as to what MN’s answer to that question would have been, and that we should take all of these matters into account in considering the fairness of the proceedings.
45.
As for Ground 4, counsel relies on the specimen direction in the Compendium to the effect that “points of consistency and/or inconsistency should be specified”. Instead, all that the judge did was to say:
“It’s a matter for you whether she’s inconsistent or inconsistent [sic] in how you assess that complaint, and whether the lack of disclosure about oral sex at an early stage is down to embarrassment or an indication that she is lying.”
46.
Counsel’s submission was that this was an inadequate direction, and that far more should have been done to underscore the frank inconsistencies in MN’s account. Para 86 of the lengthy advice on appeal contends that MN “for whatever reason, was capable of telling lies to her elders. It was not an omission but a direct lie”.
47.
Finally, counsel submitted that the cumulative effect of these failings and mis-directions was to render the applicant’s convictions unsafe. This was a paradigm case of one person’s word against another’s.
THE RESPONDENT’S NOTICE
48.
Mr Vout, who represented the Crown with his customary fairness and good judgment, advanced the following submissions in support of the overall safety of these convictions.
49.
First, a judge is not required to warn a jury whenever a complainant gets upset whilst giving evidence. The Compendium does not require a distress direction to be given in every case.
JS
can be distinguished in that in the instant case the distress was not when challenged on truthfulness but rather when cross-examined about the applicant’s penis. The allegations were also corroborated by the forensic evidence in relation to the applicant’s computer and did not rely on one word against another.
50.
Mr Vout emphasised that MN’s distress was not a central feature of the case, and that he made nothing of the point in his closing speech. The very fact that he inquired of the judge at the very end of the discussion between her and the bar whether she was minded to say anything about MN’s distress indicates that he was aware of the relevant principles, in particular that a distress direction does not predicate the demonstration of upset during the course of the making of a complaint. Mr Vout accepts that he did not correct the judge’s error, but he and his very experienced opponent (now King’s Counsel) had probably discussed the issue in advance of the discussion with the judge and had likely reached the view that in the particular circumstances of this case such a direction would not assist.
51.
Secondly, the judge was not required as a matter of law to warn the jury about putting emotions to one side. Mr Vout accepted the generality of the argument that cases involving alleged child sex abuse are capable of exciting high emotion, and that, in answer to questioning from us, a direction along these lines is usually given. However, that fell to be balanced against the direction that the judge did clearly give: that the jury should try the case on the evidence.
52.
Thirdly, it was trial counsel's judgment on his feet not to ask any further questions. He was not prevented from doing so. The judge did explain the constraints upon the questioning of MN, and that they should not hold that against the applicant.
53.
Fourthly, the judge did remind the jury of the inconsistencies in the complaints made, the context in which they were made and the chronology.
54.
Overall, Mr Vout submitted that the judge made no material errors of law in her directions to the jury, or lack of them; or, alternatively, that these convictions are in any event safe. Focusing on Grounds 1 and 2 in particular (Mr Vout sensing that the applicant was on much weaker ground elsewhere), it was submitted that such errors as there were did not trespass on the central issues in the case and went to matters of detail only. The directions urged on the Court by the applicant were discretionary in character; they are not mandated in each and every case.
DISCUSSION AND CONCLUSIONS
55.
Although it is inevitable that we will have to examine the applicant’s grounds of appeal one by one, we do not lose sight of his case that it is the cumulative effect of the errors on which he relies that must form the basis of his essential complaint that these convictions are unsafe. In any event, and as the single judge pointed out, the four grounds of appeal are to some extent interrelated.
Ground 1
56.
The relevant sections of the Compendium have not changed materially since 2016, although some of the numbering has altered. Para 20-1 provides in material part:
“11.
There is a possibility that juries will make and/or be invited by advocates to make unwarranted assumptions. It is important that the judge should alert the jury to guard against this. This must be done in a fair and balanced way and put in the context of the evidence and the arguments raised by both the prosecution and the defence. …
12.
Depending on the evidence and arguments advanced in the case, guidance may be necessary on one or more of the following supposed indicators relating to the evidence of the complainant: (1) Of untruthfulness:
…
(d)
Lack of emotion/distress when giving evidence.
(2)
Of truthfulness:
(a)
A consistent account given by the complainant.
(b)
Emotion/distress when giving evidence.
…
Example 7: Display of emotion/distress or lack of it when providing account to the police played to the jury and/or when giving evidence
[When W gave evidence she was crying and appeared to find it difficult to talk about the allegations.] You should not assume that the way W gave evidence is an indication of whether or not the allegation is true. Witnesses react to giving evidence about allegations of rape/sexual assault in a variety of ways. Some people will show emotion or distress and may cry. But other people will seem very calm or unemotional. The presence or absence of emotion or distress when giving evidence is not a good indication of whether the person is telling the truth or not.”
57.
As we have already said, MN did not show any distress when she gave her evolving accounts of what she says happened to the various family members we have identified, nor did she show any during the course of her two ABE interviews. The position changed when MN was cross-examined, and only when she was asked about the specifics. It is true that MN’s distress did not arise in answer to a question that implied that she was lying, but such a question could not be properly asked of her as a child witness and she may well have understood the essential logic of the applicant’s case that she was not telling the truth. Thus, the distress was engendered at a critical stage in counsel’s questioning, and the jury would have understood that.
58.
We have to say that the judge’s reason for not giving any direction to the jury as to the relevance of MN’s distress – that she manifested it in front of the jury and not during the course of making her complaints – is not a sound basis for not following the recommended wording in the Compendium or any alternative wording tailored to the particular circumstances of this case. For obvious reasons the judge did not have the benefit of the decision of this Court in
JS
. Paras 40-42 of
JS
reference a number of authorities including those where the complainant’s distress arose during the making of a complaint. However, in
R v Thompson
[2014] EWCA Crim 743
, at paras 33-34, this Court held that an appropriate direction should have been given in a case where distress was evinced in the witness box. That, after all, was the philosophy underlying the specimen direction in the 2016 edition of the Compendium.
59.
In its recent decision in
R v Lake
[2023] EWCA Crim 710, this Court said as follows:
“48.
In our judgment the jury ought to have been directed as to the evidential value of the complainant’s distress, particularly in a case such as this where that distress had been a prominent aspect of the evidence and was strongly relied on by the prosecution. Often, the reason why such a direction is necessary is that the jury will need to consider whether a witness’s distress is genuine or feigned. In such a case, factors such as whether the distress has been observed close in time to the circumstances of the alleged offence and whether the complainant was aware that she was being observed will often be particularly relevant.
49.
In the present case Mr Emanuel does not suggest that the complainant’s distress was feigned, but he points out correctly that it was not necessarily indicative of the appellant’s guilt. It was the appellant’s case that the complainant’s response to penetration, springing out of the bed and leaving in a state of agitation, was consistent with immediate regret on her part (she had said in her ABE interview that she had a boyfriend and would never have agreed to go to the bedroom with someone else), or with a failure to have appreciated what she had encouraged in circumstances where she was sleepy or drunk.
50.
In such circumstances the jury should have been directed to consider at least the possibility that genuine distress could have been for reasons which did not support the appellant’s guilt, such as remorse and anger with herself at having allowed matters to progress as they did while she was affected by alcohol, or failure on her part to appreciate the signals she was sending. If, having considered that possibility, the jury had rejected it, as they might have done, they would have needed to be careful not to attribute undue significance to the complainant’s distress, but we see no reason why they should not have been entitled to regard it as providing some support to her evidence. As it was, however, the Recorder left them with the impression that there was no need to consider such a possibility and that the complainant’s distress was itself potentially important support for the prosecution case.”
60.
The facts of both
JS
and
Lake
were rather different from those of the present case. In
JS
it was a striking feature of the complainant’s evident distress that it arose when challenged as to the truthfulness of her account. In
Lake
, there was a possible explanation for the complainant’s distress that was not indicative of the guilt of the appellant. The instant case is far removed from facts such as these; and, furthermore, there could be no suggestion that MN’s distress was feigned.
61.
Another important aspect of the present case is that Mr Vout, and also probably the applicant’s then counsel, were alive to the possibility of a distress direction being given in these circumstances. Whether or not counsel had discussed the issue beforehand is less clear inasmuch as the transcript records Mr Vout saying that it was “one thought I have just had”. However, Mr Vout believes that they did discuss it. The point may fairly be made that neither counsel chose to correct the judge’s misapprehension that a distress direction was confined to cases of distress manifested during the course of the making of a complaint, but the inference must be that both thought that the issue was of peripheral rather than central importance, and it did not feature in the closing speeches. A distress direction is recommended and, indeed, should usually be given (such that, if not given, the conviction may be unsafe); but the Compendium does not suggest that it is always required and these two highly experienced counsel must have had an acute sense of the overall dynamic of the case and the potential saliency of the issue. The inference must be that they both felt that the jury would unlikely be assisted by any explicit direction from the judge.
62.
Unless it be inferred that both counsel made the same error as the judge, the instant case is
a fortiori
R v Reynolds
[2019] EWCA Crim 2145
; [2020] 1 Cr. App. R. 20 where it was held that a failure to comment on the judge’s draft directions when given the opportunity to do so will not be fatal to an argument based on alleged misdirection of the jury, but it is likely to influence this Court’s assessment of the significance of the alleged deficiency. We have already explained that the Compendium does not require the giving of a distress direction in all cases.
63.
It is unnecessary to arrive at a final conclusion on Ground 1. At its very highest, the judge’s omission to say anything at all about MN’s distress was an error, but it by no means follows that it was material. The impact of the judge’s omission on the safety of the applicant’s convictions in the context of the application for a very considerable extension of time will have to be assessed by us in all the circumstances of this case, in particular whether it has been fairly characterised as just about one person’s word against another’s.
Ground 2
64.
At no stage did the judge give any direction to the jury about the need to avoid sympathy and emotion. In both
Assadullah
and
David G
a direction along these lines was styled as “important”, although these were both cases in which such a direction had been given. The Compendium recommends that the direction should be given “if appropriate”, which we would take to mean – give the direction if the case in question is likely to generate an emotional or sympathetic response.
65.
In our view, there is force in Mr English’s submission that all the obvious features of the instant case could well induce an emotive response in the jury such that a direction should have been given, both at the start of the trial during the course of the standard introductory remarks and in the judge’s legal directions. It was not sufficient merely to direct the jury to try the case on all the evidence because that would include the demeanour of MN as she gave her evidence.
66.
The issue, though, is whether this omission is sufficiently material as to undermine the safety of these convictions in the context of the application for an extension of time.
Ground 3
67.
We consider that this ground has very little weight. The judge’s summing-up did go some considerable way in counterbalancing the inherent difficulties and potential unfairness in cross-examining a child witness. Perhaps the judge might have gone further: in making the point explicitly that the jury should not speculate about what answers might have given to questions that were not put. It is also correct that the judge did not tell the jury that counsel had wanted to put to MN the point that, having seen certain things on the applicant’s computer, she then fabricated her account to allege that the applicant made her do exactly those things.
68.
That question, if asked, was capable of cutting both ways. It was high risk, but in one sense it had to be asked: MN’s account was either substantially true, or it was at best a confabulation and at worse a fabrication. Even so, the judge’s failure to mention this non-asked question to the jury cannot significantly have prejudiced the applicant. There was nothing to prevent counsel advancing this argument in his closing speech to the jury, and we must assume that he did. The applicant would have been in no better position forensically had the non-asked question been put.
Ground 4
69.
This ground is without merit. The judge did not provide a list of the consistencies and inconsistencies in the complaint evidence, but during the course of her fair summing-up of that evidence it was underlined to the jury that MN’s account evolved in the less than 48 period between the first revelation to her maternal grandmother and her first ABE interview. We cannot accept the bold submission that MN’s developing account demonstrates that she was capable of lying to her elders. That was one possible, albeit frankly implausible, explanation. Another, is that this was all “horrible” (to use MN’s own adjective deployed in the context of the videos), and it is therefore quite understandable that it would take a period of time for the full story to emerge. These possibilities were fairly before the jury.
Drawing these strands together
70.
In view of the conclusions we have reached thus far, the ultimate question is not simply whether these convictions are safe, because posing the question in those terms would predicate a timely application for leave to appeal. To the contrary, the question should be posed in these terms: has a sufficiently compelling case between advanced on Grounds 1 and 2 so as exceptionally to justify such a lengthy extension of time?
71.
Looking at the applicant’s case in the round, his essential contention is that, in light of the judge’s omissions, there is an unacceptable risk that the jury might have placed too much weight on MN’s distress and allowed their emotions to take over.
72.
In our judgment, the risk that the applicant has identified is more than wholly theoretical but it is unquantifiable. Aside from these omissions, we bear in mind that the judge’s summing-up was fair and balanced, and that no one was putting forward an explanation for MN’s distress consistent with the applicant’s possible innocence. Quite rightly, the issue was left untouched by counsel.
73.
In any case, when assessing the risk that we have identified, we must also bear in mind that this was not a case of one person’s word against another’s
simpliciter
. There was powerful supporting evidence in relation to that seven minute period throughout most of which (excluding the time it would have taken for the applicant to have found the relevant website) the pornographic clip or clips were playing on the applicant’s laptop in the presence of MN. We have already set out the strength of the Crown’s case in this regard. The idea that MN made up the allegation
because
she had seen this material is, for obvious reasons, extremely difficult to accept. The applicant’s apparently desperate attempts to close down his laptop rather than simply close the lid did not, it seems, impress this jury. Moreover, the jury would surely have been struck by the obvious connection between MN’s evidence of the subsequent enaction and the plot line of the main clip, coupled with the applicant’s admitted remark proffered, apparently, in jocular terms. Not merely was there no joke, the very fact that the applicant felt it necessary to utter it demonstrates that he well understood that MN had seen far more of what was on his screen than he was prepared to accept.
74.
For all these reasons, we are satisfied that this application falls well short of demonstrating the existence of a sufficiently compelling case to justify on exceptional grounds the very lengthy extension of time sought.
CONCLUSION
75.
The application for an extension of time in which to apply for leave to appeal against conviction is refused. | [
"LADY JUSTICE CARR",
"SIR NIGEL DAVIS"
] | 2023_07_07-5743.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/795/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/795 | 857 |
31dac10bba4c26c134214896ae8467194c2f38723c9b513896c7504b97260cca | [2009] EWCA Crim 837 | EWCA_Crim_837 | 2009-04-29 | supreme_court | Neutral Citation Number: [2009] EWCA Crim 837 Case No: 200800659 A2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM OXFORD CROWN COURT HHJ JULIAN WALL T 20067221 and T20077004 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2009 Before : LORD JUSTICE AIKENS MR JUSTICE TUGENDHAT and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - ANTHONY BARRON Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2009] EWCA Crim 837
Case No:
200800659 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM OXFORD CROWN COURT
HHJ JULIAN WALL
T 20067221 and T20077004
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/04/2009
Before :
LORD JUSTICE AIKENS
MR JUSTICE TUGENDHAT
and
MR JUSTICE NICOL
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
ANTHONY BARRON
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr David Miller
for the
Appellant
Mr Amjad Malik
for the
Prosecution
Hearing dates : 13
th
March 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE AIKENS:
The Facts
1.
This is an application for leave to appeal on sentence out of time, which has been referred to this court by the Registrar for reasons we shall come to later in this judgment. In 2007 Anthony Barron (the Applicant) faced two indictments charging him with a very large number of sexual offences. On 11 May and 15 June 2007, at pleaded case management hearings, he had pleaded guilty to some 84 counts on the two indictments. These counts included many allegations of indecent assault on young girls, possessing indecent photographs of a child (containing both still and moving images), and sexual assault of a child under 13. Also amongst those 84 counts to which he pleaded guilty were two counts of attempted anal rape and a further count of attempted vaginal rape. In many cases, the Applicant had filmed his own sexual assaults.
2.
The applicant contested two charges; one of attempted anal rape and another of completed vaginal rape. These were counts 26 and 27 on Indictment two. Both offences were committed on the same 12 year old girl, KJ, on the same day, 13 July 2003. Both were filmed by the applicant. There was a trial in respect of those offences before HHJ Hall and a jury at Oxford Crown Court between 28 – 30 August 2007. He was convicted on both counts.
3.
Therefore, when Judge Hall came to sentence the applicant on 30 August 2007, he had to pass sentence in respect of 86 offences on the two Indictments. 44 further alleged offences were ordered to remain on the file on the usual terms. 36 of those were counts on Indictment one; 8 on the Indictment two.
4.
The court record states that the total sentence passed was one of life imprisonment, with a minimum term of 9 years to be served, less 229 days spent on remand. We will have to analyse how that total was arrived at by the judge. First, we must give more details about the applicant and the offences for which he had to be sentenced.
5.
The Applicant was born in November 1952 and was therefore 54 when he came to be sentenced. At that time he had no previous convictions. He had been married and had two sons and a daughter, but he had separated from his wife in about 1994. He was made redundant at about the same time. He divorced in 1998. He was, on the face of things, an upright member of the community in South Oxfordshire. He lived opposite his sons’ school in Wantage and he would go to the nursery where his youngest son attended. He became a governor of the school and also an unpaid parent volunteer there; he would assist in the classroom twice a week. He obviously got to know other parents and their young children.
6.
On numerous occasions from February 1997 the applicant contrived to be alone with a number of young girls whose parents he had come to know. He sexually abused the girls. The abuse ranged from touching their bottoms to oral and penile penetration. On various occasions the Applicant masturbated himself whilst touching the victims’ private parts. He sometimes put his penis into the mouth of his victim. He sometimes encouraged them to expose their genitalia, and to masturbate him. He pleaded guilty, as we have said, to three counts of attempted rape and was found guilty of a further attempted anal rape and a completed rape of the same girl’s vagina. A significant proportion of these offences were video recorded by the Applicant for his sexual gratification. The Applicant sought to keep the abuse secret by giving the children sweets, toys, games and clothes.
7.
This was an appalling catalogue of sexual offences. Apart from the gross mistreatment of many very young children, the Applicant had comprehensively abused the trust of their parents who had allowed him to look after their young daughters. When the judge passed sentence, he acknowledged that the Applicant had been through the stresses of divorce, loss of his job and the death of his mother, but none of that could explain his offending. The judge was unable to detect any genuine remorse by the Applicant for his behaviour which, in his view, remained utterly inexplicable. The judge described the applicant, rightly in our view, as a “
predatory, plausible, paedophile
”, who corrupted the children so that they became inured to his behaviour towards them.
The sentencing exercise by the judge
8.
Judge Hall was faced with a very formidable sentencing exercise. First, there was the sheer number of offences that had to be considered. He had to consider each, whilst ensuring (as he recognised) that the totality of the sentence remained proportionate. Secondly, the offences had taken place over a period of 9 years between 1997 and October 2006. During that period the sentencing regime had undergone considerable changes. First, on 11 January 2000, the maximum term for making an indecent photograph of a child contrary to
section 1
of the
Protection of Children Act 1978
had been increased from 3 to 10 years. Then, on 1May 2004, the
Sexual Offences Act 2003
came into force, replacing the
Sexual Offences Act 1956
, changing both the name and nature of various offences and also changing maximum sentences for various offences. Lastly, and most importantly, on 4 April 2005 the relevant provisions of
Part 12 Chapter 5
of the
Criminal Justice Act 2003
(
“
CJA 2003
”)
, relating to “dangerous offenders” came into force. The judge had to take all those into account in the sentencing exercise that he had to conduct, as well as the facts of each offence.
9.
The first task the judge undertook was to consider whether, for the purposes of
sections 225 – 229
of the
CJA 2003
, the applicant was “
dangerous
”. The judge did not spell out the fact that this exercise was, of course, only relevant to those “
serious
” or “
specified
” offences that had taken place after those provisions came into force, that is, after 4 April 2005. There are a large number of such offences in both the first and the second Indictment and they have been gathered together in a schedule for us by counsel for the prosecution, Mr Malik, for which we are most grateful. However, we do not need to identify each of them for the purposes of this judgment.
10.
The judge concluded that the applicant was “dangerous within the meaning of the statute”: see page 4E of his sentencing remarks. He then went on to ask: “why, in those circumstances, should it not be a life sentence under section 225? I can find no reason. This is as serious a series of offences as I think I have ever come across”. Those remarks can only apply to “serious offences” (within
section 224(2)
of the
CJA 2003
)
committed after 4 April 2005. They can also only apply to offences in respect of which the Applicant would, apart from
section 225
of the
CJA 2003
, be liable to life imprisonment. The judge must also have concluded that, in respect of such offences or one or more offences associated with it (meaning those committed after 4 April 2005), that it, or they, were such as to justify the imposition of a life sentence. In short, an offence (with or without others associated with it) was such as would justify the imposition of a discretionary life sentence: see
R v Lang
[2005] 1 WLR 2509
at
para 8,
which refers to
R v Chapman
[2000] 1 Cr App R (S) 377
.
As we analyse further below, we have concluded that the judge must have had in mind, in fact, the two charges of attempted rape on KB, then aged 4 years 8 or 9 months, in February 2006, which formed Counts 60A and 73 of Indictment one.
11.
The judge did not specifically articulate all those points. But we are confident that he had them in mind and there is no appeal from the finding of dangerousness by the judge.
12.
The judge then turned to those pre – 2003 Act offences which carried a maximum sentence of life imprisonment. These were Count 31 on Indictment one: attempted rape, committed on FW when aged 4 years 6 months on 22 April 2004, and Counts 26 and 27 on Indictment two: attempted rape and rape committed on KJ, aged 12, on 13 July 2003. (The latter offences were those for which the applicant was tried and found guilty). At page 4F of his sentencing remarks the judge refers to “
four offences of attempted rape and the offence of rape of which the jury convicted you
” but we think he must have intended to refer to the three offences we have identified.
13.
The judge stated, at page 4F, that the sentence on those offences would be one of life imprisonment, because he had no idea when the applicant would be safe.
14.
The judge then said, at page 4H:
“what I have to do is to put myself in a position of having to pass individual sentences for each matter so that I can arrive at a tariff, what is called the tariff sentence. There is no perfect way of doing this because there are so many offences and if I were to give you a year on each of them, which would be well below a normal sentence, the result would be a sentence of 80 odd years, therefore it cannot be done and, therefore, I have had to compromise in various ways in the sentences I intend to pass”.
15.
The judge then recited various factors he would take into account in fixing the sentences. These were: (1) the fact that many offences were filmed. (2) The victims were small girls. (3) The fact that the applicant took moving (as opposed to still) images of many offences.
16.
The judge passed sentences of two years in respect of each of the offences of taking or making still images of children, whatever the dates on which they occurred. Those offences are covered by counts 4,6,10,12, 43 and 87 of Indictment one and counts 1,3,5,11,12,13,17 and 19 of Indictment two. He passed sentences of four years in respect of the offences of taking or making moving images of children: that is in respect of counts 18,23,27,29, 33, 36, 38, 45, 50, 61, 64, 66, 70, 74, 80 and 82 of Indictment one and counts 7, 23,28,30,32, 34, 37 and 39 of Indictment two. He stated that those sentences were to be served concurrently and he said that he had given the applicant a 20% discount for his guilty plea.
17.
The judge then considered other offences “
to calculate the tariff”:
page 6C. The judge went through the indecent assault charges in Indictment one and also the charge of indecency with a child (count 7). That was a serious offence against FW, aged 3 ½ at the time, where the applicant ejaculated onto her vagina. At page 6E of the transcript, the judge states that the sentence for that offence will be one of seven years. However, at the end of that paragraph , which is dealing with Indictment one offences, the judge says, at page 6E: “
All those sentences to be concurrent. That is five years imprisonment”.
That is the overall figure for that group of offences that the judge seems to have used.
18.
In the same paragraph the judge passed a sentence of life imprisonment in respect of count 31 on Indictment one. That was an offence of attempted rape committed in 1999 on FW aged 4 ½ at the time, committed in 1999, ie. before the commencement of the
CJA 2003
provisions.
19.
The judge then considered offences against the twins MB and KB, who were aged 4 years when the offences took place in 2006. In respect of the indecent assault charges (counts 44, 46, 51, 57A, 62, 65, 67, 71A and 78 on Indictment one) the judge imposed sentences of between four and six years. In respect of counts 63 and 76, (causing or inciting a child under 13 to engage in sexual activity) he imposed sentences of 6 and 5 years respectively. In respect of the two charges of attempted rape on KB (counts 60A and 73 of Indictment one) the judge imposed life imprisonment. The judge summarised the position on sentence with regard to that group of offences, apart from the attempted rape sentences, as follows (page 7A):
“All those sentences will be concurrent, so, leaving aside the life sentences for a moment, that is six years, which will be consecutive to the tariff fixed for the first series of offences”.
We will have to come back to the question of what the judge meant by “
the tariff”
in his sentencing remarks.
20.
The judge then moved onto Indictment two. He passed sentences of between two and five years on the indecent assault offences (counts 2,4,6,7,14, 15, 16, 18, 20, 21, 22, 29, 31, 33, and 35). He stated (at page 7D) that those sentences would be “
concurrent, but consecutive to the sentences to the tariff that I am in the process of calculating”.
21.
The judge then considered the two offences for which the applicant had been tried: viz. attempted rape and rape on KJ aged 12, which were counts 26 and 27 of Indictment two. These were both pre
CJA 2003
offences. The judge had already (page 4F) imposed a sentence of life imprisonment in respect of them. He said (at page 7E) that “…
had I to fix a separate tariff for those matters they would have been 12 years imprisonment. I will come back to that in a moment
”. He then sentenced the applicant to “
3 years consecutive
” on count 38, an offence of sexual assault on a child under 13 which was committed in September 2006. The judge described that case as a “
particular wickedness”
because it was committed on the daughter of a woman with whom the applicant had formed a relationship.
22.
The judge then summarised the position as he saw it at page 7F:
“That makes, in my calculation, this: 4 years concurrent with each other, in effect, for the moving images. Five years for the first batch of offences. Six years for the second batch of offences. Three years consecutive for count 38 [of Indictment two]….Twelve years concurrent for the offences of attempted rape and rape. It makes 18 years. That is the tariff sentence for these series of offences.
For the offences for which I have passed sentences of life imprisonment for attempted rape, the tariff would have been 7 years, which I make concurrent. The net effect of this and these are mathematical calculations which I find unedifying but necessary. Had I passed, therefore, a determinate sentence it would have been one of 18 years. I halve it, 9 years. I give you credit for 229 days spent on remand. I therefore direct that the first time that you can apply for parole during this life sentence is after 9 years less 229 days you have served”.
23.
The effect of this passage seems to us to be that, broadly, the judge concluded that if he had been passing determinate sentences on the applicant, the total would have been 18 years. He used this total as the basis for assessing a notional determinate sentence for in order to calculate the minimum term to be served before the applicant could apply for parole, then giving credit for the 229 days served on remand. But the judge does not stipulate that this is a minimum term in respect for a particular offence or offences that he identifies; nor does he identify whether it is an offence or offences that is (or are) before or after 4 April 2005.
The application to this court
24.
The application for leave to appeal out of time related to two matters. The first is the sentence for the offence of sexual assault on AEL (aged 3 ½ at the time) in September 2006. As we have already noted, the judge imposed a sentence of three years, to be consecutive to other determinate sentences imposed in respect of Indictment two offences in respect of the sexual assault (count 38 of Indictment two). The complaint was that the judge had misunderstood the relationship and its timing, so that he should not have made the sentence on count 38 a consecutive one. The second complaint is in relation to the sentence of 4 years in respect of the offences of making or possessing indecent moving images of children. The applicant said that those sentences were too severe.
25.
At the hearing before us on 13 March 2009, Mr Miller did not actively pursue this application. Moreover, he confirmed that the applicant did not challenge the overall sentence of life imprisonment with a minimum term of 9 years before he can be considered for parole. Therefore the only reason for the matter coming before the court was the concern of the Registrar about the lawfulness of the sentences that the judge had passed for certain of the offences committed after 4 April 2005 when the provisions of the
CJA 2003
were in force
.
This concern relates to counts 43 to 82 on Indictment one and counts 38 and 39 on Indictment two.
26.
The Registrar makes the point that all of those offences are “
serious offences
” within the meaning of
section 224(2)
in
Part 12 Chapter 5
of the
CJA 2003
.
Therefore, once the judge had concluded that the applicant fulfilled the “dangerousness” criteria within that Part, then under the regime that applied when he passed sentence, the judge was obliged to pass a sentence of imprisonment for public protection by virtue of
section 225
of the
CJA 2003
.
Thus, to the extent that the judge did not do so, the sentences were unlawful.
27.
The question is: can this court do anything about it and, if it can, should it do so? This very problem was considered by the court in
R v Reynolds and others
[2008] 1 WLR 1075
,
[2007] EWCA Crim 538
.
In that case Latham LJ stated that the Court of Appeal does not have jurisdiction to impose a mandatory indeterminate sentence in place of a determinate sentence wrongly imposed by the sentencing judge because he failed to follow the mandatory provisions of
Part 12 Chapter 5
of the
CJA 2003
.
That is because it would almost invariably mean that the appellant (applicant in this case) was being dealt with more severely than he had been by the sentencing judge. Therefore it would offend
section 11(3)
of the
Crimianl Appeal Act 1968
.
However, it was noted at the same time that it does not follow that the Court of Appeal is obliged to interfere with the judge’s finding of dangerousness. The court should, all other things being equal, “
exercise its discretion
” not to interfere with the sentence imposed. See paragraphs 18 – 25 of the judgment of Latham LJ.
28.
Mr Malik, for the Crown, submitted that
Reynolds
was distinguishable from the present case. He says that the imposition of indeterminate sentences for post 4 April 2005 offences would not make the overall sentence more severe because the judge had imposed life sentences in respect of some post 4 April 2005 sentences; and the applicant does not challenge those sentences nor the minimum term of 9 years. Despite that submission, we have decided that we must follow the same course as the court in
Reynolds.
Therefore, in respect of all offences that are post 4 April 2005 offences and are “serious” offences within
section 224(2)
of the
CJA 2003
we make no order.
Observations
29.
That deals, formally speaking, with all the issues that were raised on this application, which must therefore be dismissed. However, we feel obliged to make some further comments about the sentencing exercise in this case. We do so with some hesitation because we are conscious of the very difficult task that faced the judge, as we have already noted. But, with the greatest of respect, we venture to suggest that the authorities indicate that the approach should have been more structured than it appears to have been.
30.
In
R v Lang
[2006] 1 WLR 2509
at
paragraph 3, Rose LJ
said that when a defendant is to be sentenced for offences that occurred both before and after 4 April 2005, it will generally be preferable to pass sentence on the later offences by reference to the “
new regime
” and to impose no separate penalty for the earlier offences. But he recognised that this may not be possible in cases where the earlier offences are more serious than the later ones. Therefore, we suggest, the first task of the judge must be to identify the most serious cases to be sentenced and to identify which regime applies.
31.
In this case there were two post 4 April 2005 attempted rapes; those on the 4 year old KB which were committed in 2006 (Counts 60A and 73 on Indictment one, to which the applicant pleaded guilty). As Mr Malik for the Crown reminded us, the only reason why these were charges of attempted rape rather than rape was because it was physically impossible for the applicant to commit the full offence on so small a child. The judge clearly regarded these offences as very serious because, having concluded that the applicant was “dangerous”, he imposed life sentences in respect of each offence. The judge assessed the “tariff” for those offences to be 7 years: see page 7H of the sentencing remarks. We take the word “tariff” to mean, in that context, the “minimum term” to be served pursuant to
section 225
of the
CJA 2003
and
section 82A
of the
Powers of the Criminal Courts (Sentencing) Act 2000
.
We interpret the sentencing remarks as indicating that the judge decided that the correct determinate sentence for each offence would have been 18 years, less 20% for guilty pleas, giving 14 years. To reach the minimum term that figure would be halved, giving a minimum term of 7 years. That reasoning would, we think, be in accordance with the Sentencing Guidelines in the context of this case.
32.
With regard to the pre – 4 April 2005 offences, the judge imposed three discretionary life sentences. For the attempted rape and rape of which the applicant was convicted (counts 26 and 27 of Indictment two) the judge said that if he had had to fix a “
separate tariff”
for those matters, it would have been 12 years imprisonment: page 7E. As we read that sentence of the sentencing remarks, the judge used the words “
separate tariff”
to mean that if he had been dealing with those offences on their own and had imposed a discretionary life sentence for them, the notional determinate sentence (for the purposes of calculating the minimum term to be served) would have been 12 years. Therefore, notionally, the minimum term for those offences, taken on their own, would have been 6 years. If “
separate tariff”
had meant “minimum term” in that sentence of the judge’s remarks, that would be wholly inconsistent with the final minimum term that the judge imposed “overall” (ie. 9 years). It would also have implied a notional determinate sentence of 24 years for those offences, which would have been too high.
33.
The judge did not identify either a notional determinate sentence nor a minimum term in respect of the attempted rape on FW, count 31 on Indictment one.
34.
It would appear, therefore, that the judge did regard the two post 4 April 2005 attempted rapes on KB (Counts 60A and 73 of Indictment one) as the most serious offences. Yet, ultimately, the judge imposed “overall” a life sentence with a minimum term of 9 years (less 229 days). It is, with respect to the judge, not easy to follow the route to this conclusion, although that overall sentence is not now challenged.
35.
We have concluded that the judge’s reasoning must have been as follows: first, under the provisions of
section 82A(3)(a)
of the
Powers of the Criminal Courts (Sentencing) Act 2000
,
when setting the minimum term for two post April 2005 attempted rapes for which he had imposed life sentences, he could take into account the seriousness of each of the offences themselves and “
one or more offences associated with it”.
He also must have had in mind
section 161
of the
2000 Act,
which provides that “
an offence is associated with another if the offender is convicted of it in the proceedings in which he is convicted of the other offence”.
36.
Secondly, the judge properly considered the totality of the applicant’s offending when setting the minimum term of 9 years. This is a legitimate exercise: see
R v Frederick Edwards
[2007] 1 Cr App R (S) 106
,
particularly at
paragraphs 23
and
24.
However, we note in passing that, in accordance with the guidance in that case and
R v O’Brien
[2007] 1 WLR 833
at
paragraphs 67
and
68,
it would have been more appropriate for the judge to have identified specifically the offences to which the total minimum term of 9 years was intended to apply, rather than leaving it generally as he appeared to do.
37.
The judge calculated the notional determinate sentence of 18 years by indicating determinate sentences for offences that were both pre – 4 April 2005 and post – 4 April 2005. In respect of the latter group, he indicated determinate sentences both for offences which were “
serious
” offences and a “
specified
” offence (count 87 of Indictment one). This method of calculating a notional determinate sentence for an offence to which
section 225
of the
CJA 2003
applies has been used before, at least in respect of serious offences and specified offences that were committed after 4 April 2005: see
R v Lee Meade
[2007] 1 Cr App R (S) 123
, paragraphs 23, 30 – 32.
38.
However, as Teare J emphasised in that case, (paragraph 33), the judge must stipulate, in respect of each offence to which a minimum term applies, what that minimum term is and how it has been calculated. Furthermore, there should be a separate disposal for each offence: paragraph 29.
Summary
39.
As we have already said, there is now no effective application before the court from the applicant. The court will not make any alteration to those post – 4 April 2005 offences in respect of which the judge should have imposed a mandatory indeterminate sentence. We will take it that the minimum term of 9 years applies to Counts 60A and 73 of Indictment one. We will also take it that the other minimum term imposed, which, by implication, we take to be 6 years on counts 26 and 27 of Indictment one and also count 31 of Indictment one are to run concurrently with the 9 year terms. All other sentences, which are determinate sentences, are to be concurrent with the life sentences with the minimum terms that we have identified.
40.
This application is dismissed. | [
"LORD JUSTICE AIKENS",
"MR JUSTICE NICOL"
] | 2009_04_29-1911.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/837/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/837 | 858 |
63f499742d4efe52bb402b62ee874339cd81c9fe496fa12b8ae79136dc9bda26 | [2008] EWCA Crim 586 | EWCA_Crim_586 | 2008-03-19 | supreme_court | Neutral Citation Number: [2008] EWCA Crim 586 Case No: 2007/04684 B1 2007/05358 B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE LORAINE-SMITH Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/03/2008 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE GROSS and MR JUSTICE BLAIR - - - - - - - - - - - - - - - - - - - - - Between : R - v - Abid Ikram and Sumaira Parveen - - - - - - - - - - - - - - - | Neutral Citation Number:
[2008] EWCA Crim 586
Case No:
2007/04684 B1
2007/05358 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE LORAINE-SMITH
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/03/2008
Before :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE GROSS
and
MR JUSTICE BLAIR
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Abid Ikram and Sumaira Parveen
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr P Mendelle QC for Abid Ikram
Mr J Davis for Sumaira Parveen
Mr J.N. Donne QC and Mr J Evans for the Crown
Hearing dates : 13
th
March 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
President of the Queen's Bench Division :
1.
Talha Ikram was born on 13
th
April 2005. He died on 6 September 2006, aged 16 months. He was the son of Abid Ikram and his former wife. The injury which caused his death was inflicted when he was living with his father and Sumaira Parveen. No other adult shared their home.
2.
These are appeals by Abid Ikram and Sumaira Parveen against their convictions on 3
rd
August 2007 at Southwark Crown Court before His Honour Judge Loraine-Smith and a jury of causing or allowing the death of a child contrary to
section 5
of the
Domestic Violence, Crime and Victims Act 2004
(
the Act
).
3.
Count one alleged murder against both defendants. Counts two and three charged each separately with causing or allowing Talha’s death, contrary to
section 5
of
the 2004 Act
. In relation to each applicant the particulars were identical. They narrate the fact of Talha’s death, asserting that it followed “as a result of the unlawful act of a person who was a member of the same household as him and who had frequent contact with him” “and there having been at that time a significant risk of serious physical harm caused to him by the unlawful act of such person” the individual defendant, “having been such a person at the time of the act, either (a) caused Talha Ikram’s death by (her/his) own unlawful act or (b) was, or ought to have been, aware of the aforesaid risk, and failed to take such steps as ….could reasonably have been expected to take to protect Talha Ikram from the risk, the unlawful act having occurred in circumstances of the kind that (he/she) foresaw or ought to have foreseen”. The particulars followed the terms of
section 5
of
the Act
.
4.
At the close of the evidence, rather than the end of the case for the prosecution, and in accordance with
section 6(4)
of
the 2004 Act
, the Crown decided not to proceed with murder/manslaughter against Ikram. Murder/manslaughter allegations continued against Parveen. At the end of the trial, she was acquitted of murder and manslaughter. Both however were convicted of causing or allowing Talha’s death.
5.
They were sentenced to 9 years’ imprisonment, less time spent on remand, and made subject to appropriate disqualification orders. Parveen was recommended for deportation. Ikram was also convicted of perverting the course of justice. He was sentenced to 12 months’ imprisonment, to run consecutively. Both appeal against sentence.
The facts
6.
Ikram came to the United Kingdom in 1998. He met his future wife Habiba in 1999 and they married in 2001. Talha was born to them in April 2005. For reasons connected with his mother’s health, on 30
th
June 2005 Ikram was granted full time caring responsibilities for his son. He divorced Habiba in December 2005.
7.
Parveen came to the United Kingdom on 30
th
August 2005. She married, but owing to mistreatment at home, she left, and she then went to stay with friends, the Janjuas. She went to a refuge, and subsequently petitioned for a divorce from her husband. At the time she was pregnant.
8.
Ikram was related to her and to her in-laws. On 4
th
January 2006 she went to stay with him. They assumed care of Talha. However on 14
th
March they went out together, leaving him alone, asleep at home. He was then 11 months old. This was reported by Ikram’s former wife. Talha was placed in the care of foster parents, Mr and Mrs Khan on 23
rd
March. Mrs Khan was Habiba Ikram’s cousin. Ikram himself was cautioned for child neglect.
9.
On 8
th
June Parveen gave birth to her daughter, Meehak. With the agreement of Social Services, on 25
th
June Talha returned to live with and be cared for by her father.
10.
The appellants began a sexual relationship. Parveen became pregnant again in August 2006, and subsequently gave birth to another daughter in April 2007. They lived together, and apart from two very small children, no one else shared their home, until Talha’s death.
11.
In July when the appellant visited a couple known as Mr and Mrs Janjua, Parveen expressed hostility to Talha, saying that she hated him, that she did not want to stay in the same house and wanted to go to a refuge. By contrast it was suggested that Ikram was devoted to his son. There was however one occasion when he disciplined the child with a plastic bat, according to them, at Parveen’s insistence. Ikram was advised by the Janjuas to let her go, but he said he wished to help her. Later, after Talha’s death, Parveen was seen cheerfully playing with her own child, apparently expressing pleasure that her brother had “gone”.
12.
On 13
th
August, when Mr and Mrs Khan visited the applicant at their home, they noticed something wrong with the little boy. Normally, he was an active toddler, but now he was out of sorts. He was not walking, appeared dazed, and had what appeared to be an old bruise on his left eye. According to the Khans Parveen told them that she had fallen down the stairs while carrying him, and fell on top of him. Ikram told Mrs Khan that Talha had fallen from a chair “the other day”. Mr and Mrs Khan advised the appellants that Talha should be taken to the doctor.
13.
On 14
th
August Talha was taken to Ealing Hospital. The Health Centre where the family was known was much nearer, and Ealing hospital was not the nearest hospital. X-rays revealed a fracture of the proximal third of the left tibia. It was also noted that he had some bruising. The medical findings recorded that his injury was due to a fall from a chair. The leg was immobilised in a thigh to toe back slab plaster. An appointment was made for a return to the fracture clinic on 22
nd
August. Although he was fine for the rest of 14
th
August, Talha was unwilling to bear weight on his leg.
14.
On 16
th
August Talha was taken back to hospital because the back slab plaster had become loose. His temperature increased, and his leg was swollen. A full length plaster cast from the top of his thigh to the base of his foot was applied, and the front of the cast was left open to allow for swelling. The medical notes stated that the original injury had been sustained while Talha had been playing on a chair, and he fell off when the chair slipped. He cried, but was walking “OK”. On the next day he refused to walk, so Ikram brought him to hospital. He was detained from 16
th
-18
th
August for investigation. No particular cause for concern was noted and he was discharged home on 18
th
August with a diagnosis of a possible cyst in the bone. He was booked back into the fracture clinic for 22
nd
August. Later events suggested that Talha was not suffering from such a cyst, or indeed any infection of the fracture, but that perhaps the fracture had occurred a little earlier than 13
th
August.
15.
On 20
th
August Talha was returned to hospital. The plaster fitted on 16
th
August had become loose again. A third back slab plaster was fitted.
16.
Talha returned for his appointment on 22
nd
August. The soft cast was loose and, noting the history of the plasters, the technician fitted a fibre glass cast to the left leg. Of itself this was not an unusual occurrence with a soft cast. No other injuries were noted. Talha did not seem to be in pain or discomfort. There was dispute at trial about the structure of the fibre glass cast, its hardness, its length, and whether it was below or above the knee.
17.
Talha was asked to return to the fracture clinic on 24
th
August. He was accompanied by his father. The cast was inspected and noted to be in good condition. Talha was due to be seen again on 7
th
September.
18.
On 30
th
August Social Services visited Ikram, Parveen and Talha at their home. Ikram told the social worker that Talha had fallen off a chair sometime during mid-August and that he had taken him to Ealing Hospital. At that time she did not notice anything of particular concern.
19.
At 3.55am on 2
nd
September, Talha was again returned to hospital after Ikram noticed blood coming from behind the cast. On this occasion he was bleeding from the cast, which was removed. A 5cm long laceration at the back of the left knee, 3-4mm deep, was revealed. There was mild oozing from the laceration. The leg was swollen. There was no other sign of infection. The doctor suggested that the laceration was caused by the cast rubbing at the back of the knee. He advised that a new cast should be applied below the wound, and when this was done, the new cast would be in the right place to protect the fracture. In due course it was fitted below the wound at the back of the leg but above the knee at the front. During a general examination of Talha some bruising was discovered over his left eye. A review clinic was arranged for 4
th
September.
20.
Talha attended for the review. The cast was in place. There was no blood or dirt staining, or infection, bleeding or oozing. There was no indication of a fractured femur. Talha was smiling and seemed comfortable and was able to lift his leg. No other injuries were noted. He was discharged until 7
th
September.
21.
On 5
th
September Talha was put to bed after 10.30pm. At the time his left femur was undamaged. At about 8am on the following morning he was found in his cot. He was cold, still and apparently lifeless. Ikram dialled 999 at 8.43am. He was told how to perform mouth to mouth resuscitation. During the course of the telephone conversation, a woman could be heard in the background crying and saying “please open your eyes”. When the ambulance service arrived the victim was lying on the floor. His skin now was blue. There was no breathing, no pulse and no signs of life. Ikram appeared distressed, and Parveen was anxious to get Talha to hospital. After emergency treatment by the paramedics, he was taken to Central Middlesex Hospital. He was pronounced dead. At this stage the cause of death was not known.
22.
On examination, the plaster cast was removed without causing any trauma to the leg. There was a deep hole to the back of the knee, which had been fully covered by the cast. Talha had 21 different injuries, which were not more than 48 hours old, including abrasions and bruises to various parts of his face and body and an injury to his thumb. There were 3 recently fractured ribs, and most seriously, a fracture of the left femur which had occurred within 12 hours of his death
23.
The case of death was a pulmonary fat embolism resulting from the recent fracture to the left femur. This is a rare but well recognised complication of the fracture of the long bones.
24.
The first significant injury was the laceration beneath the cast. The cast itself was said by a consultant orthopaedic surgeon, to be absolutely and categorically “incapable of causing the laceration”. On the other hand a consultant paediatric pathologist suggested that the initial laceration could have been caused by the cast, and the deeper laceration the result of a tearing open or re-opening of the initial laceration. He observed an indented blackened lesion, consistent with a burn from a lighted cigarette, which was a couple of days old.
25.
The fracture of the tibia showed signs of healing. However in view of subsequent events, its possible cause was re-examined. The pathologist thought it extremely unlikely that the fracture of the tibia had been caused by a fall from a chair. When the X-rays were examined, it was concluded that the tibia had fractured some 3-5 days before 14
th
August.
26.
The left femur was completely broken into two separate halves. The best assessment was that the fracture occurred before 5.00am on 6
th
September. The rib fractures were unlikely to have been caused by efforts at resuscitation.
27.
A consultant pathologist confirmed the cause of death. In his opinion the fractured tibia, femur and rib injuries were non-accidental. A fall from a chair was unlikely to produce a long bone injury. There was no possibility that the fracture in the leg had occurred after death. The fracture of the femur had probably been caused when the femur was grabbed around the knee joint and exposed to an extensive range of movement. The snapping effect of the fracture could have opened the initial laceration behind the knee yet further. It was of course possible that the fracture was caused by a severe forceful blow. However this fracture had occurred when the child was still alive.
28.
The injuries and abrasions on the face and under the chin were consistent with grappling and finger nails from either impact or gripping. In the opinion of this witness the child had been the victim of repetitive inflicted trauma.
29.
A histopathologist explained that the fractured ribs were less than 12 hours old, and that a “fair degree of force” would have caused them. He expressed a common view that it was improbable that the rib fractures had been caused during efforts at resuscitation, and accidental rib fractures were extremely rare in infants. Metaphyseal injuries were caused by twisting or rotational force. It took considerable force to break the femur. Neither fracture of the left leg would have been caused by a 17 month old child falling from a chair. He had not been provided with any explanation which would have accounted for the fracture of the femur. He had difficulty in thinking how it could have been occasioned other than by a direct and severe blow or hard impact. The fracture to the tibia was not typical of a twisting injury. Again it looked as though the cause was a severe blow, possibly on a hard-edged area. The fracture of the femur was sustained within 12 hours or less before death.
30.
A forensic pathologist called by the applicants at trial was prepared to accept that the rib fractures may reasonably have been caused by efforts at resuscitation. Although a broken tibia caused in an accidental fall was not common in a toddler, it would not be totally rare. However the laceration was an unusual injury, and he would put non-accidental injury high on his list of possible causes. The fracture to the femur required substantial force. He would expect it to be excruciatingly painful and for the child to exhibit evidence that he was in pain. All the injuries required an adequate explanation. In his view the overall analysis was that without adequate explanation, these injuries were non-accidental.
31.
In summary, notwithstanding various differences of opinion, there was compelling evidence that Talha’s multiple injuries were the result of deliberate and repeated violence. The child would have been in pain from the time when the fracture of the tibia occurred, but none of the other injuries was fatal in itself. Talha’s death was exclusively the result of the fractured femur.
32.
During at least part of the period when the injury occurred it was conclusively established that Ikram was shopping at a supermarket in Park Royal at about 4.00am. He said that he was away from the home for between 2 and 2½ hours, whereas Parveen thought it was no more than 1-1½ hours. In any event it was accepted that Parveen was in the house throughout the night, and in particular at the time when Talha’s femur was fractured, whereas Ikram was away for at least part of that period. Until after the close of the evidence at trial both maintained that they knew nothing about how it had happened.
33.
The appellants were arrested on 12
th
September on suspicion of causing grievous bodily harm and interviewed under caution. They maintained that Talha had been well when he was put to bed at between 10.30-11.00pm on 5
th
September. Neither offered any explanation for the fracture of the femur.
34.
On 6
th
October Ikram was re-arrested. In interview Ikram said that on the night before Talha’s death everything was normal. He had woken at around 8am to make himself some tea. He asked Parveen to prepare Talha’s feed. She returned and said that there was blood again on the victim, indicating that the blood was caused by the cut on the back of the leg.
35.
When interviewed on 12
th
September, Parveen said that on 13
th
August Talha was standing on a chair and fell over. She checked that he was alright. It was not until next morning while he was having a bath, that it became apparent he could not stand. On the night when Talha died, she put him into his cot at around 10.30-11.00pm. She slept in the room with him, and Ikram slept in the room next door, with the door open. Ikram checked Talha’s leg during the night to see that it was in the right position. She last saw him at 2am, with his face turned to his right side. The light was off.
36.
The Family Liaison Officer gave evidence of a conversation with Ikram on 20
th
September when he said that he wanted her to know the truth. Following an argument on the previous night, Parveen told him that in mid-August she had fallen down the stairs while carrying Talha. He then said she told him this 2 weeks earlier. He then said that she told him this on the day that Talha had fallen from the chair. He had been shopping at the time and came back, and she told him that she had fallen down stairs with Talha, and that he had fallen from a chair. He was angry and took the victim to hospital the next day. On 28
th
September he telephoned her to say that Parveen had not returned home since 4.30. He was frantic, but she later returned. On 30
th
September she spoke to him again. He said that he was worried that Parveen had not returned home. It subsequently emerged that she had bought a ticket to fly to Pakistan on 26
th
September, and that on 30
th
September Ikram took her to Heathrow Airport from where she flew to Lahore, to stay with Ikram’s sister. He then contacted the police to report her missing.
37.
Parveen was contacted on 1
st
October. She told the police interpreter that Ikram had not known about her departure. She would return to the United Kingdom for her daughter once her innocence had been proved by the post-mortem. Ikram told the police that Parveen had telephoned him on 2
nd
October to ask him how he felt about her departure to Pakistan. He said that he had not known that she was planning to go, and did not know where she would be staying. He would however try to find out.
38.
On his re-arrest on 6
th
October Ikram produced a prepared statement. He now said that he had taken Parveen to the airport, but did not believe that she would go to Pakistan. He did not want her to get into trouble and did not know what to do. He had not hit Talha with a bat nor told anyone that he had done so. Parveen said that the victim was a “manhoos”, meaning an ill-fated bringer or bad luck.
39.
Parveen returned to the United Kingdom on 10
th
November. She was arrested at Heathrow Airport, but not re-interviewed.
The trial
40.
The Crown’s primary case at trial was that Parveen was directly responsible for the injury to Talha’s leg because she wanted him out of the house, but that they were jointly involved. In any event Ikram did not do enough to stop her when he realised what could happen, and he allowed the death to occur. Alternatively, the death was caused by the direct action of one or other of them. Whoever it was, the other should have appreciated the danger to which Talha was exposed at the hands of the other, and should have done something about it. The various accounts of Talha falling downstairs or falling from a chair were deliberate lies. Something much worse had happened.
41.
Parveen’s evidence was that she had not injured Talha nor twisted his leg. She had a good relationship with him. On 13
th
August, he had fallen from his chair. Ikram had been at home at the time, but he told her to tell the Khans that she had fallen down the stairs while holding Talha. As to the fracture of the femur she had no reason to suspect that he had sustained this injury, and she had no idea how it had happened. The thumb injury was due to sucking. The abrasions to his eyelids were caused when he rubbed them. She did not interfere with Talha’s cast. She went to Pakistan because Ikram pressurised her to do so. He took her to buy a one-way ticket to Lahore. She returned because she was innocent. She lied in her police interview because Ikram had asked her to and because she was embarrassed. She lied to the police interpreter on 1
st
October because she was worried and could not decide what to say.
42.
Ikram’s evidence was that he had not injured the victim, nor suspected that Praveen was injuring him. If he had suspected that she was, he would have protected his son. On 13
th
August he was not at home when Talha was injured. She told him that Talha had fallen from a chair. The laceration on Talha’s leg was due to his cast. He did not interfere with the cast. He had no explanation for the broken femur. The thumb injury was due to the victim chewing his thumb. The scratches on his face were self-inflicted, and the bruising to his eyes was due to rubbing. He only found out about Parveen’s explanation that Talha had fallen down the stairs a week before his death. He did not tell the police that Parveen had gone to Pakistan because he was scared that she might get into trouble. He did not pressurise her to go, nor assist her in going. She purchased her own ticket without his knowledge. He drove her to Heathrow, but he thought this was a joke. He did not really think that she would go.
43.
At the end of the defence case and having reviewed the totality of the evidence, the Crown decided that it would proceed no further on the count on murder/manslaughter against Ikram. It was submitted on Parveen’s behalf that the count of murder/manslaughter, must fail against her too because there was insufficient evidence that it was she rather than Ikram who had broken Talha’s leg. There was no proper way of distinguishing between the two defendants. It was also suggested that the Crown’s decision not to proceed further against Ikram amounted to an abuse of the process against Parveen.
44.
The judge accepted the Crown’s decision in relation to Ikram, and rejected the argument that the course taken by the Crown amounted to an abuse of process. Counsel for Parveen applied to recall her. She had provided her legal advisers with a new account of her relationship with Ikram and the circumstances of the leg fractures in August and September. The judge rejected the application. After closing speeches and a summing up, the jury retired and in due course returned their verdicts
Conviction
Section 6
of
the 2004 Act
45.
Section 6(1)
provides that subsections (2)-(4) apply where the defendant is charged in the same proceedings “with an offence of murder or manslaughter and with an offence under
section 5
in respect of the same death”. Where this arises, significant changes to evidence and procedure have been made. Thus, under
section 6(2)
express provision is made for drawing adverse inferences against the defendant from his failure to give evidence or refusal to answer a question, and this applies even when there is insufficient evidence to provide a case for him to answer.
Section 6(3)
provides that the charge of murder or manslaughter must not be dismissed under the
Crime and Disorder Act 1998
unless the
section 5
offence is itself dismissed. Most significant for present purposes,
section 6(4)
provides:
“At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the
section 5
offence, before that earlier time)”.
46.
The purpose of
section 6(4)
is well known. It addressed the problem in paragraph 2.2 of the Law Commission Report: “Children: their Non-Accidental Death or Serious Injury (Criminal Trials)” which observed:
“…it cannot be proved which of two or more defendants was directly responsible for the offence and it cannot be proved that whichever defendant was not directly responsible must have been guilty as an accomplice…. The present law is that there is no prima facie case against either and therefore both defendants must be acquitted at the conclusion of the prosecution case”.
The consequences were illustrated in a number of well known decisions, such as
R v Lane and Lane
[1986] 82 CAR 5, where it was alleged that two defendants, jointly indicted, unlawfully killed a child in their household, without the evidence showing anything more than that one or other must have been responsible. Both had to be acquitted.
47.
Section 6(4)
addressed this problem by providing that in cases like
Lane
, where murder/manslaughter was charged, any submission of “no case to answer” must postponed until the close of all the evidence. The object was to improve the prospect of discovering the truth which was almost certainly known by both or all the defendants, but which so frequently remained concealed on forensic grounds.
48.
In accordance with these new provisions, at the close of the evidence as a whole, after both defendants had given evidence, and called such evidence as they wished, submissions were due to be advanced on their behalf that there was no direct evidence that either caused the fracture of the femur which resulted in Talha’s death. Anticipating this submission, the Crown decided that the court should be informed that it proposed to withdraw the allegation of murder/manslaughter against Ikram. Complaint is made by Mr Davis on behalf of Parveen about the fact that the Crown acted in anticipation of the submission of no case to answer, and indeed that the judge played no direct part in the decision. This was unfair, as the prosecution were substituting their own view of the culpability of the defendants for that of the jury.
49.
We disagree with the fundamental premise of the submissions.
Section 6(4)
does not prohibit a submission of no case to answer where this is appropriate: it merely postpones it. If successfully made on behalf of one defendant, it will inevitably mean that the view of the judge, or the Crown, will prevent the jury from considering the case of that particular individual. In short, the provision simply changes the stage in the process at which it is appropriate to make this submission and for the judge to decide it. No other change is made. On the whole of the evidence, including that of both defendants, the prosecution reflected whether there was a case for either defendant to answer. Once it concluded that the case should be withdrawn against one or other defendant, it was obliged to say so. This was not an abuse of process. Rather it was the process working as it should, with the prosecution acting responsibly in its venerable and still contemporaneously valid role as a minister of justice. The judge agreed with the Crown’s view. The result was that the case against Ikram of causing or allowing Talha’s death and the allegation against Parveen and the murder/manslaughter count would continue.
50.
Towards the end of the evidence we were told that Parveen began to have second thoughts about her evidence, and gradually intimated a change of instructions. After the decision that the charge of murder/manslaughter against Ikram should not continue, her leading counsel made an application to recall her. The application was opposed by the Crown and Ikram. The judge was informed that Parveen’s new instructions asserted that she was an abused partner of Ikram, subjected to violence herself, and a witness to incidents of violent ill-treatment perpetrated by him on the child. On the evening before Talha’s death, she heard a violent incident involving Ikram and the child. She was too frightened to interfere. Indeed she was so alarmed that she left Talha alone with the defendant, taking her new baby out of the flat for about 20 minutes. This was a complete change of story. We were told by Mr Davis that this new account made much more sense of the expert evidence and filled some of the gaps in it.
51.
The application was rejected. Mr Davis submits that the decision was wrong, essentially on the basis that the interests of justice required that once Parveen had fully appreciated the implications of Ikram’s evidence, she had been moved to tell the truth, and should be allowed to do so.
52.
Again, we disagree. Although the defendant cannot be deprived of the opportunity to give evidence in her own defence, and to advance whatever case she wishes, the opportunity to give her full and complete account of relevant events is only available once. It is difficult to imagine circumstances – unless bizarre in the extreme - in which the defendant should be granted the privilege of giving evidence twice in order to advance contradictory defences at the same trial. Naturally, a judge may be inclined, as a matter of discretion and in the interest of justice, to allow a defendant to be recalled to clarify some feature of his evidence or to address a possible source of misunderstanding, or for example, to allow the first defendant, faced with new allegations by the second defendant which for one reason or another were not put to him when he was cross-examined, to be given the opportunity to answer such allegations. However the defendant cannot seek to be recalled after the conclusion of the evidence of the other defendant, or indeed after the close of the evidence, in order to give evidence in support of a new defence which contradicts the evidence he has already given. That would normally constitute an abuse of process.
53.
In
R v Hakala
[2002] Cr. L.R578, EWCA Crim 730, addressing a reference by the Criminal Cases Review Commission, this court was in effect invited to assume that the appellant’s evidence at trial “was perjured, to avoid the potential tactical disadvantage created by his previous conviction”. The Court observed:
“the trial process is not a tactical game. Under the rules which govern every trial at any given stage in the evolution of the criminal justice process, forensic steps taken by one side, or the other, carry forensic consequences. None of the tactical decisions appropriate to meet contemporary rules are predicated on the basis that any witness, and in particular any defendant who chooses to exercise his right to give evidence, is somehow entitled to depart from the fundamental requirement that his evidence should be truthful evidence. As a corollary, the opportunity for the defendant to give his evidence is provided at his trial, and that is where he must take it. It follows that this court will only permit an appellant to present a factual case inconsistent with his instructions and sworn testimony at the trial at which he was convicted in the most exceptional circumstances”.”
54.
The situation here was analogous. Parveen gave one account of the facts: she was not permitted to give a second, contradictory account. Hakala gave one account at trial: the court was being invited to admit a contradictory account at the hearing of his appeal. The attention of the judge, and our attention, was drawn to
R v Cook
[2005] EWCA Crim 2011
where a situation indistinguishable from the present arose. Smith LJ summarised the principles relating to the discretionary power of the judge to allow the recall of a witness or a defendant after the conclusion of his evidence, and before the summing up, adding
“3. A judge will permit a defendant to be recalled only to deal with matters which have arisen since he gave evidence if he could not reasonably have anticipated them and if it appears to be in the interests of justice that he should be recalled.
4. A judge should never permit a defendant to be recalled so that he may resile from evidence already given and advance a new version of events where that version was available to him when he was first in the witness box”.
55.
With one small reservation, we respectfully agree. In the light of
Hakala,
and similar cases to which the attention of the Court was not apparently drawn, we doubt whether the judicial discretion identified in the passage cited in
Cook
can be subject to quite such an absolute and immutable fetter. Never is a long time, and when the exercise of a judicial discretion in a criminal trial is under consideration, “never say never” is a valuable working principle. That is what the court had in mind in
Hakala
when expressing itself as it did on the question whether a defendant should be allowed, in the language used in argument before us, a second bite at the cherry. In short, although like the court in
Cook,
we cannot presently imagine of a situation in which the interests of justice would permit a defendant to be recalled at his own trial, to advance a new account of the facts, contradicting his earlier evidence, it is impossible to be sure that a situation in which the interests of justice may require such an unusual course could never arise. However that may be, it certainly did not arise in this one.
56.
We should perhaps add that the purpose of the procedural changes introduced by
section 6
of
the 2004 Act
, and in particular
section 6(4)
, is that all the evidence should be completed before the question whether there is a case to answer comes to be addressed. Parveen’s application to be recalled, if permitted, would have allowed her to give a new account, inculpating her co-defendant as the individual responsible for the death of the child after it had become inevitable that he would be acquitted of murder/manslaughter. If it is indeed possible to envisage any special situation in which the defendant should not be allowed to offer two contradictory defences in the same trial, one of the least likely would be a trial to which the provisions of
section 6(4)
applied. To allow it would effectively negative the entire purpose of this particular and specific legislation.
57.
We must next address the grounds of appeal based on criticisms of the summing up. They arise in part from the structure of the language which creates an offence which, in many of the factual situations in which it might arise, are already covered by different limbs of the law of murder and manslaughter, that is, taking it in shorthand, causing death by an unlawful act or, through negligence allowing death to occur. Moreover, as this prosecution demonstrates, the statutory offence may well be included in an indictment in which the death of the child is also charged as murder/manslaughter.
58.
The starting point is that
section 5
of
the 2004 Act
creates a new, self-contained offence. The judge directed the jury that the statutory offence meant that it was not necessary for the prosecution to prove which of the two potential culprits were responsible for the physical actions which culminated in this child’s death. He also rightly pointed out that whatever the position of the Crown in relation to the count of murder/manslaughter against Ikram, if the jury thought it possible that he, rather than Parveen, was in fact responsible for the fatal injury, she was to be acquitted of murder/manslaughter. He then directed the jury about the possible alternative routes to conviction for causing or allowing the death of a child.
59.
It is submitted that in relation to the second possible route to conviction, that is allowing the death to happen, the judge failed to direct the jury that the defendant whose case was being considered could not be convicted unless the prosecution established that the statutory ingredients for the offence obtained at the time when the unlawful act which occasioned the child’s death took place. The judge is criticised by Mr Mendelle QC, in an argument adopted by Mr Davis, for failing to address critical evidential issues, in that he failed to identify when the significant risk of serious physical harm first arose, how the applicant whose case was being considered by the jury should have been aware of the risk of serious physical harm from the unlawful act, and what reasonable steps the appellant in question failed to take.
60.
These criticisms are not well founded. It is true that some judges might have sought to assist the jury by dividing the summing up so that each of these issues, the evidence and the relevant arguments, were addressed in different compartments. What Judge Loraine-Smith did was to provide the jury with very clear directions in writing entitled “steps to verdict”. Having dealt with murder and manslaughter as it affected Parveen, the text came to the count of causing or allowing the death of the child. It reads:
“ 10.
To establish this offence against a particular defendant, the prosecution must prove so that you are sure the following elements.
i.
Talha died as a result of the unlawful act of the defendant who
ii.
was a member of the same household as Talha when this act occurred, and
iii.
had frequent contact with Talha, and
iv.
at that time there was a significant risk of serious physical hard being caused to Talha by that unlawful act.
OR
v.
Talha died as a result of an unlawful act of the other defendant
vi.
that both defendants were members of the same household as Talha, when this act occurred, and
vii.
both defendants had frequent contact with Talha and
viii.
at that time there was a significant risk of serious physical harm being caused to Talha by that unlawful act and
ix.
a defendant failed to take such steps as he/she could reasonably have been expected to take to protect Talha from the risk and
x.
the unlawful act occurred in circumstances that a defendant foresaw or ought to have foreseen.”
61.
This analysis of the ingredients of the offence was accurate. The “steps to verdict” then continued by pointing out that for this purpose the prosecution asserted that either defendant caused Talha’s death and that the other allowed it to happen, but that the prosecution was not required to prove which way round this was. The text ended:
“…The following questions arise:
i.
did Talha die as a result of the unlawful act of at least one of the defendants?
ii.
at that time was there a significant risk of serious physical harm being caused to him by the unlawful act of at least one of them?
iii.
would the other have been aware of the risk in (ii) above or ought he/she to have been aware of it?
iv.
did the other fail to take such steps as he/she could reasonably have been expected to take to protect Talha from the risk?
v.
did the act causing death occur in circumstances that the other foresaw or ought to have foreseen?”
62.
In short, the judge broke down the essential ingredients of the offence as they applied to each defendant, stage by stage, and by doing so, he avoided simply reading out all the applicable words in
section 5
which, even if read out slowly, or provided in writing, would almost certainly have been less clear. In our view this was a helpful way of directing the jury about the ingredients of the offence.
63.
It was implicit in the submissions that this approach did not really bring home to the jury the possible significance of some of the features of the case. Thus, for example, it was argued that he should have pointed out to the jury that evidence of what Parveen said in July about her hatred for the boy did not, of itself, demonstrate that there was a significant risk of her inflicting serious physical harm. Expostulations of this kind usually amount to nothing. Even if that is right, the problem would then arise how the fracture of the tibia, and Parveen’s explanation for it, should be viewed. Neither could be taken in isolation. In the course of the summing-up Mr Mendelle courteously invited the judge to explain that there could not “in law be a significant risk of serious physical harm prior to the injury of the 13
th
, or whenever that was” (a reference to the tibia fracture). The judge indicated that he would be happy to add such an observation. In the result, at the end of a meticulously detailed summing up, he omitted to do so. It was a Homeric nod, better avoided, but not significant. Much the same approach was adopted in relation to Parveen, where it was submitted that the judge never pointed out that, on the basis that she had not caused the fatal injury, when she should have been aware of the significant risk of serious physical harm. That, however, was pre-eminently a question for the jury. Indeed on analysis, provided the judge gave the jury accurate directions in law (and we have concluded that he did) the different limbs of the submission on behalf of the appellants were truly jury questions, and indeed at one stage in the argument, we were being addressed with great eloquence on precisely the issues which the jury had to decide.
64.
Our conclusion is simple. The jury was accurately directed in law about the ingredients necessary to be proved by the prosecution before either appellant could be convicted. The evidence, and the respective defences, were fully summarised. The issue was left fairly and squarely to the jury. We can find no basis for interfering with the verdicts, or for questioning their safety. Indeed on these issues, leave to appeal would have been refused.
65.
The appeals against conviction are dismissed.
Sentence
66.
Judge Loraine-Smith was provided by the Crown with a helpful note addressing the sentencing issue and providing him with a careful analysis of recent sentencing decisions in which the defendant had been convicted of manslaughter in circumstances which were broadly similar to the present case. The note was included in our papers. The decisions included
R v Johnson
[1990] 12 CAR (S) 271;
R v White
[1995] 16 CAR (S) 705;
R v Staynor
[1996] 1 CAR (S) 376;
R v Yates
[2001] 1 CAR (S) 428 and
R v Fletcher
[2006] 2 CAR (S) 57. Mr Mendelle also drew our attention to
R v Bennett
[2004] 1CAR (S) 396.
67.
We repeat that
section 5
of
the Act
created a new offence. It provides a route to conviction whenever the jury are unable to say which of two (or sometimes more) defendants, caused or allowed the death of a child or vulnerable adult. Even if the identity of the person responsible for the fatal injuries cannot be established, the possible range of culpability, both in relation to the circumstances in which death occurred and as between the different defendants, is very wide. The victim may have been killed in circumstances which amount to murder. Culpability for the death may also encompass all the levels of manslaughter, both at the higher and towards the lower end of the scale. In the present case for example, it is difficult to imagine the state of mind which impelled the deliberate forced fracturing of the left femur on the leg which had only recently been subjected to a fracture of the tibia which was less than an intention to cause really serious bodily harm. At the same time the defendant who allows the fatal injury to be inflicted may on the evidence be very close to an accomplice to virtually but not quite the full extent of that violence, or a doomed pathetic individual, so dominated by the other defendant, that notwithstanding his awareness of the risk that really serious bodily harm might be inflicted on the victim, lacked a will of his own. Wherever the case may fall in terms of the culpability of the perpetrator, a conviction of the
section 5
offence means that it has been established that the defendant who failed to protect the victim either appreciated or ought to have appreciated that there was a significant risk that the victim would endure serious harm at the hands of the ultimate perpetrator, in circumstances which that defendant foresaw or ought to have foreseen. Although
section 5
of
the 2004 Act
created a new offence, its link with manslaughter is clear, and the general approach to sentencing in manslaughter cases provides useful assistance to the court considering the sentencing decision after conviction of the
section 5
offence.
68.
In the present case, one of these appellants inflected grievous bodily harm on Talha which resulted in his death, while the other, knowing of the risk that grievous bodily harm would be inflicted on him, failed to take any steps to prevent it. However the identity of the defendant responsible for causing his death (whether by a guilty plea or jury verdict) was not established. The judge rightly decided that when neither defendant was convicted of either manslaughter or murder he could not second guess these verdicts and decide for himself which of them caused the fatal injury, and he did not allow himself to make the mistake of approaching the sentencing decision on the basis that as one or other of them had caused Talha’s death, they were both to be sentenced as if they had.
69.
Judge Loraine-Smith recognised those features of the sentencing decision which were totally dependant on the verdicts reached by the jury, and he then carefully examined the questions he was required to address. Both appellants had to be sentenced for allowing the death to occur in the circumstances specified in
section 5
itself. Whichever of them broke Talha’s femur, Talha was the victim of what the judge rightly described as a “brutal attack”, and even if the possible fatal consequences of this violence would have been unlikely to have been present in the mind of the assailant, the death occurred in circumstances which were close to murder, or manslaughter of the most serious kind. The attack, or something like it, was or should have been foreseen, and prevented. Whichever defendant deliberately fractured Talha’s femur, the other allowed it to occur without taking steps to give Talha appropriate protection from awful, foreseeable violence. Neither was to be sentenced as the perpetrator; both were to be sentenced for allowing the perpetrator to act as he did.
70.
Judge Loraine-Smith then addressed the personalities of the appellants as well as their relationship with each other. He adopted as his own analysis Ikram’s failure to make any reference to Talha’s suffering and that he primarily focussed on “how the loss of his son had affected him and his own dreams for the future”, and Parveen’s demonstrated capacity” to be highly manipulative and intent of getting what she wants by whatever means…untrustworthy, with a need to distort the truth”. In short, as between the appellants, the judge was not able to discern any meaningful distinction between them. This conclusion is critical to any sentencing decision in cases as sensitive as these, and must always be regarded as case specific.
71.
For a case that lacked any possible allowance for a guilty plea, the eventual sentence at the end of the trial, although severe, was not manifestly excessive or wrong in principle. Accordingly the appeal against sentence is also dismissed. | [
"MR JUSTICE GROSS",
"MR JUSTICE BLAIR"
] | 2008_03_19-1439.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/586/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/586 | 859 |
456af02d4d49d9eaf9be909707503e6ebb0c2ec43c489fa7e53c1781f5531fa4 | [2009] EWCA Crim 668 | EWCA_Crim_668 | 2009-03-12 | crown_court | Case No. 200900585 C5 Neutral Citation Number: [2009] EWCA Crim 668 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 12th March 2009 B E F O R E: LADY JUSTICE HALLETT DBE MR JUSTICE KEITH RECORDER OF LIVERPOOL (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- " AT" & "MT" - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave In | Case No.
200900585 C5
Neutral Citation Number:
[2009] EWCA Crim 668
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Thursday, 12th March 2009
B E F O R E:
LADY JUSTICE HALLETT DBE
MR JUSTICE KEITH
RECORDER OF LIVERPOOL
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
-v-
"
AT" & "MT"
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
Mrs S Smales
appeared on behalf of
"AT"
Mr M Smith
appeared on behalf of
"MT"
Miss S H Barlow
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE HALLETT: The prosecution in the case of "AT" and "MT" seek leave to appeal under
section 58 of the Criminal Justice Act 2003
.
2.
AT and MT faced trial at the Crown Court in Leeds on an indictment containing three counts alleging cruelty to children. There were two complainants and a further child witness. The two complainants were "J" and "A", one an adopted child and one a foster child of the accused. During the course of her interviews, A also accused J of raping her. There was therefore an allegation by one complainant against another complainant.
3.
Counsel for AT and MT both wished to explore in varying amounts of detail with a number of witnesses including J and A, the fact of the allegation of rape, the truth of the allegation, the fact of the decision not to prosecute J and the dates when the allegation was made and eventually the decision was taken not to pursue it. We have our doubts both as to the wide ambit of the defence request and the wisdom of the prosecution’s refusal to accept that any reference to the rape complaint was admissible. At trial they adopted the stance that the evidence was not, even in short form, admissible. The trial judge, His Honour Judge McCallum, was asked to rule, and on 29th January 2009 he ruled that the defence should be allowed to introduce, by way of cross-examination, evidence in relation to the rape complaint. We are told he also permitted the defence to explore not only the fact that the decision had been made by the Crown not to prosecute J but the reasoning behind it.
5.
If that is so, we confess that we have our doubts certainly as to the second part of the ruling. However, in our judgment, it is not necessary to consider further the merits of the application because, following the ruling, the prosecution stated in no uncertain terms that it would not be appealing it. Miss Barlow, who appeared for the prosecution, requested time, which the judge granted, to discuss the effect of the ruling with the Crown Prosecution Service lawyer, but only to the extent that it involved any warning of J as to questions that might be put to him and to consider the need for any reporting restrictions. However, on 30th January 2009 Miss Barlow returned to court and stated that the decision had been taken to appeal the judge's decision. The leave of the trial judge was not sought and the application was not expedited. It is unfortunate that at this stage counsel did not get together to see whether or not there were parts of the evidence which the defence wished to have admitted which could be put before the jury by agreement, for example the fact, timing and circumstances of the rape complaint and the timing of the decision not to prosecute. Mrs Smales on behalf of her lay client had suggested a compromise along similar lines before the judge’s ruling.
6.
However, that was not pursued. This application for leave to appeal was lodged despite the fact it must have been obvious it was likely to fail at the first hurdle.
Section 58
states in relation to the right of appeal in respect of rulings at 58(4):
"The prosecution may not appeal in respect of the ruling unless -
(a) following the making of the ruling, it -
(i) informs the court that it intends to appeal, or
(ii) requests an adjournment to consider whether to appeal."
This means prosecuting counsel must be alive to the fact that if a ruling is made they will either have to take an immediate decision to appeal or they will have to request an adjournment to consider whether to appeal.
7.
Should there be any doubt as to the obvious urgency of the situation part 67.4 of the Criminal Procedure Rules puts the matter beyond doubt. It reads:
"(1) An appellant must tell the Crown Court judge of any decision to appeal
(a) immediately after the ruling against which the appellant wants to appeal, or
(b) on the expiry of the time to decide whether to appeal allowed under paragraph 2.
(2) If an appellant wants time to decide whether time to appeal -
(a) the appellant must ask the Crown Court judge immediately after the ruling, and
(b) the general rule is that the judge must not require the appellant to decide there and then but instead must allow him until the next business day."
The repeated use of the word "immediately" and the reference to "the next business day" in 2(b), in our judgment, do not allow for days of reflection as the effect of the ruling dawns on the prosecution. Thus, had the prosecution wished to appeal, either Miss Barlow should have informed the court that she intended to appeal immediately after the ruling was made or she should have requested an adjournment to consider whether to appeal. She could then have returned with her decision the next business day. Miss Barlow frankly conceded she did neither; indeed she went further, she informed the court that she did not intend to appeal. She conceded she failed to comply with the Act and the Rules in a fundamental way. She sought to argue that it was only when J refused to testify, if questioned about the alleged rape, the prosecution realised it could not proceed and, therefore, “time should not run” until the effect of the ruling became clear. For our part, we have a number of doubts about that line of argument including whether or not J’s apparent refusal to answer questions was the insurmountable obstacle to the prosecution’s proceeding that they suggest.
8.
We do not intend to consider further whether the Act and the Rules allow for any flexibility in more meritorious cases than this (as Miss Barlow sought to persuade us) because in all the circumstances of this case, we have decided it would be wrong to entertain this appeal. There were a number of avenues the prosecution could and should have explored before resorting to these proceedings. The application for leave is refused. | [
"LADY JUSTICE HALLETT DBE",
"MR JUSTICE KEITH"
] | 2009_03_12-1863.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/668/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/668 | 860 |
90ab6edece9a43200ec6f035a430ccb7eec6b259d2123225589bbf1f5e140018 | [2017] EWCA Crim 2604 | EWCA_Crim_2604 | 2017-12-20 | crown_court | Neutral Citation Number: [2017] EWCA Crim 2604 Case No: 201704641/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 20 December 2017 B e f o r e : LORD JUSTICE IRWIN MR JUSTICE PICKEN HIS HONOUR JUDGE LUCRAFT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v DIAGO ANDERSON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street L | Neutral Citation Number:
[2017] EWCA Crim 2604
Case No:
201704641/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 20 December 2017
B e f o r e
:
LORD JUSTICE IRWIN
MR JUSTICE PICKEN
HIS HONOUR JUDGE LUCRAFT QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - -
R E G I N A
v
DIAGO ANDERSON
- - - - - - - - - - - - - - - -
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 R Jones
appeared on behalf of the
Appellant
Mr G Bermingham
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
MR JUSTICE PICKEN: The offender seeks leave to appeal against a total sentence of three years' detention under
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
for an offence of conspiracy to rob, his application for leave to appeal against sentence having been referred to the full court by the Registrar.
2.
On 6th January 2017 at Birmingham Crown Court, the offender changed his plea to guilty for the robbery offence and was subsequently, on 5th May 2017, sentenced as we have described by His Honour Judge Thomas QC. The offender's co-accused Deraj Meade, who like the offender was 15 at the time of sentence, also pleaded guilty to the conspiracy to rob offence, along with offences of possession of an imitation firearm with intent to commit robbery and dangerous driving. He was sentenced to a total of five years' detention under
section 91
. Christopher Clarke, who was 16 at the time of sentence, Josiah Frederick, 17 when sentenced, and Shaheim Walker, another who was 15 when sentenced, changed their pleas for the conspiracy to rob offence and were sentenced to a two year detention and training order, an eight month detention and training order and a six month detention and training order respectively. Another co-accused Orion Daley, 16 when sentenced, also pleaded guilty to the conspiracy to rob offence and was sentenced to an eight month detention and training order.
3.
The conspiracy involved a series of 13 linked offences of robbery committed between 6th September 2016 and 5th October 2016. These were all wrapped up in the single count of conspiracy to rob. The conspiracy came to an end after a number of arrests were made by the police.
4.
The six defendants sentenced were involved in various of the 13 offences, although Meade was involved in all 13 and the offender in seven. There were others involved as well.
5.
The offender committed offences 2, 3 and 5 with Meade, and having been arrested he went on to commit offences 9, 10, 11 and 12 whilst on bail, committing those offences with Meade and Daley. Meade committed offence 1 with Clarke, offence 4 with Clarke and Frederick and offences 6 and 7 with Walker, although Frederick accepted using stolen cards and Clarke accepted being in the stolen car. Offence 8 was committed by Meade with Frederick. During the thirteenth and most serious robbery committed by Meade alone, a firearm was produced and used.
6.
The offender and his co-accused were linked in a number of ways to the conspiracy. CCTV footage put them at the scene of some of the offences. Stolen bank cards were used. Arrests in or on vehicles stolen from the offences were made. The phones seized allowed the police to identify a WhatsApp group in which members of the gang talked in considerable detail in gang vernacular about the robberies which they had committed and were planning to commit.
7.
Turning to the offences committed by the offender specifically and starting with offence 2, at about 10 pm, and so 3 hours or so after offence 1 had been committed on 7th September 2016, the complainant Jack Menear was on his silver Piaggio moped with his friend Josh Birchall. They both pulled up outside a Co-op supermarket and a dark-coloured Volkswagen Polo, stolen in offence 1, pulled up beside them. The back seat passenger was about 15 or 16 years old and was wearing a black face mask. He got out of the car and shouted "Oi". Jack Menear and Josh Birchall realised that something was wrong and, whilst Josh Birchall was able to get away, Jack Menear was about to ride off when his bike was grabbed from behind and he was hit hard on his right shoulder. The person who was pulling his bike managed to pull him into a tree causing the bike to go up in the air and Jack Menear to fall off into the tree. The bike landed on the ground. The male with the mask tried to pick the bike up but it was too heavy. Jack Menear got up and one of the males threatened him with a hammer, possibly also stolen during the course of offence 1. Another male got out of the stolen Polo and tried to pick up the bike. Jack Menear ran off and hid behind a wall in somebody's garden. The car pursued him at speed and pulled up the driveway. The front passenger shouted at him "What end are you from? Jump in blood?" Jack Menear ran back towards the Co-op and two masked males got out of the car and began chasing him. They were gaining on him. He stopped and turned around. One was holding a claw hammer. The other was holding a knife with about a six inch blade. The one with the hammer said: "Give me your helmet" and then hit Mr Menear on the left elbow with the head of the hammer. Mr Menear took off his helmet and handed it to him. The male told him to jump into the car but Mr Menear was able to run off.
8.
He returned to find his bike valued at £1,200 had been stolen. He had three stitches to his left elbow, a possible fracture and bruising and swelling to his right shoulder and cuts to his right hand. His bike was used by two of the defendants, not the offender, in offence 4 and it was left at the scene. One of them was wearing a stolen helmet in offence 4. The helmet was recovered from the offender when he was arrested on 11th September 2016. Scratched onto the inside of it were the words "D Man 18" which was Meade's nickname.
9.
As for offence 3, 15 minutes later, Masood Hussain was riding his moped which he had bought some three weeks previously for £450. It was his first day as a delivery boy for a Chinese take-away and his last delivery that night. When he returned to his moped he noticed a black Volkswagen Polo parked in the middle of the road. He put his helmet back on and went to ride off. As he did so the Polo reversed quickly towards him, missing him by about eight inches. The driver bumped into a parked car. Mr Hussain tried to get away but the driver pulled forward blocking his path.
10.
There were five males in the car and they all had hoods pulled over their faces. The front passenger jumped out holding on to his coat with his left hand, whilst holding a knife in his right hand. The male holding the knife told Mr Hussain to "jump off before I stab you" and put his hand on his arm to get him off his bike. Mr Hussain got off the moped leaving his keys in the ignition. The male jumped on the bike.
11.
The Polo drew up by Mr Hussain who ran off and one of the back seat passengers got out to catch him. The male on the bike told him to "hurry up, drive, drive, drive". The Polo accelerated away, followed by the stolen moped.
12.
The moped was found by the police the next night and the offender was seen nearby with a group of males the police officers did not recognise.
13.
Lastly, as to offence 5, on 10th September 2016 at about 7.40 pm the victim Nadir Attallah was at home. His friend's silver Vauxhall Astra was parked outside and his mobile phone was inside it. There was a knock on the front door and Mr Attallah answered it. There were about 15 males outside, some were wearing masks and gloves, four of them carried knives. They demanded that he hand over his car keys. One appeared to be the ringleader and he spoke to another gang member who spoke in Arabic to Mr Attallah to give him the keys. He refused. One of the males took the key which was on a table and went outside. Mr Attallah followed him and took the key off him and went back inside and ushered the gang out. He was then attacked. One of them took him to the floor, he was beaten to the head and body and was kicked and punched. The group left him on the floor and took the key and stole his car. Mr Attallah had an injury to his face, swelling of the neck with severe pain, an injury to his stomach and bruising to his right leg.
14.
The Vauxhall Astra had false number plates fitted and was used in offences 6 and 7. It was recovered on 29th September 2016. Mr Attallah's mobile phone was recovered from the offender when he was arrested on 11th September 2016. After being arrested, the offender was released on police bail.
15.
Turning to offences 9 to 12, on 24th September 2016, at 7.30 pm, a group of schoolboys noticed two males looking at them. They went into McDonald's followed by four males, some of them trying to hide from the camera, but the offender, Meade and Daley were identified on the CCTV. They followed the schoolboys out and tried to engage them in conversation. One of the offenders asked Chad Bridges (one of the schoolboys) if he had anything for him. When he said "no", the male replied "Don't lie to me". One of them stood with his hand in his waistband giving the impression that he was holding something and Chad Bridges handed over some coins. The male said "Do you want me to search you?" and patted him down. He asked him the time. Chad Bridges told him and the male said "How do you know? Are you being cheeky? Prove it and get the phone out." Chad Bridges handed his phone over, an iPhone 6. The male told him to give him his password. Chad Bridges gave it to him.
16.
His friends were also searched and one of them tried to run off but was brought back. They all handed their phones over and their PIN codes and they were told that if they, as they put it, "snitched" on them they would be stabbed.
17.
Chad Bridges' uncle traced his iPhone to the home address of Meade. He was arrested on 24th September 2016 and released on police bail and went on then to commit offence number 13 on 4th October 2016.
18.
In his basis of plea in its amended form which was before the judge at the time of sentence, the offender accepted that he was part of a group that committed offences 2 and 3 and was involved in offences 5, 9, 10, 11 and 12. He stated that he did not take part in offence 8, but accepted that when several hours later he took possession of the moped taken in that robbery he knew it had been stolen.
19.
In his sentencing remarks, the judge described a very serious spate of offending with the individual offences wrapped up in the single conspiracy charge. Offence 1 had been committed by Meade and Clarke at knife point, the judge pointed out. Offence 2 involved Meade and the offender, and involved the use of weapons on a young man in order to steal his moped causing him injuries from which he was still suffering. Offence 4 was a group attack and two men with the imitation firearm were involved. Offence 5, the judge explained, involving Meade and the offender was an attack on a man in his own home where having had his car key taken off him under acute threat, he was then gratuitously attacked, beaten to the floor, kicked and punched. Offence 6 involved a group attack and one victim had a knife held to his neck whilst the other was dragged from the car and punched and kicked. Offence 8 was committed on a woman when she was pushed off her moped. Offences 9, 10, 11 and 12 committed by Meade and the offender were offences committed whilst on bail involving four young men, one of them being 12 years old, being robbed in the street and the immense distress of one of them. Having made these observations, the judge went on to observe that the offender and Meade had a previous conviction for possession of a knife and had been made the subject of a referral order.
20.
The judge continued by saying that he was acutely aware of the offender’s and his co-accused's ages and the consequences of custodial sentences being imposed, but he was also acutely aware that the primary function of sentences in cases involving young people was the prevention of offending wherever possible. Should the court follow counsel's request for leniency, the judge explained, it would not be performing its primary function and would give the impression that such conduct would be overlooked out of sympathy for their position. The consequences, the judge observed, needed to be made clear to avoid such events happening again.
21.
It was accepted that there were others involved and that they had all thought the esteem they held in the group was more important than anything else in the world, including basic responsibility and morality, the judge went on to observe. He added, however, that the defendants including the offender were not children but young adults. The offending was too serious to be met in any other way than by an immediate custodial sentence. There had, the judge explained, been discussions amongst counsel and with the judge as to alternatives, specifically where they were not to impose sentences of detention under
section 91
or to find a way in which the lesser sentence of a detention and training order could be made.
22.
As for the pre-sentence report concerning this offender, this referred to the offender's association with peers known to the criminal justice system and the acquisition of offensive weapons by persons, so placing this offender at high risk of committing serious harm. The fact that he was 14 at the time of the relevant offending would have been further easily influenced by his peers, the report's author commented. To manage those risks, the report went on, the offender would need to the continue the progress that he had shown during his time awaiting sentence. He presented as polite and appeared to have managed to settle in to a new school. That had apparently helped him to grow in self confidence. He had ongoing health and emotional issues that could further be impacted on were a custodial term to be imposed and were he to be exposed to more criminally sophisticated individuals. In such circumstances, the report's author proposed the making of a youth rehabilitation order with certain requirements.
23.
The judge in his sentencing remarks approached the matter on the basis that the offender had pleaded guilty close to the earliest possible opportunity and accordingly was due full credit. The starting point for the offender, the judge explained, was five years' custody. That was reduced to three years bearing in mind, it seems, that although the judge was not entirely clear on the point the offender's guilty plea as well as certain problems that the judge noted the offender had, which were not in the judge's assessment his fault.
24.
In support of the application for leave to appeal, no objection is taken to the three-year sentence as such, as indeed was confirmed during the course of Mr Jones' oral submissions to us today. We consider indeed that a sentence of such a length is not in the category of excessive, still less manifestly so. Indeed, in his advice on appeal the offender's trial counsel, Mr Garcha who does not appear before us today, expressly accepted that a three-year custodial term could not be criticised as manifestly excessive, something with which, as we have just observed, Mr Jones concurs.
25.
In his advice on appeal, Mr Garcha nonetheless sought to qualify that acceptance by referring to the objection which was taken in that advice and in the grounds which are before the court. That objection is that, despite it being so Mr Garcha suggested, the judge's clear intention that bail having been sought and refused on 21st October 2016, the time that the offender had spent remanded to the care of the local authority before sentence should count towards sentence, the court was allowed to fall into error in understanding that such a period would count towards sentence. Essentially, Mr Garcha suggested, the judge indicated that he expected that the effect of the sentence which he was imposing would be that the offender would spend about 12 months in custody on top of the period of time (some six months or perhaps longer) which the offender had already spent in local authority care.
26.
Pausing there, it emerged during the course of Mr Jones' submissions to us today that the position is slightly more nuanced in terms of the offender's accommodation in the lead-up to the sentencing hearing. Specifically, although the impression which has hitherto been given is that the offender spent the entirety of his time in local authority accommodation, in fact it emerges that the offender spent 14 days in youth detention accommodation between 7th and 21st October 2016 and thereafter some 28 weeks in local authority accommodation, leading up to the sentencing hearing.
27.
We return to this matter in our concluding remarks. For the present our focus is on the time spent by the offender not in youth detention accommodation but in local authority accommodation, namely the 28 weeks which Mr Jones has described as having been spent in that accommodation.
28.
It was only much later, too late to allow the judge to make any correction to the sentence, that it came to be appreciated that the time spent by the offender in local authority care in the lead-up to the sentencing hearing does not count towards the sentence which the offender received at that hearing. Again, pausing there, we were shown for the first time today an order apparently made by the Crown Court in Birmingham, although somewhat oddly dated 5th May 2017 (in other words, the day that sentence was passed by the judge on the offender), which describes under the heading "Additional notes" the following:
"On 30th May 2017, His Honour Judge P Thomas QC ordered that any time spent on remand in respect of this matter is to count towards the final sentence."
This Order is signed by an officer of the Court, although it has a number of oddities. First of all, the date which pre-dates the reference to 30th May 2017 to which we have just referred. The other oddity is that the matter was subsequently brought back before the judge in September 2017 apparently seeking a revision or correction to the sentence which was made. The judge on that occasion declined to amend the order and sentence on the basis that the application was necessarily being made too late, but the curiosity is why such an application would have been made at all if, in fact, the order which we have been shown for the first time today was an effective order.
29.
In the circumstances, we are inclined to consider that we should take no account of the order which Mr Jones has shown us. In any event, we are somewhat doubtful as to not just the provenance but the jurisdiction which would have laid behind the making of such an order.
30.
Returning to the statutory position, time spent in local authority care does not equate to being remanded in custody as defined in
section 242(2)
(b) of the
Criminal Justice Act 2003
, which refers, albeit not in its original form but after subsequent amendments, to being "remanded to youth detention accommodation under
section 91(4)
of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012
".
31.
Section 91(4)
of
the 2012 Act
, provides (where relevant) as follows:
"(4) The court may instead remand the child to youth detention accommodation in accordance with section 102 where—
(a) in the case of a child remanded under subsection (1), the first or second set of conditions for such a remand (see sections 98 and 99) is met in relation to the child, or
(b) in the case of a child remanded under subsection (2), the first or second set of conditions for such a remand in an extradition case (see sections 100 and 101) is met in relation to the child."
Section 91(4)
is an alternative to sub
section 91(3)
which states:
"(3) Subject to subsection (4), the court must remand the child to local authority accommodation in accordance with section 92."
Importantly, a remand under
section 91(3)
does not come within the definition contained in
section 242(2)
(b) of
the 2003 Act
which very specifically refers to
section 91(4)
and makes no mention of
section 91(3)
. The distinction between the two types of remand is, therefore, clear and it is an important distinction because of the fact that
section 240
ZA(1) of
the 2003 Act
provides as follows:
"(1) This section applies where—
(a) an offender is serving a term of imprisonment in respect of an offence, and
(b) the offender has been remanded in custody (within the meaning given by
section 242
) in connection with the offence or a related offence."
In other words, for present purposes, only if
section 242
applies does
section 240
ZA apply and specifically subsection (3) which states:
"The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence."
Accordingly, time spent on remand is automatically deducted if detention is imposed pursuant to
section 91(4)
, i.e. remand into youth detention accommodation, but not otherwise and so not where the remand is into local authority care.
32.
It follows that in the present case, since the offender was remanded not under
section 91(4)
but under
section 91(3)
of
the 2012 Act
and in accordance with
section 92
, the time which he spent in the care of the local authority (the 28 weeks to which we have referred) does not count and does not fall to be deducted from his sentence.
33.
Although not strictly relevant, since all that matters is what the relevant statutory provisions actually state, it seems that the likely rationale for the different approach is that youth detention accommodation (as defined) entails an offender being kept in a secure environment akin to a remand in custody whereas local authority accommodation is not necessarily secure.
34.
We should mention, really only out of completeness, that, although the grounds of appeal prepared by Mr Garcha in the present case appear to suggest that prior to the amendments of
section 242
of
the 2003 Act
brought about by
the 2012 Act
, a period of remand to local authority accommodation would have counted towards sentence, we are doubtful that this is right since
section 242(2)
(b) in its previous guise referred to an offender being "remanded or committed to local authority accommodation under
section 23
of the
Children and Young Persons Act 1969
... and kept in secure accommodation or detained in a secure training centre, pursuant to arrangements under subsection (7)(a) of that section..." There was, in other words, under that previous statutory framework an added requirement that the offender should be not only kept in local authority accommodation, but additionally "kept in secure accommodation", not therefore meaning that he or she should be in local authority accommodation.
35.
Be that as it may, in addressing the current statutory position, it is clear that the time which the offender spent in local authority accommodation (the 28 weeks which Mr Jones has described) does not count towards sentence. It follows that, if the judge intended that time should count, then he was mistaken to consider that it did. It is for this reason that leave to appeal is sought, along with an application for a time extension amounting to some 136 days. It is pointed out in the case of the latter that the misunderstanding which has arisen is no fault of the offender's. In the circumstances, we are clear that it is appropriate that the time extension sought should be granted. We are clear also that leave should, in the circumstances, be granted.
36.
It does not necessarily follow, however, that the appeal should be allowed. We say this for two reasons. First, although we do not mean to doubt what Mr Garcha has to say about his wrongly telling the judge at the time of sentence that time would count as a matter of the applicable statutory provisions, nonetheless we have not seen any indication in the judge's sentencing remarks that this is either what the judge was told by Mr Garcha or that this is what the judge himself had in mind should be the position. Not only do we have no transcript showing any exchange of the sort described by Mr Garcha, but the transcript which we do have, namely the sentencing remarks of the judge, says nothing to indicate that the judge considered that time should count. On the contrary, whereas in the case of Meade the judge referred in terms to time spent in custody counting towards sentence (see page 4H of the transcript) in the case of the offender, namely Anderson, the judge stated that he should "serve, I expect, one-half" (see page 5B) and so rather suggesting the opposite. Indeed, we note also that the judge went on, after dealing with the offender, to refer when sentencing Clarke to time served by him as not counting towards his sentence. Clearly, the judge therefore had in mind such matters. The fact that he made no mention of time served in the offender's case rather, therefore, points in the opposite direction to that suggested by Mr Garcha in his advice on appeal and by Mr Jones before us today.
37.
Furthermore, although Mr Garcha in his advice on appeal described the judge as having expressed sympathy when the matter came back before him in September 2017 when, as we have mentioned, he was asked to revise his sentence, but declined owing to the lateness of the application, we have seen nothing which shows that this was the case and so that the judge did indeed intend at the outset that the time spent in local authority care should count. We have already dealt with the order somewhat curiously dated 5th May 2017 which Mr Jones handed up during the course of the hearing. We need say no more about that. Even if it were to be assumed, however, that this was the judge's intention, as Mr Garcha and Mr Jones would have it, it does not seem to us to follow that the appeal should be allowed. If time spent in local authority care does not count under the applicable statutory provisions, then it does not count regardless of what the judge and Mr Garcha might wrongly have thought was the position. This, then, is our second reason for saying that it does not necessarily follow that the offender's appeal should be allowed. It is a freestanding reason which does not depend on the first reason. Put differently, even if the judge's intention was that time should count, that is not a reason why the appeal should be allowed.
38.
We acknowledge that if in his sentencing remarks the judge had expressly led the offender to believe that time would count the position
might
(and we stress might) be different. That is not however the position in the present case since, as we have explained, the judge said no such thing and if, anything, appears to have said the opposite. Even then we are bound to observe that the authorities would not really have assisted the offender. This is demonstrated by the cases which have dealt with the analogous position where there have been incorrect pronouncements of release provisions. Thus in
R v Giga
[2008] EWCA Crim. 703, [2008] 2 Cr.App.R (S) 112, a case in which the judge sentenced the defendant to six years' custody and explained that the defendant would serve half of his sentence when actually he would serve two-thirds, it was decided by the Court of Appeal that there was nothing in the judge's remarks to suggest that he was determining the correct sentence with his mind primarily directed to the question of release. Accordingly, no change was made to the sentence on appeal. Specifically Moore-Bick LJ had this to say at paragraphs 15 to 19:
"15. In Bright
[2008] EWCA Crim 462
, however, another constitution of this court, presided over by Sir Igor Judge, President of the Queen's Bench Division, took a rather different view of a similar submission. The appellant had been the managing director and chief executive officer of the Independent Insurance Group, which had collapsed in 2001 and gone into liquidation with an enormous deficiency of assets to liabilities. The appellant was convicted on two counts of conspiracy to defraud and sentenced to seven years' imprisonment. He appealed against sentence. It is unnecessary for the purposes of the present appeal to summarise most of the issues which arose in that case or the court's decision on them. However, one ground of appeal in that case, as in the present, was that, having told the appellant that he would be released after serving three and a half years' imprisonment, the judge had failed to give effect to his intention because he had overlooked the fact that the relevant sentencing regime was that applicable under the
Criminal Justice Act 1991
, rather than that established by the
Criminal Justice Act 2003
.
16. The President, giving the judgment of the court, said this in paragraph 41:
'... Mr Winter sought to argue that as the judge intended a 3½ year sentence actually to be served, the sentence should in any event be reduced to 5¼ years. The submission is based on a fallacy. The actual sentence was 7 years imprisonment. The release provisions did not and should not have affected the judge's sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not 'intend' that the appellant should be released after 3½ years: that would simply have been the consequence if
the 2003 Act
had applied to the sentence, and he was required to state that consequence in open court.'
17. In our view, the present case falls squarely within these principles, and if we have to chose between the earlier decisions of this court we unhesitatingly prefer the decision in Bright which deals with the matter as one of principle. It is true that in the present case the Recorder did not clarify his intentions in the way that the judge did in Bright on the very day of sentence and so make it clear what his actual intention was, but that does not, in our view, affect the fundamental principle that the judge's task is to determine the overall length of sentence, not how long the defendant will actually spend in custody.
18. Mr Middleton submitted that the essential ground of appeal in this case, as in all such cases, is that it would be unfair to the appellant to require him to serve a period in custody longer than the judge had told him he would have to serve. In our view, however, the judge is simply required to explain the effect of his sentence and it does not make the sentence unfair in any sense which gives rise to a ground of appeal if he simply makes an error in carrying out that function.
19. In the present case we are unable to accept that the Recorder did 'intend' in any conscious sense that the appellant should be released after three years or any other particular period; he simply passed what he considered to be the sentence appropriate to the offences of which the appellant had been convicted, namely, one of six years' imprisonment. He was required to explain the effect of his decision, but the fact that his explanation was inaccurate because he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive; indeed this court has already held that it was not. In these circumstances, the appeal constituted by the reference is dismissed."
39.
We are unable to detect from the material which we have seen anything which would justify a different conclusion to that reached by the Court of Appeal in the
Giga
case. We therefore decline to accede to Mr Garcha's submission, echoed today by Mr Jones, based on the suggested change brought about by
the 2012 Act
, a change which, in any event, for the reasons we have given, we do not consider is as marked as has been suggested.
40.
The single point raised on this appeal accordingly does not meet with general success, by which we mean success in relation to the 28 weeks which was spent by the offender in local authority accommodation in the lead up to his sentencing hearing. It does meet with success, albeit this is not how the point has until today been put, in relation to the 14 days which the offender initially spent not in local authority accommodation but in youth detention accommodation. In relation to those 14 days, for the reasons which we have explained, the statutory provisions currently applicable are indeed engaged. Credit therefore should, indeed, be given in respect of that 14 day period but not otherwise.
41.
There is nonetheless another point which, although not raised by Mr Garcha in support of the appeal, was raised by Mr Jones today, the point having originated from the Registrar. This point does seem to us to have merit and indeed Mr Bermingham on behalf of the prosecution does not seek to suggest otherwise. This is that, during the offender's time in local authority care awaiting sentence (and we make it clear that we refer here to the 28 weeks spent in local authority care, rather than the 14 days spent in youth detention accommodation which preceded his time in local authority care), the offender was apparently subject to an electronically monitored curfew between 8.00 pm and 6.00 am each day. In such circumstances since, had he been subject to bail (which the offender was not because bail was refused and he was instead remanded into local authority care), the offender would have been entitled to a direction pursuant to
section 240
A of
the 2003 Act
that half of the time spent subject to a qualifying curfew be credited against his sentence. It follows that this should be the position in this case also. This is what was decided in
R v D and H
[2016] EWCA Crim. 1807 in which Dingemans J stated as follows at paragraph 10:
"If a young offender is remanded to detention pursuant to LASPO, time spent in custody or on electronic curfew will count. That is because it is a remand in custody for the purposes of the Criminal Justice Act. However, there is an anomaly in the statutory provisions, because if a young person is remanded into local authority accommodation with an electronic curfew provision, that does not amount to a remand in custody for the purposes of
the 2003 Act
. In those circumstances, counsel appearing for young persons remanded into local authority accommodation and subjected as a condition of bail to curfew should raise the issue with the sentencing judge, as indeed should those who have been the subject of an electronic curfew when remanded into what is equivalent to custody."
In terms of the credit which falls to be given in accordance with the mechanism set out in
section 240
A, the parties have been able to agree that the relevant credit amounts to 98 days. Accordingly, we allow the appeal. The sentence of three years' detention will stand, but we direct and make it clear to the relevant authorities that credit should be given in respect of a total of 112 days, made up as follows, namely 14 days for the time when the offender was remanded into youth detention accommodation and 98 days in respect of the period when he was subject to curfew requirements.
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77ccec384e754119922c279a079aaa9e6c78ac64d52aeded442dc93aa2c3b90c | [2023] EWCA Crim 643 | EWCA_Crim_643 | 2023-05-24 | 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 202101062/B5
[2023] EWCA Crim 643
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 24 May 2023
Before:
LORD JUSTICE COULSON
MRS JUSTICE FARBEY DBE
MR JUSTICE CONSTABLE
REX
V
IAN MICHAEL KERRY
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
NON-COUNSEL APPLICATION
_________
J U D G M E N T
LORD JUSTICE COULSON
:
1.
The applicant is now 50. On 15 March 2021 in the Crown Court at Leeds (HHJ Belcher) and a jury, he was convicted of three counts arising out of breaches of a Sexual Harm Prevention Order (“SHPO”) that had previously been imposed upon him. He was given a suspended sentence of 2 years' imprisonment. He renews his application for permission to appeal against conviction following refusal by the single judge.
2.
On 15 November 2016 the applicant had been convicted of various sex offences. On 20 December 2016 he was made the subject of the SHPO.
3.
The SHPO required him to notify the police of any address at which he resided within three days of commencing such residence. The subsequent breaches occurred in December 2019. They were identified as follows:
(a)
From 12 September 2019, he had resided at 16 Kingsley Drive in Castleford but had failed to notify that address to the police (count 1).
(b)
Instead he told the police that he resided at 14 Kingsley Drive, but when that address was checked the resident had never heard of him (count 2).
(c)
The police arranged to meet the applicant on 11 December 2019. When they did, they found him in possession of a mobile phone, capable of connecting with the Internet, and he refused to hand the phone to the police in breach of the SHPO (count 3).
4.
The applicant contested the charges. He was represented at his trial by an experienced solicitor advocate. Every possible point was taken. There was evidence from a number of prosecution witnesses, and the applicant not only gave evidence himself but called evidence from his mother as to where he had lived at the relevant time. The judge summed up the case to the jury in some detail, and they returned guilty verdicts on all three counts.
5.
Although the papers are voluminous, it appears that the applicant's own grounds of appeal can be categorised under three broad headings: i) A complaint that the police accessed legally privileged material on the mobile phone; ii) the wrongful admission of bad character evidence at the trial; and iii) the poor quality of his representation at the trial. Each of these points was addressed and rejected by the single judge.
6.
However, the position has been complicated by the provision of a separate advice from new counsel, which took an entirely different point, regarding the jury's sight of the terms of the SHPO. It does not appear that that advice, and therefore that point, was considered by the single judge. Equally, it does not appear that new counsel thought there was anything in the applicant's own three complaints. He certainly makes no mention of them in his advice. We propose therefore to give the applicant the benefit of any possible doubt, and deal with the three issues on which the single judge refused permission to appeal and then to move on consider the fourth point about the terms of the SHPO.
7.
There is nothing in the point about the legally privileged material. The applicant was obliged to hand over the phone to the police and he refused to do so. Although he did not say so at the time, he subsequently said that he had refused because the phone contained privileged material. So at the trial, the only issue for the jury was whether the alleged presence of privileged material on the phone was a reasonable excuse for his refusal to hand it over to the police. By their verdict, the jury plainly considered that it was not. Beyond that, the material itself was irrelevant to the issues at trial. There is no suggestion that any legally privileged material was accessed by the police. There is therefore no arguable ground of appeal.
8.
As to the bad character, the point arose in this way. On 23 April 2020 before the Magistrates, the applicant had previously been convicted of failing to comply with the notification requirements of the SHPO. That breach and that conviction were earlier in time so different from the breaches that were the subject of the trial. The Crown applied to the judge at the trial for that previous conviction to be admitted. That was contested but the judge gave a ruling in which she admitted that bad character evidence into the trial.
9.
We consider that the argument that the judge should not have admitted the bad character evidence to be wrong in principle. This was a prior breach of the very same SHPO that the jury were considering. It was therefore entirely relevant bad character evidence. The real point for the judge was whether the admission of that evidence made the trial unfair. She gave a careful ruling in which she concluded that it would not make the trial unfair. That was a view to which the judge was plainly entitled to come. Her subsequent directions to the jury as to the limited use they could make of the bad character evidence were in standard terms and quite clear. Thus, the bad character does not give rise to any justification now for any complaint. For completeness, we should say finally on this point that the recent suggestion that the bad character was somehow admitted "by stealth" is untenable. The bad character evidence was only admitted into the evidence after a full-blown debate before the judge about whether or not it should be.
10.
The majority of the papers in this case are concerned with the third area of the applicant's complaints, namely the quality of representation. In our view, that submission, although commonly made in applications for permission to appeal, needs to be properly analysed. This Court has made it plain in a number of cases, most recently in
R v Sutherland & Khan
[2022] EWCA Crim 72
, that unless complaints concerning the competence of previously instructed lawyers can be demonstrated to have had a potential effect on the fairness of the trial, this Court will not countenance appeals based on this type of complaint.
11.
As we have said, it is clear from the judge's written directions and her summing-up that the applicant had every opportunity to present his case fully, and there was a good deal of evidence adduced, notwithstanding the fact that this was a case of a relatively narrow factual compass. As we have said, the applicant was represented by an experienced solicitor advocate. We do not consider that there is any justification for the complaints now and no sustainable suggestion that the trial was unfair as a result.
12.
For those reasons therefore, we consider that the applicant's own three grounds of complaint have no prospect of success. As we have said, that appears to be new counsel's view too, because none of those matters appear in his advice and grounds of appeal against conviction, dated 28 May 2021.
13.
The only point that is made in that advice is that, when the jury were considering the breaches, they were provided with copies of the SHPO of which it was said the applicant was in breach. On the face of it, that appears unsurprising. However, the complaint is that the SHPO revealed that the applicant's earlier offending involved children, and that it was therefore adversely prejudicial to him for the jury to be provided with a copy of the SHPO in its full terms.
14.
We reject that final ground of appeal. The jury were considering breaches of the SHPO and the notification requirements set out there. They were entitled to see a full copy of the SHPO; indeed they could not have discharged their function properly without it. It would have been an affront to the principle of transparency if they had been provided with some sort of redacted document. It would only have encouraged speculation as to what the redactions covered up.
15.
Furthermore, at no time before or during the trial was it ever suggested that the SHPO should be redacted; nor was there any sort of issue with the document being provided to the jury in the form that it was; nor was there a suggestion that any directions about it should be given by the judge. In our view, that is the best possible evidence that this was not a substantive issue at the time and cannot be now. It is, we fear, the product of hindsight.
16.
Finally, we should say that, in any event, we cannot see that there was any prejudice in the provision of the SHPO to the jury. The jury were aware that the applicant was a sex offender; that is why he was the subject of the SHPO in the first place. Beyond that, the precise nature of his sex offences would not have been of any relevance to the jury, nor would it have had any significant prejudicial effect.
17.
For those reasons therefore, this renewed application is refused. In our view, it has proved a complete waste of both time and resources. Accordingly, pursuant to
section 18(6)
of the
Prosecution of Offences Act 1985
, we make an order requiring the applicant to pay the reasonable costs of the transcripts in this case, in the total sum of £282.58p.
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30064167a60258a1ea40047a3470631edffb3ea45b6d9415311b38184eaaf4d3 | [2022] EWCA Crim 808 | EWCA_Crim_808 | 2022-06-08 | crown_court | Neutral Citation Number: [2022] EWCA Crim 808 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT GLOUCESTER HIS HONOUR JUDGE CULLUM HIS HONOUR JUDGE LAWRIE Case Nos: 202200392/A3, 202200416/A3 & 202200444/A3 Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 8 June 2022 Before: LORD JUSTICE STUART-SMITH MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE ANDREW LEES (Sitting as a Judge of the CACD) REGINA V DANIEL GOWER SEAN WATKINS LAURA PAUL __________ Computer Aided Tra | Neutral Citation Number:
[2022] EWCA Crim 808
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT GLOUCESTER
HIS HONOUR JUDGE CULLUM
HIS HONOUR JUDGE LAWRIE
Case Nos: 202200392/A3, 202200416/A3 & 202200444/A3
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 8 June 2022
Before:
LORD JUSTICE STUART-SMITH
MR JUSTICE JEREMY BAKER
HIS HONOUR JUDGE ANDREW LEES
(Sitting as a Judge of the CACD)
REGINA
V
DANIEL GOWER
SEAN WATKINS
LAURA PAUL
__________
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 L JENKINS
appeared on behalf of the Appellant Gower
MS S JENKINS
appeared on behalf of the Appellant Watkins
MS C PATTISON
appeared on behalf of the Appellant Paul
_________
J U D G M E N T
LORD JUSTICE STUART-SMITH:
1.
On 19 January 2022 before the Recorder of Gloucester, each of the three appellants was sentenced to 18 months' imprisonment for one offence of ill-treatment or wilful neglect by a care worker, contrary to section 20(1) of the Criminal Justice and Courts Act 2015. In addition a statutory surcharge order in the sum of £156 was imposed upon each appellant. It is now common ground that the correct sum for that statutory surcharge would have been £140. To that extent at least the order of the court below must be set aside and the correct order substituted.
2.
The appellants had pleaded guilty to the charge on different dates but were all afforded a 25 per cent reduction for their plea. In addition, each was treated as a person of previous good character and as having equal responsibility for what happened. Each now appeals against sentence with the leave of the single judge. It is common ground that the custody threshold was met. The two questions for this court are whether the sentence of 18 months was too long and whether whatever sentence of imprisonment was imposed should be suspended.
3.
Mr Michael Meheut was a resident at Brook Lodge in Longhope, Gloucestershire. This was a home providing accommodation and support to people living with challenging behaviour and learning difficulties. The establishment was managed by a care provider called Voyage Care. The appellants were all employed by Voyage Care.
4.
Mr Gower started employment as a support worker at Brook Lodge in May 2018, Ms Paul in November 2017 and Mr Watkins in March 2018. In September/October 2018 Mr Gower was aged 20, Mr Watkins was aged 19 and Ms Paul was aged 26.
5.
They all received appropriate staff training, including the managing of actual or potential aggression. Their job description specified that they were to provide support to people in a way that was respectful to individuals.
6.
Mr Meheut was aged 54 at the time. He was profoundly deaf and suffered from epilepsy, anxiety and moderate learning difficulties. He required 24-hour care and was prescribed various medications to combat the adverse effects of increased tension and stress.
7.
Each year a service user such as Mr Meheut would be taken on holiday for a change of scene and environment. Between 28 September and 1 October 2018 Mr Meheut was taken by the three appellants to a countryside barn conversion in Buckland Brewer in Devon.
8.
On his return from Devon a night support worker at Brook Lodge, Amy McGregor, noticed a change in the behaviour of Mr Meheut, describing him as angry and upset. These concerns were raised with Mr Gower and he reported that whilst they had been on holiday with Mr Meheut they had all got drunk and had been mean to him. He said that they had all barricaded Mr Meheut in his room, put pegs on his hooded top to annoy him and made him wear a bucket on his head. He sent Ms McGregor a video of Mr Meheut in distress on the beach. Ms McGregor then reported the matter to her manager, Tammy Griffiths.
9.
Mr Watkins also told Ms McGregor that they had been horrible to Mr Meheut by locking him in his room. He showed her a photograph of Mr Meheut on a sofa with a bucket on his head with clothes pegs attached.
10.
There was an ensuing internal inquiry. Both Mr Watkins and Mr Gower admitted that they had been drinking alcohol and putting pegs on Mr Meheut's back as a joke. Ms Paul declined to attend any meeting and resigned on 12 November 2018. Mr Gower and Mr Watkins were dismissed in November 2018.
11.
An image recovered from Mr Watkins' mobile phone showed Mr Meheut standing on the beach seemingly incontinent with urine and there was a video on Ms Paul's phone of an incident involving a limpet. The video showed a limpet being placed on Mr Meheut's back on the beach causing him to cry out in discomfort and distress. The recording device was pushed directly towards Mr Meheut's face and showed him in fear. The limpet was then taken off Mr Meheut's skin by Ms Paul who pushed it towards his face.
12.
Another video depicted Mr Meheut eating an ice cream in a public place with members of the public present. His trousers had fallen down around his knees. The appellants could be heard laughing during the filming. Mr Meheut was also filmed with a piece from a board game stuck in his ear and in a separate clip whilst one of the appellants held an egg behind his head. He was also filmed standing on a rock pool leaning forward with his hand on a rock with his trousers around his ankles, so that he was filmed in his underwear. None of the appellants offered him any help and they could be heard laughing during the video. Mr Meheut could also be seen huddled up and backing away into a rock as one of the appellants had a crab or other sea creature in their hand. He was clearly frightened by this. The person making the video concentrated on the hand with the sea creature and then focused on Mr Meheut backing away from them.
13.
Mr Gower was interviewed in November 2019. He said that Ms Paul was in charge during the holiday. He said he was aware that Mr Meheut did not want the object on him on the beach and he could tell he was distressed but thought it was funny at the time. He accepted they should not have done some of the things in the video clips and said it was him who put the egg behind Mr Meheut at the request of Mr Watkins to compare the shape of the egg to the shape of Mr Meheut's head. He said he was present during the ice cream incident and that it was him holding the crab. He said that throughout the weekend they had been putting clothes pegs on Mr Meheut and said that, although he did not think that they were permitted to drink alcohol, Ms Paul had brought a bottle of wine and Mr Watkins had brought a bottle of liqueur.
14.
In interview Ms Paul said that the incidents in the footage were examples of them "having a laugh". She said the others had put the pegs on Mr Meheut's clothes and that Mr Meheut having a bin on his head had also been a joke. She accepted that he did not enjoy the limpet incident, but she maintained that she had not been involved in any abuse or ill-treatment of Mr Meheut. She said that there were a couple of incidents on the holiday where the other two appellants were causing distress to Mr Meheut and that she had to intervene as she knew he was becoming upset. She accepted she might have taken the incontinent picture of Mr Meheut and falsely claimed that she had informed her manager about the behaviour of the other two on the holiday on her return. She also blamed some of the behaviour on the trip on Mr Meheut himself.
15.
In his interview Mr Watkins said that Ms Paul had suggested they get some alcohol. He said the incident on the beach was "a bit of fun" and that he had put the pegs on the back of Mr Meheut's clothing at some point. He accepted they had put a bucket on his head for a bit of fun but conceded that things got out of proportion. He said they had arranged the furniture in Mr Meheut's room also for fun, but denied barricading him in. In a second interview, after being shown the video clips, he maintained his position that it was a bit of a laugh. He said he had filmed the clips but did not accept their humiliating or degrading content.
16.
The sentencing judge viewed the various clips. In addition to what he could see and determine for himself, he had direct evidence from Mr Meheut's social worker that the reactions and sounds shown on the clips indicated that Mr Meheut was distinctly unhappy. There is no challenge to that evidence. We have seen the clips. They make distressing viewing as even without additional evidence they show the humiliation and distress of a person who is unable to fend for himself and who is being humiliated by the very people who are meant to be protecting him.
17.
The case came to the Crown Court because Ms Paul initially indicated that she would plead not guilty. The particulars alleged by the indictment were that the appellants had ill-treated or neglected Mr Meheut by attaching clothes pegs to him, barricading him in his bedroom, scaring him with sea creatures, photographing and recording him when he was distressed after being scared with sea creatures and in humiliating situations when his trousers had fallen down and there were signs that he had been incontinent. The evidence amply justified each of these particulars.
18.
Through no fault of the appellants a period of well over three years had elapsed from September 2018 until they came to be sentenced in January 2022. There was no suggestion that there had been any further offending on the part of the appellants during that period. Having lost his job at the care home, Mr Gower had not found alternative employment. By the time he came to be sentenced he had been diagnosed as suffering from depression, for which he was being treated with Sertraline. He had been signed off as unfit for work, whether remunerative or unpaid work in the community. Mr Watkins had secured full-time employment in the motor trade. Ms Paul had had a bumpy ride with mental health issues which had been exacerbated by waiting for the case to be resolved, but she had found and retained employment and had the benefit of a strong character reference from her employer of 18 months who spoke highly of her development which had led to significant promotions within the business. He also spoke of Ms Paul's deep regrets about her involvement in the ill-treatment of Mr Meheut. She had the benefit of other character references, including from her mother who spoke of her as a person of compassion upon whom she was and is dependent in various ways.
19.
The sentencing judge had the benefit of pre-sentence reports for each appellant. The pre-sentence report for Mr Gower assessed the likelihood of further conviction being low within the two years following sentence. The writer assessed that Mr Gower would struggle in a custodial environment. He did not think that Mr Gower required intervention from the Probation Service by way of a programme requirement or a rehabilitation requirement. He proposed that Mr Gower be sentenced to a community order with a curfew requirement between the hours of 7 pm to 7 am as a punitive element.
20.
The pre-sentence report for Mr Watkins pointed to the passage of time and questioned the necessity or benefit of interventions by the Probation Service. The risk of re-offending was assessed as being low. While not proposing a suspended sentence, the writer suggested that such a sentence would act as a significant deterrent to Mr Watkins.
21.
The writer of Ms Paul's PSR assessed the risk of re-offending as low and noted that she had now obtained employment away from the care sector. He expressed concerns for Ms Paul's mental health were an immediate sentence to be imposed, a view which is supported by information contained in the references that were served on her behalf. The writer proposed punitive elements of a community sentence in the form of unpaid work, a curfew or financial penalties and, if a custodial sentence were to be necessary, the writer suggested that the court might consider it appropriate to suspend the sentence.
22.
In the absence of guidelines for this offence, the prosecution suggested reference by analogy to the guideline for offences of cruelty to a child, contrary to section 1(1) of the Children and Young Persons Act 1933. The first and most obvious point of distinction is that the maximum sentence for an offence against section 1(1) of the 1933 Act is 10 years. The maximum sentence for the offence with which we are concerned is five years. Any analogy must therefore be applied with care and caution.
23.
The prosecution identified that had the cruelty to children guideline applied there would have been multiple features indicating high culpability: (a) multiple incidents, (b) gratuitous degradation of the victim and/or sadistic behaviour, (c) deliberate disregard for the welfare of the victim, (d) failure to take any steps to protect the victim from offences in which factors (a) to (c) are present, and (e) the appellants had professional responsibility for the victim linked to the commission of the offence.
24.
In terms of harm, it was submitted that the case fell between serious psychological and/or developmental harm and little or no psychological harm. The analogous category under the cruelty to children guideline would be Category A2, which would indicate a starting point of three years with a range of two to six years. The prosecution submitted that there were aggravating factors, including that (a) the events took place in public, (b) the events were recorded and (c) the events took place away from the security of the care home. In Ms Paul's case the prosecution identified as additional aggravating features that (d) she wrongly blamed others and (e) she was in charge of the team who were meant to be looking after him. Before us it has been clarified that she was not there in a managerial capacity; rather the leadership element fell to her because she was older than the other two.
25.
The judge's sentencing remarks gave full expression to the court's justified indignation at Mr Meheut's treatment even if it is possible to cavil with his assertion that the appellants' departure from the expected standards of humanity, kindness, help and support "could not be greater".
26.
This was undoubtedly a serious case involving a series of episodes each of which involved a fundamental breach of the duties of trust and care owed by each appellant to Mr Meheut. Each of the appellants was suitably trained and knew Mr Meheut well enough to understand how he should be treated.
27.
The judge regarded his sentencing exercise as difficult because of the absence of guidelines. We agree. He took 18-months as his starting point. He did not say that he did so because it was half of the starting point for a Category A2 offence of cruelty to children, though it seems likely that affected his thinking even if it was not determinative. He adopted the prosecution's factors indicating high culpability under the cruelty to children guideline that we have set out above and while accepting that the extent of harm suffered by Mr Meheut was uncertain, concluded that "harm there certainly was" and that he took that into account. He then continued:
"So the aggravating features have all been identified in terms of where they fall. I then have to counter those aspects with mitigating features. The mitigating features are effectively, you are all of good character and there was an element of remorse, although sometimes I slightly query it, but the point is, I do accept there was remorse, and the significant time gap that has taken place between the incidents and your appearance here.
As I said, there is no guidelines for the case as such. I do take the 18 months. What I then have to do is, what are the factors that can merit it being greater than 18 months? I do this, I reflect on those factors that pinpoint the question of culpability which are significant. Therefore, what I do is I increase the sentence to reflect those culpability features, which are in reality the aggravating features, and 18 months then goes to 2½ years. But then what I have got to do is reduce it to reflect your mitigation. I do, I take into account your good character and the time lapse and your remorse, and therefore brings the sentence down to 2 years."
28.
This passage is not entirely clear, but we understand it to mean that the fact that there was not just one feature but multiple features indicative of high culpability had two effects. First, the features led to the conclusion that the case was analogous to a cruelty to children offence falling within Category A. Ssecond, because there were multiple features of high culpability they also exerted upward pressure on the starting point that he had identified. That at any rate seems to us to be what he did because he said that "I increase the sentence
to reflect those culpability features
, which are in reality the aggravating features, and 18 months then goes to 2½ years."
29.
Such an approach is not wrong in principle in the normal case of direct application of a guideline, though precise calibration may be impossible to achieve. The judge then turned to the question of suspending the sentences and rejected the appellants' submissions, saying:
"I have looked at all the various documents that have been submitted on behalf of all of you and the features that means that custody can have an impact upon you in terms of who you care for and indeed your futures. I have looked at the guidelines and I have looked at the features that determine where it is then considered appropriate to suspend a sentence, rehabilitation being one of them. I have read the reports prepared for all you. Rehabilitation is theoretically available but, in the context of your lives and your future lives, as you are never going to work in care again, I cannot quite see the point of that.
Your good characters are already reflected in the fact that you are going to get that 6 months' discount. Care of others applies for one of you but not to any significant degree that can apply in the context of this case. But, in any event, that is countered by the fact that, on the other side of the column within the guidelines, that appropriate punishment can only be achieved by imprisonment. I say that with a degree of reluctance because I note the significance that imprisonment will have upon you. But you need to appreciate you have a solemn duty when you are looking after people who are vulnerable and who depend on you for care and the system depends on you committing your actions of care with diligence and you failed to do that. The three of you seemed to find it funny that he was being humiliated you seemed to find it funny that he was in discomfort, and you seemed to find it was funny that he was distressed on the beach, and that is thoroughly heartless. So that is why, when you have people who are vulnerable and in the care of the care system, that appropriate markers are sent out to show that any departure or failure in the provision of that care will not be tolerated and will be met with appropriate punishment."
In the result therefore he applied the 25 per cent reduction for plea to sentences of two years imprisonment to arrive at the sentences that he passed.
30.
Each of the appellants submits that the sentencing judge fell into error and imposed sentences that are manifestly excessive. There is inevitably some considerable overlap between them. We highlight what we consider to be the main submissions as follows:
a.
Each appellant submits that the judge gave insufficient weight to the period between the offending and their coming to be sentenced and the steps that they have taken during that period, there being no suggestion against any of them of further offending.
b.
Greater weight should have been given to their previous good character. Each submits that what happened was out of character and that they had shown genuine remorse. In Ms Paul's case she relies upon the letter she wrote to the court expressing her remorse and the character references which also attested that her remorse was genuine.
c.
In the case of Mr Gower and Mr Watkins greater weight should have been placed upon their youth at the time of offending.
d.
Mr Gower submits that the judge should have distinguished between his case and in particular that of Ms Paul because of the disparity in their ages (he being 20 and she being 26 at the time of offending) and responsibilities (she being in charge of the group). He also submits that the judge gave insufficient weight to his initial disclosure, co-operation and his candid admissions when interviewed together with his own difficulties with mental health issues from the age of 11 and a current diagnosis of depression being treated with Sertraline.
e.
Mr Watkins submits that the process by which the judge went from 18 months to two-and-a-half years as his starting point involved double-counting.
f.
Greater consideration should have been given to the possibility of suspending whatever sentence was to be imposed. It is suggested that the judge failed genuinely to weigh up the various features that were in play, instead treating "appropriate punishment can only be achieved by immediate custody" as a trump card that defeats all others. He should have had proper regard to the adverse impact that the appellants had already suffered by reason of the period before they came back to be sentenced. A proper assessment would also have weighed in the balance the fact that none of the appellants was assessed to present a serious risk or danger to the public and that there was no history of poor compliance with court orders as each was effectively of previous good character. On the other side of the balance, it is submitted that the judge underplayed the importance of rehabilitation on the basis that the appellants were no longer employed in the care system. It is submitted that the fact of their removal from the care system shows a degree of awareness, at least in the case of Ms Paul, which may represent an element of rehabilitation. Each appellant asserts that they have strong personal mitigation and Ms Paul submits that immediate custody will have a significant effect upon her mother.
31.
We agree that the custody threshold was passed in this case and by some margin. As we have said, this was a serious case involving a series of episodes, each of which involved a fundamental breach of the duties of trust and care owed by each appellant to Mr Meheut. At the same time, we agree with the judge that the degree of harm either in the short term or longer is difficult to assess because of Mr Meheut's inability to express himself in detail. The judge was right in our judgment to conclude simply that there was some harm to Mr Meheut.
32.
Our second observation would be that the judge may have been overly generous to Ms Paul in treating her as on a par with the other two. Both her age and her responsibility as a leader of the group would have justified him taking a more serious view of her offending than of Mr Gower and Mr Watkins. Having decided on parity, it was important that it did not result in a more severe punishment for Mr Gower and Mr Watkins than would have been appropriate to their cases seen in isolation and without the linkage of parity.
33.
In our judgment, the most persuasive of the appellants' submissions are those that concentrate on their age (for Mr Gower and Mr Watkins), their previous good character, their remorse, their personal mitigation and the period which passed between the offending and the sentencing hearing in the Crown Court.
34.
We also consider that applying the cruelty to children guideline by analogy is capable of being as much a hindrance as a help. It does not follow from the fact that the maximum sentence for an offence under section 1(1) of the 1933 Act is twice that for an offence under section 20(1) of the 2015 Act, that the guideline can be divided by two, or that multiple features going to culpability that could exert an uplift from the starting point on direct application of the guideline to a case of child cruelty should necessarily or even probably have the same effect, or the same effect divided by two, when considering a case under section 20(1) of the 2015 Act. So although we do not accept that what the judge attempted to do involved double-counting, that does not mean that his exercise either necessarily or probably provided the right result by analogy.
35.
In our judgment, if this case had come to be sentenced within a reasonably short time of offending, a sentence of 18 months' imprisonment before reduction for age, personal mitigation and guilty pleas would have been sufficient to mark the severity of Mr Gower's and Mr Watkins' offending and the rightful indignation of the court in the face of such conduct. Given their youth, previous good character and other personal mitigation that could properly have been reduced to about 12 months or so. Applying the 25 per cent reduction for plea would therefore result in sentences in the order of nine months. If Ms Paul was to be treated as on a par with her much younger co-defendants the same result would follow.
36.
Had the case come to sentence within a reasonably short time, the balancing of factors indicating that it would or would not be appropriate to suspend that custodial sentence would in our judgment have been finely balanced. We are of the view that a decision not to suspend at that time would have been justified and not susceptible to appeal. But as the single judge noted when giving permission, the balance has shifted because of the time between offending and sentence which has enabled each appellant to clothe their expressions of remorse and good intentions with action while all the time being under the shadow of these proceedings.
37.
In our judgment, the intervening history which we have summarised above could reasonably be said to tilt the fine balance in favour of suspending sentence. This is most clearly so in the case of Ms Paul who had managed to obtain and hold down good employment, despite the significant difficulties she had faced. However, as we now understand that the appellants have each spent five months in custody, it seems to us there is an advantage in drawing a line under this case which is better achieved by not suspending the reduced sentence upon which we have settled.
38.
In the result therefore we have come to the view that the appropriate sentence in each case is one of nine months' imprisonment for the reasons we have explained. We therefore quash the sentence imposed in the court below on each appellant and substitute a sentence of nine months' imprisonment.
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fd2a8a9d41a104139e4d2f1a780c02ebbe0a38d3b55eb82e0f0e87baf58beba1 | [2021] EWCA Crim 659 | EWCA_Crim_659 | 2021-04-22 | 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
NEUTRAL CITATION NUMBER:
[2021] EWCA Crim 659
Case No:
2019/02727/B1
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 22
nd
April 2021
B e f o r e:
LADY JUSTICE CARR DBE
MR JUSTICE LAVENDER
THE RECORDER OF NEWCASTLE
(
His Honour Judge Sloan QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E G I N A
- v –
ALEXANDER STEPHEN ANDREWS
____________________
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
___________________
Thursday 22
nd
April 2021
LADY JUSTICE CARR:
I shall ask Mr Justice Lavender to give the judgment of the court.
MR JUSTICE LAVENDER:
1.
This is a renewed application for an extension of time (15 days) in which to apply for leave to appeal against conviction following refusal by the single judge.
2.
On 21 March 2019 in the Crown Court at Oxford the applicant pleaded guilty to two counts of being the owner of a dog which caused injury to a person while dangerously out of control, contrary to
section 3(1)
and (4) of the
Dangerous Dogs Act 1991
. He was sentenced to concurrent terms of 18 months' imprisonment on each count. He was ordered to pay a victim surcharge of £140, a total of £2,750 in compensation, a contribution to the costs of the prosecution in the sum of £4,000 and the costs of kennelling his dog, in the sum of £9,820.23. A contingent destruction order was made in respect of the dog and the applicant was disqualified from keeping a dog without limit of time.
3.
The applicant was the owner of a black Staffordshire Bull Terrier named "Piglet", to whom he was clearly very attached. In 2017 the applicant was living in Oxford and regularly walked his dog along Parks Road. The applicant did not like the fact that a number of cyclists did not dismount at a certain location on the pavement in Parks Road where building works were taking place and blocking the cycleway. It appears that a sign telling cyclists to dismount may have been removed.
4.
The case for the prosecution in relation to the first incident was as follows. On 9 October 2017 the applicant was walking his dog in Parks Road. The applicant spoke to a number of cyclists, including Paul Mitchell. The dog bit Mr Mitchell once above his left knee, causing a superficial injury. That was the subject of count 1. We have seen photographs of the injury allegedly caused by the dog and a video of the incident taken on Mr Mitchell's body-worn video camera, which the prosecution say shows the applicant's inability to control his dog.
5.
We entirely understand why the prosecution say that this video shows that the applicant was unable to control his dog and why a jury might have concluded that the dog was dangerously out of control, even though it was on a lead. Indeed, at one point in the video the applicant said, "I suggest you don't get any closer", which was clearly a reference to the dog. Mr Martin replied, "He should be muzzled." Moreover, a passer-by said to the applicant, "I really recommend you train that guy, man. That's going to be a real danger."
6.
The prosecution's case as to the second incident was that the applicant was in the same location with his dog at about 10.15am on 14 November 2017 when Victoria Lackey was cycling towards him in the direction of Broad Street. The applicant stood facing her, shouted at her and told her to dismount. As she passed him, the dog bit her and hung on to her leg for three to five metres. She sustained a wound to her right leg measuring 2 centimetres in depth, which penetrated the tissue, but not the muscle. Again we have seen photographs of this injury.
7.
The police seized the applicant's dog on 20 November 2017.
8.
The applicant instructed counsel, Michael Peters, and had a conference with him on 2 November 2018, which he says lasted for three hours. According to the applicant, Mr Peters advised him that his case was winnable. 2 November 2018 was the date on which an unsigned defence statement was uploaded to the Digital Case System. According to that document, the applicant denied that his dog was out of control on either occasion, asserted that Mr Mitchell cycled right up to his dog, who became scared and distressed, denied that his dog bit Mr
Mitchell, asserted that Miss Lackey cycled directly towards his dog and failed to stop, as a result of which the dog became distressed and reacted in an instinctive, defensive manner.
9.
The applicant's trial was listed to commence on 20 March 2019. His original counsel, Mr Peters, was on holiday on that day. The applicant applied, unsuccessfully, for an adjournment of his trial. The applicant was unrepresented on 20 March 2019 and the hearing was adjourned to the following day for him to seek representation. He was given a copy of the prosecution opening note.
10.
On 21 March 2019 the applicant was represented by Sean Smith of counsel. The applicant pleaded guilty to both counts. We will return to the events of that day.
11.
The applicant says that he tried to initiate his appeal within 28 days of his conviction, but that he was unfamiliar with the process and did not follow the correct procedure. In those circumstances, we have considered the merits of the proposed grounds of appeal.
12.
The applicant has drafted his own grounds of appeal. We make allowance for the fact that he is not a lawyer. The first page lists eight grounds of appeal which, although not numbered, we will refer to by number as if they were numbered in the order in which they appear. The applicant has also drafted a number of other documents, including: a 13 page letter to the judge, dated 10 April 2019; a ten page response to a statement from Mr Smith; 36 pages of submissions in response to the single judge's decision; and a 26 page executive summary prepared for this hearing.
13.
We have read all of these documents and have taken account of them. We do not intend to deal with many of the points which are raised by the applicant, a large number of which are simply irrelevant to this hearing. For instance, he complains that the seizure of his dog was unlawful. However, the legality of the seizure has no bearing on the question which we have to decide.
14.
The applicant is a layman and may not appreciate it, but the question which would arise on any appeal is a narrow one. It is whether his conviction was safe. Putting it another way, an appeal is not an opportunity for a wide-ranging exploration of complaints about the investigation or prosecution of the applicant or the treatment of his dog. Rather, it is concerned solely with the question of whether or not his conviction was safe.
15.
Ordinarily, the conviction of a defendant who pleads guilty is safe because, by pleading guilty, the defendant has admitted his guilt. It follows that the circumstances in which this court would allow an appeal against conviction following a plea of guilty are extremely limited.
16.
In his letter to the judge, the applicant set out the reason why he said that he pleaded guilty. The principal reason was that Mr Smith had advised him that he had only a slim chance of acquittal. The applicant did not have to accept that advice. He says that he had received different advice from Mr Peters. In the light of that conflicting advice, he had to choose whether or not to contest the charges against him. He chose to plead guilty.
17.
There is a dispute between the applicant and Mr Smith as to whether Mr Smith advised the applicant fully (as Mr Smith says that he did) as to the consequences of a guilty plea. It is unnecessary for us to go into the details of that dispute. The applicant said in his letter to the judge that his overriding concern was for the welfare of his dog and that a positive report on his dog was obtained that day from the kennels, which gave rise to a chance that the dog would be returned to him if he pleaded guilty. Of course, the dog would have been returned to him if he had maintained his not guilty plea and been acquitted. No doubt the applicant would have maintained his not guilty plea if he had considered that he had a chance of being acquitted.
Instead, the applicant chose to plead guilty.
18.
In those circumstances, we are confident that the applicant's conviction was safe. The contrary is not arguable.
19.
We deal briefly with the eight grounds of appeal. Ground 1 is that the applicant was severely disadvantaged by not being allowed to be represented at trial by the counsel of his choice. That does not give rise to an arguable ground of appeal. The court was not obliged to adjourn the trial to a date when the applicant's original counsel was available. The applicant had ample time in which to instruct fresh counsel. In any event, the applicant had had the benefit of Mr Peters' advice, but still chose to plead guilty.
20.
Ground 2 is that the applicant was unable to offer a proper defence as the prosecution failed to state exactly how he was alleged to have committed the offences. This is unsustainable. The prosecution's case was clear.
21.
Ground 3 is that the applicant did not have adequate time to prepare a defence with his "last minute barrister". This is unarguable. The applicant's defence was set out in his defence statement, which was uploaded over five months before the trial. He was not starting from scratch on the second day of trial. The applicant could have instructed Mr Smith, or any other barrister who was available, in advance of the trial. He chose not to do so. He cannot rely on that choice as a ground of appeal.
22.
Ground 4 is that the case was not brought to trial within a reasonable time. That does not give rise to a ground of appeal. If the applicant had considered that the delay had been such that there could no longer be a fair trial, then the appropriate course would have been for him to apply for the prosecution to be stayed as an abuse of process. We do not suggest that any such application would have had any prospect of success. However, the applicant did not make such an application. Instead, he pleaded guilty.
23.
Ground 5 is that the applicant was not of sound mind when, with extreme reluctance, he conceded to change his plea to guilty, which he did for the purpose of securing the return of his dog. We have already dealt with the applicant's decision to plead guilty. The suggestion that he was not of sound mind is not supported by any medical evidence.
24.
Ground 6 is that the applicant's barrister was professionally negligent by failing to advise the applicant of the full consequences/ramifications of pleading guilty and incorrectly advised the applicant that he would be given credit for his guilty pleas. We have already indicated that we do not regard the dispute between the applicant and Mr Smith as to the adequacy of Mr Smith's advice as relevant to the determination of this application. The applicant would not have considered pleading guilty, whatever its consequences, unless he considered that he had no prospect of being acquitted.
25.
Ground 7 is that the trial judge displayed prejudice from the outset of the trial. We see no basis for this allegation. We note that it formed no part of the reasons offered by the applicant for his decision to plead guilty. Moreover, the appropriate remedy in a case of apparent bias on the part of the judge would have been to invite the judge to recuse himself. That was not done.
26.
Ground 8 is that there were very few agreed or established facts in the case by virtue of the witness statements being largely contradictory. Any contradictions between the witnesses' evidence could have been explored at trial if the applicant had chosen to maintain his not guilty pleas. He chose not to do that.
27.
In the submissions which he has made since filing his grounds of appeal, the applicant has, amongst other things, placed particular emphasis on his contention that a dog who is on a lead is, by definition, not out of control, with the result that he could not have been guilty on either count. There is no basis in
the Act
for such a contention. Indeed, the decision of this court in
R v
Gedminintaite
[2008] EWCA Crim 814
flatly contradicts it. In other words, it would not have been a defence for the applicant to say that his dog was on a lead.
28.
In his submissions today, the applicant has referred to various items of evidence which he says support his case as to the causation of the injuries sustained by Mr Mitchell and Miss Lackey and as to the conduct of his dog. These are all matters which could have been ventilated at a trial if the applicant had chosen to maintain his plea of not guilty. He chose, instead, to plead guilty.
29.
Accordingly, and for the reasons which we have given, this renewed application is dismissed.
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________________________________ | [
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] | 2021_04_22-5169.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/659/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/659 | 864 |
254a3d46129e7ea2d52895d70665772534b5036a7dc1e90e74b0964eb74ffaeb | [2005] EWCA Crim 2750 | EWCA_Crim_2750 | 2005-10-17 | martial_court | Case No: 2005/01518/C5 , 2005/02663/C5 Neutral Citation Number: [2005] EWCA Crim 2750 IN THE COURTS MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday, 17 October 2005 B e f o r e: THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( The Right Honourable Sir Igor Judge ) MR JUSTICE RODERICK EVANS SIR CHARLES MANTELL - - - - - - - R E G I N A - v - ANTHONY APPLEYARD - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, Lon | Case No:
2005/01518/C5
,
2005/02663/C5
Neutral Citation Number:
[2005] EWCA Crim 2750
IN THE COURTS MARTIAL APPEAL COURT
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Monday, 17 October 2005
B e f o r e:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(
The Right Honourable Sir Igor Judge
)
MR JUSTICE RODERICK EVANS
SIR CHARLES MANTELL
- - - - - - -
R E G I N A
- v -
ANTHONY APPLEYARD
- - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -
MR GILBERT BLADES
appeared on behalf of
THE APPELLANT
MR P ROGERS
appeared on behalf of
THE ARMY
- - - - - - -
J U D G M E N T
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:
1.
This is the resumed hearing of the appeal by Anthony Appleyard against his conviction at a court martial held in December 2004 at Catterick. On Wednesday of last week, 12 October 2005, we rejected the submission by Mr Gilbert Blades on his behalf that the directions given by the judge advocate on duress were defective. That conclusion was reached in the context of this particular case.
2.
We now turn to an argument of some importance to court martials generally. It arises in this way. In the course of the directions given by the Judge Advocate he told the members of the Board in express terms that on retirement they should "try to reach a verdict upon which each one of you is agreed". He went on that when it became possible for a majority verdict to be accepted he would give a further direction.
3.
Shortly before the Board retired he returned to this topic. He again directed the Board to try to reach a verdict on which they were all agreed and told them that they should not "worry" about majority verdicts at that stage. In due course, when the court martial re-convened, the judge advocate began by asking whether verdicts had been reached on all charges on which all members were agreed. The presiding officer said that they had.
4.
Mr Blades makes the short but stark submission that the convictions should be quashed, notwithstanding that each individual member of the Board was convinced of the appellant's guilt. He says that the directions by the Judge Advocate contravened
section 96
of the
Army Act 1955
. This provides that verdicts of a court martial "shall be determined by a majority of the votes of the members of the court".
5.
In his oral submissions this morning Mr Blades pointed out that in one sense the arrangements for court martials in the military sphere were well ahead of
section 17
of the
Juries Act 1974
, which introduced majority verdicts in civilian cases. Mr Blades also sought to draw assistance from the Court Martial Army Rules 1997, rule 70(4) of which provides that the vote of each member of the court should be given in "reverse order of seniority". He suggested that there was a specific purpose for this provision. That was to avoid the risk that junior officers would be influenced, or improperly allow their views to be influenced, by the views of their superior officers whose orders in any other area of military life would be obeyed.
6.
On examination we find that the Judge Advocate directed the Board in terms that the vote of the most junior officer should be taken first, with the remaining votes delivered in ascending order of rank. There was, therefore, no misdirection on this point. Moreover, he further expressly directed that the court martial was not like the normal military situation and that in this context the view of each member of the Board was of equal value. In particular it was not for the presiding officer to make the decision. As the Judge Advocate said in unequivocal language, "Everyone's view and opinion is equal". That direction was entirely consistent with the briefing notes provided for the Board. Paragraph 31 of the 2002 edition of the Military Courts Guide provides:
"The President will normally initiate the discussion.... He should ensure that each member gives his opinion on finding in respect of each charge separately, in ascending order of seniority commencing with the junior member."
There is nothing to suggest that this briefing note or the judge advocate's directions were ignored. The paragraph continues:
"A unanimous decision is preferable, but a majority of votes will decide the issue."
That guidance is unequivocal. It is consistent with a recent direction given by His Honour Judge Jeff Blackett, the Judge Advocate General dated 30 November 2004. Practice Memorandum No: 1989 is entitled "Court Martial -- Direction as to Unanimity". It reads:
"I do not know whether all judge advocates at present routinely direct court-martial members to strive to reach a unanimous finding, but if this is not the uniform practice then I wish it to be so with immediate effect."
The memorandum goes on to invite judge advocates to incorporate into their summing-up in each case an appropriately modified form of the specimen direction linked to Criminal Proceedings Consolidation.
7.
Without making any formal concessions, Mr Blades was prepared to accept that there may be a good deal of sense in these arrangements. He is concerned, first, that they nevertheless constitute a contravention of
section 96
, and, second, that while
section 96
remains on the statute books, any changes in the practice, however desirable, are matters to which Parliament should attend. He suggests that the Judge Advocate's direction in this case might produce a series of votes by the members of the Board and that if the result of the Board's first vote on each charge were not unanimous, further votes would have to be taken to achieve the unanimity suggested by the Judge Advocate. His written submissions suggest that in any second or subsequent vote the junior officers would be aware of the way in which the senior officers had voted and might be influenced by that knowledge. This would deprive the Court Martial of the essential requirement of impartiality.
8.
Although not essential to our decision, we pause to note that Mr Blades' written argument suggests that a junior officer would necessarily seek an acquittal while a more senior one would apparently be convinced of guilt. We do not know how this might work in practice. More important, however, the basic suggestion is not realistic. Any final determinative vote would come after a debate between the members of the Court Martial. It would be a pretty dull officer who would be unable to discern from the debate itself what the views of his colleagues, of whatever rank, would be likely to be and how, when it came to the final determinative vote, they would be likely to vote. That said, after the debate and after listening to the views of all his colleagues, the most junior officer at the Court Martial, and all its other members, too, will and can confidently be expected to vote as directed by conscience. As Lord Bingham of Cornhill observed in
R v Spear, Hastie and Boyd
and
R v Saunby and Others
[2003] 1 AC 734
, 752, after a speech in which all these issues were fully analysed:
"Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so."
9.
The argument by Mr Blades assumes that the Judge Advocate directed that there should be a series of formal or determinative votes culminating in a unanimous decision. We are unable to accept this premise. We assume that, like any other jury in the course of the debate, the presiding officer, like the foreman of the jury, might, if he or she thought fit, from time to time wish to take soundings to see how any potential votes might be cast. This exercise, if it took place, would not be a series of determinative votes. Thereafter, assuming that the presiding officer decided that a determinative vote should be taken, which, notwithstanding the Judge Advocate's direction, produced not a unanimous but a majority verdict, that would be the verdict which would be returned in due course after a majority direction had been received from the Judge Advocate, or after the presiding officer had sent a written indication to him that the Board was unable to reach the unanimous verdict he had asked them to try to reach. We are all familiar with these processes in the civilian criminal justice system. There is no reason to assume that members of a court martial would be likely to behave differently.
10.
In the end, with respect to Mr Blades' written submission, the Human Rights Act and the challenge that the direction given by the Judge Advocate that the Board should "try" to reach a unanimous verdict somehow deprived the court martial and its members of its and their independence and impartiality as a tribunal established by law does not withstand analysis.
11.
Our conclusion can be simply expressed. The Judge Advocate had no jurisdiction to refuse to accept a majority verdict from the Board. However, he was entitled to direct the members to seek or try to return a unanimous verdict if they could. That is what he did. A unanimous verdict is, indeed, preferable, if that is the verdict to which each member can conscientiously come. The direction given by the Judge Advocate did not produce a situation in which a majority of votes in favour of an acquittal (a majority verdict acquittal) would somehow have been rejected or treated as if it could not be returned. The Board would have been likely to have understood from the directions as a whole that if their efforts to reach a unanimous verdict failed, then in due course a majority verdict would be taken. For this purpose it would probably be better practice for any directions given to the Board on this topic to run along lines which expressly acknowledge that in the end the Board is entitled to return a majority verdict, but that it would be preferable for the Board to start its deliberations by seeking if possible to return a unanimous verdict. The directions in this case did not quite echo this suggested language. That said, we can see no justification for interfering with these verdicts and quashing the convictions. Accordingly, these appeals against conviction on this ground, too, are dismissed.
12.
We must now turn to issues of sentence. We shall not repeat the essential facts relating to these convictions which are set out in our earlier judgment. We simply record that the appellant was sentenced to 297 days' detention and reduced to the ranks. It was acknowledged by Mr Blades in his helpful submissions on behalf of the appellant that the most serious charge related to the attempts by the appellant to pervert the course of justice. However, he pointed out that the appellant had fourteen years' reckonable service without any previous civil or military charge. The reason for sentence provided by the judge advocate acknowledge that if the three offences relating to the DVDs had stood alone, a small financial penalty would have been appropriate. However, the Board was extremely concerned that a corporal had used his influence to try to persuade a young soldier of 17 years of age to tell lies and to become involved in an attempt to pervert the course of justice. The appellant was in a position of an instructor. He should have been giving guidance to young soldiers. In any event, therefore, his conduct represented a breach of trust to youngsters who might themselves have been put at the risk of criminal proceedings. The Board recognised the factors in mitigation, including the appellant's previous good character, his long-standing ambition to be a soldier and the service he had given, as well as his real personal difficulties at home.
13.
The Judge Advocate pointed out that the Board had seriously considered dismissal from the army at that stage, but concluded that a more merciful sentence should be imposed -- one which would not make the appellant unemployed or render his family homeless.
14.
Mr Blades submitted that the sentence was excessive. The reduction to the ranks followed from the order of detention, although the judge advocate indicated that, even without the sentence of detention, the appellant's convictions meant that he was no longer fit to be an NCO.
15.
We have considered Mr Blades' submission. It seems to us clear that the Board was profoundly concerned not only by the serious offence of attempting to pervert the course of justice, but its potential impact on young soldiers. We share the concerns of the Board. We see no basis for interfering with the sentence.
16.
We turn to the second appeal against sentence only, which arose from the appellant's guilty pleas to two offences of indecent assault before a court martial held at Catterick in March 2005. On 4 April the appellant was sentenced to be dismissed from Her Majesty's Service, together with nine months' detention to run consecutively to the sentence imposed on 28 January 2005. We note, in addition, that the financial consequences of these orders would have been very significant. The appeal is brought by leave of the single judge.
17.
The facts can be summarised briefly. We note that a written basis of plea was prepared and, as far as we can see, accepted by the prosecution. By the time that the advocate for the prosecution had finished opening the case, it was necessary (and appropriate) for Mr Blades to remind the Court Martial of the existence of that written basis of plea and to invite the members to focus their attention on it.
18.
The facts of the case were that the appellant, then still a corporal, worked as an instructor. The complainant was an 18 year old female trainee, to whom the appellant paid an increasing amount of attention. He invited her to go out with him and left messages on her mobile phone for her. From time to time he would call her away from PT and march them back to their accommodation so that they could avoid doing PT which they did not enjoy very much. The appellant was twice the young woman's age.
19.
The first charge related to an incident which occurred in Hanger 1 after the complainant had been stood down from PT by the appellant. The agreed basis of plea reads that the two of them were in the hanger and that when the complainant was walking towards the lavatory the accused walked up behind her saying, "Keep walking. I can't do anything to you because my wife is in the hanger". He continued to follow her. When the coast was clear he grabbed her by the arm and pulled her to a secluded place where they would be out of sight. There he put his arm around her waist, tried to pull her shirr out of her trousers, and kissed her neck. She then made an excuse about seeing another corporal. That was the end of the incident.
20.
The second occasion occurred a few days later in similar circumstances. The appellant told an NCO that the complainant was going to police the blocks with him to ensure that only those people with a valid reason to be there had remained in them. According to the complainant, she was reluctant to go into one of the rooms with the appellant who invited her to join him there, to shut the door and to stand beside him at the window to look at the snow. According to the agreed basis of plea, during the course of inspecting several blocks, the appellant touched the complainant several times on her bottom, kissed her lips, cheek and neck and pulled her shirt out of her trousers.
21.
The matter was not reported initially because the complainant did not wish to make trouble as she only had a few weeks of training left. The appellant continued to pester her. He invited her to his home when his wife was out. On one occasion he rang her fifteen times while she was unavailable because she was at the cinema. Because she felt that she could not get away from the appellant, the complainant then reported what had happened.
22.
In interview the appellant denied the offences, but he pleaded guilty on the agreed basis of plea which we have indicated.
23.
The significant criticisms of the sentence advanced by Mr Blades can be summarised briefly. First, and most important, it does not appear that sufficient attention was given to the written basis of plea which was accepted by the prosecution. Second, there was a possible misunderstanding about the impact of evidence about the way in which the complainant was seen to behave at a time when, it was common ground, she would have been inebriated. Mr Blades suggests that it was a legitimate point in mitigation that there was some independent evidence to indicate that the complainant had not then appeared to find that the appellant's advances to her were distasteful or repugnant. Next, he points out that in the scale of these offences this case, which never involved the touching of bare flesh in any intimate part, let alone any contact of the same kind, was to be regarded as at the lower end of significance and therefore a case which would attract the lower end of sentence. Finally, Mr Blades submitted that the sentence for this offence should have been put in the context of the sentence imposed on the appellant following his conviction at the first court martial, and that the totality of sentence included not only the overall length of the period which he would have to serve in custody, but also the significant overall financial damage consequent upon the orders made by the two court martials.
24.
We have no doubt that a prison sentence was appropriate for these two offences. The Board would rightly have been concerned for military discipline, morale and recruitment, particularly in the context of efforts to attract young women into the Service. It was necessary to make clear to them, and indeed throughout the Service that, so far as possible, women, and young women in particular, would be protected from unwelcome sexual attention and that those convicted of such offences should expect significant punishment.
25.
Reflecting on these considerations and looking at the sentence overall, which Mr Blades rightly invited us to do, we have concluded that we should not interfere with the sentences imposed on the appellant for indecent assault but that, as a matter of totality, we should order that the sentences will run from the date of conviction. To that extent, therefore, this appeal will be allowed.
_____________________________ | [
"MR JUSTICE RODERICK EVANS",
"SIR CHARLES MANTELL"
] | 2005_10_17-615.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2750/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2750 | 865 |
b33cbc04e612e241f764e8195256470aa2635919f09f80fe604c0cc7355e4d31 | [2016] EWCA Crim 745 | EWCA_Crim_745 | 2016-06-23 | crown_court | Neutral Citation Number: [2016] EWCA Crim 745 Case No: 201602604 B2; 201602614 B2; 201602611 B2; 201602610 B2; 201602609 B2; 201602607 B2; 201602606 B2; 201602605 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT NOTTINGHAM HER HONOUR JUDGE COE QC T21057427; T21060328; T20160330; T20160329; T20167026; T20157408; T20157425; T20157426 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/06/2016 Before: LORD JUSTICE TREACY MRS JUSTICE ELISABETH LAING DBE and RECORDER | Neutral Citation Number:
[2016] EWCA Crim 745
Case No: 201602604 B2; 201602614 B2; 201602611 B2; 201602610 B2; 201602609 B2; 201602607 B2; 201602606 B2; 201602605 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT NOTTINGHAM
HER HONOUR JUDGE COE QC
T21057427; T21060328; T20160330; T20160329; T20167026; T20157408; T20157425; T20157426
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
23/06/2016
Before:
LORD JUSTICE TREACY
MRS JUSTICE ELISABETH LAING DBE
and
RECORDER OF BIRMINGHAM HHJ INMAN QC (SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- v -
PW
PQ
JP
AM
MC
BC
LD
PC
- - - - - - - - - - - - - - - - - - - - -
(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)
- - - - - - - - - - - - - - - - - - - - -
B. Aina QC and Miss M. Karaiskos
(instructed by CPS) for the Crown
A. Radley
(instructed by Registrar for Criminal Appeals) for PW
Miss C. Fordham
(instructed by
Registrar for Criminal Appeals) for PQ
P. Jarvis
(instructed by
Registrar for Criminal Appeals) for JP
P. Jarvis
(instructed by
Registrar for Criminal Appeals) for AM
A. Kerry
(instructed by
Registrar for Criminal Appeals) for MC
N. Barraclough
(instructed by
Registrar for Criminal Appeals) for BC
J. Stone QC and P. Jarvis
(instructed by
Registrar for Criminal Appeals)) for LD
Miss O. Daley
(instructed by
Registrar for Criminal Appeals) for PC
Hearing date: 16th June 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment As Approved by the
Lord Justice Treacy:
1.
This is an application by the Crown for leave to appeal a terminating ruling under Section 58 of the Criminal Justice Act 2003 (“the 2003 Act”). We have to say that the papers have come to us in a degree of disarray and piecemeal. The members of the court have been required to work under considerable pressure of time both before and after the hearing so that the parties may make arrangements for a trial which is due to start very shortly. For all those reasons this judgment will concentrate on what is necessary to be decided and will not be as long or as detailed as it might have been had greater time been available.
2.
At the outset of the hearing we made certain orders dealing with reporting restrictions. We confirm those orders. Section 71 of the 2003 Act applies so that there will be no reporting of these proceedings until the conclusion of the trial, subject to those matters which are permitted by section 71. Secondly, in the case of the victim L, the provisions of the Sexual Offences (Amendment) Act 1992 provide her with anonymity and protection against identification. In the case of the respondent PW we confirm an order under section 45 of the Youth Justice and Criminal Evidence Act 1999 so that no matter likely to identify PW as a person concerned in these proceedings is to be published whilst he is under 18. That order will expire on 10th May 2017.
3.
An extensive police investigation was carried out into sexual exploitation said to have been committed by young male members of the travelling community. This resulted in an 82 count indictment charging 23 separate defendants. There were allegations of a range of offences including rape, trafficking, assault by penetration, and making indecent photographs of a child. The vast majority of the offences were alleged to have been committed against one particular complainant, L, who was aged 15 at the time of the offences.
4.
Clearly the 82 count indictment was not triable in that form. Accordingly the allegations were divided into at least three trials.
5.
The first trial involved a 40 count indictment, concerning 8 defendants. It took place between January and March of this year, and ended with a ruling by the judge that there was no case to answer in respect of 7 of those defendants. None of those defendants is involved in the present application. L was held to be an inherently unreliable witness. Her evidence had been fundamentally contradicted by other witnesses, she was shown to have told extensive and provable lies on oath, and had attempted to persuade a prosecution witness to lie on her behalf. There was no appeal against that ruling. All of the counts tried on that 40 count indictment were of contact sexual offences and did not involve indecent photographs.
6.
As a result of that ruling, the Crown decided to abandon L as a prosecution witness. It would not rely in any future trial on a count which was based partly or solely on her testimony. The effect of this decision was that all contact sexual offences in the prosecution as a whole were brought to an end.
7.
Following the ruling of 10th March 2016 the prosecution decided that it would prosecute defendants where indecent images of L had been recovered from mobile phones. There had been indecent image counts on the original 82 count indictment. Those counts were based on L’s testimony, but as already stated, these had not been tried on the 40 count indictment. The Crown had in fact served evidence prior to the trial showing that some defendants’ mobile phones contained indecent images of the same activity, but, since it had been served relatively late, decided not to rely on it at the first trial.
8.
Having reviewed the matter after the first trial, the Crown decided to prefer a 15 count indictment against 10 defendants, bringing charges of making an indecent photograph of a child contrary to Section 1(1)(a) of the Protection of Children Act 1978 (“the 1978 Act”). L was not to be called as a witness, although she was depicted in virtually all of the images or films identified. The Crown intended to prove those counts solely by reference to what could be seen on the various mobile phones.
9.
Lengthy submissions were made to the trial judge that for the Crown to proceed would be an abuse of process. A core submission was that the defendants could not have a fair trial unless L gave evidence. In any event it was submitted that the Crown was seeking to have a second bite of the cherry, having lost the first trial. Additional arguments were raised in support. They included arguments to which we will refer later, relating to the mens rea of the Section 1(1)(a) offence, whether a decision to prosecute was disproportionate in view of the likely sentence, and whether it was wrong to prosecute defendants under the age of 18 for offences against L.
10.
On 26 May 2016 the judge upheld the defence submissions ordering that the proposed indictment should be stayed.
11.
We next need to say a word about the defendants on the proposed 15 count indictment which was stayed. There were 10 defendants in all, but two of them, TR and JO are not the subject of this application, their prosecutions having been terminated for other reasons. Four of them, PW, PC, LD and BC, appeared on the original 82 count indictment, and were not tried on the 40 count indictment, but had featured in counts brought under Section 1(1)(a) which had been intended to be tried after the trial of the 40 count indictment. Three other defendants on the original indictment were the respondents AM, JP and PQ. They did not at that time face any indecent image charges. However after the conclusion of the first trial, the Crown commenced proceedings against them in the Magistrates Court based on the evidence recovered on mobile phones. That case was sent to the Crown Court. The respondent MC was arrested in December 2015, and was to be a defendant in a potential fourth trial involving him and another man, in which he faced an indecent images count in relation to L. He had not been part of the 82 count indictment at all.
12.
What the Crown proposed to do was to bring these 8 respondents together on a single indictment containing indecent image counts in relation to L and to prove its case primarily by reference to images recovered from mobile phone. These were images in the form of photographs and videos depicting L engaging in various sexual activities with some respondents, photographed by another respondent.
13.
The Crown had indicated its intention to take this course very shortly after the judge’s ruling of 10th March and lodged with the court by electronic means its proposed 15 count indictment which drew on the sources identified above. But for the abuse application, the Crown would have made applications to bring the respondents together on a single indictment to deal with any existing indictments, and to amend, within the new indictment, counts which had featured in the existing indictments. In the event no rulings were made on those applications because the judge brought the proceedings to a halt by granting a stay.
14.
As already stated the judge upheld the defence submissions and stayed the proposed indictment which had been lodged electronically with the Court, under the new better case management regime. The judge gave a substantial ruling, accepting most of the contentions made on behalf of the respondents and concluding as follows:
“In any event for the reasons I have already referred to, I would not permit the prosecution to add new counts to the indictment which could have been brought in the original indictment and were not. I therefore find that the abuse of process argument is established and I rule that this indictment, draft or otherwise, with the counts thereon should be stayed as an abuse of process.”
15.
The Crown sought time in which to mount an appeal. The judge granted an adjournment. On the 2nd June 2016 Mr Atkinson QC, who then represented the Crown, informed the Court of the Crown’s intention to appeal and gave the necessary undertaking pursuant to Section 58(8). It is highly regrettable that, having been granted an adjournment of about a week, counsel did not return to the court with grounds of appeal prepared. Nothing was provided in writing either to the judge or to the respondents. This meant that after the Crown informed the court of its intention to appeal it required further time to formulate its grounds. Leading counsel was then replaced by different counsel who in some respects did not share his predecessor’s views about the proposed appeal. All of this has led to the disarray referred to earlier in this judgment.
16.
Section 58 sets out requirements compliance with which are preconditions to an appeal. Section 58 is in the following terms:
“58 General right of appeal in respect of rulings
(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
(2) The prosecution may appeal in respect of the ruling in accordance with this section.
(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).
(4) The prosecution may not appeal in respect of the ruling unless—
(a) following the making of the ruling, it—
(i) informs the court that it intends to appeal, or
(ii) requests an adjournment to consider whether to appeal, and
(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.
(5) If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment.
(6) Where the ruling relates to two or more offences—
(a) any one or more of those offences may be the subject of the appeal, and
(b) if the prosecution informs the court in accordance with subsection (4) that it intends to appeal, it must at the same time inform the court of the offence or offences which are the subject of the appeal.
(7) Where—
(a) the ruling is a ruling that there is no case to answer, and
(b) the prosecution, at the same time that it informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,
that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.
(9) Those conditions are—
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal.
(10) If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.
(11) If and to the extent that a ruling has no effect in accordance with this section—
(a) any consequences of the ruling are also to have no effect,
(b) the judge may not take any steps in consequence of the ruling, and
(c) if he does so, any such steps are also to have no effect.
(12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.
(13) In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the time when the judge starts his summing-up to the jury.
(14) The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.”
17.
Submissions have been made on behalf of the respondents suggesting that this Court does not have jurisdiction because the prosecution has not complied with the terms of section 58. There is a question as to whether the judge made one or more rulings. There is a further question as to whether there was any ruling in relation to a trial on indictment given the way in which the 15 count indictment had come to the Crown Court. It is submitted that in the circumstances there is no indictment in existence, and that without one there could not be a ruling giving rise to an appeal under the 2003 Act. It was suggested that in addition to the ruling on abuse, decisions to refuse to permit the indictment to be signed out of time, and to refuse to permit amendment or addition to the indictment, were discrete rulings which cannot be pursued because they had not been identified to the Court as rulings which the Crown wished to appeal on 2nd June, when the prosecution notified its intention to appeal. Additionally, it was argued that if those were rulings and the appeal relating to them fails, then irrespective of the position on abuse of process, the acquittal agreement must apply.
18.
We note the broad definition given to “ruling” in Section 74(1) of the 2003 Act. We have further considered the terms of the judge’s ruling of 26 May, and it is clear that she made a single ruling staying the indictment for abuse based on a number of findings to which we shall come, and which she recited in her judgment. The transcript of 2nd June clearly shows that the judge stated that she had stayed the proceedings with the result that she could not entertain questions of joinder and amendment of counts. It is also clear that the sole ruling which it was indicated that the Crown sought to appeal related to the stay for abuse of process. That is the only ruling identified by the Crown at the relevant time, namely the hearing of 2nd June, as one which it wished to appeal. The fact that in documents subsequently submitted to this Court the Crown identified matters relating to the indictment as rulings it wished to appeal does not affect the position. In relation to those matters there is no appeal before the court to which section 58 applies because no such ruling was identified at the relevant time and no acquittal agreement was entered into in relation to those matters. Those matters will fall to be ruled upon in the future by the trial court in the light of the conclusions to which we have come in relation to the one ruling validly before this Court, namely that relating to abuse of process. Thus, we take the view that there is a single ruling relating to abuse of process to be considered.
19.
Some play has been made before us about the formal requirements for a valid indictment before the Court. Those submissions, it seems to us do not appear to recognise the fact that there have been significant changes in the relevant formalities. The correct analysis as it seems to us is as follows. Prior to the amendment of Section 2 of, and Schedule 2 to, the Administration of Justice (Miscellaneous Provisions Act) 1933 (“the 1933 Act”) by the Coroners and Justice Act 2009, it was a requirement of the 1933 Act that a bill of indictment be signed by the proper officer of the court in order for it to become an indictment. The legal position now is that once a bill of indictment charging a person with an indictable offence for which he may lawfully be indicted in the Crown Court has been preferred, it becomes an indictment (see Section 2(1) of the 1933 Act and Archbold 2016 edition at 1-191). Accordingly lack of a signature does not invalidate an indictment.
20.
Prior to the advent of the Crown Court paperless digital system it was good practice for an indictment to be signed. The new digital system aims at paperless administration of cases through the criminal justice system. It involves the CPS entering an indictment onto the Crown Court digital system. The Criminal Procedure Rules 2015 at Rule 10.1, require service of a draft on the Crown Court no more than 28 days after service of prosecution evidence. Service can now be by electronic means. Accordingly it seems to us that a signature is no longer needed to make an indictment valid. An indictment is preferred within the meaning of Section 2(1) of the 1933 Act, once it is electronically entered onto the Court digital system at the Crown Court. The consequence is, as Section 2(1) provides, that “it shall thereupon become an indictment and be proceeded with accordingly”.
21.
Moreover the phrase “a ruling in relation to a trial on indictment” has, as was observed by this Court in
R v Thompson
&
Hanson
[2007] 1 Cr App R 15
, a broad meaning which is made plain by a consideration of Section 58 (13). This defines the reference to “an applicable time” in subsection 1 as meaning any time, whether before or after commencement of the trial, before the judge starts his summing up. In all those circumstances we have no hesitation in holding that the judge’s ruling as to abuse of process falls within the terms of Section 58 so that this Court has jurisdiction to entertain this application for leave. We should explain that this is an application for leave because the judge below refused leave upon the Crown’s application, not least because despite the adjournment the Crown had not come armed with any written grounds or materials in time for the hearing of 2nd June.
22.
We note that under section 58(6)(b) there is a requirement for the Crown to identify the offence or the offences which are the subject of the appeal. That must be done at the time of indicating an intention to appeal. At that hearing on 2nd June 2016 prosecuting Counsel identified several counts which are or correspond to counts 1, 5, 9, 10, 11, 12, and 15 of the 15 count indictment. At the hearing itself counsel muddled the numbers to some extent, but what was intended is clear from the transcript and no point has been taken about it. Subsequently a document containing Mr Aina’s submissions dated 7th June indicated at paragraph 106 that no appeal was pursued in relation to count 9. Count 9 related to BC.
23.
Mr Aina sought leave before us to pursue his appeal in relation to other counts on the 15 count indictment as he wished to take a different approach from that adopted by Mr Atkinson. We refuse leave. Firstly Mr Atkinson elected which counts he wished to pursue by way of appeal, having had a week in which to decide. There is no good reason why the Crown should not be held to that election. Secondly, we are very doubtful that the Crown can rely on Part 36.3 of the Criminal Procedure Rules 2015 so as to extend time in relation to the identification of counts to be the subject of this appeal. Rule 36.3(a) permits an extension of a time limit “unless that is inconsistent with other legislation”. Given the clear terms of section 58 and the strictness with which it has been construed by this Court we do not consider that it is now open to the Crown to extend the number of counts covered by this appeal.
24.
The result is that the counts before the court in this appeal are count 1 (PW and PC); count 5 (LD); count 10 (AM); count 11 (JP); count 12 (PQ); count 15 (PC).
25.
Since the Crown does not now pursue count 9 in relation to BC we refuse leave in relation to that count and in accordance with the acquittal agreement order BC’s acquittal on that count. As there are counts other than those identified by us in the preceding paragraph, it will be for the Crown and the Crown Court to ensure that appropriate dispositions are made and recorded in relation to them. We only have jurisdiction in relation to counts properly before us.
26.
We are accordingly satisfied that the jurisdictional challenges to this hearing fail and go on to consider the merits of the judge’s ruling in relation to the counts we have identified.
27.
The judge’s ruling was made in the context of the 40 count trial in which it emerged that L was a wholly unreliable witness. As a result of the evidence which had emerged at that trial, the Crown could not portray L in those or in any future proceedings as someone who was the non-consensual victim of what was done to her. The judge recognised that the court’s power to stay proceedings for abuse arises in two categories of case; firstly where it would be impossible to give the accused a fair trial; and secondly where it offends the court’s sense of justice and propriety to try the accused or where a trial would undermine public confidence in the criminal justice system and bring it into disrepute. The judge correctly recognised that the remedy of a stay is to be granted rarely and that there was a burden on the defence to establish such abuse.
28.
The judge gave a variety of reasons why a stay should be granted. They appear to us to cover both categories under which a stay is possible and led the judge to the overall conclusion that a stay should be granted. The Crown challenges the various aspects of the judge’s reasoning. The respondents support the judge. Those positions reflect the contending arguments advanced to the judge below. We will deal with them in turn.
29.
The first matter concerns the mental element relating to an offence under section 1(1)(a) of the 1978 Act. The judge accepted an argument that the mental element of the offence should not only be that the act of making the image was deliberate and intentional, but also that a defendant should have knowledge that the image made was or was likely to be an indecent image of an under-age child. In other words, the judge was holding that the Crown must prove that a defendant knew that L was or was likely to be under 18. There was evidence in some instances that L had lied about her age, and in others that the respondents knew that she was under 18.
30.
In so concluding, the judge noted the decision in
R v Smith and Jayson
[2003] 1 Cr App R 13
, where, in cases involving a section 1(1)(a) charge based on downloading an image to a computer or opening an email attachment, this Court held that the
mens rea
included a requirement of knowledge that the image made was likely to be an indecent one of a child. The judge was also aware of the decision of this Court in
R v DM
[2011] EWCA Crim 2752
, which was not a downloading case but one of taking photographic images on a phone and where the court held that there was no mens rea requirement beyond establishing that a defendant took the photograph deliberately and intentionally.
31.
In the present case, the defence argued, and the judge accepted, that it was anomalous that there should be different approaches to the
mens rea
of the section 1(1)(a) offence. We do not think that that conclusion is right. Having considered
R v Land
[1998] 1 Cr App R 301,
R v DM
,
R v AM
[2015] EWCA Crim 353
and
R v Smith and Jayson
, we have come to the conclusion that there is a distinction to be drawn between two types of case. The issue in
Smith and Jayson
was what was meant by “makes” in the context of images made by being downloaded to a computer or phone from the internet or via email. The other cases deal with the making of an image by the act of photographing or filming. Given particular considerations relating to a phone or computer user’s awareness as to what he is downloading, it is understandable that a different approach has been adopted for that situation. That should not affect the position where the making of an indecent image takes place through the more direct action of photographing or filming. In those circumstances, the offence is made out by the deliberate act of photographing or filming without more. Accordingly, we do not consider that the judge was correct in accepting the defence submissions on this point, where a defendant is involved as a principal, subject to a distinct point in relation to PQ, which we consider below.
32.
Allied to the previous point is a separate submission. Some of the respondents are charged not on the basis that they made the photograph or film by using their phone to record it, but on the basis that they are guilty of an offence contrary to section 1(1)(a) by having participated in the filmed sexual activity which was taking place with L. The Crown’s case was that an inference of participation could be drawn from the fact of presence and involvement in the indecent acts as well as from behaviour during the filming. The judge was of the view that involvement of that sort was not sufficient without the Crown calling witnesses (presumably L) to demonstrate criminal involvement. There is said to be evidence in one or more cases that the respondent asked for the filming to stop. That may suggest prior knowledge that filming was to take place. It seems to us that taking part in sexual activity goes beyond mere presence at the event being filmed and is capable of giving rise to an inference of participation in the offence. Whether that inference is one which can rebutted by evidence from within the video itself or evidence advanced by a respondent is a matter for assessment in the course of an application to dismiss a submission of no case to answer, or of a decision of the jury. It does not seem to us that it is a matter which is appropriate for us to determine in this appeal in circumstances where we conclude that involvement in the sexual acts and other depicted behaviour is at least capable of creating an inference of participation in the section 1(1)(a) offence.
33.
A further related submission is that any defendant who was proved to have been involved in the making of the image or images by his participation in the indecency being filmed or photographed would not be a joint principal in the offence but an accessory to it and, in such circumstances, the prosecution would have to prove that he knew that L was under 18.
34.
Whether the involvement of any defendant in the making of a photograph or film amounted to that of principal or accessory can, and should, be determined, on the relevant evidence, as part of the trial process. Similarly it will be a matter for the trial judge to determine as a matter of law whether the evidence of particular involvement of a defendant as an accessory would require the prosecution additionally to prove in his case that he knew L was under 18. These are issues that can properly be determined in the trial process, no doubt informed by the decision in
R v Jogee & anor
[2016] 1 Cr App R 31
.
35.
The next strand of the judge’s reasoning related to the proportionality of a prosecution. In particular, the judge considered that a prosecution was disproportionate having regard to the young ages of the respondents, their previous good character, and the unlikelihood of any significant sanction beyond sex offender registration by the court since all had spent some months in custody. In addition, the judge concluded that the CPS had failed to apply its own guidance in relation to the proportionality of pursuing a defendant under the age of 18 (in this case PW, PC, AM and MC), particularly where L, who must now be viewed as a consenting participant, was not being prosecuted.
36.
We also received submissions that those respondents who were under the age of 18 at the time and who were alleged to be involved by reason of their filmed participation in events should be regarded as persons to be protected under the legislation rather than criminal perpetrators, in much the same way that L was.
37.
In relation to the decision to prosecute, we consider that the judge was in error. Decisions whether to prosecute, including considerations of context, are matters for the CPS and not for the court, unless there is misconduct or oppression of the type explained in
R v Horseferry Road Magistrates’ Court, ex p. Bennett
[1994] 1 AC 42
. We do not consider that the matters relied on come anywhere near falling to the
Bennett
class of case. Even if there was a failure to apply policy or guidance, that would not of itself affect the position. In this case however, there was credible material before the court showing the process by which the Crown had come to its decision.
38.
The purpose of the legislation is to protect children from others, and from themselves if need be. Whether or not L consented to the activities and to their filming, the fact is that she was a vulnerable and damaged young woman below the age of sexual consent and well below the age of 18, which is the relevant age for the purpose of a section 1(1)(a) offence. It is not for the judge to consider whether it is proportionate or in the public interest for a prosecution to be brought. As was said in
R v Paul Roberts and others
[2014] EWCA Crim 1475
, it is not the judge’s function to act as an additional filter of the public interest. Given that we are satisfied that no question of
Bennett
-type oppression arises here, we consider that the judge was in error in treating proportionality and public interest considerations as a relevant factor in her decision. We record that, in coming to this conclusion, we have considered
R v A
[2012] EWCA Crim 434
,
Moss v CPS
[2012] EWHC 3655 (Admin)
,
R (on the application of Barons Pub Co Ltd) v Staines Magistrates’ Court
[2013] EWHC 898 (Admin)
and
R v Golding
[2014] EWCA Crim 889
.
39.
Next, the judge held that the Crown’s decision not to call L as a witness but to seek to prove these allegations by other means, principally by images extracted from mobile phones, would be unfair. It would deprive defence advocates of the opportunity to cross-examine L as to the circumstances of the making of the images on the various occasions alleged. It would, she said, also have the effect of forcing defendants into the witness box. This is, of course, a type of charge which is frequently pursued in the absence of evidence from the victim in the images. Very often, the victim’s identity is unknown. The offence is proved by proving the contents of the mobile phone or computer. Accordingly, the prosecution’s proposal is not an unusual one.
40.
The essential question for us is whether the absence of L from the witness box makes the trial of respondents so unfair as to mean that the prosecution is an abuse. We note that the judge’s ruling of 10th March found that she was a thoroughly unreliable witness. There was ample ground for this. We are therefore dubious as to the value which could sensibly attach to any evidence elicited from this witness. If a respondent made the indecent images by filming, it is common ground that such a person is a principal offender. We have held that
R v DM
applies so that it is not necessary for the Crown to prove that such a person knew that L was under 18 in order to convict him. In those circumstances we do not consider that L could give any material evidence whose absence would disadvantage such a person.
41.
In the case of a person who is not doing the filming, but who is depicted as a participant, we have already indicated that the issue of whether that person is to be viewed as an accessory or a principal will have to be determined on the evidence adduced at trial. Whatever his status, the Crown has, through the images, evidence capable of showing involvement as a principal or accessory and has independent evidence that L was under 18.
42.
Even if the trial judge ruled as a matter of law that, in the case of an accessory, the prosecution was required to prove in the case of any defendant that he knew L was under 18, her absence as a witness would not render the trial of any defendant unfair. The prosecution are unable to rely on evidence from L. It would be a matter for the judge to determine at the close of the prosecution case whether the prosecution had adduced sufficient evidence upon which a jury could be sure that the defendant knew that L was under 18. If there was no such evidence, then a successful submission of no case to answer would follow. If there was sufficient evidence, then it would be a matter for the defendant as to whether he wished to give evidence as to his knowledge of L’s age. It is unrealistic to expect that if L was available that her evidence would materially assist a defendant as to the state of his knowledge and, of course, there would be no direct evidence from her as a witness available to the prosecution which could operate adversely to a defendant. The prosecution’s failure to call L does not force a defendant to give evidence. It leaves him with a tactical decision to make as to whether to give evidence or not as is the case in many criminal trials.
43.
The Crown has indicated that it will make appropriate admissions and will acknowledge that the activities depicted with L were consensual or, at least, not non-consensual, on her part. If there were to be convictions, the judge might have to have regard to evidence showing the state of mind of individual respondents as to L’s age and to the reasonableness of such a state of mind. There are materials in some cases which appear to show that they were aware that L was under 18, and the images themselves may assist the judge.
44.
For the reasons given we are satisfied, after considering issues that will or might arise at trial, that the absence of L as a witness could not justify a finding that any respondent could not be fairly tried. We are satisfied that the trial process has mechanisms appropriate to secure a fair trial in the absence of L as a witness.
45.
There was a discrete finding in relation to PQ. When arrested, his mobile phone was examined. Seven videos and one still image depicting sexual activity taking place with L were found. In interview he stated that the videos had been sent to him on WhatsApp. As we understand it, he is not alleged, unlike the other respondents, to have been directly concerned in the filming or to have participated in the activities depicted. The judge held that there was “a perception of unfairness” when PQ was being prosecuted in respect of images stored on his phone when those images had arrived by means of his membership of a WhatsApp group, none of whose other members had been prosecuted. We are unpersuaded that this forms a basis for sustaining an abuse argument since it would involve the judge entering the territory of prosecutorial discretion. The judge did not adopt a submission made by Miss Fordham on behalf of PQ that the Crown should have charged an offence under section 160 of the Criminal Justice Act 1988, which might provide PQ with a defence. We do not consider that the choice of charge is a matter for judicial intervention.
46.
However, the presence of indecent images on PQ’s phone arose in a manner akin to downloading on a computer. It seems to us that the
Smith and Jayson
approach to
mens rea
rather than the
DM
approach applies to PQ’s case. That raises questions of evidential sufficiency and is not a matter appropriate to an abuse application. However in the case of TR, who is not before the court since the Crown decided not to appeal in his case, the offending images reached his phone by a similar means. Miss Fordham submitted that it is unfair for the Crown to have taken a different approach to this respondent in this respect, and that the court should now regard that as something constituting an affront to the court’s sense of justice and propriety. We think there is some force in this point. Mr Aina himself acknowledged it, and fairly indicated that he would not press his appeal in the circumstances. We refuse leave to the Crown to pursue this application in relation to PQ. The consequence of that is that the acquittal agreement comes into force and we order the acquittal of PQ in relation to Count 12.
47.
This brings us to the final strand of the judge’s reasoning. She held that since the most serious charges had been dismissed at the end of the first trial, and since the rest of the serious contact charges against a large number of other defendants had been dropped by the Crown because of L’s unreliability, it was an abuse of process for the Crown to seek at this stage to revive or pursue for the first time charges relating to indecent images of children. The judge held that the combination of the passage of time and dismissal of the contact counts was such that was unfair and disproportionate for the Crown to pursue the present matters and that it represented an attempt to manipulate the process of the court. For these reasons it would not be right to allow the 15-count indictment to go ahead. To do so would require amendment of counts against PW, PC and LD which had been on the original 82 count indictment, or of the separate indictment against MC, or adding counts which could have been brought at that time against AM, JP and PQ and were not. The Prosecution, having decided to proceed in a particular way based on the assertion that non-consensual offences had been committed against L, was now seeking to change its stance in the light of the development that L had been shown to be totally unreliable as a witness.
48.
In this context we were referred to
R v Piggott and Litwin
[1999] 2 Cr App Rep 320. This was a decision relied on by the judge below. That case had involved a trial of conspiracy to handle stolen goods. The Crown had previously withdrawn substantive handling stolen goods counts and proceeded on a conspiracy charge. After a submission of no case to answer was made on the basis that the evidence did not show one overall conspiracy but a number of different conspiracies, the Crown successfully applied to amend the indictment by adding nine substantive counts and a new conspiracy count. The trial judge, however, discharged the jury and ordered a re-trial. A new judge at the re-trial declined to hold that the procedure was an abuse of process on the grounds that he had no jurisdiction to review the exercise of discretion by the first judge. This Court allowed the appeals, holding that the effect of allowing an amendment of the indictment at the close of the Crown’s case was to permit the Crown simply to start again (on a basis previously withdrawn), and offended the concept of a defendant being entitled to know the case he or she had to meet and the concept of a fair trial. The court held that the second judge had a separate jurisdiction in considering whether a re-trial would be an abuse and that a correct exercise of his jurisdiction would have been to halt the trial since the defendants had already been subjected to a trial on grounds chosen by the Crown over a ten-day period.
49.
It seems to us that that decision is distinguishable from the present circumstances. This case does not involve a proposed re-trial on essentially the same facts as a first trial. The issues in the proposed indictment have not been tried at all. The first trial was only concerned with contact offences and depended on the word of L. It did not involve any consideration of the phone images. As already explained, although the Crown had served the evidence in relation to phone images, prior to the first trial, on all defendants, the Crown did not deploy that evidence at that trial since it felt it had served it too late in the day. In addition, none of these respondents was involved in the first trial and so was never in jeopardy. There is thus, in this case, no question of the Crown seeking to go over ground on charges which have already been essentially adjudicated upon.
50.
In relation to those who had faced indecent image counts on the 82 count indictment, the question arises as to whether it would be an abuse for the Crown now to proceed on counts which, instead of relying on the oral evidence of L, relied on the material found on various phones. In the cases of PW, PC and LD, when the 82 count indictment was subdivided, it had been proposed that they be tried on the original indecent image counts in what would have been trials 2 and 3 following trial 1.
51.
Those respondents therefore knew that they were always going to face this type of allegation. The Crown would have been free at those later trials not only to rely on the evidence of L, but also to adduce the evidence of what was found on individual phones. The fact that as a result of its experience in trial 1 the Crown no longer proposed to rely on L does not detract from the fact that it had served other relevant evidence pertaining to these allegations many months prior to the proposed second and third trials. It does not seem to us that there is any improper manipulation of the process involved. The Crown is entitled to seek to adapt the presentation of its case in response to developments during a series of trials. Provided there is no unfairness, the Crown is entitled to adapt its position by the withdrawal of evidence or the addition of evidence.
52.
In this case it is relying on evidence originally served and seeking to amend the particulars of the indictment so as to identify the materials found on the individual phones. The essence of the allegations, namely that it was L, an under-age girl, who was abused and filmed at a time clearly identified in the original counts, has not changed. We do not consider that abuse is established where the Prosecution seeks to proceed in modified form with counts as originally laid. Identical considerations arise in the case of MC, who was arrested too late to be included in the original 82 count indictment, but who was included in a separate indictment which was to have formed part of a fourth trial and which included an indecent image count.
53.
In so concluding we have taken account of submissions made to us based on Rule 10.1 of the Criminal Procedure Rules which requires the service of a draft indictment on the Crown Court no more than 28 days after service of the evidence on which the charge or charges are based. We do not consider that this affects the fairness of the position. Whilst in the cases of these respondents the 15 count indictment was not served until about 4 months after service of the phone evidence, that evidence had been served in relation to the 82 count indictment and the separate indictment relating to MC, and the Crown had always indicated its intention to pursue counts against those respondents in relation to the making of indecent images on the same occasions as were revealed by the phone material.
54.
We then turn to the cases of AM and JP. The situation here was somewhat different. They had appeared on the original indictment but it contained no indecent image counts. It was only after the failure of the first trial that the Crown charged them with such counts although the evidence supporting those counts had been served in the way described prior to the start of the first trial. These respondents had been due to be tried on indictments for contact offences following the first trial. In the light of the outcome of that trial the Crown could not proceed with those offences and indicated that promptly whilst at the same time indicating that it was considering bringing indecent image charges. The question is whether this was such an offensive course of action as to amount to an abuse. If it were to amount to an abuse, it seems to us it would have to fall into that category which states that it would be unfair or unconscionable to have a trial.
55.
We are not persuaded that these cases fall into that category. There had been no assurances or action taken by the Crown to indicate that it would not proceed against these respondents. There had not been significant delay. There was always going to be a trial of these respondents in relation to what took place concerning L on specific occasions alleged. The Crown had served evidence of the phone material in relation to that at an early stage. In the light of the outcome of the first trial we consider that it was not abusive behaviour for the Crown to modify the way it put its case against these respondents arising out of the same incident and relying upon evidence which had already been served. Whilst the phone evidence might have been used as supporting material on the contact counts as originally envisaged, it could now found charges in its own right. These respondents had, of course, not faced any trial so there is no question of the Crown having a second bit of the same cherry in that sense. For these reasons we are unpersuaded that the judge was right to hold that this strand of the argument amounted to an abuse of process.
56.
It follows therefore that we are satisfied that the judge’s ruling on abuse was wrong in law and/or was one which was not reasonable for her to have made. We give leave to the Crown to bring this application in relation to PW, PC, LD, AM, JP and MC. Pursuant to section 67 we reverse that ruling and order that proceedings be resumed in the Crown Court on count 1 against PW and PC, on count 5 against LD, on count 10 against AM, on count 11 against JP, and on count 15 against MC. It will be understood that we have ruled on the question of the stay for abuse. Nothing we have said affects matters which are properly to be the province of the trial which will take place. Matters such as dismissal of charges, joinder of counts or indictments and amendment of counts, section 78 applications, submissions of no case, and directions to a jury will all be matters for the trial judge, as will other matters of law. We order the acquittal of BC and PQ on counts 9 and 12 respectively.
57.
Before we leave this matter we wish to express our recognition of the difficult position in which this judge was placed. This was a complex case. She had a myriad of submissions made to her and may not have had all the help she should have had. | [
"LORD JUSTICE TREACY"
] | 2016_06_23-3794.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/745/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/745 | 866 |
e1f1fd3595889082d6e9e3ccadf3d207dababe46dc8aa22760ea5a3f1ba96446 | [2008] EWCA Crim 3223 | EWCA_Crim_3223 | 2008-12-18 | crown_court | Neutral Citation Number: [2008] EWCA Crim 3223 No: 2008/5696/A4 and 2008/5698/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 18th December 2008 B E F O R E: LORD JUSTICE LATHAM MRS JUSTICE RAFFERTY DBE MR JUSTICE ANDREW SMITH - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NOs 62 and 63 OF 2008 R E G I N A -v- DANIEL ALAN VALENTINE DAMIEN PAUL JACKSON - - | Neutral Citation Number:
[2008] EWCA Crim 3223
No: 2008/5696/A4 and 2008/5698/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 18th December 2008
B E F O R E:
LORD JUSTICE LATHAM
MRS JUSTICE RAFFERTY DBE
MR JUSTICE ANDREW SMITH
- - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NOs 62 and 63 OF 2008
R E G I N A
-v-
DANIEL ALAN VALENTINE
DAMIEN PAUL JACKSON
- - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Palantype Notes of
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
Mr A Darbishire
appeared on behalf of the
Attorney-General
Mr G Pons
appeared on behalf of the
Offender
Valentine
Mr BR Narain
appeared on behalf of the
Offender
Jackson
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LATHAM: This is an application by the Attorney-General for leave to refer to this court sentences on these two offenders on the grounds that they were unduly lenient.
2.
We give leave.
3.
The first offender is Daniel Valentine, who is 28 years of age. The second is Damien Jackson, who is 22 years of age.
4.
On 15th August 2008 Valentine pleaded guilty to six offences of robbery, one offence of attempted robbery and an associated offence of taking a motor vehicle without authority. An additional offence of robbery was taken into consideration. On 1st October 2008 he was sentenced to a total term of imprisonment of 3 years and one month.
5.
Jackson pleaded guilty on the same date to four counts of robbery, one count of attempted robbery and two counts of taking a motor vehicle without consent. He was subsequently sentenced to a total term of imprisonment of 18 months. He has in fact now been released on licence.
6.
The facts have to be stated in a little detail in order to understand the conclusion to which we have come. The first offence in point of time occurred on 16th December 2007, when Valentine entered the Co-op store in High Wycombe, in the first instance simply it would appear to see whether or not it would be easy for him to rob the store, because he left and then came back, having changed part of his clothing and disguised his face with a scarf. He jumped over the counter, telling the female shop assistant to open the till. She was so frightened that she was simply unable to open the till because she was panicking and in shock. It is right to say that Valentine told her that he would not hurt her. He opened the till himself by scanning a packet of cigarettes and took £550 in cash. As he left he said "Merry Christmas".
7.
The next robbery in point of time occurred some six days later, on 22nd December 2007. This was the offence which Valentine asked to be taken into consideration. On this occasion Valentine was accompanied by a second man. There were two assistants working in the store at the time, a male assistant and a female assistant. The male assistant was subject to some violence during the course of the robbery, although it is right to say that it was not at the hands of Valentine. Both the male assistant and the female assistant were terrified, and indeed the male assistant protected her by pulling her into his arms. The male assistant was then forced by his fear to open the tills, and £1,170 in cash and some cigarettes were taken.
8.
The next offence in point of time was 5th January 2008. On this occasion Valentine was accompanied by three co-offenders. They entered the Co-op in London Road Wokingham, again seeking to disguise themselves with scarves covering their faces. Two of the men jumped over the counter and demanded that the male sales assistant open the tills. One of the group threatened to hit and kill the staff if they did not co-operate. An assistant opened the tills, and one of the robbers filled the notes into a plastic Co-op bag. They then took a large quantity of cigarettes. The total in cash was £840. The cigarettes were valued at £2,800.
9.
The next robbery involved the offender Jackson, who on the evening of 7th January 2008, with one other man, entered the One Stop shop in Hedge End, Hampshire. Both had their faces covered. They approached the two cashiers, saying, "Give us all your money", "open the till and give us your fucking money." They climbed over the counter. The assistants opened the tills and £1,100 in cash was taken. The assistants, not surprisingly, described feeling intimidated. This was another occasion when one of the robbers said "Merry Christmas" as they left. It was clearly a frightening incident for those in the store; and one female assistant was terrified that they may come back and felt that when making the call to the police she should hide in order to do so, even though they had left the store by then.
10.
The next offences in point of time occurred in Southampton on 11th January 2008. Valentine and Jackson were together. They had possession of a stolen vehicle, which was the subject of the charge of taking a motor vehicle, and used it to go, first, to a Co-op store at Midanbury in Southampton. Two female assistants were in the shop. The two offenders, together with another man, had their faces covered with scarves and shouted at the two assistants to "open the fucking till". Although no verbal threats beyond this were made, she was very frightened by their aggression and the noise that they made. The other assistant in fact refused to open her till. But despite that the offenders were able to open it and escaped with £340.
11.
Later on, the same three men went to the Co-op store in Wodehouse Road in Southampton, and there demanded that the female assistant behind the counter open the tills. She was unable to do so, was shocked and frightened and felt threatened and intimidated. They did not seek to open the till on that occasion. They simply seized cigarettes to the value of £760, before running out of the store, pushing a female customer out of the way as she tried to stop them leaving.
12.
Then on the evening of 20th January 2008, the first offender, that is Valentine, who at that stage had his arm in a sling following a road accident, went into the Co-op store in Steventon in Oxfordshire. He made a purchase and clearly, having realised that there was nobody apart from the assistant in the store, phoned, it transpired Jackson, who arrived, together with another man, shortly thereafter. All these then demanded that the female store manager open the tills. She refused to do so. She was threatened; and it is thought that the first offender, that is Valentine, realised that they were going to get nowhere and persuaded them all to leave, which they did.
13.
Then the same day the same tactic was used when Valentine went into the Co-op store in Wootton, Oxfordshire by himself and made a purchase, before telephoning Jackson. Then Jackson and another man entered, again with their faces largely covered. They demanded money, jumping over the counter saying, "Open the till now ... open the fucking till now, or I'll have you." The store supervisor was not surprisingly terrified. The till was opened and £281 in cash was grabbed. A member of the public tried to intervene; and he was attacked by Jackson and the third man.
14.
About ten minutes later it would appear that Valentine appreciated that the police were coming to the scene and phoned up Jackson, who had gone to a public house not far away. Jackson was arrested at the public house and was found to have been driving a Ford Ka, which had been stolen previously. That constituted the second of the offences related to motor vehicles to which Jackson pleaded guilty.
15.
It is right to say that, apart from a small possible cut to a member of the public, there is no evidence that anybody was physically hurt. There were no victim impact statements as such before the court, but a number of the witness statements described the shock and fright created by the way in which these robberies took place.
16.
Neither offender made any comment in their interviews after arrest.
17.
Counsel on behalf of the Attorney-General submits, in relation to both these offenders, that this was a campaign of robberies targeted against small businesses. It would appear in most cases that the store was staffed simply by either a female or two female assistants, who did not have significant security. It can be seen from what we have said that it would appear that on a number of occasions the scene of the robbery was visited by one or other in order to determine whether or not it was a suitable place to rob. They were obviously planned and on each occasion there was at least an attempt at disguise.
18.
As far as Valentine is concerned, he has a bad record, including a number of offences of dishonesty. Indeed, he was on licence after release from serving a 3-year prison sentence at the time of committing the offences.
19.
As far as Jackson is concerned, he did not have such a significant record of previous convictions. However, there were three previous convictions, the last one when he was 16 years of age.
20.
It is submitted on behalf of the Attorney-General that, quite simply, where there have been a significant number of robberies of this nature, a sentence of 3 years' imprisonment -- which is what was imposed on Valentine for the robberies and attempted robbery — does not meet the justice of the case. We have been referred to the Sentencing Guidelines Council Definitive Guideline on Robbery. We note that for a single offence of robbery involving a robbery of a small business, where there is the threat of force or use of minimal force, the sentencing range is up to 3 years in custody.
21.
In determining the extent to which these sentences on these two offenders are in the circumstances unduly lenient, we take into account not only the aggravating features and the Definitive Guideline to which we have referred, but also the fact that, as we have indicated, each of these offenders pleaded guilty and were treated as pleading guilty on the earliest possible occasion; they are accordingly entitled to credit for that.
22.
As far as Valentine is concerned, despite his bad record, there was clear evidence that he had sought assistance during his period on remand and had been taking an Enhanced Thinking Skills course, and was reported as having obtained substantial benefit from that course which it is said bodes well for the future. As far as he was concerned, the Recorder was accordingly entitled to take the view, which he did, that there was hope for the future which enabled him to reduce the sentence which he would otherwise have imposed.
23.
As far as Jackson is concerned, his relative youth was prayed in aid before the Recorder and before us, as was the fact that he has suffered from mental illness. Indeed, it may be that he was suffering from mental illness at the time of the offences, in the sense that he was depressed and failing to take appropriate medication.
24.
Jackson has now been released from custody and we have two reports on his progress since then. They do not speak with one voice, but they do indicate that he has attempted to help himself in the period that he was in custody. Accordingly, it is submitted that the Recorder was entitled to take, as the Recorder again acknowledged he was taking, a lenient course in his case.
25.
This court has repeatedly said that leniency in itself is not something which this court can or should discourage in appropriate cases. However, we have to stand back and look at what was involved in this case. As counsel on behalf of the Attorney-General has said, this was a campaign of robbery, undoubtedly targeting vulnerable shops, albeit without the use of weapons. But young men like these two young men and those with them can instil sufficient fear without any need for weapons to enable them to achieve their objective in a way which terrifies those who are the subject of the robberies. The courts need to protect vulnerable shops such as these.
26.
Even though in the case of Valentine we acknowledge that there was material here which indicated that the offender was taking seriously the courses that he was undertaking in the hope that he may better himself hereafter, the fact is that, for the number of robberies in question, 3 years' imprisonment was quite simply inadequate. Even giving full credit for a plea, the only proper sentence in his case is one of 6 years' imprisonment and that is the sentence that we impose. We do so on each of the robbery counts to be served concurrently. As far as the taking and driving away offence is concerned, that will be served concurrently. So the total sentence will be 6 years' imprisonment.
27.
As far as the offender Jackson is concerned, we indicated at the outset that we considered that the appropriate sentence in his case was one of 4 years' imprisonment, giving him credit for his plea of guilty. It seems to us that in all the circumstances, particularly bearing in mind the fact that he has been out of prison now for a short time, therefore having to be returned to prison carries with it an added element of punishment, and taking into account the reports that we have of his progress both in prison and since he was released from prison, the appropriate sentence is in total one of 3 years and 6 months. That sentence will be imposed in respect of each of the offences of robbery and will be served concurrently with each other, and the sentences imposed in relation to the taking and driving away will remain but will also be served concurrently.
28.
We in Valentine's case take into consideration, as did the Recorder, the offence of robbery which he asked to have taken into consideration at his trial.
29.
Those are the orders that we make.
30.
Mr Darbishire?
31.
MR DARBISHIRE: My Lord, in relation to the second offender, Mr Jackson, the trial judge made an order that the time spent on remand should be counted against his sentence: 162 days.
32.
LORD JUSTICE LATHAM: We make the same order under section 240.
33.
MR DARBISHIRE: My Lord, I hope this is a lawful order for the court to make. Mr Jackson is at liberty --
34.
LORD JUSTICE LATHAM: Yes.
35.
MR DARBISHIRE: -- so he will have to surrender from a day to be pointed.
36.
LORD JUSTICE LATHAM: Yes.
37.
MR DARBISHIRE: No doubt my learned friend will address you upon that. Would my Lord indicate that the balance of the sentence should take effect from his surrender?
38.
LORD JUSTICE LATHAM: Yes.
39.
THE ASSOCIATE: My Lord, the nearest police station to his address Southampton Central police station, 12 o'clock noon tomorrow?
40.
LORD JUSTICE LATHAM: That would be the usual order. Subject, Mr Narain, to anything you say, we order that he surrender himself to Southampton Central police station at 12 o'clock tomorrow.
41.
MR NARAIN: My Lord, I am not sure there is anything I can say.
42.
LORD JUSTICE LATHAM: Thank you very much. We do so and on that basis we direct that the recommencement of service of the sentence will be from the time of his surrender to the police station.
43.
Yes, Mr Pons?
44.
MR PONS: Can I make one point, that does not (
inaudible
). It is simply this. In reading out the facts, you omitted mention of count 3, the Didcot robbery, which took place on 27th December. It appears in the first and the second draft of the reference, but does not appear in the final one. The only reason I raise it is that plainly in going through the facts the record should reflect everything that he pleaded guilty to.
45.
LORD JUSTICE LATHAM: Absolutely.
46.
MR PONS: It should be read into the record at some stage.
47.
LORD JUSTICE LATHAM: We will deal with that. I will make sure that I keep the papers for the purpose of dealing with the transcript.
48.
Yes, thank you very much. | [
"LORD JUSTICE LATHAM",
"MRS JUSTICE RAFFERTY DBE",
"MR JUSTICE ANDREW SMITH"
] | 2008_12_18-1762.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/3223/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/3223 | 867 |
bfd0931f028caaf3552419442a447b495501be405cf89d7f2e275057c5b3ee4a | [2007] EWCA Crim 2559 | EWCA_Crim_2559 | 2007-10-08 | crown_court | No. 2007/02262/A8 Neutral Citation Number: [2007] EWCA Crim 2559 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 8 October 2007 B e f o r e: LORD JUSTICE THOMAS MR JUSTICE OPENSHAW and MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - R E G I N A - v - D R H - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Officia | No.
2007/02262/A8
Neutral Citation Number:
[2007] EWCA Crim 2559
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday 8 October 2007
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE OPENSHAW
and
MR JUSTICE UNDERHILL
- - - - - - - - - - - - - - -
R E G I N A
- v -
D R H
- - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr M McKone
appeared on behalf of the Applicant
Mr R M L Duval
appeared on behalf of the Crown
- - - - - - - - - - - - - - -
Judgment
Monday 8 October 2007
LORD JUSTICE THOMAS:
1. On the morning of 12 April 2001 the victim in this case went to Yeovil town centre for the day. On her way home, having been drinking, she met the applicant, a complete stranger, on a road in Yeovil. Despite the fact that he was a complete stranger, she not only accepted his invitation to go to his house for coffee, but also was persuaded by him to stay the night. He persuaded her that she should sleep on his bed in the bedroom, whilst he slept on the settee in the living room. He took her into the bedroom, which was darkened. He then left. Her intention was to leave when he fell asleep. However, very shortly thereafter the applicant returned to the bedroom. He undressed and climbed under the quilt. He forced her to perform oral sex upon him and ejaculated into her mouth. He then ordered her to strip. When she refused, he removed her jeans and knickers. Whilst shouting at her, he briefly performed oral sex on her and then attempted to have sexual intercourse with her. He reached under a bed, picked up a knife and struck her in the stomach. He continued to strike at her thereafter. Suddenly he stopped. He telephoned the emergency services. He gave his correct name and address and said that he had stabbed a woman and raped her. The emergency services attended and he admitted what he had done.
2. He was adjudged fit to plead. On 3 October 2001, in the Crown Court at Bristol, before His Honour Judge Crowther QC, the applicant pleaded guilty to attempted murder, to attempted rape and to indecent assault. There was then a highly regrettable delay in dealing with this matter, despite every effort of the judges of the circuit to ensure that the matter was not delayed. Initially, the matter was adjourned for sentence on 30 November 2001 when it came back before the then presiding judge. The matter was adjourned as no beds were available to enable a psychiatric assessment to be carried out on the applicant. The matter came before another High Court Judge in March 2002, when it was yet again adjourned. There was a dispute as to whether that assessment should take place at a medium secure unit or at a secure unit. The matter was resolved and on 5 May 2002 the Recorder of Bristol made an interim hospital order so that the applicant could be assessed at a medium secure unit. That assessment period was extended by the court. By the time the matter came before the sentencing judge, Hallett J, on 23 September 2002, there were a large number of reports before her. The two primary reports were from Dr Mawson and Dr Husain. They both agreed with the diagnosis that the applicant suffered from paranoid schizophrenia and probably also from a personality disorder. Although he would possibly respond to medication for the former, the doctors were concerned about the latter. They therefore recommended that the judge make an order under section 45A of the Mental Health Act 1985 (a provision which had not by then been used very much).
3. Hallett J heard evidence from Dr Thompson, a consultant at the medium secure unit at Bristol. He confirmed the views of both of the doctors. He explained to Hallett J how the order would work. They would attempt to treat the applicant and if he was no longer amenable to treatment either because the treatment had been successful or it had been unsuccessful, he would then be remitted to prison to complete the balance of the sentence passed.
4. Hallett J made it very clear that she had in mind to pass a sentence of life imprisonment on the two offences for which that sentence was available. The question arose as to whether she would specify a minimum term under the provisions then in force, namely
section 82A of the Powers of Criminal Courts (Sentencing) Act 2000
. Her conclusion on that point was expressed in these terms:
"Having taken account of all the circumstances of the offence and of your background, and of all the medical reports before me, of which there are many, I am entirely satisfied that I have no alternative because of your present state of dangerousness but to pass a sentence of life imprisonment on counts 2 and 3. I make it plain that I would have passed such a sentence in any event because of the gravity of the offences, counts 2 and 3 [attempted murder and attempted rape].
I am also satisfied that this is an exceptional case where I shall not specify a notional determinate sentence. It would not, in my judgment, be appropriate and both counsel accept that, in principle, I have such a power. Accordingly, I do not make any further determination."
The judge went on to make a formal order in those terms.
5. What then happened is set out in an extremely helpful report prepared by Dr Collins, a Consultant Forensic Psychiatrist in the Medical Service Unit at Wakefield. After the sentence had been passed, and until April 2004, the applicant was kept at Fromeside Secure Unit, Bristol, for a period of 19 months. His schizophrenia responded well and the doctors concluded at the end of the period that there was no active evidence of mental illness, but there was a concern that he might require further treatment and he might not continue to use medication when required. However, they also concluded that he suffered from a personality disorder of the anti-social type.
6. The applicant was then remitted, as a person serving a life sentence for which no minimum period had been specified, to a Category A Prison, HMP Wakefield. He has spent about two years of the period since his transfer to Wakefield in the hospital wing because of either his mental state or his inability to cope. Dr Collins considered recommending his transfer back to Fromeside, but the doctors at Fromeside did not think there was any medical reason so to do. He has been treated by the prison authorities as a Category A prisoner with a whole life tariff. Dr Collins' current assessment is that he still suffers from schizophrenia and a personality disorder. Under the prison regime it is only when a prisoner reaches his tariff that he can be considered for admission for psychiatric rehabilitation and the necessary courses involved in such a process. As he was a whole life prisoner, he was at the bottom of the queue for such courses and for such treatment. The doctor concludes about the applicant’s present state as follows:
"He continues to suffer from two serious forms of mental disorder (mental illness and antisocial personality disorder) and he has shown little or no regard either for his victim or for the enormity of his own actions. While treatment for his mental illness has been feasible, addressing his offences, his attitudes, his insight etc will not prove possible for some considerable time for the reasons outlined above. He is a Category 'A' inmate in a high security prison. I can only conclude that the appellant does continue to represent a high risk to others and indeed although the psychology report from Fromeside Clinic earlier referred to hints at some progress I can see no reason to conclude from a risk assessment perspective that the appellant is any less of a risk to the public now than he was at the time of sentencing."
7. In the light of the evidence that is now before this court, it is clear that the applicant continues to represent a very serious danger to the public. It is also clear, on the basis of that evidence and on the basis of the authorities to which we will refer in a moment, that the learned judge was plainly right to pass the sentence of two concurrent life sentences with a section 45A Order. At the time she passed sentence, she did not have available to her the decision of this court in
R v Staines
[2006] EWCA Crim 15
, but in our judgment the conclusion that the judge reached on the necessity for a section 45A Order in combination with the life sentence was plainly the right one.
8. The sole issue, therefore, before the court is whether this is a case in which a minimum term should have been specified under the provisions in
section 82A
to which we have referred. Those provisions make it clear in subsection (4) that the court has a discretion not to impose a specified term. Subsection (4) provides:
"If the court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender."
9. The terms on which the judge should exercise a discretion were at the time qualified by paragraph 3 of the Practice Direction (Crime: Life Sentences)
[1993] 1 WLR 233
, which provided:
"The judge is not obliged by statute to make use of the provisions of section 34 [the relevant sections to which
section 82
referred] when passing a discretionary life sentence. However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence."
10. Since Hallett J had to consider this matter in 2002, the House of Lords in
Drew
[2003] UKHL 25
has set out a very clear analysis of the interrelationship of the provisions for life imprisonment, where that sentence is passed on a discretionary basis, and the provisions for dealing with mentally impaired defendants. This court in
Staines
built on that analysis in setting out further circumstances in which it considered that a section 45A Order should be made.
11. It seems to us clear in the light of that analysis (which we emphasise was not available to the sentencing judge) that, unless the case is one where the circumstances of the offence are such that without consideration to the risk of further harm to the public the punitive and retributive element of the sentence required detention for life, a period should have been specified under
section 82A
. Furthermore, it seems to us, having regard to the Practice Direction, which refers in terms to the "very exceptional case", we cannot see in the circumstances of this case, in the light of the analysis set out in the subsequent cases, that, horrific though the circumstances of this case were, the punitive and retributive elements required a whole life term.
12. We therefore consider that this is a case where we should specify a period under
section 82A
. In those circumstances, therefore, this being a reference by the Registrar, we grant leave to appeal on this issue and turn to consider the question as to what that period should be. We have heard attractive submissions made on the appellant's behalf. His youth has been emphasised, the fact that he had no relevant previous convictions, and the fact that he called the emergency services. Nonetheless, it is clear from the reports to which we have referred that the appellant intended to kill the victim in this case. The circumstances of the attack, which we have outlined without going to their more horrific aspects, were at the very highest end of the scale.
13. Taking into account the matters to which we have referred, the early plea tendered in the case, the clear intention to kill and the very serious nature of the attack, we have come to the view that, in the circumstances, after a plea of guilty, a judge would have imposed, purely for the punitive and retributive elements, a term of 18 years.
14. It follows, therefore, that the period we should specify is one half of that amount, namely nine years, less the period spent on remand, which was one year five months and ten days in the regrettable circumstances to which we have referred.
15. We wish to emphasise, as is clear from the report of Dr Collins, that the appellant continues to represent a serious danger to the public. The fact that we have specified a period under
section 82A
does not mean that he will be released then. The decision to release him will be that of the Parole Board, as advised by medical experts. It may well be the case that he will never ever be released. | [
"LORD JUSTICE THOMAS",
"MR JUSTICE OPENSHAW",
"MR JUSTICE UNDERHILL"
] | 2007_10_08-1229.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2559/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2559 | 868 |
c7f5a9f954ccd126e1ed1a90b4cbdfcff4bae6007c576857c6d66df22f65955c | [2010] EWCA Crim 1379 | EWCA_Crim_1379 | 2010-05-06 | crown_court | No: 2009/3938/D4 Neutral Citation Number: [2010] EWCA Crim 1379 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 May 2010 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ROYCE MRS JUSTICE SWIFT DBE - - - - - - - - - - - - - - - - - - R E G I N A v COLIN JOHN C - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Te | No:
2009/3938/D4
Neutral Citation Number:
[2010] EWCA Crim 1379
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 6 May 2010
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE ROYCE
MRS JUSTICE SWIFT DBE
- - - - - - - - - - - - - - - - - -
R E G I N A
v
COLIN JOHN C
- - - - - - - - - - - - - - - - - -
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 Lyons
appeared on behalf of the
Appellant
Mr S Rose
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON: This appeal comes before the court on a Reference by the Criminal Cases Review Commission. On 29th September 1997 at Chelmsford Crown Court before His Honour Judge Pearson the appellant was convicted of one count of rape per anum (count 2) and three counts of indecent assault (counts 5, 6 and 7). The appeal is based on fresh medical evidence which is said to make the convictions unsafe.
2.
The offences were alleged to have occurred between Easter 1996 and February 1997. The complainant, M, was a girl then aged nine. The appellant was then aged 14. Their families knew each other and the appellant used to babysit for M and her younger brother. M complained from time to time to her mother about the appellant's strictness over her bedtime and preferred his sister to babysit, but there were no more serious complaints about him than that and M's mother thought that he was doing his job.
3.
On 6th March 1997 the complainant made allegations about the appellant to her mother. She confronted him with them and he denied them. On 13th March 1997, M's mother reported them to the police and on the same day M was examined by a consultant paediatrician, Dr Kugan. It will be necessary to say more about her evidence, her examination and her conclusions.
4.
The complainant was video interviewed and the appellant was arrested. He was charged on an indictment containing 10 counts. He was acquitted on counts 3 and 4 by direction of the judge and it is unnecessary to make further reference to them. Count 1 was a specimen charge of rape per vagina. He was acquitted on that count but convicted on an alternative count of indecent assault (count 7) in the form of intercrural intercourse, that is, thrusting his erect penis up and down between her thighs. Count 2 was a specimen count of anal rape. He was convicted on that count and so no verdict was returned on the alternative count of indecent assault (count 8). Counts 5 and 6 were counts of indecent assault. Count 5 alleged digital penetration of her anus and vagina. Count 6 alleged that he put his penis in her mouth.
5.
M's evidence in brief was that the appellant used to undress her, he would put his penis in her mouth, he would put his penis in her vagina and her bottom, and he would put his fingers in her vagina. He did this regularly. She said that when he penetrated her she would "scream the place down" because it really hurt. On one occasion her brother saw his naked bottom. The appellant had nothing on his top. She was trying to push him off her. He shouted at her brother. She and her brother had separate bedrooms but they could shout to each other and would play "knock knock". Her brother was interviewed. He made no reference to the incident described by the complainant and said that the accusations against the appellant came to him as a complete surprise.
6.
The appellant in his evidence denied all the allegations. He said that he had never had sex with anybody. He did not suggest that he had ever found the complainant to be untruthful, but he said that he did not do any of the things which she said. He was shocked by the allegations and had returned home to his mother in tears.
7.
We turn to the medical evidence. At the trial two medical witnesses were called by the prosecution and none by the defence. The first witness was Dr Kugan, a consultant paediatrician who had examined the complainant. Her evidence was that she concluded from a combination of findings that the complainant had been sexually abused. Those findings were as follows:
1. There was pigmentation of the labia majora.
2. The labia minora was narrow, thin and almost splayed.
3. There was marked flattening of the area.
4. There was asymmetry on the hymenal margin and a notch at 5 o'clock.
5. There were two healed fissures of the anus at 5 and 6 o'clock.
These findings suggested that there had been heavy friction from an erect penis going over the genitalia and the notch to the hymen indicated either partial penetration with a penis or digital penetration. The injuries to the anus suggested penetration either by a penis or fingers or a blunt instrument. Viewed in isolation the anal injuries could have been caused by constipation but Dr Kugan questioned M's parents whether there had been constipation and was told that there had not. She also tested for constipation by feeling M's abdomen.
8.
In answer to questions from the judge, she said that from her examination of all the genitalia she formed the professional opinion that M had been abused. Constipation could not explain the findings apart from the anus, ie pigmentation, flattening of the labia majora and the hymenal changes.
9.
Counsel for the prosecution picked up the judge's theme in re-examination. His final question was:
"Having found what you did with M's vagina and the findings that you made there, does that help you decide whether it is more likely that the anal fissures were caused by constipation or by sexual contact of some sort?"
No objection was taken to the suggestive (ie leading) nature of the question, no doubt because by then it would have been too late, and the witness agreed. She said:
"Yes, the genital findings as well as the history given by M and the video interviewing lead me to think that they are ... it is significant finding of sexual abuse rather than constipation."
10.
The second witness called by the prosecution was a consultant pathologist, Dr David Rouse. His opinion was that the notch in the hymen was very strongly suggestive of trauma. It was an injury caused by a blunt object, whether a penis or a finger. He thought it more likely to be partial penetration by a penis but could not exclude digital penetration. He said that it was not uncommon for a child to believe that she had been penetrated when actually there was intercrural intercourse not involving penetration, but for the hymen to be damaged as it was there had to have been an object pushing up against it. As to the anus, he said that the findings were not grossly abnormal and were not typical of repeated penile penetration. The healed tears could have resulted either from penetration or from passing a large stool. He also volunteered in cross-examination that:
"... you can have constipation by a child not reported to any carers and subsequently forgotten by the child of being of any relevance and this is the problem in this case. If you have more injuries or changes to the anus it supports penetration. Two simple fissures by themselves could be the result of constipation alone, reported or unreported, and then that is again still consistent with the allegation made by the child of intercrural intercourse taking place."
In re-examination he was asked about the relevance of the condition of the vagina when considering the anus and he described it as "a corroborative sign, although the injury to the anus could be the result of constipation". At the end of his re-examination the judge asked him to consider the injuries as a whole and whether sexual activity was the likely cause of them, to which he agreed that it was.
11.
The defence had a medical expert but did not call her for good reason. She raised various points on which the prosecution's experts could legitimately be questioned and she expressed concern about certain matters. In particular she did not think that constipation had been adequately addressed, but overall her evidence would not have been helpful to the defence.
12.
On the subject of constipation, the complainant did suffer from constipation during the trial but her mother said that she had not had that problem since a young age. That would seem to have carried the implication that she had had constipation when a young child but the matter was not pursued. The possibility raised by Dr Rouse in cross-examination that long forgotten constipation could have caused the anal fissures may have come as a surprise to counsel then appearing for the appellant, because it had not been raised in the appellant's expert's report. In any event, there would have been no point in seeking to recall the complainant in order to put to her the possibility that she might have had constipation as a young child and forgotten about it. It would by its very nature be an impossible question to answer, because if she had forgotten about it she would not be able to answer the question.
13.
The judge in his summing-up referred understandably to the undisputed nature of the medical evidence and he put considerable emphasis on it. The main part of the summing-up was given on a Friday. After summarising the evidence of the doctors, he said:
"Members of the jury, Dr Kugan and Dr Rouse were the medical experts and they were clear on one thing. In their view sexual abuse had taken place."
He continued a little later:
"What does this medical evidence mean, if you accept it? It means that M had been involved, does it not, in sexual activity?"
He referred later to a suggestion advanced in argument by the appellant's counsel as to possible reasons why the complainant's evidence might be unreliable, and he continued:
"You will consider that but how do you account for the medical evidence? If you accept that then M's account as to what happened is given strong support. The medical evidence is repeated sexual interference. Do you reject that, too?"
Later, after observing that both the complainant and the appellant seemed to be upright young people from good homes, but that somebody was not telling the truth, he said:
"... has M made up a pack of lies and falsely accused an innocent young man? Might she have done? If so acquit Colin. Have the doctors got it wrong? Might they have found a series of innocent causes which have come together coincidentally or by chance to support her account or might someone else have interfered with her?"
On the Monday morning the judge concluded his summing-up with a brief resumé of the issues in which he said:
"Both Dr Kugan and Dr Rouse were satisfied that M had been sexually interfered with. ...
Both doctors agreed that the anal injuries, the two fissures, were caused by penile penetration. But both also agreed that the sexual activity described by M was, in fact, intercrural intercourse, rather than sexual intercourse as we all understand it."
Pausing there, this would readily account for the acquittal on the count of rape per vagina and conviction on the alternative count of indecent assault. The judge continued:
"It may be that, save in relation to counts 1 and 2, you will have little difficulty in deciding what happened to M; but that is a matter for you. The real issue may be: who did these things to her, the repeated sexual interference over a period, as described by the medical experts? Was it Colin, when babysitting, as M insists; or, if these things happened, might they have been done by someone else?"
At the very end of his summing-up he posed the question:
"Could it, realistically, have only been Colin, if you accept the evidence of the doctors?"
14.
We do not wish to seem over-critical of the judge because the matter plainly appeared to him to be open and shut on the medical evidence - a point repeated, as we have noted, on a number of occasions in what was not a particularly lengthy or complex summing-up. But the medical evidence to which we are about to turn is now different, and it is that which has given rise to the present appeal. There was a previous unsuccessful appeal to this court, but the grounds are not relevant to this appeal.
15.
The fresh medical evidence which the appellant seeks to introduce came from Dr Mary Pillai, a consultant gynaecologist and forensic medical examiner. We have from her a report and supplemental report. Her evidence is not challenged by the prosecution. In her first report she stated:
"7. Opinion
The examination of M occurred in 1997. Although this is only 12 years ago considerably more information is available now to guide interpretation of genital findings than was available in 1997. The RCP [Royal College of Paediatricians and Child Health] published guidance in 1997... This was withdrawn several years ago. Revised guidance was published in April 2008 and this was based on an extensive evidence based review of the published literature. It clarifies that many findings previously considered diagnostic or suggestive of sexual abuse are non-specific (they occur equally often in children carefully screened for non-abuse)."
She then considered the individual features relating to the flattened and pigmented labia majora, the splayed labia minora and the notched hymen, which had led Dr Kugan to her opinion, and said that experts in the field would not now regard any of those as suggestive of abuse, because all could be normal and naturally arising. As to the anus, she agreed with the view previously expressed that the fissures could have come from penetration or constipation. She noted that M's mother had implicitly suggested that she had had constipation as a young child and Dr Pillai thought this had not been adequately explored. Dr Kugan's palpitation of the abdomen was not a reliable test for whether the child had or had not had constipation. She concluded in paragraph 8.1 of the report:
"The physical findings which Dr Kugan described, and upon which both she and Dr Rouse relied in coming to their opinion, are not diagnostic of sexual abuse. I would regard them within the range seen in non-abused children. I would therefore regard them as normal or non specific (no more common in abused than non abused girls)."
Dr Rouse, to whom her report was sent, agreed with Dr Pillai in the light of the more developed state of medical knowledge in this area. In short, his overall conclusion today is radically different from that which he gave at the trial because of the development of medical knowledge and, in particular, the more extensive research base now available to experts in this field. A fair summary of Dr Kugan's response to Dr Pillai's report was that things were considerably less clear than they appeared to be at the trial in a number of respects, but she still thought that the evidence was suggestive although not diagnostic of sexual abuse. Her reasons were not more fully developed and the prosecution did not seek to call her on the appeal. They were content to accept the evidence of Dr Pillai, supported as it was by the opinion of Dr Rouse.
16.
Mr Rose, who has conducted the case for the prosecution with skill and good judgment, asked Dr Pillai no questions in cross-examination about anything other than the anal fissures. In relation to all the other factors concerning the hymen, labia majora and labia minora he accepted that these were neutral.
17.
The case which he developed in cross-examination of Dr Pillai and in his submissions is that in relation to the anus there has been no advance in medical knowledge. If constipation could be excluded, then the anal fissures were suggestive of sexual abuse. The observations of experienced trial counsel when asked to comment on matters raised by the CCRC were that she explored the possibility of constipation leading to the physical findings with all the relevant witnesses, as far as she was able to do so, and that this included M, her mother and the doctors. Mr Rose submitted that the jury, having heard M and her mother and the doctors, were entitled to discount constipation as a cause of the anal fissures, in which event there was supportive medical evidence. Moreover, he submitted that the primary question was whether they believed the complainant's account or the appellant's account, and upon that they were in a good position having seen and heard them both.
18.
Skilfully as the submission was made, the difficulty that we have with it is twofold. One is that it seeks to detach the evidence about the hymen and the vagina from the evidence about the anus, whereas that involves a volte-face from how the medical witnesses (particularly Dr Kugan but also to some degree Dr Rouse), the prosecution and the judge all invited the jury to approach the medical evidence. We cannot of course know if the jury approached the medical evidence in the way that they were invited to do, but it is difficult for the prosecution to say that they probably did not. The second problem is the emphasis placed on the medical evidence in the way that the jury was invited to consider the fundamental question whether the complainant or the appellant was to be believed. We have referred to the passages in the summing-up where the jury were told in the plainest of terms that the doctors were clear on one thing, that there had been sexual abuse. This led the judge to suggest to the jury that the real issue in the case was not whether M had been the subject of repeated sexual interference, but who had done, it and it caused him to leave as one of his parting questions:
"Could it realistically have only been Colin if you accept the evidence of the doctors?"
If the medical findings were in truth nonspecific, ie neutral, as Dr Pillai says and Dr Rouse agrees, that approach is fundamentally invalidated.
19.
As was emphasised by the House of Lords in the leading case of
Pendleton
[2002] 1 Cr.App.R 34,
[2001] UKHL 626
at 19, this court is not and should not become the primary decision-maker. The question for this court is not whether the appellant was guilty but whether the convictions are safe. In the Privy Council case of
Bain
[2007] UKPC 33
, Lord Bingham said at paragraph 103:
"A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it acting reasonably to reach a different verdict if it had had the opportunity to consider it."
That case came from New Zealand, and New Zealand law is not identical to that of England and Wales, but the paragraph cited is entirely consistent with the approach of the House of Lords in
Pendleton
.
20.
The question whether the conviction is safe is necessarily fact-specific. Counsel sought to refer us to decisions of this court in
Martin T
[2008] EWCA Crim. 3229, and
PF
[2009] EWCA Crim. 1086. For good reason neither of those cases has found its way into the law reports, the good reason being that they establish no new principle. The result of following the approach set out in
Pendleton
will vary according to the facts of the case. But it is not helpful to look at the facts of other cases for comparative purposes, because cases inevitably differ in the way that they may have been presented to the jury at the trial and the potential significance of the fresh evidence. Our task is not to seek to reconstruct the views of an appellate court on the facts of another case and then seek to decide by reference to the facts of that case how the instant case should be decided. It is for this court to consider whether this evidence ought to be admitted and whether the convictions should be regarded as safe, on the facts of the present case applying the guidance in
Pendleton
and in the passage cited from
Bain
.
21.
In this case the complainant and the appellant were both seemingly honest young people. There were arguments which could be put either way. The complainant was a bright girl, her complaint was fresh and her evidence was consistent. The appellant also had points to be made for him. There was favourable character evidence about him; there was Dr Rouse's evidence that the state of her anus was not grossly abnormal, that is, it was not consistent with repeated penetration; and there was the point that her brother had not recalled seeing the episode she recounted and had heard nothing. Nobody would suggest that any of those points were decisive. Small children can be deep sleepers. The really significant point to our mind is that the case was presented to the jury on the basis that the medical evidence was for practical purposes decisive in at least establishing as a fact that M had suffered abuse. The fresh evidence makes that proposition anything but plain.
22.
In these circumstances we are satisfied that justice requires that we should admit the fresh evidence pursuant to
section 23
of the
Criminal Appeal Act 1968
. The evidence could not have been adduced at trial, it is credible and in the light of that evidence we are unable to regard the convictions as safe.
23.
We accordingly allow the appeal and quash the convictions. | [
"LORD JUSTICE TOULSON",
"MR JUSTICE ROYCE",
"MRS JUSTICE SWIFT DBE"
] | 2010_05_06-2380.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1379/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1379 | 869 |
15516b2425a4e66ecac9eb6c8c107182ba2ccd98581d050dcde64e69f5b6d060 | [2021] EWCA Crim 223 | EWCA_Crim_223 | 2021-02-18 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number
[2021] EWCA Crim 223
CASE NO
202002644/B5
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 18 February 2021
LORD JUSTICE HOLROYDE
MR JUSTICE LAVENDER
MR JUSTICE CAVANAGH
REGINA v
JOSEPH MARTINS
__________
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 BALD
appeared on behalf of the Appellant
MR B MARTIN
appeared on behalf of the Crown
_________
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: Joseph Martins was convicted by a jury of offences of robbery, contrary to section 8 of the Theft Act 1968, and inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. He was sentenced to a total term of 27 months' imprisonment. He now appeals, by leave of the single judge, against his conviction for robbery.
2.
The events giving rise to the charges occurred on 1 October 2018. The appellant was then aged 21. His friend Christian Thembo was vacating a room which he had been renting from Rokibul Dewan. Mr Thembo and Mr Dewan had arranged to meet in order to sort out sums payable in respect of rent and deposit. When they left the building at the conclusion of that meeting, the appellant was outside. Mr Dewan was holding a mobile phone and a bunch of keys. Those items were taken from him, he said by the appellant. Mr Dewan moved to block a nearby gate through which the appellant and Mr Thembo would have to pass. His evidence was that he was first pushed by Mr Thembo and then held in a bear hug and spun aside by the appellant, causing him to fall and break his leg.
3.
When arrested and interviewed under caution, the appellant made no comment, but put forward a prepared statement in which he described Mr Thembo taking Mr Dewan's phone and keys. He made a similar allegation in his defence statement.
4.
The appellant and Mr Thembo were charged on an indictment containing three counts: a joint charge of robbery (count 1); a joint charge of inflicting grievous bodily harm (count 2); and a charge against the appellant alone of theft (count 3), as an alternative to count 1. They stood trial in the Crown Court at Aylesbury before Mr Recorder Guest and a jury.
5.
Mr Martin, then as now appearing for the prosecution, opened count 1 to the jury on the basis that both defendants had used force in order to escape with the keys and the phone. As we understand it, the prosecution case was that the act of appropriating the phone and keys was still continuing at the time of the encounter at the gate, and that it was that encounter which constituted the robbery. No doubt for that reason, Mr Martin did not go into any detail when examining Mr Dewan in chief about the circumstances of the initial taking outside the building. In describing that taking, Mr Dewan (who gave his evidence through an interpreter) said that he had "a bunch of keys and my iPhone in my hand" but also spoke of those items being "in two hands". He said that the appellant "grabbed" those items and walked towards the gate. In cross-examination, in response to the suggestion that the appellant had not taken anything from him, Mr Dewan repeated that he did and added: "He just snatched those items."
6.
At the conclusion of the prosecution evidence, both defendants made submissions of no case to answer. The recorder indicated that he would not allow count 1 to continue against Mr Thembo, and would not allow the prosecution to pursue that charge against the appellant on the basis of a continuing act of appropriation coupled with violence at the gate. Mr Martin responded that he would instead put count 1 against the appellant
"on the basis that that did constitute some sort of force by taking it from his hands."
7.
Miss Bald, representing the appellant at trial as she does in this court, understandably objected to that change of course. She pointed out that she had conducted the defence case, and her cross-examination of Mr Dewan, on the basis of the way the prosecution had thus far chosen to advance count 1. The recorder did not accept that there was any unfairness, or none that could not be cured by recalling Mr Dewan to face further cross-examination.
8.
Miss Bald went on to submit that in any event there was no case to answer on the revised basis of count 1, because there was insufficient evidence for the jury properly to find that force was used on Mr Dewan to steal his property. She referred to case law, to which we shall return shortly.
9.
The recorder ruled against her. He concluded his ruling at page 24 of the transcript with these words:
"It seems to me, here, that it would be open to the jury to find that the use of the word 'snatch', bearing in mind the items involved are a mobile phone and a set of keys, each being held in one or other of the hands of the victim – it would be open to the jury to find on the evidence that force was used to the person, and I decline the submission."
10.
Both defendants then gave evidence. Each asserted that it was the other who had taken Mr Dewan's items. The jury, as we have said, convicted the appellant of counts 1 and 2. They acquitted Mr Thembo.
11.
The ground of appeal is that the recorder was wrong to refuse the submission of no case to answer. Miss Bald invites our attention to
DPP v RP, GP and RW
[2012] EWHC 1657 Admin
and the earlier case of
R v Dawson and James
(1977) 64 Cr.App.R 170
. She accepts that robbery may be committed by the indirect rather than direct application of force to the person of the victim. She argues, however, that even though it may in principle be sufficient for the force to be applied indirectly to the victim, there was in this case no evidence that the appellant had done that to Mr Dewan. A reference by Mr Dewan to the appellant "snatching" the items was not sufficient to convert the theft into robbery. Miss Bald points out that because of the way the prosecution case had initially been conducted, there had been no investigation with Mr Dewan of how he was holding the items, or of what exactly happened when they were taken from him. She argues that the jury should not have been left to speculate and to fill in gaps in the evidence, particularly when the prosecution had put forward their case on a basis which was then shown to have been fundamentally flawed.
12.
Mr Martin resists the appeal. He submits that on a charge of robbery it is not necessary for the prosecution to prove direct physical contact between robber and victim. He relies on
R v Clouden
[1987] Crim.L.R 56. He submits that as a matter of logic and common-sense, and having regard to the nature, size and shape of the mobile phone and a bunch of keys, the jury were entitled to conclude that the "grabbing" of those items amounted to force used upon the person. The fact that two items were taken, and not merely one, was another relevant consideration. The recorder was therefore correct to reject the submission of no case to answer and to let the case go to the jury for their determination as to whether the charge of robbery had been proved.
13.
We are grateful to both counsel for their written and oral submissions, and in particular for the clarity and focus of their oral submissions to us this morning.
14.
Section 8(1) of the Theft Act 1968 provides:
"(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force."
15.
The statute itself does not contain any definition of the words "uses force on any person". They were considered in some detail by Mitting J in
DPP and RP, GP and RW
. The defendants in that case, who were juveniles, were charged with robbery. They had asked a woman for a cigarette. When she said she did not have a spare one, one of the defendants snatched the cigarette which she was holding between the fingers in her hand. A submission of no case to answer, on the basis that the snatching of the cigarette could not constitute the use of force on a person under section 8, was rejected by the Youth Court. The defendants were convicted and appealed by way of case stated. Mitting J in the course of his judgment referred to
R v Dawson and James
, in which the Court of Appeal had held that a charge of robbery had properly been left to the jury where the evidence of the victim was that two men had nudged him in the shoulder and jostled him so that he had difficulty keeping his balance, and a third man had taken his wallet from his pocket. Mitting J noted that in that case the force used, although not substantial, had been directly applied to the person of the victim.
16.
Mitting J then considered
Clouden
, in which the appellant had been convicted of robbery after approaching a woman from behind and wrenching her shopping basket down and out of her grasp. His appeal against conviction was dismissed. The court held that "whether the defendant used force on any person in order to steal is an issue that should be left to the jury." We observe that in that case there was no direct application of force to the person of the victim. We note also that in
DPP v RP, GP and RW
itself at paragraph 7, counsel for the appellants had properly conceded that "the snatching of a handbag from a woman holding it on her shoulder or in her hand will ordinarily amount to robbery because by the very act of pulling on the handbag force will inevitably be applied to the person of the woman from whom the handbag is snatched."
17.
Mitting J then referred with approval to a submission in Smith's Law of Theft (9
th
Edition) that "no jury could reasonably find that the slight physical contact that might be involved where D picks V's pocket would amount to a use of force." He noted that the case stated before him did not include any finding that force had been used upon the person of the victim "unless the mere removal of a cigarette from between her fingers itself is capable of amounting to the use of force upon the person." He continued as follows at paragraph 15:
"In my judgment, it is not. This case falls squarely on the side of pickpocketing and such like, in which there is no direct physical contact between thief and victim. It cannot be said that the minimal use of force required to remove a cigarette from between the fingers of a person suffices to amount to the use of force on that person. It cannot cause any pain unless, perhaps, the person resists strongly, in which case one would expect inevitably that there would be direct physical contact between the thief and victim as well. The unexpected removal of a cigarette from between the fingers of a person is no more the use of force on that person than would be the removal of an item from her pocket. This offence is properly categorised as simple theft."
18.
The learned judge therefore allowed the appeals against the convictions of robbery and substituted convictions of theft.
19.
We think it clear that robbery does not necessarily require direct physical contact between robber and victim. Often of course it will, but it is in our view established that the indirect use of force on a person can be sufficient. For example, where a robber wrenches a bag away from the grasp of his victim it is open to the jury, for the reasons which Mitting J gave at paragraph 7 of his judgment, to find that the robber had used force on a person. We respectfully agree with the observation of the learned authors of Smith, Hogan and Ormerod’s Criminal Law (5
th
Edition) at section 19.1.2.1 that:
"... it will be robbery where, for example, a struggle, even a fleeting one, takes place for possession of a handbag or where an earring is snatched tearing the lobe of the ear."
20.
There will however sometimes be cases in which a jury could not properly find that the actions of a thief amounted to the use of force on any person: for example, if an opportunist thief intervened to snatch a bank note which one person was passing to another. On a submission of no case to answer being made in relation to a charge of robbery, it will be for the judge to decide whether the evidence taken at its highest is such that a jury could properly find that the defendant had used force on the victim.
21.
In the present case, we can well understand why Miss Bald objected to the change in the prosecution case. The prosecution would have had only themselves to blame if, having conducted the case on one basis, they had found themselves lacking in a sufficient evidential foundation then to conduct it on a different basis. As it was, however, they did have a sufficient evidential foundation. On the evidence as it stood at the conclusion of the prosecution case, although not at that point a strong case of robbery, it was in our view properly open to a jury to find that Mr Dewan, when carrying his phone and keys, was gripping them so that they would not fall or slip from his hands; that his description of the appellant "grabbing" or "snatching" the items connoted that the appellant had pulled the items free from that grip; and that the action of pulling the items from his grasp amounted to the use of force on Mr Dewan. We agree with Miss Bald that the use of a word such as "snatch" or "grab" will not necessarily and in all circumstances connote the use of force of any person. We disagree with her, however, when she says it was a
matter of impermissible speculation, and not a matter of legitimate inference, for the jury to be permitted to conclude that Mr Dewan would inevitably have been gripping his items of property sufficiently tightly that his grip had to be overcome by the use of force in order for the appellant to take them from him.
22.
In those circumstances, the recorder was in our judgment correct to reject the submission of no case to answer and to permit the jury to determine whether this ingredient of the offence of robbery had been proved.
23.
For those reasons, grateful as we are to Miss Bald for the skill with which she has presented this appeal, the appeal fails and is dismissed.
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76d6399a81b767cc5bf61dc46d5346a82872401e51eebd5a696ede99e9e9ee4a | [2023] EWCA Crim 1242 | EWCA_Crim_1242 | 2023-10-27 | crown_court | Judgment Approved by the court for handing down. Hoare v R Neutral Citation Number: [2023] EWCA Crim 1242 Case No: 202202875 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD Recorder Gordon T2021 7507 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/10/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE GOSS and MRS JUSTICE ELLENBOGEN - - - - - - - - - - - - - - - - - - - - - Between: ROBIN E | Judgment Approved by the court for handing down.
Hoare v R
Neutral Citation Number:
[2023] EWCA Crim 1242
Case No:
202202875 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
Recorder Gordon
T2021 7507
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/10/2023
Before:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
LORD JUSTICE HOLROYDE
MR JUSTICE GOSS
and
MRS JUSTICE ELLENBOGEN
- - - - - - - - - - - - - - - - - - - - -
Between:
ROBIN EDWARD HOARE
Appellant
- and -
THE KING
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Siobhan Grey KC
(assigned by
the Registrar of Criminal Appeals
) for the
appellant
Andrew Johnson
(instructed by
CPS Appeals and Review Unit
) for the
respondent
Hearing date: 4 October 2023
- - - - - - - - - - - - - - - - - - - - -
UNREDACTED JUDGMENT
IMPORTANT NOTE: this judgment was originally published in REDACTED form as
“BNE” v THE KING. The retrial ordered by the court has now been concluded: the appellant was convicted of counts 1 and 2. Accordingly this UNREDACTED form may now be published. The reporting restrictions referred to below in red, and in paragraphs 1, 33 and 34 of the judgment, no longer apply.
WARNING: reporting restrictions apply, as stated in paragraphs 1, 33 and 34 of the judgment. The court has ordered, pursuant to section 4(2) of the Contempt of Court Act 1981, that publication of this judgment, in this UNREDACTED form, must be postponed until after the conclusion of the retrial of the appellant. The court has approved a separate,
REDACTED form of the judgment which is not subject to that order.
Judgment Approved by the court for handing down.
Hoare v R
The reporting restriction postpones, until after the conclusion of the retrial, the publication of the contents of this unredacted judgment 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 further information about reporting restrictions, ask at the court office or take legal advice.
Lord Justice Holroyde:
1.
This is an appeal, by leave of the single judge, against convictions for offences of
attempted sexual communication with a child (count 1) and attempting to incite a
child to engage in sexual activity (count 2). The appellant, a man of previous good
character, was subsequently sentenced to a total of 3 years 6 months’ imprisonment.
There is no appeal against that sentence.
Reporting restrictions apply to this
UNREDACTED judgment, as stated in paragraphs 33 and 34 below.
2.
The charges arose out of correspondence on social media between the appellant and
an undercover police officer using the name Alicia.
3.
The correspondence began on a social media platform “Chatiw”, and quickly moved
to the KiK platform. Alicia’s user name was “LittleMissLissy18” and her profile
described her as being 18. From the outset, however, Alicia told the appellant that she
was 14. Later, she told him that she was in Year 9 at school and complained about
having to continue to wear her school uniform for another two years. The appellant,
whose user name was “RobSheffield43”, told Alicia, accurately, that he was aged 44.
4.
They continued to exchange messages over a period of days. They sent images to one
another.
The exchanges became flirtatious and then sexualised (count 1).
The
appellant encouraged Alicia to masturbate and told her how she should go about
doing so (count 2). She said in her messages that she was doing as he suggested, and
he replied to the effect that he was also masturbating. It is unnecessary, for present
purposes, to go into further detail about the facts.
5.
It is important to emphasise the precise nature of the appellant’s case, which was that
he had at all times believed he was communicating with an adult who was pretending
to be only 14 as part of a role-playing fantasy. He gave evidence to that effect. He
relied on the facts that Chatiw was aimed at adults and Alicia’s profile stated that she
was 18. He also relied on features of Alicia’s messages such as her use of language,
punctuation and grammar, and her professed liking for certain musicians. He further
relied on Alicia’s profile picture, and the images provided by Alicia, all of which, he
asserted, showed what he believed to be a woman aged around 19-23. He pointed to
the fact that in each of those images Alicia’s face was partially obscured, which he
regarded as consistent with his belief that she was an adult engaged in role-playing.
6.
The case was tried in the Crown Court at Sheffield before Mr Recorder Gordon (“the
judge”) and a jury. In advance of the trial Ms Grey KC, then as now representing the
appellant, had been shown copies of the four images which Alicia had sent to the
appellant.
The prosecution’s intention, to which no objection was raised, was that
paper copies of the images would be shown to the jury, but would be collected at the
Judgment Approved by the court for handing down.
Hoare v R
end of each court day so that they could be stored securely. The images had not been
uploaded to the Digital Case System.
7.
The defence had also requested disclosure of the true age of the person shown in the
images.
Their written request contended that if the person pictured was in fact a
young adult, that would lend support to the appellant’s case and undermine the
prosecution’s allegations. It further contended that it would be unfair for the jury to
be led to believe that the person depicted was under-age if in fact she was over the age
of consent.
On instructions, counsel then representing the prosecution declined to
provide the information requested.
8.
Submissions were made to the judge in the absence of the jury. Ms Grey reiterated
her request for disclosure, emphasising that she sought only the age of the person
depicted, not any further information about her.
9.
The judge ruled that the age of the person shown was
prima facie
disclosable. He was
then invited to, and did, conduct a public interest immunity (“PII”) hearing at which
prosecution counsel made submissions to him in the absence of the appellant or any
defence representative.
10.
At the conclusion of that hearing, the judge gave a ruling in open court.
He noted
that the appellant admitted that he had exchanged messages with Alicia. He correctly
identified the principal issues on each count as being whether the appellant genuinely
believed that he was exchanging messages with a person aged 16 or over and, if so,
whether that belief was reasonable. He repeated his earlier ruling that the age of the
person depicted was
prima facie
disclosable, but held that, in the light of what he had
heard in chambers, there was a public interest in not disclosing that information.
11.
The trial then proceeded and the appellant was, as we have said, convicted.
12.
No objection was made at trial, and none is made now, to steps taken by the
prosecution to maintain the anonymity of the undercover police officer, who gave
evidence under her pseudonym of Alicia, and to preserve the confidentiality of
investigative methods used.
The sole ground of appeal challenges the refusal to
disclose the true age of the person shown in the images which Alicia sent to the
appellant.
Ms Grey submits that, as the correspondence developed, it was Alicia who
first made any reference to photographs. She further submits that Alicia’s age was at
the centre of both counts, and the photographs purporting to depict her were before
the jury and played a central role in the trial for both prosecution and defence. Ms
Grey accepts that the true age of the person shown did not provide a complete answer
to the charges, but she argues that it was an important consideration for the jury when
considering the reasonableness of the appellant’s belief. It was, she submits,
potentially unfair to refuse disclosure of the age of the person depicted; and any
sensitivity attaching to the images had already been compromised because the officer
posing as Alicia had sent them to the appellant.
13.
Ms Grey points out that the prosecution had failed to make the written application for
a PII hearing which is required by rule 15.3 of the Criminal Procedure Rules.
She
also submits that the prosecution had the opportunity at the PII hearing to adduce
before the judge any evidence on which it wished to rely, and should therefore not be
permitted to adduce any further or different evidence before this court.
Subject to
Judgment Approved by the court for handing down.
Hoare v R
those points, she invited this court to review the PII material to determine whether in
the circumstances of this case it was fair to allow the trial to continue without
disclosing the age of the person depicted.
14.
On behalf of the respondent, Mr Johnson opposes the appeal. He submits that the age
of the person depicted was irrelevant to the issues which the jury had to decide, could
neither undermine the prosecution case nor assist the defence case, and therefore
failed the test for disclosure.
Alternatively, if it was in principle a fact which was
capable of assisting the defence or undermining the prosecution, the judge had
correctly ruled that there was a public interest against disclosure.
Finally, even if
those arguments were rejected, Mr Johnson submits that the conviction is safe
because of the other evidence against the appellant. He invited this court to conduct a
PII hearing, and to receive further evidence bearing on the public interest against any
disclosure.
15.
We are grateful to counsel for their written and oral submissions, and for their
assistance in the efficient management of the hearings before this court.
We
conducted an initial PII hearing, in the absence of the appellant and his counsel, in
which we heard
de bene esse
evidence from two witnesses in addition to that which
had been given to the judge. We thereafter heard the submissions of the parties in
open court.
16.
It is common ground that the principles to be followed in considering the PII
application are those stated by the House of Lords in
R v H & C
[2004] 2 AC 134.
17.
So far as is material for present purposes, the provisions of the Sexual Offences Act
2003 creating the offences which the appellant was found to have attempted to
commit state as follows:
“
10 Causing or inciting a child to engage in sexual activity
(1)
A person aged 18 or over (A) commits an offence if –
(a)
he intentionally causes or incites another person (B) to
engage in an activity,
(b)
the activity is sexual, and
(c)
either –
(i)
B is under 16 and A does not reasonably believe that B is 16
or over, or
(ii)
B is under 13.
15A Sexual communication with a child
(1)
A person aged 18 or over (A) commits an offence if –
(a)
for the purpose of obtaining sexual gratification, A
intentionally communicates with another person (B),
Judgment Approved by the court for handing down.
Hoare v R
(b)
the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c)
B is under 16 and A does not reasonably believe that B is 16
or over.”
18.
Those provisions are aimed at the protection of children aged under 16. The conduct
which they prohibit frequently takes place over social media. The use by undercover
police officers of what may be referred to as decoy profiles, set up on social media to
enable the officers to pose as children under 16 and thereby to identify offenders who
trawl the internet looking for opportunities to commit sexual offences against
children, is a legitimate measure taken to prevent crime and is in the public interest.
It inevitably involves the undercover officer conducting the correspondence in a
manner intended to sustain the decoy profile. It follows that an officer pretending to
be an adolescent would not use images portraying a mature adult.
We have no doubt
that there is in principle a strong public interest in maintaining the anonymity of
undercover police officers who play the decoy roles, and in maintaining the
confidentiality of the investigative techniques which they use.
19.
The appellant admitted that he had exchanged messages with Alicia in the terms read
by the jury, and there could be no doubt that some of their content was sexual and that
some of them incited Alicia to engage in sexual activity.
On both counts,
accordingly, the principal issue was whether the jury were sure either that the
appellant did not genuinely believe that Alicia was 16 or over, or that any genuine
belief he may have held was not reasonable.
That issue required the jury to assess
what the appellant believed or may have believed in the light of the circumstances
known to him.
20.
As was said by the court in
R v Ishaqzai
[2020] EWCA Crim 222 (a judgment
concerned with comparable provisions in section 9 of the 2003 Act), the prosecution
could prove the mental element of the attempted offences in two ways.
First, by
making the jury sure that the appellant did not believe Alicia to be 16 or over; and
secondly by proving that, even if the appellant did believe her to be 16 or over, or
may have done so, any such belief was not reasonable. The first approach involves
the jury making a determination as to the appellant’s subjective belief. The second
involves the jury making an assessment as to whether, in all the relevant
circumstances of the case, any such belief was not reasonable. In that latter regard,
we agree with what is said by the learned authors of
Rook and Ward on Sexual
Offences
at paragraph 4.63 of the current, 6
th
, edition:
“… the jury’s task is not to consider whether the hypothetical reasonable man would have believed B to be 16 or over, but whether A may actually have believed that and, if so, whether the belief was reasonable.
If they find that A may have believed B to be 16 or over, then in determining whether the belief was reasonable the jury should have regard to all the circumstances, including what B told A about herself and B’s appearance at the relevant time.”
Judgment Approved by the court for handing down.
Hoare v R
21.
The circumstances known to the appellant were the nature and content of the
messages sent by Alicia, the profile picture which she used, and the images sent to
him by Alicia.
They did not include any further knowledge of the provenance of
those images.
That, of course, will usually be the case in decoy operations of this
kind. To encapsulate the rival contentions, Ms Grey submits that the true age of the
person shown in the images, although not known to the appellant, was a relevant
circumstance because a jury could properly take it into account in deciding what the
appellant believed, or at least in deciding whether any belief held by the appellant was
reasonable. Mr Johnson submits that the jury were required to focus only on what
was actually received by and known to the appellant, and that the true age of the
person depicted was an extraneous factor which could not have affected the
appellant’s mind and was therefore irrelevant to the jury’s decisions.
22.
We begin by reflecting on decoy operations of this kind generally, before returning to
this particular case.
23.
In any case involving the use of a decoy profile, it will be understood by the jury from
the outset that the messages were in fact sent by an adult police officer playing the
decoy role.
It will also be clear to the jury, from their own observations of the
witness, that the images sent to the defendant, in support of the decoy profile, are not
contemporaneous true likenesses of the adult police officer who sent them.
24.
We accept Ms Grey’s submission that a jury, shown images such as were used in this
case and given no information about their provenance, may well assume that the
images are accurate photographs and true likenesses of a real person of the age stated
in the decoy profile, or at any rate a real person aged under 16. We do not think that
the direction customarily given to juries, not to speculate about any matter in respect
of which they have heard no evidence, is sufficient to avoid the possibility of such an
assumption being made: given that the purpose of showing the images to the
defendant was to foster the illusion that he was corresponding with an underage child,
jurors may think that they are drawing a legitimate inference about the subject of the
imagery, rather than engaging in impermissible speculation. We also accept that a
defendant charged with offences of this nature may be unfairly prejudiced if such an
assumption is made when it is factually incorrect. When a defendant’s belief as to the
age of his correspondent is in issue, how is the risk of such prejudice to be avoided, if
no information is provided about the provenance and subject of the imagery? In our
view, it is necessary to distinguish between two different situations which might in
principle arise.
25.
First, if the relevant image is an unaltered photograph of a real person who was in fact
aged 16 or over when photographed, it seems to us that the true age of the person, at
the time when the photograph was taken, should be disclosed to the defence. In such
circumstances, we accept Ms Grey’s submission that the true age of the person
depicted is a fact capable of undermining the prosecution case, and/or of assisting the
defence case. That is because the jury can properly take the fact, that the image is a
true likeness and an accurate portrayal of a real person aged 16 or over, into account
when assessing whether a defendant may have believed that he was corresponding
with someone aged 16 or over, and/or whether any such belief was reasonable.
Moreover, the jury must not be misled by being shown images in circumstances
which may give rise to an incorrect assumption about the age of the person depicted.
True it is, as Mr Johnson submits, that a defendant who does not know the true age of
Judgment Approved by the court for handing down.
Hoare v R
the person depicted cannot himself be influenced by that fact; but it does not follow
that the fact is irrelevant to the issues which the jury has to decide. If, for example,
the decoy profile was that of a 14 year old, and the images used were unaltered
photographs of a real person taken when she was 18, a jury could properly take that
fact into account when deciding whether the defendant may have believed her to be
16 or over and/or when deciding whether his belief was reasonable.
26.
It follows that, in this first situation, the prosecution should disclose the actual age of
the person shown at the time when the photograph was taken, and not merely the fact
that the person was aged 16 or over. It will no doubt often be convenient for that
information to be adduced in evidence before the jury in the form of an admission of
fact.
27.
Secondly, what if images have been digitally created, altered or modified in some
way, in order to produce images consistent with the decoy profile?
In such
circumstances, whatever the nature and extent of the process used, its purpose and
effect was to create an entirely artificial image or to alter the appearance of the person
initially photographed so that it ceases to be a true likeness.
In this second situation,
the true age and original appearance of any person originally photographed can in our
view be of no relevance. The jury are not to be diverted into an examination of the
skill with which the digital manufacture of the image has been carried out.
Their
focus must be on the images seen by the defendant, not on different images which he
did not see.
28.
It follows that, in this second situation, the prosecution’s duty of disclosure does not
extend to disclosing the true age of any real person originally photographed or the
nature and extent of the digital process which has been used to make the images.
It is
however necessary that the defence should be informed of the fact that the images
have been digitally manufactured, altered or modified so as to make, for the purpose
of the decoy profile, images which are not a true likeness of any real person who may
originally have been photographed. Subject of course to the precise issues in a
particular case, it will generally be appropriate for that limited statement of fact to be
adduced in evidence before the jury – again, it will no doubt usually be convenient to
do so by way of an admission of fact. It will be sufficient for the statement of fact to
be in the precise terms which we have used, without distinguishing between
manufacture, alteration or modification.
We are satisfied that, to that very limited
extent, it will be necessary in the interests of justice to disclose one aspect of the
investigative techniques which must otherwise remain confidential.
29.
Subject again to the precise issues in a particular case, it follows from what we have
said that, in a case where there has been no disclosure of the true age of the person
shown at the time when the photograph was taken, it will usually be necessary for the
jury to hear evidence of the fact that the images were manufactured, altered or
modified so as to fit the decoy profile. Where that fact is in evidence, the trial judge
should direct the jury that there is no evidence about the true age of any person shown
in the images; that there is no evidence about what was done to manufacture, alter or
modify them; that they must not speculate about those matters, because they are not
relevant to the jury’s verdicts; and that they must concentrate on the evidence of the
material – the messages and the images – which the defendant received.
Judgment Approved by the court for handing down.
Hoare v R
30.
Returning to the present case, we repeat that the appellant’s defence was a belief that
he was corresponding with an adult who was playing a role.
He had raised that
defence in his defence case statement even before the images which were before the
jury had been disclosed; and as part of that defence he gave evidence of a belief that
the images showed an adult who was deliberately obscuring part of her face.
We
sympathise with the judge, who was faced at trial with a difficult issue which was not
argued as fully, or in the same way, as it has been before this court. His written and
oral directions to the jury clearly reflected a good deal of careful work on his part.
They included a general direction to the jury not to speculate. However, because of
the way the argument had developed before him and the evidence he had heard in
chambers, he did not address the issue of disclosure in the way which we have found
to be appropriate. This was neither a case which was identified by the prosecution as
falling into the first of the two categories we have mentioned, nor a case in which the
prosecution provided the information which is necessary in the second of those
categories.
In the result, we accept the submission that the appellant was unfairly
prejudiced because the jury may well have assumed that the images were true
likenesses of a real girl aged 14, or at least aged under 16, at the time when she was
photographed.
On the evidence before the jury, that was not an assumption which
they could properly have made.
31.
That is sufficient to compel the conclusion that the convictions are unsafe and must be
quashed.
We reach that conclusion on the basis of the approach which we have held
to be applicable to cases of this nature generally, and without needing to reflect
further on any specific features of this particular case.
For that reason, we do not
think it necessary to give any separate closed ruling in relation to the PII hearing.
32.
This appeal will accordingly be allowed, and both convictions quashed.
Having
considered written submissions from counsel, for which we are grateful, we are
satisfied that the interests of justice require that the appellant be retried on both
charges.
33.
We are further satisfied that publication of this judgment in UNREDACTED form
would give rise to a serious risk to the administration of justice in the retrial
proceedings. We therefore order, pursuant to section 4(2) of the Contempt of Court
Act 1981, that publication of this judgment in UNREDACTED form must be
postponed until after the conclusion of the retrial. In view of the importance of the
principles to which we have referred, which will be of application in other cases, we
have prepared a REDACTED version of this judgment, which may be published
without delay.
The REDACTED judgment itself is not subject to any reporting
restrictions; but pursuant to section 11 of the Contempt of Court Act 1981 we order
that no additional matter may be included in or with any publication of the
REDACTED judgment if it is likely to lead members of the public to identify any of
the persons, names or other details which have been redacted.
34.
For those reasons, we make the following orders:
i)
The appeal is allowed and the convictions on counts 1 and 2 quashed.
ii)
The appellant must, as soon as practicable, be retried in the Crown Court at
Sheffield, before a judge to be allocated by the Resident Judge of that court, on
both charges.
Judgment Approved by the court for handing down.
Hoare v R
iii)
A draft of the fresh indictment must be served by the respondent on the Crown
Court officer no more than 28 days after this order.
iv)
The appellant must be rearraigned on the fresh indictment within 2 months
after this order.
v)
There being no application for bail, the appellant will be remanded in custody
pending his retrial. Any application for bail which may be made in the future
shall be made to the Crown Court at Sheffield.
vi)
Pursuant to section 4(2) of the Contempt of Court Act 1981, this judgment in
its UNREDACTED form must not be published until after the conclusion of
the retrial. The respondent must notify the Criminal Appeal Office as soon as
the retrial has been concluded, so that this order may be withdrawn.
vii)
The REDACTED version of this judgment, as approved by the court, may be
published.
The REDACTED judgment itself is not subject to any reporting
restrictions; but, pursuant to section 11 of the Contempt of Court Act 1981, no
additional matter may be included in or with any publication of the
REDACTED judgment if it is likely to lead members of the public to identify
any of the persons, names or other details which have been redacted. | [
"MR JUSTICE GOSS",
"MRS JUSTICE ELLENBOGEN"
] | 2023_10_27-5880.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1242/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1242 | 871 |
d014f949be112b61f0e40df70c3737b8a9c462efb49c5cdc12939fd420161ab2 | [2007] EWCA Crim 1455 | EWCA_Crim_1455 | 2007-05-04 | crown_court | No. 2006/03920/C4, 2007/01177/C4 & 2006/05867/C4 Neutral Citation Number: [2007] EWCA Crim 1455 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 4 May 2007 B e f o r e: LORD JUSTICE MOSES MR JUSTICE GROSS and MR JUSTICE UNDERHILL - - - - - - - R E G I N A - v - RAHUEL DELUCCA MARCUS NATHANIEL RHODEN - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, Lond | No. 2006/03920/C4, 2007/01177/C4 & 2006/05867/C4
Neutral Citation Number:
[2007] EWCA Crim 1455
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 4 May 2007
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE GROSS
and
MR JUSTICE UNDERHILL
- - - - - - -
R E G I N A
- v -
RAHUEL DELUCCA
MARCUS NATHANIEL RHODEN
- - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -
MR M WOOD QC
appeared on behalf of
THE APPELLANT RAHUEL DELUCCA
MR M DAVIES
appeared on behalf of
THE APPLICANT MARCUS RHODEN
MR J R LODGE
appeared on behalf of
THE CROWN
- - - - - - -
J U D G M E N T
LORD JUSTICE MOSES:
The Appeal against conviction by Rahuel Delucca
1. On 23 June 2005, in the Crown Court at Bradford, the appellant Rahuel Delucca was convicted of possessing a firearm with intent to cause fear of violence contrary to
section 16A of the Firearms Act 1968
. He appeals against conviction by leave of the single judge.
2. The appellant was alleged to have shot with a Tariq pistol at a car belonging to a man called Francois. That is of significance in the context of this appeal because Francois and a co-defendant Rhoden were enemies. There was a history of feuding between the families. However, as admissions made in the course of the trial showed, the dispute was not between Delucca and Francois. That absence of motive was a powerful point which the appellant sought to use before the jury. It is also of significance in this appeal to record at this stage that the incident in which a shot was fired at the car with the Tariq pistol took place on the evening of 10 November 2005 at about 6pm.
3. Whoever it was who shot at that car with that pistol was one of a number of men seated in a Fiat motor car. The issue before the jury, and the issue reiterated before us, was whether the prosecution could prove that the man who wielded the gun and shot at the car was this appellant. There is no dispute that this appellant was in the car at the time.
4. The evidence against the appellant, which the prosecution said was sufficient to prove that he was the man, consisted in the main of a confession that the appellant had made in which he admitted that he had used the gun to shoot at Francois' car.
5. There was also called by the prosecution a series of eye-witnesses, all of whom gave slightly different descriptions of the man wielding the gun -- different descriptions of clothing and different descriptions of the colour and racial identification of the gunman. It was those different descriptions which, it was said, precluded any sufficient proof that it was the appellant who was the gunman in contradiction to the apparent confession. The appeal has focused upon those different descriptions.
6. There was CCTV footage showing this appellant and one other getting into the Fiat motor car at some time before the incident. We have seen those photographs. It is alleged, as it was alleged before the jury, that they showed this appellant (who is clearly of lighter skin than Rhoden) in the car, wearing a blue top and no apparent hood. This, so it is argued, contrasts with the descriptions of the eye-witnesses who described the gunman as being black, of Afro-Caribbean origin, and wearing clothing with a hood. But it must be emphasised for the purposes of this appeal that the witnesses, as would be expected, gave different descriptions.
7. The best eye-witness, so Mr Wood QC argues on behalf of the appellant, was Gulam Asif, a motorist who, at about 6pm, was passing a few feet away. There can be no precision as to how far he was away. He described the gunman as being black, Afro-Caribbean, with his head covered with a hood. In cross-examination he said that the man was not Asian or caucasian. Based upon that description, the appellant submits that that cannot have been a description of him. Accordingly, it is powerful evidence that he was not the gunman. It must be said, as the jury were reminded and as they could see for themselves, the appellant is not of a white complexion, but nor is he of Afro-Caribbean origin.
8. Adrian Bedford, a vehicle recovery manager, heard bangs like fireworks and saw the gunman get into the back passenger door, although he accepted that he could have been mistaken about that. It appears to have been accepted that the appellant was travelling in the back and not the front. So any description suggesting that the gunman got into the front would be evidence going to show that the gunman was not this appellant. Adrian Bedford described the gunman having dark clothing with a hood.
9. Anna Taylor, another eye-witness described the gunman as getting into the front passenger door, a position which tended to show that this appellant was not the gunman.
10. Jasmin Khalifa described the gunman getting into the rear passenger door, and that the gunman was black and wearing a knee-length duffle coat with a hood. She described another man, whom the judge mistakenly identified as Rhoden, as having plaits like the well-known footballer Rio Ferdinand. However, the importance of that part of the evidence is that it tends to support what the appellant was saying, namely that there were four people in the car, since neither he, the co-defendant Rhoden, nor another man in the car (Fray) had hair of that description.
11. Joanne Helm, who was with Jasmin Khalifa, described the gunman wearing a black coat, black gloves and a hood.
12. In support of the evidence of absence of motive of the appellant was another eye-witness, Leon Flynn, who spoke of his fear of Rhoden. He said that he saw Rhoden in the front passenger seat. He was apprehensive of what might happen, but did not see who the gunman was.
13. The evidence did not stop there. The prosecution also relied upon DNA matching that of this appellant on the trigger area of the Tariq gun used in that shooting. That, as Mr Wood pointed out, was evidence that he had handled the gun, not that he had used it on the particular occasion at 6pm on 10 November.
14. Of greater significance was what this appellant had said about it. He had, surprisingly, but consistently with his character of show-off and fantasist, made a video tape which he sent to his co-defendant Rhoden's solicitor before attempting to leave the country and go to the Caribbean. The video tape was made on 29 November 2005. It made a confession of two distinct offences. It is at this point necessary to mention a second offence. After the shooting of the car belonging to Francois in Alder Street, the occupants of the car had gone to Fray's address. Armed police had attended at that address. Rhoden, so the prosecution alleged, had then shot at the car, he said not realising that there were policemen in it. He pleaded guilty to the offence of attempted murder, a matter to which we will return when we consider his application for leave to appeal against sentence. We mention it at this stage because the video-tape to which we have referred contained a confession by the appellant Delucca of two offences: first, the offence of shooting at the car in Alder Street; and secondly, shooting at the policemen when they had attended Fray's address.
15. There were a large number of interviews once Delucca had been arrested. Eventually, after a discussion with a detention officer in a recreation yard, he withdrew his confession in relation to the second offence. The prosecution allege that he was right to do so, and that he was not the gunman who had shot at the police officer. But he never withdrew his confession to being the gunman in Alder Street. That, in our judgment (and clearly it must have been to the jury) was a significant fact. No submission having been made at the close of the prosecution's case, the appellant chose not to give evidence. There was thus, as Gross J pointed out in argument, no evidence to rebut the impact of that confession that the appellant was the gunman. It is in that context that Mr Wood QC now submits, with his usual tact and economy, but no absence of force, that this verdict was unsafe.
16. So many witnesses gave descriptions of the gunman being black, Afro-Caribbean and wearing a hood, that it cannot be said that there was sufficient evidence on which a jury could convict on the basis that the appellant had been identified as the gunman. If the evidence had stayed there, this court might well have agreed with that submission. But the evidence was not confined to those eye-witnesses. There are many cases, of which we think this case is an example, where the eye-witnesses provide the least satisfactory evidence. After all, there was nothing to draw an eye-witness to the particulars of that scene, other than the startling and frightening event of the shooting of the gun -- the loud, unexpected bangs of the revolver. Small wonder that there should be different descriptions as to what the gunman looked like and as to where he went.
17. We are prepared to accept for the purposes of this appeal that the preponderance of the evidence tended to suggest that the gunman was of Afro-Caribbean origin and black. But the appeal system in this country does not depend upon merely reviewing the decision of a jury and considering whether a different verdict might have been open to them. Of course it might. There were arguments -- some may say powerful arguments -- which this appellant could deploy before them. But that is not enough as a basis on which this court can conclude that the verdict was unsafe. Our task is to look at all the evidence and to see whether there was a basis upon which the jury properly directed, and properly considering this matter, could be sure that the appellant was guilty, and in that context consider whether the verdict was safe. We have no hesitation in saying that it was. The most powerful evidence was this appellant's own admission, against which there was no evidence from him to suggest that it was a false confession. He had never withdrawn it. Nor had he ever gone into the witness box on oath to say that it was false. In those circumstances we conclude that the verdict was safe. This appeal against conviction is dismissed.
The Application for leave to appeal against sentence by Rahuel Delucca
18. The applicant Delucca was sentenced for three offences: first, in respect of possessing a firearm with intent to cause fear of violence, of which he was convicted; and secondly, in respect of two offences, to which he pleaded guilty, possessing a prohibited firearm (a different firearm in an unrelated incident to the earlier one), contrary to section 5(1)(aba) of the
Firearms Act 1968
, and possessing ammunition without a firearms certificate contrary to section 1(1)(b) of the 1968 Act. He was sentenced to a period of eight years' imprisonment for public protection pursuant to
section 225 of the Criminal Justice Act 2003
(less 262 days spent on remand), on the first count of which he was convicted for possessing a firearm with intent to cause fear of violence. On the other counts the judge ordered that he should be sentenced to three years' imprisonment to run consecutively, and three years' imprisonment to run concurrently as minimum periods. That was unlawful. Neither of those two offences were scheduled specified offences under the
Criminal Justice Act 2003
within Schedule 15. Thus it was not open to the judge to calculate the minimum term on the basis of a sentence of imprisonment for public protection. The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.
19. The question as to the propriety of the sentences that the judge passed arises on two bases, both in relation to the imprisonment for public protection and to the ordering of the sentences to run consecutively. There is now authority for the proposition that whilst consecutive sentences of imprisonment for public protection are not unlawful, they are undesirable.
R v O'Brien and Others
[2007] 1 Cr App R(S) 442 teaches that it would be wrong, although not unlawful, to pass consecutive sentences (see paragraphs 57, 58 and 59 of that decision of this court). However, as has been helpfully pointed out by Mr Lodge on behalf of the prosecution, the essential question we have to consider is as to the propriety of a minimum term of five-and-a-half years (less 262 days) on the sentence of imprisonment for public protection.
20. In our judgment (and no real argument has been advanced to the contrary), the judge was entitled to order that the applicant Delucca serve that period as a minimum period on count 1. The question then is whether it is proper for us to raise the notional determinate sentence of eight years on count 1 to one of eleven years in order to achieve that result. In our judgment it is. Firstly, to do so is not contrary to
section 11(3) of the Criminal Appeal Act 1968
, since the totality is not being increased. Further, although the notional determinate period of eight years on count 1 would have to be increased to one of eleven years to achieve the same minimum period of five-and-a-half years (less 262 days), to do so would not offend against the maximum sentence imposed by Parliament of ten years for an offence contrary to
section 16A
. It must always be recalled that the sentence on count 1 was an indeterminate sentence of imprisonment for public protection. The notional determinate sentence is nothing more than an explanation by the court of the process by which it arrives at a minimum term. It is not a sentence of imprisonment at all. Thus, for example, fixing a notional determinate sentence of eleven years in no way exceeds the statutory maximum of ten.
21. In our judgment, the appropriate way of curing the error for which the judge and counsel can be wholly forgiven, faced as they were with these arcane sentencing provisions, is to maintain the minimum term of five-and-a-half years' imprisonment (less 262 days) by this process. The sentence on count 1 will remain as imprisonment for public protection pursuant to
section 225
of
the 2003 Act
, with a minimum term of five-and-a-half years' imprisonment (less 262 days). So far as counts 7 and 8 are concerned, the order of this court will be that the applicant should be imprisoned for three years on each, to run concurrently, concurrent with the imprisonment for public protection. So to do takes account of
section 82A(3)(a)
of the
Powers of Criminal Courts (Sentencing) Act 2000
, which permits, when considering the count of possessing a firearm with intent to cause fear of violence, the court to take into account offences associated with that offence, namely the other offences under counts 7 and 8 in considering the appropriate sentence and seriousness of the offence under count 1. That we have done.
22. The conclusion is that we correct the error that we have identified, but it leaves the applicant having to serve the sentence which was intended on count 1, namely imprisonment for public protection with a minimum term of five-and-a-half years' imprisonment (less 262 days). In those circumstances, we grant leave to appeal and, as a matter of technicality, the appeal is allowed, although the result will have no effect on the period of imprisonment which the appellant will serve.
The application for leave to appeal against sentence by Marcus Rhoden
23. On 15 June 2006, in the Crown Court at Bradford, the applicant Rhoden pleaded guilty to attempted murder in relation to the facts we have outlined above. On 13 October 2006, he was sentenced to imprisonment for public protection under
section 225 of the Criminal Justice Act 2003
, with a minimum term of six years and nine months (less 275 days spent on remand). The applicant Rhoden applies for leave to appeal against the specified minimum period. The application has been referred to the full court by the Registrar. The issue is whether he has an arguable appeal against the order of a minimum term of six years and nine months (less 275 days).
24. The argument which is raised is that, although the sentence was consistent with an earlier indication given pursuant to
R v Goodyear
[2005] EWCA Crim 888
-- and there is no complaint against that minimum sentence -- the sentence failed to take into account circumstances which arose after the indication, namely that on pleading guilty the applicant had agreed with a suggestion that he should give evidence on another count against the co-defendant Delucca.
25. We do not think it is arguable that the sentence should be reduced in those circumstances. It must be recalled that this applicant pleaded guilty only on the second day of the trial. The minimum sentenced was fixed on the basis of a 25 per cent discount, the appropriate determinate sentence being identified at 18 years. That, in our view, was a very generous discount, bearing in mind when the plea was offered.
26. Secondly, although this court takes into account, and stresses the importance of defendants giving co-operation to the prosecution authorities, and for that to be reflected in the sentence, the negotiations had reached only an early and vague stage. In fact this applicant was never required either to make a statement or to give evidence in the trial against Delucca. Therefore any sentence to reflect those circumstances could not have taken much account of them.
27. For both those reasons therefore we do not think that the notional determinate sentence of 18 years, having regard to the very serious nature of this offence, is arguably manifestly excessive. In those circumstances this application is refused.
_____________________________________ | [
"LORD JUSTICE MOSES",
"MR JUSTICE GROSS",
"MR JUSTICE UNDERHILL"
] | 2007_05_04-1099.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1455/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1455 | 872 |
208128b2908ff78e62faa7a75931298d6c559f5a2151c9f385e96148363f74f9 | [2024] EWCA Crim 60 | EWCA_Crim_60 | 2024-01-19 | 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 are that applicable restrictions are not breached. A perso | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
I
N THE COURT OF APPEAL
CRIMINAL DIVISION
[2024] EWCA Crim 60
Case No: 2023/01498/A1
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 19
th
January 2024
B e f o r e:
LORD JUSTICE COULSON
MRS JUSTICE FOSTER DBE
MR JUSTICE HILLIARD
____________________
R E X
- v -
ABDUL ROSTAMI
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Non-Counsel Application
____________________
J U D G M E N T
___________________
LORD JUSTICE COULSON:
1.
The applicant is now aged 33. On 21
st
February 2022, in the Crown Court at Newcastle Upon Tyne, he changed his plea to guilty to one offence of kidnapping (count 1) and one offence of robbery (count 2). On 18
th
July 2022, he was sentenced by Her Honour Judge Clemitson (“the judge”) to 10 years' imprisonment.
2.
The applicant now renews his applications for an extension of time (257 days) in which to apply for leave to appeal against that sentence, following refusal by the single judge.
3.
The applicant had been involved in some sort of business deal with a man named Abdul Jabar, which went wrong. Jabar had a shop and a flat in Gateshead and employed two men, including Hardi Ahmadi, who lived in his flat and worked in his shop. The takings from the shop were kept in a drawer in the flat, although only the two men and Mr Jabar knew of its precise whereabouts.
4.
The applicant and a man called Saeed drove in a van through the night from Ipswich to Newcastle. A co-accused, Salih, was a passenger in the van. Another car was driven in convoy with the van. That car was owned by the applicant and occupied by three men, including two co-accused, Staskauskis and Straksys. At some point a decision was made by the applicant to kidnap one of the young men who worked in Jabar’s shop. The applicant and Saeed went to Tesco in Kingston Park, from where they bought duct tape and latex gloves. The two vehicles were driven to Gateshead and Hardi Ahmadi was intercepted on his way to work.
5.
He was bundled into the back of the van. His head was covered with a blanket and his hands and legs tied at the back with duct tape. Duct tape was also used to cover his eyes. The men demanded that he tell them where the money was. He was badly beaten and the men threatened to stab him in the heart. Ahmadi thought he was going to die and recited a Muslim prayer apposite for the moment before dying.
6.
Ahmadi subsequently told the men where the takings were. They had taken the key to the flat and some of them, including the applicant, went to the flat and removed between £6,000 and £7,000 from the drawer.
7.
During this time Ahmadi remained bound in the back of the van. He was told that if he made a noise, he would be killed. He was struggling to breathe. He said that he saw his life flash before his eyes and he thought that he was going to die. Whilst away from the van, the applicant received a call from his co-accused Staskauskis telling him that Ahmadi was praying for his life and "did not look good". Once the money had been taken, Ahmadi was dumped behind a pile of sand in a car park in County Durham. He was bleeding and was still bound, with tape still over his eyes. Ahmadi was found by members of a walking group who happened to be passing nearby. The police were called, and they identified the van from CCTV footage.
8.
The van was stopped by police officers in Yorkshire on its way back to Ipswich. The applicant, Straksys and Staskauskis were in the van and immediately arrested. The best part of £9,000 was recovered from a backpack inside the van, along with the blanket, the duct tape and the gloves. The car in which Saeed, Salih and another man were travelling was not intercepted. Of those three, only Salih was later found by the police and arrested.
9.
When the judge came to sentence the applicant and the co-accused, she said that she was quite sure that Saeed and the applicant were the prime movers in the venture. She said that she was sure that the applicant had travelled to the northeast “in order to relieve Abdul Jabar of a significant amount of money or other property such as cigarettes”.
10.
As to the particular factors relevant to the applicant, the judge said this:
"Abdul Rostami, you are 31. You have five convictions for eleven offences. They include several offences of assault for which you have previously been sent to prison and more recently you were made the subject of a suspended sentence of imprisonment for a drugs offence and evasion of duty. You sustained a significant head injury and possibly, as a consequence of that, you suffer some symptoms which are being addressed by cognitive behavioural therapy. Otherwise, you have no diagnosed mental illness or disorder. You do have some very real and significant physical health difficulties which resulted in surgery in October 2020. It is of note that that surgery took place before you committed these offences."
11.
There are no sentencing guidelines in respect of kidnapping. The judge said that the appropriate way to arrive at a proper sentence in this case was to consider these offences together as a robbery, aggravated by the offence of kidnapping. The judge said that for the purposes of the robbery guidelines, this was akin to a professionally planned, commercial robbery, albeit that the lack of sophistication had to be marked by an appropriate downwards adjustment within that guideline. She found that the harm fell withing category 2; and in the case of the applicant, his leading role meant that his culpability was in category A. A category 2A offence has a starting point of nine years' custody and a recommended range of 7 to 14 years imprisonment. The judge identified the various factors to which we have already referred, and also other aggravating features, namely: the steps taken to prevent the victim from reporting the offence or obtaining assistance; the prolonged nature of the attack; the restraint and detention of the victim for a lengthy period of time; and the ongoing impact on the victim.
12.
Taking all those matters into account, the judge identified a starting point of 11 years' imprisonment. In so doing, she had regard to the aggravating factors and the applicant's leading role, but also to his significant personal mitigation. She reduced the starting point of 11 years by ten per cent, being the credit for his late guilty plea, thus arriving at the term of ten years' imprisonment.
13.
The single judge refused leave to appeal on the basis that there was nothing in any of the criticisms belatedly raised by the applicant. He also refused the extension of time. He said:
"The reality is that you were correctly advised that your appeal has no merit. This did not justify what was then a very substantial delay in bringing your appeal."
14.
In our view, the single judge was plainly right to refuse an extension of time. There was no explanation at all for the delay in making this application.
15.
Furthermore, we consider that the single judge was also right to conclude that there was nothing in any of the grounds of appeal in any event. Working our way through the undated, handwritten grounds of appeal received by the Criminal Appeal Office on 16
th
August 2023, our brief conclusions are as follows.
16.
First, it is said that the applicant was given the maximum sentence of ten years' imprisonment because the CPS changed their minds and said that, rather than playing a lesser role, the applicant had played a leading role.
17.
This complaint is misconceived. Although the applicant had put in a basis of plea that sought to minimise his role, that was not accepted by the Crown. On the basis of the material before her, the judge concluded that the applicant had played a leading role. On the material that we have seen, that was the correct categorisation.
18.
Secondly, it is said that the applicant was not given credit for his guilty plea. But he plainly was. He pleaded guilty only on the day of trial, so was not entitled to more than ten per cent credit. The judge was careful to give him that credit, otherwise, as she said, "You would have been sentenced to 11 years' imprisonment".
19.
Thirdly, the applicant complains that the other defendants received lesser sentences, and the applicant suggests that this was "blatantly wrong". Again, we consider that the complaint is misconceived. The co-defendants received lesser sentences because their roles were less significant and therefore their culpability was lower. Of the defendants before the court, it was only the applicant who played a leading role. It was therefore inevitable that he would receive a longer term of imprisonment.
20.
Furthermore, the applicant had a worse record than any of his co-defendants, including convictions for offences of violence. The judge was correct to say that this demonstrated "a vicious side to your nature and a propensity to use gratuitous violence". In addition, the author of the pre-sentence report identified the applicant as posing a significant risk of causing serious harm, despite the fact that the author was unaware of the previous offending. There were, therefore, a number of aggravating factors in the applicant's case which simply did not apply to the other defendants.
21.
Furthermore, we consider that the judge would have been entitled to consider the applicant to be a dangerous offender and to impose an extended sentence. She said that expressly at page 6E of her sentencing remarks. However, she decided, because of his age and his state of health, together with the time that he would spend in custody, that she would not impose such an order.
In our view, that was a merciful conclusion and one that other judges may not have reached. The applicant can therefore count himself fortunate that he was not given a longer sentence.
22.
For those reasons, therefore, we consider that there is nothing whatever in this renewed application for leave to appeal against sentence. Both the renewed application for leave to appeal and the renewed application for an extension of time are therefore refused.
_________________________________
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected]
______________________________ | [
"LORD JUSTICE COULSON",
"MRS JUSTICE FOSTER DBE",
"MR JUSTICE HILLIARD"
] | 2024_01_19-6002.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/60/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/60 | 873 |
205ff7e943d7d40530007012df411caefc56fbb1e2140b489432c54272f92867 | [2020] EWCA Crim 1677 | EWCA_Crim_1677 | 2020-12-02 | 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 COURTS MARTIAL
APPEAL COURT
CASE NO 2019 02913 B5
Neutral Citation Number:
[2020] EWCA Crim 1677
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 2 December 2020
Before:
LORD JUSTICE HOLROYDE
MR JUSTICE PICKEN
MR JUSTICE HENSHAW
REGINA v
PAUL HENDERSON
(LANCE CORPORAL)
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 E VICKERS QC appeared on behalf of the Applicant
MR D EDWARDS appeared on behalf of the Service Prosecuting Authority
J U D G M E N T
1.
LORD JUSTICE HOLROYDE: On 25 March 2015 this applicant pleaded guilty before a Court Martial to nineteen offences which he had committed when serving as a Territorial Army Reservist holding the rank of Lance Corporal in an Engineer Regiment. Each was an offence contrary to
section 42
of the
Armed Forces Act 2006
of committing a criminal offence between 17 May 2011 and 22 December 2011. Sixteen of those criminal offences were offences of possessing an indecent photograph of a child, contrary to
section 160(1)
of the
Criminal Justice Act 1988
. The remaining three were offences of possession of an extreme pornographic image, contrary to
section 63
of the
Criminal Justice and Immigration Act 2008
. In all, the charges related to 126 moving indecent images of children and 38 extreme pornographic movies stored on three devices: an Advent computer tower, an Iomega hard drive and a WD Elements hard drive.
2.
On 27 April 2015, the applicant was sentenced on each charge to a Service Community Order for 2 years and was made subject to a Sexual Harm Prevention Order. He was also ordered to be dismissed from the Service.
3.
Following refusal by the single judge, the applicant now renews to the full court his application for an extension of time of well over 4 years to apply for leave to appeal against his convictions.
4.
For present purposes, the relevant facts can be stated very briefly. In 2011 the applicant was deployed to Afghanistan. Whilst he was serving there a fellow soldier borrowed his hard drive and found the imagery on it. The titles of some of the movies made it obvious that they were indecent images of children. The extreme pornographic movies showed adults having sexual intercourse with animals.
5.
In the investigation which followed, other devices were seized from the applicant's property in Afghanistan and from his home in Scotland. Analysis showed that the imagery had been downloaded in 2009 on to the Advent tower and subsequently transferred, first to the Iomega hard drive and then to the WD Elements hard drive. There was no evidence that any of the imagery had been transferred to the applicant's laptop, which he had with him in Afghanistan. None of the imagery had been viewed since 2009.
6.
The applicant was arrested on 23 December 2011 and interviewed in 2012. He denied downloading or viewing any of the imagery, which he said was contrary to his Christian values and beliefs. He said that someone must have downloaded the imagery without his knowledge. He identified his friend Sean Walsh as the person likely to have done so. He explained the transfer of images from one device to another by saying that when he bought new hardware, he simply copied everything across to the new device.
7.
At a hearing on 9 October 2013 there was discussion of the application of military law to the applicant at times when he was not serving as a reservist. The prosecution explained that the dates covered by the charges represented the period between the applicant's deployment and his arrest. The applicant was arraigned and pleaded not guilty to what were then six charges. These were in effect rolled-up charges, which were later split into the nineteen charges to which we have referred.
8.
Further preliminary hearings took place on 9 December 2013 and 13 January 2014. At the latter, the defence indicated that a report would be obtained from an expert witness. The prosecution were directed to serve by 31 January 2014 a log of the applicant's movements as a reservist, the obvious purpose of which was to assist the defence expert
to consider whether relevant downloading had taken place at times when it could not have been done by the applicant.
9.
The defence expert witness, Dr Wallis, provided a report on 23 April 2014.
10.
Further prosecution evidence and exhibits were then served in mid-May 2014.
11.
In October 2014, the applicant's trial began. It continued for several days, before being abandoned because further computer examination was found to be necessary.
12.
In January 2015, a detailed assessment was made of the applicant's dyslexia, a condition which had first been identified in 2004. It was recommended that the applicant be assessed to see whether he suffered from autistic spectrum disorder.
13.
The second trial was due to begin on 20 April 2015. Dr Wallis provided a further report dated 17 March 2015 which included an analysis of the times and dates of the relevant downloads. The report was not helpful to the applicant's defence, and if used at court would be likely to strengthen the prosecution case.
14.
The applicant was thereafter advised in conference by his then counsel and solicitor. He reflected on their advice over the weekend and took the opportunity to speak to members of his family and to his church elders.
15.
At a hearing on 25 March 2015 he applied to be rearraigned and pleaded guilty to the nineteen charges which we have summarised. It should be noted that in relation to charge 5, which alleged possession of eleven extreme pornographic images stored on the Advent tower, the applicant pleaded "guilty in respect of two images". His counsel later gave this explanation for that qualified plea:
i.
"... there are nine images that were downloaded at a time when the defendant was at work and his work sheets demonstrate that. And your Honour will know that in fact another person was interviewed under caution also in respect of these matters and it is the defendant's mitigation that he was, in effect, led into this. And I do not think that is likely to be contentious. But as far as that charge is concerned, there is that caveat, but otherwise he accepts the Crown's case as it is put."
16.
The applicant was sentenced on 27 April 2015. At that hearing the prosecutor applied for an order that the various devices seized from the applicant should be forfeit and destroyed. It is not entirely clear whether that order was in fact made; but even if it was, it was not acted upon, and we understand that all the devices remain in the possession of the Service police.
17.
The applicant's then counsel put forward testimonials from a number of persons, who all describe the applicant's offending as entirely out of character. Counsel reiterated the submission that the applicant had been led, through what he had regarded as friendship, in a direction he would not otherwise have gone, and that "left to his own devices" he might never have got involved in the offending. It was acknowledged that that was not the defence which had been run at the aborted trial, but counsel submitted it was consistent with what was said about the applicant in the testimonials.
18.
Later in his plea in mitigation, counsel submitted in terms that the applicant's friend (by whom he meant Walsh) had shown the applicant what was on the internet. The applicant had viewed it and it had thereafter simply remained on his computer. The applicant was sentenced as we have indicated.
19.
In the five-and-a-half years which have passed since then we understand that the applicant had made complaints about his former legal representatives to the Legal Ombudsman and the Scottish Legal Complaints Commission. Those complaints were rejected. He has requested the prosecuting authority and the police to investigate Sean Walsh. Police Scotland have done so, and have taken no action against Mr Walsh in relation to the relevant downloads, though we understand that Mr Walsh has been convicted of offences relating to his fraudulent obtaining of goods by ordering them in the applicant's name and using the applicant's bank account details. The applicant and his wife have also made extensive inquiries and obtained statements from potential witnesses. They challenge Dr Wallis's expertise and refer to material showing him in an unflattering light.
20.
The applicant's lengthy statement asserts that he was placed under improper and oppressive pressure by his former representatives to plead guilty. He gave no explanation in that statement of how it came about that counsel at the sentencing hearing mitigated in the terms to which we have referred. We have been told today that counsel had no instructions to mitigate on that basis. We are also told that a criticism of counsel's conduct in this respect was one of the matters about which the applicant complained to the Legal Ombudsman, but the complaint was dismissed.
21.
A further expert witness, Mr Lindley, has been instructed by the applicant's new legal representatives and has provided an initial report. Mr Lindley says that Dr Wallis's work was inadequate, and in some respects flawed, and that further examination and analysis of the computer evidence is necessary. He acknowledges that it is not usually possible, by computer forensic techniques alone, to say who was operating a device at a particular time. He adds that if the dates and items of relevant downloads and other activities are correctly reported by Dr Wallis and by the prosecution's expert witness, then the applicant has evidence of an alibi for many such sessions.
22.
Mr Vickers QC, for whose careful submissions on the applicant's behalf we are grateful, submits that no definitive grounds of appeal can properly be drafted until the expert witness has been able to complete all the examinations and analyses which he wishes to make.
23.
Proposed grounds of appeal have been outlined to the effect that the reports of Dr Wallis were inaccurate and misleading; that the legal representatives consequently gave advice which was based on an incorrect evidential foundation and would have given different advice if accurate and comprehensive expert evidence had been available; that evidence is now available to support the applicant's case that Walsh downloaded the imagery; and that there is no reliable evidence proving that the applicant knowingly had the imagery in his possession.
24.
In view of the criticisms which he makes of his former representatives, the applicant has been invited to waive privilege but has not done so. Mr Vickers suggests that a waiver of privilege was given in relation to the Legal Ombudsman complaint and would carry over to these proceedings. We doubt whether that is correct, but in any event, it does not explain why waiver has not been given specifically in these proceedings. Nor has any contact been made with the former legal representatives, in accordance with the principles stated in
McCook
[2014] EWCA Crim 374
.
25.
Mr Vickers submits that it would be premature to take such steps before further expert evidence is available. He submits that it would not be proper for him to draft grounds based on a criticism of the former representatives when it may be that they acted reasonably on the basis of the expert evidence then available to them.
26.
We entirely understand why Mr Vickers takes that view. It is, however, apparent from the lengthy statements of the applicant and his wife that strong criticisms are made by them of the former representatives which do not depend on computer analysis. We are aware in general terms that the criticisms are rejected by the former representatives because we have seen a letter to that effect in connection with the complaint to the Legal Ombudsman. We do not, however, have the details of any response by the former representative.
27.
The applicant asks this court to give directions requiring the respondent to make the computer devices or complete copies of them available to Mr Lindley for examination and to set a timetable for subsequent steps in this application.
28.
In a Respondent's Notice and in his brief oral submissions Mr Edwards on behalf of the respondent, to whom we are also grateful, submits that the applicant entered unequivocal guilty pleas after receiving legal advice and expert evidence. No step was taken to delay those pleas in the light of the dyslexia assessment or the recommendation for consideration of possible autistic spectrum disorder. No application has subsequently been made to vacate the pleas. It is submitted that the proposed grounds of appeal are speculative and that no reason has been shown why Mr Lindley should be allowed access to the original exhibits. The respondent has for that reason declined to facilitate any further examination, whilst making clear that it would of course do so if the court so directs.
29.
It goes without saying that a delay of well over four years requires cogent explanation before this court could grant the necessary extension of time. Before considering that point further, however, and before considering whether further directions could serve any useful purpose, we must reflect upon the overall merits of the proposed grounds of appeal. That is necessary because, whilst we understand Mr Vickers' wish to deal with matters sequentially, the applicant must, in our view, show that the proposed further examinations may realistically assist in the perfecting of grounds of appeal and are not merely speculative.
30.
A guilty plea does not deprive this court of its jurisdiction to allow an appeal against conviction if the conviction is unsafe. However, the fact that a defendant has pleaded guilty is, of course, highly relevant. In
Asiedu
[2015] 2 Cr App R 8
at paragraph 19, Lord Hughes, giving the judgment of the court, stated the general principle as follows:
i.
"A defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence. He may of course by a written basis of plea limit his admissions to only some of the facts alleged by the Crown, so long as he is admitting facts which constitute the offence, and Asiedu did so here. But ordinarily, once he has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant's own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court."
31.
It is not suggested that any different principle applies in the Courts Martial or in the Courts Martial Appeal Court.
32.
Lord Hughes went on to identify certain exceptions to that general principle: where the plea is equivocal or unintended; where the plea is compelled as a matter of law by an adverse ruling by a trial judge; and where there is a legal obstacle to the defendant being tried for the offence.
33.
A further exception to the general principle is that a conviction may be unsafe if a guilty plea was entered on the basis of inappropriate legal advice. However, as
Boal
(1992) 95 Cr App R 272
at page 278 makes clear, the setting aside of a conviction on such a basis is a most exceptional course, which will only be taken if the legal advice has deprived the defendant of a defence which would quite probably have succeeded and the court concludes that a clear injustice has been done.
34.
In addition to those exceptions, a conviction following a guilty plea may be regarded as unsafe on the basis of fresh evidence admitted pursuant to
section 23
of the
Criminal Appeal Act 1968
.
Section 23(1)
gives this court power to receive fresh evidence if the court thinks it necessary or expedient in the interests of justice to do so.
Section 23(2)
requires the court, in considering whether to receive any evidence, to have regard in particular to four matters, including whether there is a reasonable explanation for the failure to adduce the evidence in the proceedings below.
35.
In our judgment this applicant cannot rely on any of the exceptions to the general principle. He knows whether he had or had not downloaded any or all of the imagery or had knowingly been in possession of it after someone else had downloaded it. At the first trial he put forward the defence that he had never been in possession of any of the images. He could have maintained that defence at the second trial, but instead pleaded guilty.
36.
We recognise, of course, that a defendant who faces charges which may result in a prison sentence, and which may be less likely to do so if the mitigation of a guilty plea is available to him, will sometimes have a very difficult decision to make. Having received advice about the apparent strength of the evidence against him and having had an opportunity to reflect on that advice and discuss matters with his family and religious advisers, the applicant entered pleas which were unequivocal and which included, in relation to charge 5, a specific limitation on the extent of the offending which he admitted. His complaint now is not that he was given advice which was wrong in law, or was misled about the availability in law of a defence which would quite probably have succeeded. He knew that on his account of the matter he had a defence. It is said on his behalf that he only saw the Wallis report during the conference and did not have a proper opportunity to consider it in detail before making his decision as to pleas. But even if that is correct, it does not alter his knowledge of the facts or his knowledge that his account provided him with a defence. He made a choice to plead guilty, even though he maintained his denial of guilt. By doing so he admitted the facts on which the charges were based, with the result, as Lord Hughes said in
Asiedu
at paragraph 32, that:
i.
"... the evidence that they are true then comes from himself, whatever may be the other evidence advanced by the Crown."
37.
As to possible fresh evidence, we recognise that the applicant seeks directions to assist him in gathering evidence which he hopes may assist his case. He faces, however, what in our view is an insuperable obstacle. The evidence which he hopes he may be able to obtain is evidence which could have been obtained at the time of his trial, and there is, in our judgment, no basis on which the criteria stated in
section 23
of
the 1968 Act
could ever be satisfied. This is not a case in which some new material has only just come to light or in which some new scientific discovery has been made which casts doubt on previous evidence. The devices were seized about nine years ago. The applicant, through his legal representatives, obtained expert evidence in 2015 about the matters which he now wishes to reexplore. He complains that the expert witness in fact lacked expertise, that the expert witness misunderstood some key facts, and that subsequent investigation has cast doubt on the witness's reliability. But the reality of the case is that, on the applicant's account, he always knew that he had not downloaded the imagery and that someone else must have done so, and he put forward a prime suspect in that regard. On his account, he knew that when the Advent tower was first purchased it was, for a period of many months, loaned to Walsh and not used by the applicant at all. He could have contested the trial and challenged the prosecution evidence. He could have sought an opportunity to engage a different expert witness. We bear in mind his complaints that he was effectively railroaded away from these courses of action by the pressure put upon him by his then representatives. In the absence of any waiver of privilege, however, we cannot give any significant weight to these complaints.
38.
It is important to remember that the applicant pleaded guilty to offences of possession of the imagery in 2011, not to offences of downloading it two years earlier. Mr Lindley's report indicates that he is unlikely to challenge Dr Wallis's findings as to the dates and times of the downloads and other relevant computer activity. It is not suggested that further expert analysis would enable Mr Lindley to say for sure who carried out the relevant downloads. That could only ever be a matter of direct evidence by the applicant and/or of inference from the totality of the evidence, including as to the respective movements of the applicant and of Walsh, and as to the likelihood that one rather than the other was carrying out other computer activity around the time of the downloads. But even if further expert evidence might be able to show that some or all was downloaded at times when the applicant could not personally have carried out that operation, the issue of whether the applicant was knowingly in possession of it in 2011 would turn on his own evidence.
39.
In those circumstances, we agree with the single judge that there is no ground on which it could be argued that the convictions, based as they are on the applicant's guilty pleas, are unsafe. It follows that no purpose would be served by our granting an extension of time. We therefore need say no more about the merits of that application, and only observe that we are far from persuaded that an adequate explanation has been given for the very long period of delay before commencing an appeal. It also follows that no purpose would be served by our giving the directions which Mr Vickers seeks.
40.
For those reasons, grateful though we are to Mr Vickers for his submissions, the applications fail and are refused.
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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
Tel No: 020 7404 1400
Email: [email protected] | [
"LORD JUSTICE HOLROYDE",
"MR JUSTICE PICKEN",
"MR JUSTICE HENSHAW"
] | 2020_12_02-5031.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1677/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1677 | 874 |
5524bcbe0cb74ad0433d1183d7b61a093f68bd66314a3143a26341ed3ab65917 | [2009] EWCA Crim 2640 | EWCA_Crim_2640 | 2009-11-19 | crown_court | No: 200902682/A7 Neutral Citation Number: [2009] EWCA Crim 2640 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 19th November 2009 B e f o r e : MR JUSTICE LANGSTAFF MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - R E G I N A v SHARIF AYEVA - - - - - - - - - - - - - - - - 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 | No:
200902682/A7
Neutral Citation Number:
[2009] EWCA Crim 2640
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 19th November 2009
B e f o r e
:
MR JUSTICE LANGSTAFF
MR JUSTICE WYN WILLIAMS
- - - - - - - - - - - - - - - -
R E G I N A
v
SHARIF AYEVA
- - - - - - - - - - - - - - - -
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 N Devas
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE LANGSTAFF: On 20th April 2009 before the Peterborough Crown Court, the appellant pleaded guilty on rearraignment to an offence of causing a person to engage in sexual activity without consent, contrary to
section 4
of the
Sexual Offences Act 2003
. On 18th May 2009 he was sentenced for that offence by His Honour Judge Enright to a term of three-and-a-half years' imprisonment. He was to comply indefinitely with the notification provisions of Part 2 of
the Act
. Against that sentence he appeals to this court with the leave of the single judge.
2.
The facts briefly stated are these. On 30th October 2008 a 19-year-old woman was waiting to meet her father outside the public library in Peterborough. The defendant approached and engaged her in conversation, using the name "Joe" although it does not appear from any other papers to be his real name. He began to ask more personal questions and then confessed to her that she was beautiful, that he loved her and that he wished to be with her. She felt uncomfortable. She made excuses. She went away. She went away down an alley, and in that way appeared to have shaken him off. But when she came back to the front of the library, he appeared again and once more sought to engage her in this type of conversation. He suggested they went inside the library and they did so and then came outside. She explained that she had hoped that by then her father would have arrived and she could escape with him. But at that stage, he put his arms around her waist. She told him not to do it. That was the first but, sadly, not the only contact. She went down the alleyway again, but this time she did not escape the defendant. He followed. He caught her from behind. He put his hands around her breasts and grabbed them, digging his forearms into her upper arm so she could not move away from him and therefore brought her back into contact with his front. He insisted upon her listening to music from his phone and continued to compliment her.
3.
She had the sensation that he was unzipping his trousers. She felt that he had got his penis out and discovered that was so when he bent her arm behind her back and forced her to take hold of his erect penis in the palm of her hand, using his hand over her hand to rub it up and down. She told him to stop. He did not.
4.
She came free and came back to the front of the library, where she was picked up by her father, who had now arrived, very upset, crying, shaking and actually physically sick on the pavement.
5.
The defendant, later that same day, texted her on her phone. She said -- it was a matter which would have been in dispute at trial -- that during the course of the incident in the alleyway, he had taken her phone to ring his phone and no doubt thereby would have obtained her number. But he texted her undoubtedly to say "Hi Sam, it's Joe. Are you home? You are so lovely. Do you wanna stay in touch.?"
6.
When that case came to court it became apparent that the appellant was a man who had no previous convictions. But he did significantly have that which Miss Devas, who appears on his behalf of the judge, accepts is an aggravating factor, that is an offence (of battery) for which he was cautioned nominally. But the circumstances of that offence bore every similarity to this offence, in that it involved him approaching a young woman, on her own, engaging her in conversation, and conversation plainly with a view, if she responded, to his sexual gratification. This had been unwanted.
7.
The judge was told of that incident by the prosecution, in these terms: that the complainant in that case was near the library as was he, that she was asked by him whether she would like to meet up with him and told that he could make her feel really good. When she said "no" and said she was waiting for her boyfriend he had responded saying "come on please", grabbed her by her right arm and asked for her mobile telephone number and where she lived. She had had to take evasive action.
8.
When the judge came to sentence, having decided that there was mitigation in the late guilty plea, which had avoided the young lady giving evidence, he indicated that he could not conclude that the offender was dangerous, but then said:
"Having regard to the guidelines, however, at page 40 [that was a reference to the Sentencing Guidelines Council guidelines as to sexual offences], I take the view this falls in the two to five year bracket at the top of the page.
A sentence, on a fight, of four years' imprisonment would follow.
The most serious aggravating matter being the masturbation resulting, in due course, in ejaculation.
I make an appropriate discount for your plea."
That therefore resulted in the sentence of three-and-a-half years, with the time spent on remand 196 days to count towards it.
9.
Miss Devas then queried what the judge had said about the bracket. She has told this court that both the prosecution and she had told the judge that in fact, in their view, the proper sentencing range applicable for this offence was not that which the judge had identified but the less serious one. The guideline at page 40 consists of a grid in which the nature of the activity is described on the left, the starting point for adult offenders, such as was this appellant, who is aged 33 and then gives the sentencing range. For contact between the naked genitalia of an offender and the naked genitalia of the victim
or
, causing two or more victims to engage in such activity with each other or, causing the victim to masturbate him or herself, there is a sentencing range of 2 to 5 years custody with the starting point said to be 3 years custody.
10.
The second box, for less serious conduct, describes various types of activity, one of which is contact between the naked genitalia of the offender and another part of the victim's body, as to which 12 months custody is the starting point and the sentencing range is said to run from 26 weeks to 2 years custody. It was plainly to this provision that both counsel had drawn the judge's attention.
11.
When this was raised by the prosecution counsel she did so in these terms:
"Did Your Honour say that the case fell into the two to five year bracket?
[THE JUDGE]: Yes, I did.
[COUNSEL]: Because that is contact between the naked genitalia of the offender, and the naked genitalia of the victim.
There was no touching of her naked genitalia.
Or, it is causing two or more victims to engage in sexual activity with each other.
[JUDGE]: 'Or'.
[COUNSEL]: But the first bit is 'and'.
'Contact between naked genitalia
and
[she stressed that word] naked genitalia of the victim,
or
[she stressed that word] causing two or more victims,
or
, [again she stressed the word] causing victim to masturbate himself.
[JUDGE]: Yes.
I do not change my view on that. If you wish to dispute the finding, you would have to take the usual channel."
Counsel for the appellant then asked:
"Does Your Honour say which part of that activity...
[JUDGE]: That is all I wish to say. Thank you."
Counsel quite properly having raised the issue retreated.
12.
The judge did not explain why he had adopted the particular sentencing range which he did, which would have resulted, after a trial, in a sentence of 4 years for this activity for someone who, though cautioned relevantly had not been convicted of any previous offence.
13.
It seems to us, therefore, that the judge appeared to adopt and, indeed, did in terms adopt a guideline which upon the face of it was inappropriate for the particular activity upon which the appellant was engaged. For this appellant did not come within the strict wording of the guidelines. His naked genitalia were not in contact with her naked genitalia.
14.
In the absence of the judge's more detailed explanation of why it was he adopted the figure which he did from which to start, we have no basis for knowing. It would seem therefore that he may have adopted the wrong basis from which to start, because he specifically identified a category of offence into which this simply did not and could not fall upon the face of it.
15.
It seems therefore that, as a matter of principle, he approached this sentence on the wrong basis. But before we turn to the next question which arises, which is, "what then was the right sentence?" we must observe that plainly the judge felt that facts of this case were such that to him they fell outside those sorts of offences which would normally be comprehended within the second box on page 40 of the guidelines. It is of the nature of guidelines that they are sometimes treated as being more prescriptive than they may properly deserve.
16.
Indeed, part of the guidelines, which it may sometimes be forgotten as being part of the guidelines is the general principle, which is expressed in bold type, because of its importance at paragraph 1.3 of these very guidelines. That reads:
"For these types of offence, more than for many others, the sentencing process must allow for flexibility and variability. The suggested starting points and sentencing ranges contained in the offence guidelines are not rigid. Movement within and between ranges will be dependent on the circumstances of individual cases and in particular, the aggravating and mitigating factors that are present."
The guidelines, where they deal with those offences under
section 4
, emphasise that it is an aggravating feature of very great importance to know whether the offender has ejaculated or not. Here he did. There was thus a very significant aggravating feature.
17.
We ask ourselves therefore, what was the right sentence for this offence, taking into account what was said, and taking into account the judge's approach. Before turning to the offender himself, it seems to us that that there are a number of aggravating features in the circumstances of what took place. First, the unwelcomed conduct of the appellant was persisted in over a significant period of time. Secondly, there was no question here, in reality, that the signals which his victim was giving him could have been mistaken. She let him know his attention was not welcome. Thirdly, it was not one isolated incident of his getting her hand to touch his erect and naked penis, but also the grabbing of her breasts in a way that she could not escape and his putting her arm unwantedly around her beforehand. Not only was it a touching of the penis, but a masturbation of it, to the extent, as we have noted, that he ejaculated, although it is right to record that she was not aware that that is what had happened. Moreover, he was, as it seems to us, less than frank to the police, which must be borne in mind when considering the effect and discount for his plea of guilty. The effect of what he did was in this case immediately significant: his victim was sick. But more than that, the judge had before him, and we have before us, that which the victim herself said in her statement to the police as to effects upon her of what had taken place. She said that she had had problems sleeping at night since the incident, so much that she had to obtain medication from her general practitioner. She now found it difficult to trust people in general. She was reluctant to socialise as she was afraid about what they might do to her. She used to work at Tesco and had been signed off with stress because she worried about people whom she did not know coming up and speaking to her because she was concerned as to what they might do to her. She had planned to socialise over the Christmas period but was too frightened now to go out. She was even scared to stand outside her house in order to have a cigarette because she was too frightened to do so and had left college, at which she had been enrolled, because of her fears of meeting strange people whom she felt she could not trust. Albeit that statement was made between the date of the offence and Christmas, as the contents suggest it does show the serious after-effects of this offence on this victim.
18.
As to mitigation, there was the plea. Miss Devas has emphasised before us that there was no violence. She has described the incident as short lived, a submission, it is plain we do not accept in full and, as we have noted, she conceded that it was an aggravating feature that his conduct appeared to replicate his conduct which had led to his caution in 2007.
19.
What would give this court particular concern, however, is the content of the pre-sentence report. This was prepared after he had indicated that he would plead guilty but before he came for sentence. It somewhat blunts the effect of his plea. He was telling the male probation officer, who provided the report that the contact between him and her was consensual. This was even though he had pleaded upon a basis which plainly accepted that it was not. At paragraph 2.7 in that report the probation officer said:
"In terms of assessing his motivations for committing the offence the defendant maintains that he did not behave in the way outlined within the CPS documentation, stating that contact was consensual and 'no force at any time was used.' In challenging this statement [the appellant] suggested that the victims father 'may have influenced her' in terms of reporting the matter to the Police - although he could not specify a possible motivation for such actions. It is my assessment that sexual gratification was the primary motivational factor, and that the primary trigger underpinning his behaviour was undoubtedly the fact that the victim was alone and potentially vulnerable. There is also evidence of distorted thinking, with the defendant's suggesting that the victim was 'attracted to him' and that at one point telling he 'loved her and wanted to be with her' in the brief time they had met.
In assessing the defendant's levels of culpability it is my assessment that he chose to minimise his behaviour throughout, choosing instead to blame the victim and her father for his current predicament. At no point throughout the interview did he acknowledge that he had behaved inappropriately towards the victim, and he struggled to understand why such allegations had been made against him."
20.
In the same pre-sentence report it appeared that he was a man who had been married for some years. In paragraph 3.9 it said this:
"Whist there is a Basis of Plea in relation to this matter [the appellant] continues to deny that he committed any inappropriate sexual behaviour other than 'attempting to kiss the victim'. In seeking to address issues relating to risk it can be argued that the current offence represents an emerging pattern of targeting lone females and behaving inappropriately towards them."
That was plainly a reference to this offence, taken with the circumstances of the earlier offence and that which the probation officer had uncovered about the way in which he first met his wife.
21.
On that basis Probation Officer suggested that the defendant should complete an accredited programme to explore his disordered thinking and cognitive deficits. Then he went on to say:
"His continued levels of denial may prohibit him from completing such interventions."
He concluded that the appellant posed a medium to high risk of harm to others, namely lone adult females. We should add that he was significantly older than his victim in this case.
22.
Taking those aggravating features into account, bearing in mind the need in sentencing offenders to have regard to the risk which they pose, in establishing a determinate sentence, noting that this offence is one which if one began within the second box on page 40, the aggravating features to which we have referred would significantly take it beyond, and bearing in mind what is said in paragraph 1.3 of the guidelines, that they are exactly that, guidelines and not tram lines, we consider that the appropriate sentence, after a trial in this case, would have been in the region of 30 months' imprisonment. That is significantly less than the trial judge began at. He appears to have begun at about 4 years.
23.
Making such allowance as we can for his plea, which was late, and in the circumstances rather disturbingly contradicted by what he told the probation officer immediately afterwards, we think that the proper sentence in this case, starting at the right starting point would have been one of 2 years and 3 months' imprisonment. That has the consequence that the notification requirement under Part 2 of the
Sexual Offences Act 2003
can no longer be one which runs indefinitely but is limited to 10 years and accordingly that provision too must be varied. The appeal therefore succeeds to that extent. | [
"MR JUSTICE LANGSTAFF",
"MR JUSTICE WYN WILLIAMS"
] | 2009_11_19-2163.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2640/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2640 | 875 |
e4e675555988ae23e7e3194be354f45ff46229d7c4e1a4ab9f6b3bb148a0b3af | [2019] EWCA Crim 1363 | EWCA_Crim_1363 | 2019-07-18 | crown_court | Neutral Citation Number: [2019] EWCA Crim 1363 Case No: 201705168 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CARDIFF CROWN COURT His Honour Judge Vosper QC T20177054 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/07/2019 Before: LORD JUSTICE LEGGATT MR JUSTICE POPPLEWELL and HIS HONOUR JUDGE MARSON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - DONALD GORDON ADAMS Appellant - - - - - - - - - - - - - - | Neutral Citation Number:
[2019] EWCA Crim 1363
Case No: 201705168 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
His Honour Judge Vosper QC
T20177054
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/07/2019
Before:
LORD JUSTICE LEGGATT
MR JUSTICE POPPLEWELL
and
HIS HONOUR JUDGE MARSON QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
DONALD GORDON ADAMS
Appellant
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr A Greenwood
appeared on behalf of the
Appellant
Mr R Griffiths
appeared on behalf of the
Crown
Hearing date: 18 July 2019
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Leggatt:
1.
This is an appeal against convictions for sexual offences alleged to have been committed many years ago between 1980 and 1987. The provisions of the
Sexual Offences (Amendment) Act 1992
apply in this case and nothing may be published which would be likely to lead members of the public to identify the victims of the offences.
2.
On 19 October 2017 in the Crown Court at Cardiff, following a retrial before His Honour Judge Vosper QC and a jury, Donald Adams was convicted of six counts of rape and eight counts of indecent assault. He was sentenced for those offences to a total of 15 years' imprisonment. No evidence was offered against him on two further counts on which not guilty verdicts were therefore returned.
3.
Mr Adams was born in February 1940. At the time of the trial he was 77 years old and, before these convictions, was of good character. He began an appeal against his convictions, and we will refer to Mr Adams as the appellant, although he died in October 2018. Approval has been granted to his widow under
section 44A of the Criminal Appeal Act 1968
to continue the appeal. Leave to appeal limited to three grounds was granted by the full court on 5 March 2019.
4.
There were two complainants whom we will refer to (to preserve their anonymity) as M and G. M is female and G is male. M was born in [on a date in] 1967 and G was born in [on a date in] 1970. When they were young they were both members of a brass band of which the appellant was also a member. He was 27 years older than M, in his early forties at the relevant time and married with children.
5.
The band practised three times a week and it was M's evidence that the appellant used to give her a lift to and from band practice. She said that on the way back he would take her to a secluded location on a common where he made her perform oral sex on him and raped her vaginally. She said that the first time this occurred was on Bonfire Night when she was about 13 and on this basis the alleged incident was dated to on or about 5 November 1980. M stated that, from then on, the same abuse occurred routinely after band practice and sometimes also on other occasions. It carried on until she was aged 17, at which time she became pregnant by the appellant and had a
child. The abuse then stopped. She maintained that she never consented to sexual activity and, although she admitted kissing the appellant and participating in sexual acts, said that she only did so because she was conditioned by earlier abuse.
6.
The first three counts on the indictment related to the incident on or about 5 November 1980. The other counts relating to M were specimen charges alleging rape and indecent assault at some time in each year when M was aged respectively 13, 14, 15, 16 and 17.
7.
The appellant did not give evidence at the trial, but he answered all questions in interview under caution in which he admitted sexual activity with M but denied that any sexual acts took place before she was aged 16 and that any acts were consensual.
8.
Two school friends of M gave evidence that she had told them about a relationship which involved kissing the appellant when they were aged about 14. One said that M
would accompany the appellant after band practice and drive off in the direction of the common, which was where M said the abuse took place. On the other hand, M's mother gave evidence that she worked a shift which ended at approximately 9pm and, when she got home, M would already be at home.
9.
As an adult, M has had a history of involvement with mental health services from 2004 and has been admitted to hospitals for treatment on various occasions under
section 3 of the Mental Health Act 1983
. This history was the subject of formal admissions at the trial, including the fact that M has been diagnosed with and treated for Dialectic Behaviour Disorder, a condition which is characterised by taking extreme positions. It was the appellant's case at the trial that M was now, many years after the event, viewing her past relationship with him through that prism in a distorted way.
10.
The last count on the indictment, count 16, related to the second complainant, G. He gave evidence that he was sexually abused by the appellant on two occasions. He said that the first incident occurred on board a ship when the band went on a trip to Denmark and the second incident occurred when he was aged 16 and was working on a youth training scheme at a Debenhams store in Cardiff. G said that he had left the band by then but one day the appellant turned up at his work unannounced and took him to a pub for a drink. The appellant then drove him home and on the way home stopped in a layby where an assault took place. On each occasion G alleged that the appellant forced his penis into G's mouth and tried to make G perform oral sex on him. The first alleged incident was not the subject of a charge as it occurred outside the United Kingdom.
11.
G's long term partner gave evidence that, many years earlier, G had told him about the second alleged incident which was the subject of count 16.
12.
M and G had been friendly when they were in the band and had kept in touch. Facebook records (disclosed as a result of a request made by the defence) revealed that they had met in August 2016 at a pub in Cardiff. When asked about this, M said in evidence that she could not remember what was discussed at this meeting; G gave evidence that he wanted to find out what M's motive was for making a complaint about the appellant. It was after this meeting had taken place that G agreed to give a full statement to the police.
13.
The three grounds on which leave to appeal was granted are in summary as follows. First, it is said that the judge erred in not giving the jury any direction about whether, and if so how, they could rely on the evidence of each complainant when considering the allegations made by the other. Second, it is argued that the judge was also wrong not to direct the jury about the possibility of collusion between M and G in circumstances where it was a central pillar of the defence case that M was manipulative and capable of influencing others to support her allegations. Third, it is said that the judge in summing up the evidence unfairly undermined and cast doubt on a piece of evidence on which the defence was entitled to rely. That evidence was the fact that during his first interview under caution, when asked whether there was anyone in the band apart from M who was under the age of 16 at the time, the appellant had specifically identified G. The defence argued that it was inherently improbable that he would have given to the police the name of a person as someone whom they might speak to if that person was someone whom the appellant had sexually assaulted. It is submitted by counsel for the appellant, Mr Greenwood, that on these grounds, either individually or in combination, the appellant's convictions are unsafe.
14.
In our view, by far the most substantial of these grounds is the first. As confirmed in the leading case of
R v Freeman
[2008] EWCA Crim 1863
;
[2009] 1 WLR 2723
, there are two main ways in which, in a case of this kind, evidence of an offence allegedly committed on one occasion may be relevant to an allegation that the defendant committed an offence on another occasion, either against the same or against a different complainant. One way in which such evidence may be relevant is if it goes to establish a propensity to commit a particular kind of offence. The basic reasoning is that, if he has done similar things on other occasions, it is more likely that he did it on this occasion. For such reasoning to be legitimate the relevant propensity must first be established, which requires the jury to be sure that an offence of the relevant kind was committed on one or more occasions. They may then rely on those proven offences to support an inference that the defendant committed an offence of a similar type on another occasion.
15.
The second main way in which evidence relating to one alleged offence may be relevant to the issue of whether the defendant committed another alleged offence is simply by reducing the likelihood of there being an innocent explanation for the allegations. So, for example, in a case such as the present one, where two individuals each make allegations that they have been sexually assaulted by the same person, provided there is no reason to think that their allegations are linked for some other reason – for example, because they had got together to concoct false stories, the evidence of each complainant may strengthen the case relating to the other. As Rix LJ observed in
R v H
[2011] EWCA Crim 2344
, at paragraph 24, the reality is that independent people do not make false allegations of a like nature against the same person in the absence of collusion or contamination of their evidence. This form of reasoning does not require the jury to find one allegation independently proved before they may properly treat evidence relating to that allegation as relevant to other alleged offences.
16.
Both of these categories of case involve the use of evidence which is evidence of the defendant's bad character and the admission of such evidence is therefore governed by the relevant provisions of the
Criminal Justice Act 2003
. Furthermore, under Part 21 of the Criminal Procedure Rules, where a party wants to introduce evidence of bad character, there is a procedure which must be followed which involves the service of a notice and, if objection is taken to it, an application to the court to rule on the matter.
17.
In the present case, no notice was given at any stage by the prosecution that it wanted to rely on any evidence of the appellant's bad character, save for a notice of an intention to rely on the evidence relating to the alleged assault on G on the boat trip to Denmark in connection with the alleged assault on G which was the subject of count 16 of the indictment. Mr Griffiths, who appeared at the trial for the respondent and has appeared today, has confirmed that the prosecution did not seek to put its case at the trial on the basis that evidence relating to any of the counts on the indictment was admissible in relation to the issue of whether the appellant was guilty on any other count.
18.
As that was the position adopted by the Crown, the jury ought to have been directed that, in considering each count, they should have regard only to the evidence which was directly relevant to that count and should ignore evidence relating to other counts. In particular, the jury should have been told that, when considering whether each of the alleged offences involving M was committed, they should ignore the evidence relating to the allegations made by G, and vice-versa. In the absence of such a direction, we think that a jury would naturally assume that they were entitled, when considering any particular count, to have regard to any of the evidence they had heard during the trial if they thought that evidence relevant. No such direction was given by the judge. Indeed, he did not give any direction to the jury at all with regard to whether, and if so how, they could take account of evidence relating to one count when considering other counts and in particular whether they could take account of either complainant's evidence when considering the allegations made by the other.
19.
The only direction which the judge gave about how the jury should approach the different counts was a standard direction to say that they should consider the case against and for the defendant on each count separately. But that did not tell the jury whether they could or could not, when considering the case against the defendant on a particular count, have regard to evidence relating to other counts or other occasions. For example, in considering whether they should accept M's evidence that the appellant had assaulted her on or around Bonfire Night in 1980 as truthful and reliable, were the jury, or were they not, entitled to place reliance on any view they had formed about the likelihood that the allegations of sexual assault made by G were true? They received no assistance from the judge on that important question. Certainly it was not made clear, indeed it was not suggested at all, that they should treat evidence relating to G's allegations as inadmissible on the counts relating to M, and vice-versa.
20.
Mr Griffiths has helpfully drawn our attention to the case of
R v H
(to which we have already referred), which involved allegations that the defendant had sexually abused three boys at various times. In that case it was treated as sufficient that the trial judge had given a more or less standard direction, similar to the direction given in the present case, about treating each count separately. We are bound to say that we have difficulty in understanding why that was thought adequate in circumstances where it did not appear that any ruling had been given that evidence was cross-admissible. But we agree with the observation at paragraph 31 of the judgment in that case that: "Everything depends on the directions and facts of a particular case, and the danger that the jury might seek to use the evidence of one complainant as evidence of his guilt on counts concerned only with another complainant."
21.
In this case, had the prosecution sought to argue that evidence of each complainant was admissible in relation to the allegations made by the other because it reduced the likelihood of innocent explanation, we anticipate that the evidence might properly have been admitted on that basis. But no such ruling was sought or given and, unless the procedure for admitting evidence of bad character is to be treated as a complete dead letter, that meant that the evidence was inadmissible and the appellant was entitled to have the case decided on the basis that evidence on each count was inadmissible in relation to other counts. That in turn made it necessary for the judge so to direct the jury.
22.
Looking at the matter more broadly, the general tendency of the criminal law over time has been towards a gradual relaxation of rules of evidence and an increasing willingness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way. But we have not yet reached the point where evidence of a defendant's bad character can be left as a free for all. The particular ways in which evidence that a person has committed one offence may or may not be relevant in deciding whether that person is guilty of another offence are not always immediately obvious even to legal professionals and have had to be worked out by the courts in a number of cases. Lay jurors are entitled to assistance on these questions and cannot be expected to work out the approach which the courts regard as proper for themselves. It therefore seems to us to be essential that, in a case of this kind, the jury should be given clear directions on whether, and if so how, evidence relating to one count may be taken into account in deciding guilt on another count.
23.
In this case, as we have indicated, no such direction was given. Moreover, it was a case in which, as we see it, the question whether the evidence of each complainant was admissible in relation to the allegations made by the other was potentially of great significance to the jurors' decisions. In these circumstances, we consider that the failure to give any such direction makes the appellant's convictions unsafe.
24.
In the light of this conclusion it is unnecessary to address the other grounds of appeal, save to say that we are not persuaded that either matter of itself impaired the safety of the appellant's convictions. For the reasons given, we uphold the first ground of appeal and accordingly the appellant's convictions will be quashed. | [
"His Honour Judge Vosper QC",
"LORD JUSTICE LEGGATT",
"MR JUSTICE POPPLEWELL",
"HIS HONOUR JUDGE MARSON QC"
] | 2019_07_18-4669.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1363/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1363 | 876 |
07155bce03f7c647741ae650fe87d4a2f5b3e3559499f2823affce9b5f11a13e | [2010] EWCA Crim 2854 | EWCA_Crim_2854 | 2010-11-23 | crown_court | Neutral Citation Number: [2010] EWCA Crim 2854 No: 200802854 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 23 November 2010 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE DOBBS - - - - - - - - - - - - R E G I N A v LESLIE JOHN MAYNARD - - - - - - - - - - - - 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 | Neutral Citation Number:
[2010] EWCA Crim 2854
No:
200802854 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 23 November 2010
B e f o r e
:
LORD JUSTICE TOULSON
MRS JUSTICE DOBBS
- - - - - - - - - - - -
R E G I N A
v
LESLIE JOHN MAYNARD
- - - - - - - - - - - -
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 A Evans QC and Miss N Bahra
appeared on behalf of the
Applicant
Mr M Heywood QC
appeared on behalf of the
Crown
- - - - - - - - - - - -
JUDGMENT
1.
LORD JUSTICE TOULSON: The appellant has a long history of mental ill-health. He is now aged 57 and has been receiving care from mental health authorities in one way or another for the best part of 30 years. In 1999 he was diagnosed as schizophrenic and drug and alcohol dependent. In 2004 he became a resident at Garthowen care home in Chiswick. On 4 February 2006, he stabbed to death a fellow resident, Roy Barber, who was aged 62 and was also suffering from schizophrenia.
2.
On 5 October 2007 at the Central Criminal Court before HHJ Paget and a jury, he was convicted of murder. On 6 March 2008, he was sentenced to life imprisonment, with a minimum specified term of 15 years, less 415 days spent on remand. He later applied out of time for leave to appeal against conviction. The application was based on fresh psychiatric evidence from Professor Nigel Eastman. The Crown in turn obtained a psychiatric report from Dr Andrew Johns, who agreed with the opinion of Professor Eastman that, at the time of the offence, the appellant was suffering from a serious psychotic illness.
3.
On 20 May 2009, this court allowed his application for leave to appeal, quashed the conviction for murder and substituted a conviction for manslaughter on the ground of diminished responsibility. On that occasion both Professor Eastman and Dr Johns attended court. It was agreed by them, the prosecution, the defence and by the court that the appropriate sentence would be a hospital order, with a restriction order unlimited in time, but the court was unable to make such an order on that occasion because it had no evidence about an available hospital placement. 18 months on, the appellant remains in prison and there is no available placement. There are a number of reasons for this. The difficulties have been explained in successive medical reports. There is no purpose in going through them all, but an important reason for there being no possible medical disposal now available to the court is that the appellant himself is adamantly opposed to such a course and has refused to co-operate with any assessment which might lead to that result. The reason for that is that he believes that he is likely to be released sooner if he receives a prison sentence than he would if he were made the subject of a hospital order with a restriction. For those reasons, he has declined to co-operate in a further psychiatric review which had been planned prior to today's hearing.
4.
It is plain in these circumstances that no useful purpose would be served by adjourning the matter further, and the court is no nearer to being able to make a hospital order now than it was 18 months ago.
5.
Mr Evans QC has appeared on behalf of the appellant on this occasion as he has on previous hearings, and we are grateful for his assistance. That assistance has been limited because it has been impossible for him to obtain instructions from the appellant, who is not willing to talk to his legal team. However, Mr Evans has confirmed that he is unable to advance any reason why the court should either adjourn the case further or take further steps to explore the possibility of a medical disposal. He acknowledges that the only course this court can now realistically take is to impose a custodial sentence.
6.
The first question which then presents itself is whether the appellant satisfies the statutory criteria of dangerousness such that the appropriate sentence should be an indeterminate sentence. Mr Heywood QC on behalf of the prosecution has produced a helpful note in which he has identified the relevant factors and reasons for the court concluding that an indeterminate sentence would be the right sentence in this case. Mr Evans has not felt it possible to advance any contrary argument. Nevertheless, it is a judgment which this court must itself make.
7.
We are in no doubt that the appellant does satisfy the criteria of dangerousness. That follows from a combination of the nature of the offence itself and his highly unstable mental personality, details of which emerge from the many medical reports before the court. From those reports, we make a brief selection. Professor Eastman, in his report dated 27 February 2008, said at page 36:
"Psychosis, including schizophrenia or schizo-affective disorder, can have both a general disinhibiting effect upon behaviour, as well as sometimes involving specific symptoms which, so to speak, drive or further disinhibit a person towards attacks on others. In my opinion, both of these effects of psychosis apply in relation to the defendant."
8.
Dr Johns, in his report a year later dated 15 March 2009, said at paragraph 81:
"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 I conclude that it is necessary for the protection of the public from serious harm for the court to order a section 41 restriction order (
Mental Health Act 1983
& 2007)."
9.
At the hearing before the court when a conviction of manslaughter was substituted for murder, it was made plain that the psychiatrists were agreed that such a restriction order should be without limit of time.
10.
The psychiatrist currently responsible for overseeing the appellant's care in Belmarsh Prison is Dr Ian Cumming. In a report dated 19 April 2010, he said at paragraph 22:
"As in the community, Mr Maynard is a challenging individual to manage and keep safe. Mental health services appear to be the default position and arguably have not been successful in either containing or managing him in the long term. I have real concerns that in the event of a long custodial sentence he will continue to need placement in the inpatient area of prison. Within the main prison he generates considerable anxiety in professionals and this is not aided by an established history of self-harm and also a heady brew of psychiatric issues and uncertainty around these. I would have concern that in the event of long custodial sentence that he will not be able to be managed in the long term outside of the health care centre. This will have a major impact upon Mr Maynard moving on to another prison and undertaking work within offender management systems."
11.
On 12 June 2010, Dr Cumming provided an updated report for the court. In it he said:
"2. ... At the time of my last report we had tried to relocate Mr Maynard in the main prison. This was attempted again in early May. Despite being willing to leave the health centre and try once more the main prison, on this occasion Mr Maynard lasted around three hours in the main prison before being returned to the health care centre once more over issues with self harm.
3. He subsequently began to bang his head against the wall - he became very distressed and his mental state began to disengage ...
...
7. Although the clinical and diagnostic issues remain the same, I once more write to the court to express my concern about the long term management of Mr Maynard. I am very doubtful that we will ever be able to move Mr Maynard on either to the main part of the prison or another prison. He remains a vulnerable individual whose mental state quickly and dramatically changes. Although I would accept that there are issues around his personality, I am still of the view he has psychotic symptoms though it is practically difficult to ascertain which is the primary issue at any one time."
12.
In his most recent report dated 21 November 2010, Dr Cumming states:
"3. ... Mr Maynard remained in the health centre until 22 June when he asked to go to the main prison."
He went on to say that he has coped better in the main prison than Dr Cumming would have expected, but he concludes his report as follows:
"11. I have little to add in terms of my opinion on his clinical state from my earlier reports. Mr Maynard has a chronic mental illness and has a history of self harm and suicide attempts. I remain of the view that safely managing Mr Maynard in prison will continue to prove challenging. However he has managed to survive outside of the health care centre for much longer periods and in my most recent interview with him clearly stated that he did not want to go to hospital. This was predicated upon his view that he believes he will receive an indeterminate sentence and that this is preferable to hospital which he sees as likely to be longer.
12. I am aware that he has gradually disengaged from the court process. He has avoided seeing his legal team and thus the further psychiatric reviews that had been due to take place for sentencing on 23.11.2010. I remain of the view that he is a vulnerable prisoner - he has chronic symptoms of mental illness and additionally self harms and makes attempts upon his life - sometimes this is linked to specific issues but on other occasions there is no easily identifiable trigger. He remains a challenging prisoner to manage in prison and particularly if he receives a significant indeterminate sentence."
13.
There is here some apparent evidence of manipulation in that Mr Maynard has chosen to behave in the main part of the prison and to refuse any up-to-date assessment because he believes this is in his own long-term interests. But whilst capable of manipulative conduct, he is also clearly somebody whose mental state can change quickly and unpredictably. The risks which have in the past caused psychiatrists to consider that any hospital order should be subject to a restriction order without limit of time equally make it necessary for the safety of the public that any custodial sentence must be indeterminate. With his history, it is impossible to know whether a time is ever likely to come when he can with confidence be safely managed in the community.
14.
The next question is what form an indeterminate sentence should take. Sentences of life imprisonment are reserved for the gravest cases. In our judgment, this case falls within that category. The gravity in terms of result speaks for itself. This was a killing of a vulnerable and defenceless man. The gravity in terms of culpability is relevant both to what form the indeterminate sentence should take and also what should be the minimum specified period.
15.
Mr Heywood has identified a number of features which aggravated the seriousness of the offence. There was some premeditation. The appellant lay in wait for the deceased and hid before doing so, having armed himself with a large kitchen knife taken from staff accommodation. He chose to attack a vulnerable victim at a moment when he was sitting in the day room unprotected, and the attack was carried out without warning in what was for all purposes the victim's own home. There was some evidence that the appellant intended to kill against a background of a degree of previous animosity directed at the deceased. The attack was sustained and directed at the deceased's vital organs. In part the attack was occasioned by the appellant's bad reaction to attempts on the part of the staff to stop him drinking alcohol, which he continued to do despite warnings, compounded also by refusals to take medication. After the killing, the appellant cleaned the knife and disposed of it. He then advanced a story of coming across the deceased already dead, and for a substantial time he maintained that he was not in any way responsible for the killing. He must have known that to be false. He has remained indifferent to the killing. His previous convictions include offences of violence.
16.
Notwithstanding that he did suffer from serious psychosis on the medical evidence, we nevertheless take the view that this was a case in which there was still a substantial measure of responsibility for his actions. As already summarised, they were planned, they were carried out at a moment when nobody else was around, and there were attempts at concealment afterwards. This was no moment of sudden, unplanned, aberrant violence.
17.
In all the circumstances, we conclude that the right sentence is one of life imprisonment. There remains the question what should be the minimum sentence. As already noted, the minimum period set by the trial judge on the appellant's conviction for murder was 15 years in accordance with the guidelines in the Act. This would be equivalent to a determinate sentence of 30 years' imprisonment. We do not have the judge's sentencing remarks, but we are entitled to conclude that the judge must have weighed both the aggravating features to which we referred, but also his knowledge that the appellant was in a care home at the time and had some history of mental illness, although he did not have anything like the medical details which this court now has.
18.
In our judgment, the right sentence which justly allows for the substantial impairment of responsibility necessary to found a plea of diminished responsibility but also reflects the gravity of the features which we have identified would be a notional determinate sentence of 20 years' imprisonment. The specified minimum period which we set will therefore be ten years' imprisonment, dating from the date of original sentence - that is 6 March 2008 - less 415 days on remand.
19.
We are grateful to counsel for both parties for their assistance in this difficult case. We will direct that a copy of the transcript be sent to the governor of the prison where the appellant is housed and should accompany him on any transfer to any other prison.
Addendum: April 2011
20.
It has been brought to our attention that the number of days on remand was inaccurately calculated by the prison service. Accordingly the figure of 759 days be substituted so that the sentence of the court should read:
“The specified minimum period which we set will therefore be ten years’ imprisonment, dating from the date of original sentence – that is 6 March 2008 – less 759 days on remand.” | [
"LORD JUSTICE TOULSON",
"MRS JUSTICE DOBBS"
] | 2010_11_23-2556.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2854/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2854 | 878 |
6696782413015538854da9ee9f54bb3c5bcf4e710b37c16531d49a1cc551bf8b | [2019] EWCA Crim 2271 | EWCA_Crim_2271 | 2019-12-19 | crown_court | Neutral Citation Number: [2019] EWCA Crim 2271 Case No: 201900906 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT PRESTON MR JUSTICE HOLROYDE T20137023 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/12/2019 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) (LORD JUSTICE FULFORD) MR JUSTICE SPENCER and MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - - - - Between: Damien Paul Gorman Appellant - and - Regina Respondent - - - - - | Neutral Citation Number:
[2019] EWCA Crim 2271
Case No:
201900906 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT PRESTON
MR JUSTICE HOLROYDE
T20137023
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/12/2019
Before:
THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
(LORD JUSTICE FULFORD)
MR JUSTICE SPENCER
and
MR JUSTICE WILLIAM DAVIS
-
- - - - - - - - - - - - - - - - - - - -
Between:
Damien Paul Gorman
Appellant
- and -
Regina
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Joel Bennathan Q.C.
(instructed by
Hadgkiss Hughes & Beale Solicitors
) for the
Appellant
Nicholas S Clarke Q.C.
(instructed by
CPS Criminal Appeals & Review Unit
) for the
Respondent
Hearing dates: 28
th
November 2019
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Fulford:
Introduction
1.
The following order was imposed by Mr Justice Holroyde on 13 February 2013 at the Crown Court at Preston:
“Pursuant to
Section 46 Youth, Justice and Criminal Evidence Act 1999
It is ordered that:
In order to avoid substantial risk of prejudice to the administration of justice in these proceedings (or pending or imminent proceedings) there should be no report published or broadcast which refers to:-
The name, address, and place of work Crystal Hill, of which includes any still or moving pictures.
Until further order.
The purpose of making the order is to protect the fairness of the proceedings from the publication of the material referred to, which, if published might have a substantially adverse effect on the fairness of the proceedings (or pending or imminent proceedings).”
2.
It is clear that the order should have been made under
section 4 (2) Contempt of Court Act 1981
. It was not an order made to protect a witness, given there was no reference to the risk that the quality of the evidence or the level of cooperation on the part of the witness would be diminished if the order was not made. Furthermore, if it was an order to protect the witness, it should have been made for her lifetime. Instead, it was made, until further order, to protect the fairness of the proceedings or pending or future proceedings.
3.
The proceedings then pending never occurred (see paragraph 49 below). In those circumstances, it is in the interests of justice to dispense with the entirety of the restriction on reporting.
4.
On 12 June 2013 at the Crown Court at Preston before Holroyde J and a jury, the applicant was convicted of murder (count 1), and three counts of attempted murder (Counts 2 – 4).
5.
On 13 June 2013 he was sentenced on count 1 to imprisonment for life (33 years was specified as the minimum term under
section 269 (2) Criminal Justice Act 2003)
, and to 24 years’ imprisonment on each of counts 2, 3 and 4, concurrent with each other and with the sentence imposed on count 1.
6.
He stood trial with a number of others. Dale Cregan pleaded guilty to four counts of murder (counts 1, 6, 10 and 11), three counts of attempted murder (counts 2 – 4) and one count of causing an explosion with intent to endanger life (count 8) and was sentenced to imprisonment for life with a whole life order. Luke Livesey was convicted of murder (count 1) and three counts of attempted murder (counts 2 – 4) and was sentenced to imprisonment for life (minimum term 33 years). Anthony Wilkinson was convicted of possession of a firearm with intent to endanger life and murder (counts 5 and 6) and was sentenced to imprisonment for life (minimum term 33 years). Jermaine Ward was convicted of murder (count 1) and sentenced to imprisonment for life (minimum term 33 years). Mohammed Ali was convicted of assisting an offender
(count 9) and was sentenced to 7 years’ imprisonment.
7.
Leon Atkinson, Ryan Hadfield and Matthew James were acquitted of murder and attempted murder (counts 1 – 4). Francis Dixon was acquitted of murder, attempted murder and causing an explosion with intent to endanger life (counts 1, 2 and 8).
8.
Before this court, the applicant applies for an extension of time of 2066 days in which to apply for leave to appeal against conviction after referral to the full court by the single judge. He seeks to rely on fresh evidence pursuant to
section 23 of the Criminal Appeal Act 1968
and this application has also been referred to us. There is no criticism either as to the way in which the trial was conducted or the judge’s summing up, and the latter, for a trial that began on 4 February 2013 and concluded on 12 June 2013, is a model of brevity and clarity. It was delivered over only four days and it is a paradigm as to how to sum up a multi-handed case (10 defendants), focussing on the main issues and evidence, in a way that will best assist the jury.
The Background
9.
Just before midnight on 25 May 2012, Dale Cregan, got out of a stolen Ford Focus wearing a balaclava, and walked into the Cotton Tree Public House, Droylsden, armed with a self-loading pistol. He shot and seriously injured John Collins, Ryan Pridding and Michael Belcher. He shot and killed Mark Short (he died the following day).
10.
Two weeks later, Dale Cregan killed David Short, Mark Short’s father, by shooting him repeatedly whilst chasing him through his home and throwing a military grenade at him.
11.
The motive for all this violence was a previous incident in which the mother of one of the applicant’s co-accused, Leon Atkinson (who was acquitted) had been slapped by Raymond Young, who was an associate of the Short family. As a result, Atkinson desired revenge of an extreme kind and, the prosecution alleged, organised for the shootings to be carried out.
12.
Cregan then went on the run and lured two unarmed police officers to the house where he was staying. When they arrived, he opened the front door and shot at PC Fiona Bone and PC Nicola Hughes multiple times, killing both of them.
13.
The prosecution case was that the applicant assisted Cregan in the events of 25 May 2012. It was contended that he was in the Ford Focus, along with Luke Livesey, that took Cregan to and from the Cotton Tree Public House, and they used the applicant’s former home to clean up after the event.
14.
Given the arguments raised on these applications, it is necessary to consider some of the detail of the case against the applicant. There was evidence from a variety of sources – indeed, it was undisputed – that the applicant, Cregan, Livesey and Ryan Hadfield had spent the afternoon together at a succession of public houses, ending up in Stalybridge. In the early evening, the applicant spoke with Cregan on the telephone. Around 8 pm, the applicant moved location to the New Inn Public House in Hollingworth, a few miles away. Following a telephone call from Matthew James to Cregan to confirm that the Short family were in the Cotton Tree Pub (James gave evidence to that effect), Cregan, Livesey and Hadfield were picked up by a taxi at a public house in Stalybridge at approximately 10 pm, and they collected the applicant from the New Inn, Hollingworth at 10.12 pm. The driver stated that he knew the applicant as a regular customer called “Damo”, a man who had a distinctive scar on his face. The four men were dropped off at various places in Droylsden. When first interviewed, the applicant lied about having made this taxi journey. We interpolate to observe that it was undisputed that the applicant had been with two of the men involved in the shooting at the Cotton Tree less than two hours before this happened (Cregan admitted that he was the person who used the gun and Livesey was convicted of murder (count 1) and attempted murder (counts 2 – 4)).
15.
Before the events in counts 1 – 4, Cregan, Livesey and the applicant all stopped using their mobile phones.
16.
At 11.49 pm, a stolen Ford Focus was captured on CCTV pulling up outside the Cotton Tree Public House in Droylsden and Cregan got out. He went into the pub and started shooting, killing Mark Short and seriously injuring three others. He then jumped back into the passenger side of the Ford Focus, which immediately sped off. It travelled to Hollingsworth, where it was set on fire and destroyed, close to 12 Moorfield Terrace (the applicant’s former home).
17.
The three men who had been in the car were captured on CCTV walking to Moorfield Terrace. The prosecution case was that they were Cregan, Livesey and the applicant and that they went to 12 Moorfield Terrace to clean up and change their clothes. The fingerprints of Cregan and Livesey were found on the window of the kitchen at 12 Moorfield Terrace. It is contended by Mr Bennathan Q.C. for the applicant that this indicates they needed to break into the house and that the applicant was not involved because he had a key to the premises (he went back to the house from time to time to collect post). However, as Mr Clarke Q.C. for the prosecution points out, there was no reason for the applicant to have been carrying the key to his former home on the day of the shooting. There was inconsistent evidence on this issue that is unnecessary to analyse for the purposes of this judgment. The DNA of Cregan and gunshot residue associated with the shooting in the public house was found on clothing left in a bag in the garden at the address. When Livesey was arrested in June, he had a piece of paper down his sock on which two telephone numbers were written, one of which was for the applicant.
18.
Evidence that was more direct in nature was provided by Crystal Hill and her daughter, Nikita. Crystal Hill testified that she lived at 14 Moorfield Terrace and had been immediate neighbours with the applicant and Sarah Clarke. She alleged that the applicant was involved in Class A drug supply with the Flanagan family and he was “not a man to be messed with”.
19.
She gave evidence regarding an incident on 2 February 2012 when Ms Clarke told her that she had to look after a number of items of stolen property, as Ms Clarke was worried the police were going to search number 12. Ms Clarke said the applicant would
be unhappy if Ms Hill did not cooperate. Ms Hill showed these items to a prosecution witness, Mr Brettle, who came to her address the same day to fit a panic alarm because she was scared of the applicant. Mr Brettle was concerned at what he had seen and immediately reported the matter to the police.
20.
Ms Hill said that on 25/26 May 2012, between midnight and 1am, she was at home when there was a knock at the door. She looked out of a first-floor window and saw the applicant. She opened the front door and noticed he looked flustered and very pale. He told her not to worry, that he was going into number 12 and that she was to let him know if the police came. She thought she saw the shadow of at least one other person outside but was unable to say who it was. She heard people moving around upstairs and talking for 15-20 minutes in number 12, one of whom was the applicant, and then it went quiet. In cross examination, she accepted that she had not mentioned the people in the shadows in her statements to police or there having been more than one person at number 12 that night. She said this was because further details had come back to her over time, and that when interviewed she was “not herself”, as she was unwell and afraid. She variously described the applicant as wearing a black hooded top (during the door-to-door enquiries) and a vest (her evidence at trial). Immediately after he had left, she told her daughter, Nikita Hill (then aged 13), and her friend, Kelsey Childs-Berry, that the applicant had been the man at the door.
21.
Nikita Hill gave evidence about this incident. She said that she was upstairs in her mother’s house on the night of 25/26 May 2012, when her mother shouted loudly that someone was in their back garden. She looked out of the window and saw some shadows moving about in the garden of number 12. She then heard a knock at the door, which her mother answered. When the visitor had gone, her mother called her downstairs and told her that it had been the applicant who told her to let him know if the police came (her mother indicated this had been said in a menacing way).
22.
Kelsey Childs-Berry was at number 14 that night. She recalled the incident of a man coming to the door and shortly after he had gone, Crystal Hill indicated it had been
“Damo” (which was a description of the applicant).
23.
Nikita and Crystal Hill gave evidence of friends of Richard Hill (Nikita’s brother) Dale Beresford and Andre Naylor arriving a little afterwards, early on 26 May 2012, and telling them that a car nearby was on fire. Crystal Hill testified that she said “Oh my God, Damo’s just been here. I wonder if this has got anything to do with him again”. There was also a message on Facebook about a shooting. The next day they saw clothes in the back garden of number 12.
24.
Andre Naylor confirmed that when he arrived, having heard the news about an incident in Droylsden, Crystal Hill told him she had heard people climbing over the fence and noises were coming from next door that she thought might be her neighbour. Liam Pritchard, a friend of Richard Hill, also agreed that he was at number 14 early on 26 May 2012 (his birthday). They were talking about the burnt-out motorcar when Ms Hill said she had heard a noise in the back garden and that “Damo” or Damien (the applicant) had knocked on her door. She thought he had broken into number 12. This was before the police started making their enquiries.
25.
Crystal Hill testified that later the following day, the applicant returned to her house and took her into the side alley, where he threatened her. He accused her of speaking to people and told her not to say anything to the police. He told her that she did not want a “one-eyed Scotchman coming to her door” (a reference to Cregan, who had lost an eye). This was witnessed by Andre Naylor who got a glimpse of the man. Crystal Hill told him that it was the applicant.
26.
There was a further occasion, when Crystal Hill was at Andrew Haynes’ house, when the applicant again threatened her and her children and told her to keep her mouth shut.
27.
Ms Hill described a final occasion when she was threatened, on 1 June 2012, the incident which gives rise to the application to introduce fresh evidence. She went into a park in Hollingworth (not far from her home and not far from The Organ Public House) at about 5 pm with Tinaya Clarke (Sarah Clarke’s sister) when Sarah Clarke approached them from Water Lane. Ms Clarke threatened her and her children and warned her not to put the applicant in prison. Ms Hill then saw the applicant standing nearby and he drew his finger across his throat as if to say, “you’re dead”. This account was first given to the police in a recorded interview on 4 June 2012 (at the same time that Ms Clarke gave her account of the events on the night of the shootings).
28.
Nikita also gave evidence regarding the incident with Ms Clarke in the park on 1 June 2012, at which she said she had been present. She saw her mother and Tinaya Clarke enter the park, followed by Ms Clarke. Ms Clarke spoke to them and she then noticed the applicant was nearby (she varied between “I’m pretty sure he was there” to “I know it was [him] I saw the scar” (the applicant has a noticeable scar on his face). Her mother later told her that she had been threatened.
29.
Crystal Hill conceded that the police frequently attended at her house as a result of complaints; there had been one occasion when she was very drunk, “lost it” and ended up being arrested. She also acknowledged that she smoked cannabis and had stored class A drugs for the Flanagans, about whom she had provided information to the police. She had been served with a Child Abduction Order in the past in respect of a young girl called Kayleigh who lived with her for a while, but she blamed this on Kayleigh’s father wanting to get back at her for reporting him to Social Services. She denied that she had tried to persuade Tinaya to live with her or that she had given her any drugs (she claimed this was the responsibility of Mr Haynes, the applicant and Ms Clarke). She had made an unverified allegation about a neighbour that he had buried two AK47 rifles on a farm. Liam Pritchard said he considered Ms Hill to be a compulsive liar whom he did not trust.
30.
She denied that the applicant and Ms Clarke had moved to a new house because of her behaviour towards Tinaya Clarke. She also disputed the applicant’s version of the meeting in the park, reiterating that he had been there and the conversation with Ms Clarke had been anything but amicable. She maintained she was telling the truth and was not making up a false allegation against the applicant. She said she was petrified of him.
31.
In cross-examination, Nikita Hill agreed that her mother smoked cannabis and many young people came to her mother’s house and smoked drugs there. She denied that her mother sold drugs or gave any drugs to Tinaya.
32.
The applicant was arrested on 12 June 2012. He provided a prepared statement denying involvement and stating that Crystal Hill was a liar. He did not say where he had been at the time of the shooting on the night of 25 May.
33.
He was bailed, but was then arrested and interviewed again on 7 August 2012. He relied on his previous prepared statement, but added that he had not taken a taxi on the 25 May and had not gone to Droylsden.
34.
His case at trial was that he did not know the Atkinson family or the Short family and had nothing to do with the attack at the Cotton Tree pub. He was not in the Ford Focus at the time of the shootings and did not go to his former home in Moorfield Terrace afterwards. He also denied having threatened Ms Hill at any time. He described how he fell out with Crystal Hill. He said she played loud music, had many visitors and supplied drugs to children. He had threatened to report her to the police for supplying cannabis to Tinaya Clarke, and it was through Ms Hill that Tinaya had become involved with Andy Flanagan, who was a local drug dealer. He said that due to the problems with Ms Hill, the applicant and Ms Clarke moved out of 12 Moorfield Terrace in March 2012. His account was confirmed by Mr Rostron, the letting manager responsible for 12 Moorfield Terrace, who said that the applicant and Ms Clarke had moved out because of their concerns about Ms Hill dealing drugs. The applicant disputed Ms Hill’s evidence that Ms Clarke had asked her to hide stolen property on his behalf.
35.
As to his movements on 25 May 2012, he drank in various pubs with Cregan, Livesey, Hadfield and others. He agreed that he went to the New Inn around 8pm, leaving Cregan, Livesey and Hadfield in Stalybridge. There was some telephone contact between them, and they eventually picked him up from the New Inn in a taxi.
36.
He maintained that they travelled back to Stalybridge and he alighted behind a branch of JD Wetherspoon with Cregan and Livesey. Hadfield continued on to Droylsden.
Cregan then indicated he wanted to go to Glossop and they got in Livesey’s car, but the applicant asked to be dropped off at the New Inn. He claimed he turned his phone off around 10.30 pm, as he was getting repeat telephone calls from his partner telling him to come home and he did not want to hear from Cregan and Livesey again that evening.
37.
He maintained that at the time of the shootings, he was in the New Inn Public House. He drove home, getting in around ten past midnight. He denied being one of the three men in Moorfield Terrace. He said he still had a key for the property and would not have needed to break in. He suggested that Ms Hill was a liar and that her evidence regarding him knocking at her door on the night of the shootings was simply untrue.
38.
He denied that the clothing found in the garden of 12 Moorfield Terrace was his, but he accepted various other items did belong to him including the balaclava. He said these were thrown away when he and Sarah Clarke moved out. He explained how he had been severely injured in an unrelated shooting seven to ten years before, and for that reason he would not get involved in incidents such as the present. Although he had not mentioned that he had been at the New Inn in either of his interviews, he denied having concocted a story to fit the evidence and he denied lying to police. He said he had not stopped using his telephone for a sinister reason and it had simply run out of credit. He declined to answer the questions that were asked of him.
39.
He disputed having threatened Ms Hill. He repeatedly stated that there was CCTV in the park and on Water Lane and it would not support her account. He accepted Nikita Hill would recognise him, and said she also was lying about the incident in the park on 1 June.
40.
Sarah Clarke
was called by the applicant. She said that Ms Hill was a “horrible” neighbour for the reasons described by the applicant, and as a result, they ended up moving away. Ms Clarke accepted leaving rubbish in the alleyway next to the house when they left. She denied having taken stolen property to Ms Hill’s house in February 2012.
41.
On the night of the shooting, she confirmed that she had been constantly ringing the applicant and he repeated he would come home but failed to return.
42.
As regards the incident in the park with Ms Hill, Ms Clarke stated that she had been in the Organ Public House, when she saw Ms Hill and Tinaya walk into the park. She went to speak to Tinaya as she did not want her to be with Ms Hill. She said she did not threaten Ms Hill. The applicant had remained in the pub garden, where he could not be seen from the park, and he had not made a threatening gesture towards Ms Hill. She agreed that Nikita had also been in the park but was too far away to hear anything. She maintained in evidence that CCTV would prove her account.
Submissions
43.
In support of these applications, Mr Bennathan observes that the case against the applicant significantly relied upon the evidence of Crystal Hill and her daughter, Nikita Hill. It is suggested that the fresh evidence – certain CCTV footage from “camera 4” at the Organ Public House, together with the analysis of it by an expert, Raymond Evans (considered below) – fundamentally undermines the credibility of both witnesses and therefore significantly weakens the prosecution case against the applicant. As early as 19 June 2012 the applicant said to a DC Boon that the CCTV from the Organ Public House should be checked because it would show he had not threatened Ms Hill. In the event, Mr Bennathan submits that once the footage was properly analysed, it demonstrably supports the applicant’s account as to the events of 1 June 2012 and undermines the case for the prosecution, most particularly as regards the credibility of Ms Hill and her daughter.
44.
The CCTV footage had been in the possession of the Crown at least since 10 July 2012. On that date, PC Phillips rehearsed on the CCTV Full Viewing Log form for Operation Somerville that he had viewed all the relevant footage, concluding there were “no positive sightings of the applicant, Sarah Clarke or Taniya Clark”. The purpose of this exercise on 10 July 2012 was to look for evidence of the suggested intimidation of Sarah Clarke. Although Mr Bennathan suggested in his skeleton argument that there had been a failure by the prosecution to disclose this material at trial, by the conclusion of the submissions before the court this contention was no longer pursued. The officer’s record (TPP/18) was disclosed on the relevant schedule to the defence in advance of the trial.
45.
As set out above, the relevant external camera at the public house is camera 4. The camera sweeps round to give views in three separate positions each for a few seconds at a time. Although the footage is recorded in colour and for two of the three camera positions is described as being of good quality, PC Phillips makes the observation in the viewing log that recognition of individuals is dependent on their proximity to, and orientation towards, the camera. The CCTV reveals two individuals, a man and a woman, entering the garden of the Organ Public House before the incident involving Sarah Clarke and Crystal Hill occurs in Water Lane. The man remains in the garden, sitting mostly at a table, for the entirety of the relevant period, whilst the woman leaves for about 8 minutes at a time that would coincide with the incident relating to Sarah Clarke and Crystal Hill. It would have been impossible for the man to have acted as the applicant is alleged – watching the exchange between Sarah Clarke and Crystal Hill and drawing his finger across his throat – without the CCTV capturing him leaving and a period of absence from the garden.
46.
The imagery expert, Raymond Evans, has analysed CCTV footage from camera 4 outside the Organ Pub on 1 June 2012, to compare the man and the woman with the applicant and his then partner, Ms Clarke. Under enhancement and close examination, Mr Evans was able to see a small number of broadly consistent features linking the man in the footage and the applicant. He concludes, as regards both individuals, that there are “no obvious differences” between the woman in the footage and Sarah Clarke, and there are “no demonstrable differences” between the man in the footage and the applicant. The images of the woman are of higher quality than that of the man, and the expert concludes there is “moderate support” to suggest that the woman is Ms Clarke and “limited support” that the man and the applicant could be the same person.
47.
We have viewed the footage with care and although we entirely accept the evidence of Mr Evans, PC Phillips’ conclusions, based on what he saw with the naked eye, are entirely unsurprising. You have to look repeatedly at the footage to begin to discern that these two grainy figures may be the applicant and Sarah Clarke. As we have just noted, PC Phillips observed – we consider rightly – that the recognition of those shown in the footage is dependent on their proximity to, and orientation towards, the camera, and save fleetingly for the woman, neither figure is close to the camera or is orientated in a way that enables the viewer to see his or her face with any real clarity. The man is wearing a hood for a significant part of the relevant time. The defence did not view this material for the purposes of the trial to ensure that PC Phillips’ conclusions were accurate.
48.
Mr Bennathan highlights that if the man on whom Mr Evans focussed was the applicant, this evidence self-evidently undermines Crystal and Nikita Hill’s account that he had made a threatening gesture during the incident in the car park for the simple reason that he had not left the garden of the public house. The prosecution accept that the court should proceed on the basis that if this footage had been seen by the jury, it is likely they would have concluded that the man and the woman were the applicant and Sarah Clarke. The convergence of evidence on this issue, including the strenuous suggestions by the applicant and Sarah Clarke, close in time to the incident, that the Organ Public House CCTV would support their account, lead to this conclusion, with which we agree.
49.
Following the applicant’s trial, the prosecution initiated proceedings against Ms Clarke for witness intimidation in relation to the alleged threats to Ms Hill on 1 June 2012. The Crown decided not to proceed with the case against Ms Clarke as a result of the CCTV evidence. The applicant submits that if the CCTV undermined any realistic prospect of conviction in Ms Clarke’s case, it also undermines the safety of his convictions.
50.
Against that background, the main focus of Mr Bennathan’s submissions is directed at the following contention: if Crystal and Nikita Hill are unreliable as regards the actions of the applicant on 1 June 2012, this undermines their evidence as to what they respectively saw and were told relating to the applicant’s arrival at number 14 shortly after the shooting and after the stolen car had been set on fire. He argues that it not only renders them unreliable individually but it raises the spectre of collusion between mother and daughter or witness grooming by Crystal Hill. Mr Bennathan has not shied away from the importance of the alleged visit to number 12 shortly after midnight. Given the powerful link between the visit to number 12 and the shooting at the Cotton Tree Public House, if the applicant was the man who knocked on the door of number 14, this would provide powerful evidence of his involvement in the shootings.
51.
Mr Bennathan argues that armed with this proof of a false claim against the applicant, counsel at trial would have dealt with both witnesses differently, and particularly Nikita Hill in that they would have had a proper and credible foundation for suggesting she, along with her mother, was deliberately lying. He contends that the CCTV evidence would have “totally changed the trial”, and Crystal and Nikita Hill should have been cross-examined on the basis that the former had recruited the latter to tell at least two false stories about the applicant.
52.
Mr Clarke Q.C. on behalf of the prosecution submits that although Crystal Hill was an important prosecution witness, the jury were only invited to rely on her evidence where it was supported by other evidence. Indeed, in the course of his speech to the jury, Mr Clarke said,
inter alia
:
“Gorman’s primary concern during the course of the police investigation and this trial has been attacking Crystal Hill and her character. She takes cannabis and you may think she lets others share her stash, including the youngsters who come round. Her drug misuse and morals do not mean that she is not telling the truth about some aspects of this case. We do not suggest that you can safely act on her word alone. You will need to look at the surrounding circumstances and put what she said into context.”
53.
It is suggested there was a strong circumstantial case against the applicant, without the evidence of Ms Hill, including his association with co-defendants around the time of the shooting, the telephone evidence (in particular that Cregan, Livesey and the applicant turned off their telephones and the applicant deleted relevant text messages), the evidence of the taxi driver, the use by someone of the applicant’s former home as a location to clear up and destroy evidence, the clothing with Cregan’s DNA and gunshot residue found in Moorfield Terrace, the applicant’s undoubted lies (e.g. concerning the journey in the taxi) and the lack of any mention in the interview of the alibi on which
he later relied (i.e. that he was at the New Inn at the relevant time). We are reminded that the evidence given by Ms Hill was supported by other witnesses, including Mr
Brettle who fitted the panic alarm at her address, Nikita Hill, Kelsey Childs-Barry, Andrew Naylor and Liam Pritchard. The prosecution additionally relied on the bad character of the applicant, which included the alleged prior possession in 2004 of a firearm, which it was said he had brandished but which he denied.
54.
We are told that the decision to offer no evidence against Sarah Clarke was a decision in relation to the proceedings against her and was not a concession that the evidence given by Crystal Hill at the applicant’s trial was unreliable. At the hearing when the proceedings against Sarah Clarke were terminated, the CPS advocate said:
“Over the course of the past few months, CCTV evidence has come to light as far as the prosecution are concerned which the prosecution were not aware of. That CCTV evidence has been reviewed, together with all the other evidence in the case, and as a result of that careful review the prosecution has concluded that there is insufficient evidence to provide a realistic prospect of conviction, and therefore we intend to offer no evidence against Miss Clarke.”
55.
Generally, Mr Clarke Q.C. submits the significance of the fresh evidence should not be exaggerated given it only relates to what he describes as a small, peripheral part of the evidence against the applicant. It is suggested that the jury would have been well aware of the doubts that existed as to Ms Hill’s credibility. As to the strength of the case against the applicant, it is argued there is no other credible candidate for the third man with Cregan and Livesey. The case against the applicant was strong and whatever the court’s conclusions on the new CCTV evidence, his conviction remains safe.
Discussion
56.
This application has revolved centrally around the alleged visit by the applicant to number 14 shortly after the incident at the Cotton Tree Public House. If the jury were sure the applicant was the man who knocked on Crystal Hill’s front door, the case against him was of considerable strength. This alleged visit was the reason for calling Crystal and Nikita Hill to give evidence. The evidence of the incident on 1 June 2012 in the park near Water Lane was inextricably linked to Ms Hill’s allegation that he had called at number 14 shortly after the shooting, in that she said she was threatened because of the visit on 26 May 2012 and the applicant argued the two incidents were part of a false account Crystal Hill provided against him. Subject to the issue of admissibility (see below), the question we need to address is whether the fresh evidence renders the conviction unsafe because, by undermining the reliability of Crystal and Nikita Hill, it might reasonably have affected the decision of the jury.
57.
The evidence introduced during the trial as to the character of Crystal Hill and her potential unreliability was extensive. By way of a partial summary, the police frequently called at her house following complaints. She had been arrested as a result of her drunkenness. She smoked cannabis and had stored class A drugs for the Flanagans, about whom she had provided information to the police. She had been served with a Child Abduction Order. She had made an unverified allegation about a neighbour that he had buried two AK47 rifles on a farm. Liam Pritchard who was a young visitor to her house said he considered Ms Hill to be a compulsive liar whom he did not trust. Mr Rostron contradicted her account of why the applicant left Moorfield Terrace. This resulted in the prosecution making it clear that they only suggested she should be relied on if her evidence had independent support, in the sense that her word could not be trusted on its own.
58.
Against that background, it is notable that the evidence against the applicant on the issue of the visit was not dependent on Crystal Hill, either alone or supported by the account of her daughter. Kelsey Childs-Barry also gave evidence that there was a latenight caller and that Ms Hill immediately said it was the applicant. At the time Crystal Hill told Ms Childs-Barry and her daughter it was the applicant she would not have known of the significance of this visit and had no reason to allege falsely that it was the applicant. As the judge commented during the summing up “
If you are sure this evidence is correct then the prosecution submit it is an important point; if it wasn’t in fact Mr Gorman who came to the door that night why would Crystal Hill immediately tell her daughter that it was?
”
59.
To this needs to be added the evidence of Andre Naylor who confirmed that when he arrived having heard the news about an incident in Droylsden, Crystal Hill told him she had heard people climbing over the fence and noises were coming from next door that she thought might be her neighbour. Liam Pritchard testified that when the topic came up that night about the burnt-out motorcar, Ms Hill said she had heard a noise in the back garden and that “Damo” or Damien (the applicant) had knocked on her door. She thought he had broken into number 12. These discussions were before the police started making their enquiries.
60.
It is clear, therefore, that critical support for Crystal Hill’s account is to be found in the fact that she immediately stated to others that the applicant was the person who knocked on her door. The immediacy of this statement, which she repeated on a number of occasions, provided considerable protection against concoction. This was res gestae evidence of significant strength. There was no challenge to its admissibility and it was introduced by agreement. It was powerful evidence because Crystal Hill’s statement identifying the applicant as the caller was not only contemporaneous with the visit but, as just noted, it occurred at a time when Crystal Hill (certainly at the time she spoke to Ms Childs-Barry) was wholly unaware that his presence at her door had any significance. Although this applies with somewhat less force to the evidence of Andre Naylor and Liam Pritchard, their accounts are consistent with the evidence of Ms Childs-Barry. That evidence – the immediate statement that it was the applicant at the door – would have been unaffected by the suggestion that Ms Hill may have lied about the threat by the applicant on 1 June 2019. Accordingly, even if the jury had concluded that Crystal and Nikita Hill had given an inaccurate or untrue account as to the events on 1 June 2012, and that Ms Hill may have influenced her daughter as to what was said about the applicant being at the door of number 14 in the early hours of 26 May 2016, that cannot sensibly apply to Ms Childs-Barry, Andre Naylor and Liam Pritchard. Mr Bennathan hinted in his submissions that if Crystal Hill had recruited her daughter, she may have been capable of suborning others, but not a shred of evidence has been advanced to suggest that occurred.
61.
We have been addressed on a significant number of subsidiary issues, such as the way in which Ms Hill was questioned about the CCTV cameras that were in close proximity to the events on 1 June 2012, the time that the applicant turned off his telephone, the presence of an unknown third person’s fingerprints on the broken window at number
12, the position of the balaclava bearing the applicant’s DNA and many other features of the case, which went to the respective strengths of the prosecution and defence cases at trial. Mr Bennathan additionally rehearsed various ways, in addition to the observations set out above, as to how the trial might have been conducted differently if this fresh evidence had been introduced. However, in our judgment the sole question that determines this application for leave to appeal against conviction is whether the CCTV evidence, together with Mr Evans’s analysis of it, materially weakens the case against the applicant that he was the man at the door of number 14 shortly after midnight on 26 May 2016. For the reasons set out above, we do not consider that the compelling res gestae evidence against the applicant was undermined by the fresh evidence which demonstrated that Crystal and Nikita Hill may have lied about the presence of the applicant during the events on 1 June 2012 in the park.
62.
It follows that in our judgment the verdict is safe and the appeal fails on its merits.
63.
However, we have another concern. Although the position was unclear in advance of the hearing before this court, during submissions it became apparent that the existence of the CCTV footage had been disclosed to the defendants before the applicant’s trial but it had not been viewed by him or his then representatives prior to his conviction. Instead, it was viewed after the conclusion of his trial by lawyers acting for his then partner, Sarah Clarke, during separate proceedings against her for an offence concerning interference with a witness on 1 June 2012.
64.
We are highly doubtful that in those circumstances there is a reasonable explanation for failing to adduce the evidence during the trial (
section 23
(2) (d)
Criminal Appeal Act 1968)
. This material was properly disclosed and PC Phillips described his understandable conclusions as to whether it had relevance to the case. It is for the defence at trial to take decisions as to whether to use or act on the disclosed unused material, and a failure to inspect it is unlikely to justify a later application, following conviction, for it to be introduced as fresh evidence. This court has indicated that only in exceptional circumstances will evidence be admitted that could have been adduced at trial (see:
R v Solomon
[2007] EWCA Crim 2633
;
R v Simon John Hall
[2011] EWCA Crim 4
).
65.
Notwithstanding this concern, as we have just indicated it was only during the course of submissions that it became clear that the existence and analysis of the CCTV footage (by PC Phillips) had been disclosed to the defence, and we have formed the view that bearing in mind the prosecution has accepted that the CCTV footage, and Mr Evans’s analysis of it, meet the test for admissibility under
section 23 Criminal Appeal Act 1968
, the application should be resolved on its merits.
66.
In these particular circumstances, we have exceptionally granted, first, the significant extension of time so that this evidence can be received, and, second, leave to introduce the CCTV evidence and the statement of the expert, Raymond Evans, in the interests of justice. We granted leave to appeal on the basis that, once admitted, the CCTV evidence and the accompanying analysis merited consideration by the full court.
67.
For the reasons set out above, we dismiss the appeal because we do not consider the evidence might reasonably have affected the jury’s verdict. As set out at [3], we dispense with the restriction on reporting imposed on 13 December 2013. | [
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"MR JUSTICE SPENCER",
"MR JUSTICE WILLIAM DAVIS"
] | 2019_12_19-4799.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2271/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2271 | 879 |
e97ca09d4448f163cd24859a93675476173c8f1280a49378ecc74316bc6b9aed | [2006] EWCA Crim 1464 | EWCA_Crim_1464 | 2006-05-16 | crown_court | No: 200502137 C1 Neutral Citation Number: [2006] EWCA Crim 1464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 16th May 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE FORBES MRS JUSTICE COX DBE - - - - - - - R E G I N A -v- GERALD GRIMES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) | No:
200502137 C1
Neutral Citation Number:
[2006] EWCA Crim 1464
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 16th May 2006
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE FORBES
MRS JUSTICE COX DBE
- - - - - - -
R E G I N A
-v-
GERALD GRIMES
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
Non-Counsel Application
- - - - - - -
J U D G M E N T
1.
MR JUSTICE FORBES: On 7th September 2004 in the Liverpool Crown Court, this applicant was convicted of failure to comply with an enforcement notice, contrary to section 43(2) as applied by section 74(3) of the Planning (Listed Buildings and Conservation Area) Act 1990. On 8th October 2004, he was sentenced to a fine of £2,000 with 28 days' imprisonment in default. He was also ordered to pay £3,000 towards the costs of the prosecution. The applicant now applies for an extension of time in which to renew his applications for extensions of time and leave to appeal against sentence, following refusal by the Single Judge. His application for leave to appeal against conviction was also refused and that has lapsed in the absence of renewal. The applicant submits that his applications were not lodged and renewed in time because he was suffering from depression and severe arthritic back pain during the relevant period.
2.
The brief facts are these. The case concerned property at 10-14 High Street and 1a Grange Terrace, Liverpool 15. That property is in the Wavertree Village Conservation Area. The property was owned by the applicant. However, in September 1996 the building that originally existed on the site was demolished. On 20th January 1997, Liverpool City Council issued a Conservation Area Enforcement Notice under the terms of the 1990 Act. The requirements of the notice specified the rebuilding of the property in accordance with plans attached to the notice of rebuilding or accordance with any planning permissions subsequently given for the redevelopment of the site.
3.
No appeal was lodged against that notice, which took effect on 24th February 1997 and required compliance by 24th August 1997. However, work on the rebuilding of the property had commenced prior to the issue of the enforcement notice and had continued after the notice came into effect. Also, planning permission has been granted to redevelop the site, although it was the planning authority's case that the earlier demolition had required the consent of the Local Planning Authority, which had neither been granted nor sought. It was also the Local Planning Authority's case that the building works currently being carried out were not in accordance with approved plans nor was the new development being constructed in the same physical form as that which had previously existed: that is to say, in accordance with the plans that had been attached to the enforcement notice itself. As a result, the applicant was prosecuted for failing to comply with the enforcement notice on 20th January 1997.
4.
The applicant pleaded guilty to that charge on 8th July 1999: namely, that he had failed to comply with the notice at issue. So far as concerned the planning permissions that had been granted in respect of the site, there were two such planning permissions. The first had been granted in July 1997 and the second in November 1999. However, only the latter planning permission is relevant and was subject to conditions requiring the submission of detail relating to external materials and the window frames to the Local Planning Authority for its approval: see conditions 2 and 5 of the planning permission in question. The applicant did not appeal against the imposition of any of the conditions. A planning officer visited the site on 28th April 2000. He noticed that the works being carried out on the construction of the development, as permitted by the second planning permission, had commenced. However, the planning officer advised that there were outstanding details yet to be submitted in accordance with the conditions, including a sample of natural slate and working drawings of the timber sliding sash windows that were to be installed. As a result, a warning was issued that any works undertaken not in accordance with the approved plans would be carried out at the applicant's own risk. There was correspondence to the same effect.
5.
A further visit to site was made on 4th October 2000. On that occasion, the planning officer noted that the windows that had been installed on the upper floor were of an unapproved design and constructed with an inappropriate material, namely UPVC. It was further noticed that the roof had been covered in tiles that were not approved by the Local Planning Authority. Again, correspondence to that effect was exchanged with the applicant. The letter from the Local Planning Authority issued an instruction that the windows and slates were to be removed within one month of the date of the letter: namely by 9th November 2000. However, a further visit was made on 17th November 2000 and the planning officer noticed that the unapproved windows and the tiles still remained. It was the council's view that the development had not been constructed in accordance with the relevant planning permission.
6.
So it was that further proceedings were brought against the applicant for failure to comply with the original enforcement notice. He was convicted of an offence on 14th May 2001. Following that, the Council met with the applicant on November 2001 to address the non-compliant windows and tiles. It was then noticed that newly constructed balconies had been put up and that these were not in accordance with the approved plans. So it was, in April 2002, that the applicant submitted a planning application to vary conditions 2, 5 and 9 of the original planning permission in order that he might lawfully retain the UPVC windows, concrete roof tiles and balconies constructed to the rear of the property. That application was refused on 19th June 2002. The applicant appealed against that refusal on 9th July but his appeal was dismissed on 27th January 2003. The Council again advised the applicant by letter dated 5th February 2003 that he was obliged to comply with the original enforcement notice. However, the planning officer visited the site on 18th September 2003 and noted that the incorrect windows, roof tiles and balconies were still in place. He also noted that no details had been submitted for the windows or roof tiles as required by conditions 2 and 5 attached to the relevant planning permission. It was as a result of these matters that the applicant was charged with and eventually convicted of the index offence.
7.
As to sentence, it is said in grounds of appeal of the applicant's own composition that the sentence passed was manifestly excessive in light of the offence, previous conviction and the applicant's means. When refusing leave to appeal, the Single Judge observed as follows:
"Given the history of this matter, as summarised in the Judge's sentencing remarks, I do not think it arguable that the level of fine or costs were excessive. The Judge went into matters very carefully."
8.
So far as the question of an extension of time was concerned, the Single Judge said this:
"There has been very considerable delay in pursuing this matter, and although I take account of the fact that you have been unwell, the fact remains that your application has no merit."
9.
We agree with both those sets of observations. In our judgment, given the planning history involved in this matter, the sentence passed was entirely appropriate, as was the order for costs.
10.
Accordingly, for those reasons, we refuse these applications. | [
"LORD JUSTICE GAGE",
"MR JUSTICE FORBES",
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] | 2006_05_16-807.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1464/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1464 | 880 |
7b1665c2011c6f23b1bdb92787ce0bbe4dd1c828c85e8219a4ea639f810b6277 | [2023] EWCA Crim 5 | EWCA_Crim_5 | 2023-01-13 | crown_court | Neutral Citation Number: [2023] EWCA Crim 5 Case No: 202200536 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HHJ Trowler KC T20207393 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/01/2023 Before : President of the King’s Bench Division Mr Justice Murray and Mrs Justice Farbey - - - - - - - - - - - - - - - - - - - - - Between : Kai Nathanial Holder Appellant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2023] EWCA Crim 5
Case No:
202200536 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ Trowler KC
T20207393
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/01/2023
Before :
President of the King’s Bench Division
Mr Justice Murray
and
Mrs Justice Farbey
- - - - - - - - - - - - - - - - - - - - -
Between :
Kai Nathanial Holder
Appellant
- and -
Rex
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Nutan Fatania
(instructed by
Berri’s Law LLP
) for the
Appellant
Mr. Hamish Common
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing dates : 8 November 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Dame Victoria Sharp, P.
1.
On 20 January 2022, the appellant, Kai Nathanial Holder (then aged 19) was convicted after a trial at the Central Criminal Court before Her Honour Judge Trowler KC and a jury, of causing death by dangerous driving (count 1). He had pleaded guilty at the PTPH on 5 January 2022 to aggravated vehicle taking, causing death by driving whilst uninsured and causing death by driving whilst unlicensed (counts 2, 3 and 4 respectively). On 24 February 2022, he was sentenced to a total of 2 years’ and 9 months’ detention in a young offender institute: 2 years’ and 9 months’ detention on count 1, 12 months’ detention concurrent on count 2, and 6 months’ detention concurrent on each of counts 3 and 4. He was disqualified from driving for 4 years and 4 months and
until an extended test is passed. Count 5, causing death by careless driving an alternative count to count 1, was ordered to lie on the file on the usual terms.
2.
The appellant’s application for leave to appeal against conviction was referred to the Full Court by the single judge. At the hearing of the application, we gave leave and dismissed the appeal. These are our reasons.
3.
On 10 August 2019 at around 7pm, the appellant, who was then 17 years’ old, was riding a stolen motor scooter, travelling east along Bedfont Lane in Feltham, West London. Bedfont Lane is a single carriageway road in a residential area with one lane in each direction and has a 20mph speed limit.
4.
The appellant’s friend, Bradlee O’Dell Alboni who was 14 years’ old, was the pillion passenger. Neither Bradlee nor the appellant were wearing helmets. The appellant looked over his left shoulder and backwards for a period, while either he or Bradlee addressed some remarks to two young men who were walking past on the pavement. This, together with the speed at which the motor scooter was travelling, caused the appellant to lose control of the motor scooter which veered to the left and struck the kerb. The motor scooter overturned and both riders were propelled off the back.
5.
The events immediately preceding the collision, and the collision itself were captured on CCTV footage. It was common ground at trial that the motor scooter was travelling at a speed of between 37 and 44 mph immediately before the collision. The appellant suffered relatively minor injuries and left the scene shortly after the collision. Bradlee however slid along the pavement and collided with two nearby poles and a telephone junction box. Tragically, he suffered fatal head and spinal injuries and he was pronounced dead at the scene half an hour later.
6.
It was accepted on behalf of the appellant that his driving was careless and that his carelessness had caused Bradlee’s death. A plea of guilty to causing death by careless driving was offered at the PTPH, but it was not acceptable to the prosecution. A count of causing death by careless driving was subsequently added to the indictment at trial.
7.
The case for the prosecution on the charge of causing death by dangerous driving was that shortcomings in the appellant’s standard of driving meant that it fell far below the standard expected from a careful and competent driver and there was an obvious danger of injury or serious damage to property due to the manner of the driving. By the time of the trial, the factors which the prosecution intended to rely on in support of this case were that the appellant was travelling at an excessive speed, that he looked over his shoulder and backwards rather than in the direction of travel, long enough to cause the scooter to drift and hit the kerb, that he drove the scooter with Bradlee as a pillion passenger when Bradlee was not wearing a helmet and that he took a pillion passenger when he was not legally permitted to do so because he did not have a driving license.
8.
At the commencement of the trial, the defence objected to the prosecution’s reliance on the fact that Bradlee was not wearing a helmet and the fact that the appellant did not have a driving license, on the ground that these facts were irrelevant to the standard of driving and prejudicial. The judge ruled out reliance on the latter factor and no issue is raised as to this aspect of her ruling in this appeal.
9.
As to the former factor, the defence’s main argument before the judge, in summary, was that the fact that Bradlee was not wearing a helmet was an aggravating feature of the offence for the purpose of sentence, but was irrelevant to the standard of driving. In addition, it was submitted that legislative exemption from the requirement to wear protective helmets for those who followed the Sikh religion, meant the absence of protective helmets could not be relevant to the standard of driving. The respondent submitted in response that the failure to wear a helmet was relevant to whether the defendant’s driving was dangerous as this substantially increased the risk of injury, as shown in this case. In addition, there was no distinction in principle between a defect in a vehicle which affects its handling and a defect which means that its occupants are placed at a greater risk in the event of a collision. Further, the exemption for a particular class of individuals did not qualify the application of the law to everyone else. The substance of the parties’ submissions made to the judge were repeated at the hearing of the appeal before us.
10.
The judge rejected the defence’s application. In a carefully considered written ruling she said:
“In my view the exemption in …RTA is not determinative of this issue. The exemption is plainly intended to balance the public interest in protecting those travelling by scooter from harm with an individual’s right to exercise his or her religion.
The real question is whether driving a scooter whilst carrying a pillion passenger under 16 without a helmet is properly to be considered part and parcel of the ‘driving’ for the purposes of s.1 RTA. In my view, the answer in this case is ‘yes’. First, the fact that [Bradlee] was not wearing a helmet was plainly a contributory factor to the severity of the head injury which led to his death. Secondly, a jury would be entitled to expect a careful and competent driver to comply with the relevant rules placing a responsibility on the driver to ensure a young passenger is wearing a helmet and that a failure to do so created obvious danger of injury. The fact that driving with passenger without a helmet is not an aspect of the way in which the scooter was physically manoeuvred by [the appellant] on the road is no bar to it being part of the standard to be considered by the jury. Were that the case then a jury would not, in an appropriate case, be permitted to conclude that a vehicle was driven dangerously by reason of the fact that the condition of the vehicle made it obvious that driving the vehicle was dangerous [see s.2A(2)].”
Discussion
11.
Section 1
of the
Road Traffic Act 1988
(the
RTA 1988
) provides that “A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
”
12.
The meaning of dangerous driving for the purposes of
section 1
(and the
section 2
offence of dangerous driving) is to be found in
section 2
A
Sections 1
, 2 and 2A were substituted for
sections 1
and 2 of the
RTA 1988
as originally enacted, by
section 1
of the
RTA 1991
.
of the
RTA 1988
. The relevant part of
section 2
A provides that:
“(1)For the purposes of
sections 1
, 1A and 2 above a person is to be regarded as driving dangerously if (and, subject to sub
section (2
) below, only if)—
(a)the way he drives falls far below what would be expected of a competent and careful driver, and
(b)it would be obvious to a competent and careful driver that driving in that way would be dangerous.
(2)A person is also to be regarded as driving dangerously for the purposes of
sections 1
, 1A and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3)In sub
sections (1
) and (2) above “dangerous” refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
(4)In determining for the purposes of sub
section (2
) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried”
13.
The legislative exemption from the requirement to wear protective headgear is to be found in
section 16(2)
of the
RTA 1988
. The exemption applies to those who follow the Sikh religion, when they are wearing a turban. The existence of this exemption, as the judge said, is intended to balance the public interest in protecting those travelling by motor scooter from harm with an individual’s right to exercise his or her religion. As she also said, correctly in our view, it is not therefore determinative of the matter in issue.
14.
Apart from that exemption, it is compulsory to wear protective head gear that complies with specified standards, when driving or riding a motorcycle scooter or moped on the road and a failure to do so is a criminal offence: see
section 16(4)
of the
RTA 1988
; Schedule 2 of the
Road Traffic Offenders Act 1988
and the Motor Cycle (Protective Helmets) Regulations 1998 (the 1998 Regulations) made under
section 16
. A person also commits an offence if they drive or ride on a motorcycle, scooter or moped with a person under the age of sixteen who is not wearing protective headgear: see
section 16(4)
of the
RTA 1988
which provides that “no person other than the person actually committing the contravention is guilty of an offence by reason of the contravention, unless the person actually committing the contravention is a child under the age of sixteen years”.
15.
The compulsory nature of the requirement to wear protective headgear is reflected in rule 83 of the Highway Code which provides that: “On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped
MUST
wear a protective helmet…
Helmets
MUST
comply with the Regulations and they
MUST
be fastened securely.” It is also material to note that a failure on the part of the driver to observe the Highway Code, does not give rise to criminal liability
per se
, but can be relied on “as tending to establish or negative any liability which is in question in those [criminal] proceedings”. See
section 38(7)
of the
RTA 1988
.
16.
The purpose of protective headgear, and the statutory requirement to wear it, is obviously to protect the wearer from head injuries in the event of an accident.
Section 17
of the
RTA 1988
read with regulation 4 of the 1998 regulations provides for example that the protective headgear that those riding on motorcycles must wear, must comply with the British Standards or be of a type which could reasonably be expected to afford the wearer a degree of protection from accidental injury greater than headgear conforming with those British Standards.
17.
As the court pointed out in
R v Webster
[2006] EWCA Crim 415
at para 17,
section 2
A is “closely drafted” ; and Parliament has made plain that driving is dangerous “if…and only if” the conditions of the section are met. The answer to the question raised before the judge is to be found therefore only by reference to the definition of dangerous driving in
section 2
A(1) and in the subsections to which express reference is made in that section.
18.
In this case, the appellant was driving at a high speed (about twice the speed limit) in a relatively narrow residential road, looking backwards instead of in the direction of travel; and neither he nor his young pillion passenger were wearing a helmet - something that in combination with his speed and, the fact that he was not looking ahead, greatly increased the risk of serious injury if an accident were to occur. In our judgment, on these facts, the judge was right to conclude it would be open to the jury to decide that the appellant’s driving fell far below the standard to be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in the way he did would create a risk of injury to the appellant and his passenger (or, to put it another way, this was a danger which would be “seen or realised at a glance”: see
R v Strong
[1995] Crim LR and
R v Few
[2005] EWCA Crim 728
at para 8).
19.
The test as to whether driving is dangerous is a purely objective one, and a finding of dangerous driving must be based on the manner in which a defendant drives (see
Webster
at para 17). However, the standard to be expected of a careful and competent driver is inextricably linked to and dependent upon the circumstances in which the driving takes place. Travelling at a certain speed may be appropriate and safe in one set of circumstances, having regard to the prevailing weather or road conditions for example, but very dangerous in another. Equally, such circumstances can be relevant to determining “whether there was a danger of serious injury or damage” (see
Webster
also at para 17).
20.
That Parliament intended such circumstances to be taken into account in determining both limbs of
section 2
A(1) can be seen from the wording of
section 2
A(3). This provides that: “in determining …
what would be expected of, or obvious to
, a competent and careful driver …in a particular case, regard shall be had
not only to
the circumstances
of which he could be expected to be aware but also to
any circumstances
shown to have been within the knowledge of the accused.” (emphasis added) The emphasised words imply a broad approach and are apt to include evidence of the physical manoeuvres of the vehicle concerned, and the wider context of those manoeuvres. Such circumstances may be material (indeed highly material, in view of the words “particular regard” in
section 2
A(3)) to whether
section 2
A(1)(a) and/or
section 2
A(1) (b), has been satisfied.
21.
One of the circumstances of which the appellant was aware, was that Bradlee, his young pillion passenger, was not wearing a helmet – the wearing of which is a basic but important safety measure imposed as we have said by the criminal law, and required under the Highway Code, to protect individuals riding motor scooters from head injuries in the event of an accident. It would not have been open to a jury to convict the appellant of dangerous driving on this ground alone; but such a scenario did not arise on the facts, nor did it form the basis of the judge’s decision to leave the case to the jury. Instead, this factor was, as the judge put it, properly to be considered as part and parcel of the ‘driving’ for the purposes of
section 1
of the
RTA 1988
.
22.
We pause to observe that the jury might have been surprised to be told that the fact that Bradlee was not wearing a helmet was irrelevant to the objective danger of what the appellant was doing. But analysing the matter as one must by reference to the statutory requirements alone, in our judgment it was open to the jury to have regard to the fact that Bradlee was not wearing a helmet in two respects. First, in deciding whether and the extent to which his driving (speeding and looking backwards, instead of in the direction of travel) fell below what a competent and careful driver would be expected to do
in those particular circumstances
: see also
R v Taylor
[2004] EWCA 213 where it was said that the Highway Code was a guide to the standard to be expected of a careful and competent driver. To put it another way, the jury were entitled to conclude that a careful and competent driver who knew he had a young pillion passenger who was not wearing the required helmet to protect him, would not have driven in the manner he did; and that his driving in this manner regardless, fell far below the requisite standard. Secondly, in deciding whether it would have been obvious to a competent and careful driver that driving in that way would be dangerous because of the (obvious) risk of injury to his passenger.
23.
Our reasoning differs to an extent from that of the judge, but we agree with her conclusions. No complaints were made about the judge’s legal directions to the jury, which were impeccable. In the circumstances, this appeal was dismissed. | [
"HHJ Trowler KC",
"Mr Justice Murray",
"Mrs Justice Farbey"
] | 2023_01_13-5539.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/5/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/5 | 881 |
aee8233dc7a66edda1a06811dc8ffc1ba879d91705b4be9530f1df51d8eb5c38 | [2023] EWCA Crim 1657 | EWCA_Crim_1657 | 2023-11-03 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2023] EWCA Crim 1657
No. 202301018 B4
Royal Courts of Justice
Friday, 3 November 2023
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE SAINI
MRS JUSTICE COLLINS RICE
REX
V
AARON HEWSON
REPORTING RESTRICTIONS APPLY:
SEXUAL OFFENCES (AMENDMENT) ACT 1992
The provision of the Sexual Offences (Amendment) Act 1992 apply to these offences. Accordingly, no matter relating to the complainant shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as victims of those offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act
.
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
_________
MR C. BURTON
appeared on behalf of the Appellant.
MR A. THOMPSON
appeared on behalf of the Respondent.
________
JUDGMENT
LORD JUSTICE POPPLLEWELL:
1
The appellant was convicted of three counts of sexual assault contrary to
s.3
of the
Sexual Offences Act 2003
and one count of assault by penetration contrary to
s.2
of
that Act
following a trial before Mr Recorder Hardy KC, and a jury in the Crown Court at Norwich. He appeals against conviction with leave of the single judge. The grounds are essentially that the summing-up was unfairly imbalanced in favour of the prosecution because of comments on the evidence made by the Recorder adverse to the defence case; and a failure to remind the jury of material parts of the evidence relied on by the defence and of the defence case.
2
The appellant faced a nine count indictment. Count 7 involved possession of extreme pornographic images, to which the appellant pleaded guilty prior to the trial, and which has no bearing on the issues in this appeal.
3
The other counts concerned three complainants, to whom we shall refer as "HS", "KR" and "KD". They involved allegations of sexual assaults said to have taken place at HS's house in Norwich. HS, KR and KD were friends who worked together as dancers at a club. The appellant and HS had been in a relationship from about the end of 2016 until early 2018 and were living together at the house. It was during this period, in the second half of 2017, that the offences were alleged to have been committed.
4
Counts 1 to 4 concerned HS. In her ABE interview (recorded in April 2018), and which was adduced at trial as her evidence-in-chief, HS alleged that on one occasion she had woken up to find the appellant using her hand to masturbate himself and then ejaculating over her face. This was the subject matter of count 1 of which the appellant was convicted.
5
She went on to allege that the same thing had happened on three or four other occasions (count 2); and that on five occasions she had woken up to the appellant trying to penetrate her vagina (counts 3 and 4 of attempted rape). The jury acquitted the appellant on counts 2, 3 and 4.
6
She had not said anything about such behaviour to anyone until January 2018 after she had learned of the allegations made by KR and KD which formed the subject matter of the other counts.
7
Count 5, alleging sexual assault contrary to
s.3
of
the Act
, involved the complainant KR. KR's evidence was that after work she had gone to spend the night at the house, as she had done on many previous occasions, arriving together with HS at about 4am on 26 November 2017. The appellant was awake when they arrived. Shortly afterwards, she went to bed in the spare room wearing her dress and thick black tights, under a duvet. When she awoke at about 6 am she became aware of a male in the bed behind her spooning her, and with his arm over her breast. She then felt the elasticated waist of her tights being pulled and became aware that the male was naked and that his erect penis was pressing against her. This was the appellant. At that point she sat upright and said "What the fuck, Aaron?" The appellant then got out of bed, put his finger to his lips and said "sshhh" before backing out of the room. Later she went to the appellant and HS's bedroom and told HS what had happened. The appellant brushed the incident off as a mistake on his part, which HS appeared to accept and nothing more was said about it. KR did not report it to the police at the time.
8
Count 6 (
s.2
assault by penetration), and count 8 (
s.3
sexual assault), concerned what was alleged to have occurred between the appellant and the third complainant KD on Saturday, 16 December 2017. KD went to stay overnight at the house. Her evidence in her ABE interview, which was her evidence-in-chief, was that she arrived at about 5 am after working the Friday night/Saturday morning shift at the club, where she had had a bottle of wine to drink at work so that she was not fit to drive home. She socialised in the living room with HS and the appellant, having some more to drink, before she fell asleep fully clothed on the sofa at, she thought, about 5am. She slept for a while but woke up, she thought at about 10 to 10.30 the next morning, and noticed the appellant on the sofa wearing shorts with his penis hanging down coming out at the side. She was not fully awake and fell back to sleep but was awoken by the appellant grabbing her breasts, her bottom and in between her legs. She was in a foetal position on the sofa facing towards him. He put his hands down the front of her high-waisted jeans, without moving them, which was easy for him because they were quite loose and put his fingers into her vagina for two or three seconds. This was all despite her telling him to stop numerous times. She said she kept her eyes closed. He did stop and she thought he had left the room but then felt something warm go over her while she was curled up; and realised that he had been stood over her masturbating and ejaculated over her face and hair. The ejaculate had also gone on to the pillow. He rubbed her hair and walked out of the room and back upstairs. She described being in shock and confused. She thought about clearing up but decided to leave and did so very shortly thereafter.
9
Afterwards she spoke to KR about what had happened. When she did so KR concluded that what had happened to her had not been a mistake on the appellant's part. Both women decided to tell HS. All three then met on 10 January 2018. It was after that meeting that all three reported allegations of sexual assault to the police.
10
On 6 April 2018 the appellant was interviewed in relation to the allegations by KR and KD. As to events involving KR in November 2017, he said that he had been asleep in his own bed fully naked when KR and HS arrived back from work. He woke up and went to the toilet. He was unaware, he said, at that stage that his partner HS was in their bed. On returning to the bedroom, he saw a figure under the bedclothes of the bed in the spare room and he assumed that it was HS because she would often sleep in the spare bedroom to avoid his snoring. He got into the bed, lay beside the person he believed to be HS, spooned her and went to sleep. He accepted that his hand would have been over her breast and that his penis may have been erect as a result of what he described as "morning glory", but he denied any sexual intent. He maintained that his actions were consistent with merely cuddling the person he believed to be his partner before going to sleep. He denied pulling at KR's waistband. As soon as KR sat up and shouted "What the fuck, Aaron?" he realised his mistake and left the room. He had not said "shush". When KR came into his and HS's room later in the morning KR appeared to acknowledge that it must have been a mistake.
11
With regard to KD, the appellant said that on a previous occasion in October 2017, when KD had stayed over at the house in similar circumstances, they had both ended up having full consensual sexual intercourse in the kitchen after HS had gone to bed. On the subsequent occasion, on 16 December 2017, he said that KD had been flirting sexually with him while all three were drinking and socialising in the lounge. After going to bed with HS, he went back downstairs and he and KD started kissing each other. He then went to pull her trousers down. He said that it was she, KD, who pulled them down and he put his fingers into her vagina before they started to have full intercourse. Then she started saying "Oh we shouldn't do this. This is getting too much." He then withdrew and as he did so he ejaculated. His account was that all the sexual activity between him and KD was consensual.
12
On 16 April 2018 the appellant was interviewed in respect of the allegations made by HS. He denied using her hand to masturbate himself whilst she was asleep or ejaculating in her face while she was sleeping. He denied ever having engaged in sexual activity with HS while she was asleep or without her agreement.
13
All three complainants gave evidence at trial. There was also evidence of a series of messages from the appellant to KD immediately after the 16 December events, in which he appeared very anxious to talk to her, which she ignored. There were also messages to HS, sent after KD had spoken to HS and made the allegations which were the subject matter of Counts 6 and 8, in which he gave an account of what had happened with KD.
14
At trial the appellant also gave evidence which was broadly consistent with his account when interviewed under caution. He asserted that KD had lied about what happened between them because she feared that HS would find out that she had betrayed her closest friend by having sex with the appellant; and because she, KD, did not approve of HS's relationship with the appellant and wanted to bring it to an end. His explanation for seeking to meet KD urgently after 16 December, as appeared to be the effect of the messages sent to her, was that he was worried that she would tell HS of their consensual sex. The account of what happened which he subsequently gave to HS in the messages to her was not entirely consistent with his account of what had happened which he gave in his interview or in evidence. His explanation at trial for this discrepancy was that in the messages he was seeking to minimise what had happened with KD in an effort to maintain his relationship with HS.
15
Further it was the appellant's case at trial that KD had persuaded both HS and KR to believe that they were victims of sexual assault at the meeting which took place between all three of them on 10 January 2018; and that all three complainants had colluded in fabricating the allegations of sexual assault as involving sexual activity which was non-consensual. In support of that case, reliance was placed, amongst other things, on the fact that notwithstanding HS having reported allegations of serious sexual assault on her by the appellant, and learning of similar allegations made by her two closest friends, HS had subsequently resumed sexual relations with the appellant and had described their sex in messages downloaded from her phone as "amazing".
The Summing-up
16
The judge gave the jury written directions of law and a route to verdict before final speeches. No criticism is made of those directions. They included a direction at the beginning in the following terms:
"During the course of my summing-up I shall provide you with a summary of the evidence. I may also comment on some of it. But you are the sole judges of fact, so if I appear to stress a particular point in the evidence but you think it unimportant, it is your view of it that counts, not whatever mine is or might appear to be.
Equally, if I leave out in my summary - and it is - and it is just that (a summary) and no more - something which you think is important, it is your view of it that counts, not whatever mine is or might appear to be.
Similarly, should I comment on any aspect of the evidence and you agree with my comment, that is all well and good, but if you disagree with any suggestion as to the facts that I make, your view is the only one that counts."
17
The written directions of law which the Recorder read to the jury prior to final speeches concluded with an emphasis of the same point in these terms:
"After you’ve heard speeches from counsel I will deliver the second part of my summing-up; my summary of the evidence. As I’ve already told you, it is but a summary. If I’ve missed out something which you consider important or included something which you consider to be unimportant, it’s your view and your assessment of the evidence which counts not whatever mine is or might appear to be."
18
The Recorder's summary of the evidence after speeches was a relatively full one, taking care to recount in some detail what the three complainants had said in their ABE interviews, which stood as their evidence-in-chief. It also dealt with what they had said, albeit more briefly, in cross-examination. It dealt with what the appellant had said in interview at some length and what he had said in his evidence, including what he had said about the messages after the events in question.
19
There is no criticism made about the structure of the summing-up.
20
At the conclusion of his summary of the evidence, the Recorder asked counsel whether either of them wished to address him about its content. Neither counsel did so.
The Relevant Principles
21
In a recent decision of this court in
BKY v R
[2023] EWCA Crim 1095
, the Vice-President summarised the relevant principles as follows:
"77.
In
R v Hulusi
(1974) 58 CAR 378 the court, citing the earlier decision in
R v Hamilton
(1969, unreported), emphasised the long-established principle that a judge must not descend into the arena and give the impression of acting as an advocate, and continued:
'Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified. But the interventions which give rise to a quashing of a conviction are really threefold: those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and that you, the members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence; and thirdly, cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.'
78.
Those principles, and the prohibition on a judge appearing to take sides, apply however implausible or fanciful a defence account may appear to be: see, eg,
R v Inns
[2018] EWCA Crim 1081
at [37].
79.
As to the summing up, paragraph 3(a) of Part 25.14 of the Criminal Procedure Rules (as amended with effect from 4 April 2022) requires a judge to give the jurors directions about the relevant law and to 'summarise for them, to such extent as is necessary, the evidence relevant to the issues they must decide'. By paragraph 4, the directions 'may include questions that the court invites jurors to answer in coming to a verdict'.
80.
The summing up of the facts must deal with the essentials of the case and must strike a fair balance between the prosecution and defence cases. In
R v Haddon
[2020] EWCA Crim 887
the court noted that in some older cases it had been held permissible for a judge to comment on the evidence in a way which indicated his or her own view so long as the jury were told they could ignore those opinions. The court continued, at [12]:
'We find it difficult to reconcile that approach with the cardinal obligation that the judge should remain impartial, leaving the decisions on the facts to the jury. Indeed, we suggest it is difficult to envisage cases in which it will be appropriate or of assistance to the jury for the judge to reveal his or her personal views as opposed to providing an impartial analysis of the cases for and against the prosecution and the defence.'
81.
That is not to say that there is a blanket ban on a judge commenting on the evidence; but it emphasises the care which must be taken to avoid giving the appearance of advocacy on behalf of one side or the other. In
R v Merchant
[2018] EWCA Crim 2606
the court said at [15]:
'The judge is perfectly entitled to comment on the evidence by pointing out matters which may tend to support or undermine either party’s case on an issue, nor is there any requirement that a summing up should be balanced in the sense that a judge should seek to compensate for a weak case or downplay a strong one. What is vital is, first, that the judge should not trespass on the role of the jury by telling them what conclusions they should draw on matters which are for them to determine and, second that the judge’s review of the evidence should be objective and impartial and not skewed unfairly in favour of the prosecution or the defence.'
82.
That passage was cited in
R v Awil
[2020] EWCA Crim 1802
, where the court went on to say, at [23]:
'… the guiding principle must always be balance and fairness. An objective marshalling and presentation of the evidence is a feature of every good summing-up. Furthermore, a balanced presentation of the cases being advanced by the prosecution and the defence may require the judge to point out matters which support or undermine the case of either or both of the parties. it Is clear that there is no blanket ban upon trial judges expressing a view based upon an analysis of the evidence which may be adverse to either the prosecution or the defence. However Careful consideration should always be given before a judge decides to express a view rather than presenting matters that support or undermine each party's case impartially for the jury's consideration and determination. What is critical is that the judge's presentation and any expression of the judge's personal view must be justifiable by reference to the twin touchstones of balance and fairness. That will involve a careful and judicious use of language.'"
22
We apply those principles in this case.
Submissions
23
Mr Burton's essential submission is that on a number of occasions in his summing-up the Recorder either commented on material parts of the evidence in a manner which gave the impression that they were the judge's own views and reflected a view which was adverse to the defence case; or failed to remind the jury of material parts of the evidence or the defendant's case. And that the individual and cumulatively effect was to render the summing-up fundamentally unfair and unbalanced.
24
The first example which he relied on relates to the appellant's evidence and case of a previous visit to the house by KD in October 2017 on which occasion, according to his evidence, full consensual intercourse had taken place. The submission was that KD gave evidence at the trial that she had not been to the house on a previous occasion, whereas HS's evidence, in contrast, was that she had done so. It was suggested that this categorical denial by KD was unlikely to have resulted from mere forgetfulness and was a deliberate lie told by that complainant to distance herself from the suggestion that she had engaged in consensual sexual activity on that previous occasion and, therefore, in consensual sexual activity on the occasion which formed the subject matter of counts 6 and 8.
25
At the outset of his summing-up the Recorder told the jury, correctly, that at the heart of the case was the credibility of the four protagonists; and he offered this advice as to how they might determine who was telling the truth and who not, where it is one person's word against another. He said:
"You may find it helpful to apply this two-stage test to the evidence of each witness - that includes the defendant because you judge him by the fair - same fair, objective standards that you judge each witness by: is the witness trying to tell me the truth, trying to tell us the truth? That’s the first question.
You’ll bear in mind, of course, that we’re dealing with events that are over five years old. People’s memories fade. There are bound to be differences of detail. To take but one example, [KD] said that this was the first occasion she’d ever been to [the house]. [HS] said that [KD] had been there before. Well, what does this mean, ladies and gentlemen? Does it mean: 'ah-ha, that’s the break in their story. They’ve got their story wrong?' Or it is entirely innocuous; just a difference of recollection over a long period of time?
If you determine that a witness is not trying to tell the truth then you will, no doubt reject his or her evidence. But if you determine that a witness is trying to tell you the truth go on and ask yourselves this: is that witness accurate and reliable?"
26
The Recorder then reminded the jury of KD's evidence in her ABE interview which was "I hadn't stayed there for a very long time" and said that the jury might think that her evidence oscillated between saying on the one hand that she had stayed at HS's house before the latter moved to the house where the offences allegedly occurred, which was something she had said in her evidence at trial, and on the other that she had not stayed at that particular address for a very long time.
27
Mr Burton submitted that at trial the evidence of KD had been a clear and categorical denial that she had ever stayed on a previous occasion at the house. His submission on the Recorder's remarks was that the Recorder was therefore unequivocally treating KD's denial as an example of an error of detail resulting from memories fading and therefore something which would not necessarily assist the jury on the issue of whether the witness was trying to tell the truth, whereas it was the defence case that this was an example of her deliberately lying.
28
We cannot accept this interpretation of the Recorder's remarks. The summing-up of KD's evidence indicates that it may not have involved such a straightforward, unequivocal and categorical denial of a previous visit to the house, which was a matter for the jury to consider. But however that may be, the Recorder was merely using that conflict in the evidence between HS and KD about whether she had previously visited the house, if conflict it was, as an example of a matter which might involve mistaken recollection (on HS's part or KD's part) or might involve deliberate lying by KD, and emphasising that it might help the jury to try to decide which it was. It was not an invitation to them to adopt a view of his own that it was merely mistaken recollection.
29
The next passage to which Mr Burton refers comes at p.12F to H of the transcript. After recounting KD's initial narrative account from her ABE interview and before coming to her ABE evidence in which her account was drawn out more fully by questions by the officer and thereafter to her evidence when cross-examined, at this point the Recorder directed the jury that one of the things they would have to consider was the issue of concoction in respect of which he had already given written directions. He then went on to comment as follows:
"You might think it’s a very odd story. If you and two of your friends each individually decide to make up something to get somebody into trouble you might think that the nuclear option would be the best way of getting something into trouble: 'He raped me.' But none of these ladies (none of the three complainants) say: 'He actually raped me.' You'll have to take that into account in determining whether or not they're telling you the truth."
30
Mr Burton submitted that the Recorder's observations demonstrated clear favour towards the prosecution case in respect of a central issue for the jury's consideration, namely whether the complainants may have put their heads together and lied or possibly been unconsciously influenced by each other's accounts. Furthermore, he submitted, the proposition advanced lacked any rational foundation in the context of this case where each complainant was potentially drawing on an experience of actual sexual activity, which was not in issue, but falsely alleging lack of consent.
31
We think there is force in this point. The words "You might think it's an odd story" to refer to the defence case that there was collusion between the complainants carried with it the clear implication that that was what the Recorder thought. This was a point made solely by the Recorder and did not reflect any prosecution submission at the trial, whether as a matter of substance or as a matter of language. It can only therefore have been interpreted by the jury as the Recorder indicating what he thought and it was an indication that the Recorder thought that it was an unlikely suggestion for the complainants to have colluded if they had not made a more serious allegation, such as one of rape.
32
Moreover, we agree with Mr Burton that the point being made by the Recorder was a bad one in the context of this case, at least so far as KD is concerned, with whose evidence he was dealing at this point in the summing-up. The defendant's case was that KD was describing activity which had taken place but had taken place consensually and was falsely alleging a lack of consent. Whether she had deliberately falsified that account to turn it into an account which did not involve consent was not made any less likely by reason of it being of that nature, rather than an allegation of rape.
33
The Recorder's error was compounded by his telling the jury that they
will
have to take that into account in determining whether or not the complainants were telling the truth. It was not, however, a point that they had to consider valid, and if they did it was something which they could only treat as adverse to the defence.
34
Mr Burton went on to rely on a number of further passages which he submitted confirmed the impression that the judge supported the credibility of the complainants. We will not address all of them, but only those where we think there may be some substance to the submission.
35
At p.13F to 14B the Recorder had been dealing with the meeting between all three complainants before they made their reports of sexual assault and he observed:
"The defence say: 'Concoction, conspiracy, fabrication, make up.' The prosecution: 'Why not? People don’t just say: ‘Something has - something horrible has happened to me of a sexual nature but I’m not going to tell my friends about it, or anyone else.’ Of course it’s natural for people to discuss these things and compare their experiences. That’s part of human life, isn’t it?"
36
Mr Burton suggested that although appearing to strike a balance between what "the defence says" and what "the prosecution say", the effect was to undermined the defence case by the use of dismissive language suggestive of caricature compared to the reality of "human life". We do not think that there is any great weight in this. Taken on its own, it would not be seen as either unbalanced or unfair. However, it has to be seen in the context of the various other passages to which we make reference.
37
The next one on which Mr Burton relied comes at p.15B to C of the transcript where the Recorder was reminding the jury of a passage in KD's account in interview in which she was explaining why immediately after the event she left everything there with the stains on the pillow and went out. The Recorder picked out for particular comment her statement that it was because HS was her best friend and "It's that guilt of like: 'Oh my God, what has happened?'" The Recorder told the jury at that point that they may think that particular expression about guilt was a pointer to whether she was telling the truth or making it up. Mr Burton submitted that the clear implication of what the Recorder was saying was that the Recorder thought that KD's sense of guilt was corroborative of the truth of her account, whereas it was equally consistent with her having had consensual sex with her best friend's partner, which was the reason given by the appellant. Again, we do not think that this is a point of any great weight taken in the abstract and on its own it would not be suggestive of imbalance. However, again, it must be seen in the context of the summing-up as a whole.
38
The next passage relied on comes at 17E to F of the transcript. This was in a part of the summing-up in which the Recorder was dealing with the evidence of HS. The Recorder reminded the jury of the passage in her ABE interview which said that when she had suffered a miscarriage he had been very supportive through it all. The Recorder then said:
"You'll have to ask yourselves, ladies and gentlemen: if [HS] is making up these allegations about Aaron, why does she describe him as 'supportive'? A matter for you."
39
That was a one-sided comment. Although the Recorder qualified it with the expression "a matter for you", it was a comment which indicated that what HS had said supported the prosecution case. It was not balanced by the point which had been made by the defence in relation to her evidence and, in particular, the point made by the defence that her evidence about how the relationship had continued after the allegations had been made was supportive of the defence case of collusion.
40
The next passage to which Mr Burton referred us comes at p.24G to H, where the Recorder was summarising what the appellant had said in interview about his relationship with HS having deteriorated because KD had told HS that they had had consensual sex and felt bad that she had done something behind HS's back. The Recorder commented:
"You may think when somebody does something bad behind another's back, the last thing they would do is tell them about it."
41
Again, this was an observation adverse to the defence.
42
Next, when summarising the appellant's evidence in interview and the text messages sent by the appellant after 16 December 2017, the Recorder referred to the lack of any equivalent messages after their alleged previous sexual encounter and went on to comment at 27C to D:
"You might wonder ... that if this is his reaction to having consensual sex with [KD] on the sofa at [the house] why he didn’t feel any need to send similar messages after, as he has said to you, he first had consensual sex with [KD], this time in the kitchen of [the house]. Of course [KD’s] evidence is that she never had consensual anything with him at all, nor would she wish to."
43
He then made the same point again at 28E to F when dealing with the appellant's evidence at trial, emphasising again that there was no exchange of messages between the first occasion of consensual sex, alleged consensual sex, with KD in the kitchen. He said:
"Something of a contrast, you may think, with the virtual barrage of texts he sent after the 16th of December to KD."
44
That was a point which had been made by the prosecution and if the Recorder had simply recorded that that was a comment on the evidence made by the prosecution and had made the observation only once, it could not possibly have been a matter for criticism. However, by making the comment twice in rapid succession so as to give it emphasis and by introducing it not as something which the prosecution had said, but by the words "you may consider" or "you may think” it was something which may well have given the jury the impression that it was a reflection of his own view. It was of course adverse to the defence. That impression may have been reinforced by what immediately followed it at p.28D to F of the transcript. He also compared the barrage of texts as:
"Markedly similar to the silence which ensued when he left the bedroom in which [KR] was sleeping saying nothing. Not 'Oh my God,' not 'sorry' not 'Good heavens, I thought you were [HS]. What a dreadful mistake.' Make of that what you will."
45
Clearly what the Recorder was asking the jury to make of it was that the prosecution case was more likely to be the correct one and the appellant's case less likely to be the correct one by reason of the fact that he had not, when he realised his mistake in the bedroom, said anything by way of specific recognition that it was a mistake and by way of apology. Again, it was an invitation to the jury to adopt a view of the evidence which was favourable to the prosecution and using the expression "make of that what you will" would not have been sufficient to remove the impression that it was a view of the Recorder himself which he was inviting them to accept.
46
Mr Burton submitted that the prejudicial effect of these passages was compounded by the Recorder's failure to remind the jury of important evidence given by KD on being cross-examined about the account which she gave when she first reported the matter to the police which was contained in a handwritten document entitled "First Account", which she signed. That was an account which had been written down by the officer reflecting her first narrative on a date which was probably a day or two before she gave her ABE interview. She had, as she accepted, signed it as being correct. That document said that the appellant had (i) pulled her trousers down to her hips, (ii) was laying on top of her and (iii) that she was "not sure if he put his cock in me". Mr Burton told us, and this was not disputed, that in cross-examination she denied having given that account and when asked why she had signed it, could not give an explanation.
47
Mr Thompson submitted that her denials were a little bit more nuanced in relation to the issue of the trousers being pulled down. However, what he said did not meet the point that in all three respects, including the allegation that he had pulled her trousers down to her hips, the first account contradicted what she had said in her ABE interview and her evidence-in-chief in each of those respects. That was (i) that he had not moved her clothing at all. She was explicit about that in the ABE interview, saying that he had been able to insert his hands into her "high-waisted jeans", as she described them, from the top because they were loose fitting; (ii) that he had not lain on top of her; and (iii) (which followed from (ii)) that he had definitely not put his penis inside her. The only reference by the Recorder in his summing-up which might have reflected some part of this came where he was recording KD's evidence in cross-examination. That includes, without any context, the words "he pulled my trousers down from my waist to my hip".
48
These inconsistencies or apparent inconsistencies in her account were potentially important ones which went to the heart of the alleged offence and KD's credibility. The judge did not remind the jury at all about the aspects of her signed statement which said that the appellant had lain on top of her and that he might have put his penis in her. That was important evidence of which, as a matter of fairness and balance, he should have reminded the jury. Although the Recorder did refer to her having said that the appellant pulled her jeans down, it appeared in the way he dealt with it in the summing-up out of the context in which it arose, namely of it having been put to her as inconsistent with her account in the evidence she gave at the trial, which it was.
49
In an otherwise balanced and fair summing-up a judge would not necessarily have been obliged to comment on these matters favourable to the defence, especially as these were submissions which Mr Burton had made in the course of his final speech which had recently been made. However, against the background of the Recorder repeatedly making comments on the evidence adverse to the defence, the failure to comment on this aspect of the defence, which was of potential importance, reinforces the impression of imbalance which might well have led the jury to think that the Recorder favoured the prosecution case. To put it bluntly, omitting this point which had recently been made as one to which the defence attached, correctly, some importance might well have led the jury to think that they could treat it as unimportant because the Recorder thought it not worth mentioning.
50
Mr Thompson, who appeared for the prosecution at trial as well as before us, submitted that the Recorder was entitled to comment on the evidence by pointing out matters which tended to support or undermine either party's case. There are two difficulties with this submission. The first is that the authorities to which we have referred show that very great care must be taken before doing this in order to achieve balance and to insure that the comments do not appear to be taken as the views of the judge. The second is that the comments in this case were almost all one way, being adverse to the defence. The only example which Mr Thompson gave to us of a comment favourable to the defence was in relation to a submission he had made that it was significant that when KD left the house she left left behind her vape and the Recorder had indicated to the jury that that would not necessarily be of any significance, people leave those sorts of things behind all the time. But that is a small example compared with what we treat as otherwise a drip, drip, drip of comments which were adverse to the defence.
51
Moreover, in relation to the credibility of HS's evidence generally, the Recorder, as we have said, failed to remind the jury of the evidence that HS had resumed sexual relations with the appellant after she was aware of the sexual assaults on her two closest friends. Again, this was not a point of which we would have regarded a judge as obliged to remind the jury in an otherwise balanced summing-up. But the failure to do so would have reinforced the impression that the Recorder was favouring the prosecution case.
52
Mr Burton further submitted that the Recorder failed to direct the jury as to the correct approach to the appellant's evidence that KD had engaged in consensual sexual activity with him on a previous occasion and its relevance. In particular, it was something which might have had a bearing on whether the appellant might reasonably have believed that KD was consenting to sexual activity on the subsequent occasion, even if her evidence was accepted that she was not doing so. Again, this is a point which in an otherwise balanced summing-up would not in our view be a matter of criticism. By it is a point which the jury were entitled to take into account and the failure to draw it to the jury's attention is another example of the overall imbalance in the Recorder's approach.
53
Mr Burton also submitted that it was the manner in which the Recorder had made the comments adverse to the defence which also lent weight to the impression that the Recorder was giving the jury his own view of how they should treat the respective merits of the party's case. He submitted that the Recorder paused before making these points to the jury and made them in a manner which gave the appearance of acting as an advocate for the prosecution. Mr Thompson rejected this characterisation of the way in which the Recorder made his remarks. He said that was not his impression of how he behaved on this occasion or indeed of how he had behaved on other occasion when Mr Thompson had appeared before him. In those circumstances, we do not attach any weight to the submission that the alleged manner in which the comments were made helps us to decide the appeal.
Conclusion
54
Looking at the whole of the summing-up and the cumulative effect of these matters in context, we have concluded that the summing-up was unfairly unbalanced in a way which casts doubt on the safety of all the convictions. The Recorder's comments were often expressed in the language of "you may think" and "it is a matter for you", but that does not prevent them having the appearance of being views to which he attached himself. Adding the mantra "you may think" when making the comment on the value, weight or relevance a piece of evidence does not necessarily make it neutral and especially so when it does not reflect a submission made by the prosecution. In such cases it can only be an indication of what the judge thinks, unless it is very carefully balanced. It is a phrase which in our view should, if possible, be avoided. When legitimate comment is made to reflect the prosecution case about a piece of evidence, it is better to introduce it by reference to that being a prosecution submission or that being the prosecution case. Otherwise, the expression "you may think" can readily be understood by a jury to mean "I, the judge, think".
55
Moreover, we do not think that in this particular case the unfair imbalance was cured by the standard directions given by the Recorder as part of the legal directions before speeches that the jury in essence should ignore his views on the evidence unless they agreed with them. In our view the summing-up, taken as a whole, gave rise to a real risk that the jury would think that the Recorder was favouring the prosecution case over that of the defence.
56
This undermines the safety of the convictions on all counts. Although the matters with which we have dealt relate mostly to what was said about the complaints by KD, we have borne in mind that the unsafety of a conviction in relation to any one complainant is likely to undermine the safety of the convictions in relation to the others because each complaint was relied on by the prosecution as cross admissible in support of the others on propensity grounds. The complaints by KD were the most serious and it was only when she gave her account to HS and KR that those two reported their complaints. We also bear in mind that the jury must have had some reservations about HS's evidence in order to have acquitted on counts 2 to 4, and her evidence was relevant not only to her own complaints but in what she recounted of KR's and KD's complaints when they were first made to her.
57
Finally, we should deal with a submission made by Mr Thompson that Mr Burton did not seek to have any of the deficiencies of which he now complains remedied in response to the Recorder's invitation at the conclusion of his summing-up. Whilst it is always important that counsel should fulfil their duty to assist the judge by correcting directions which they perceive to be erroneous, it is difficult to do so where the nature of the complaint is not so much to a single part of the summing-up but to the overall effect of a large number of different comments. We do not think that Mr Burton can fairly be criticised for not seeking to go redress the impression given by the summing-up as a whole, which is that which we have summarised.
58
For these reasons, we will allow the appeal and quash the convictions on all counts, save for count 7, on which the appellant pleaded guilty.
________________ | [
"LORD JUSTICE POPPLEWELL",
"MR JUSTICE SAINI",
"MRS JUSTICE COLLINS RICE"
] | 2023_11_03-5897.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1657/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1657 | 882 |
8a0982171721b792a7f57788d55f73471c5a2ac1ec7d41011c8dcab9bde04883 | [2020] EWCA Crim 1049 | EWCA_Crim_1049 | 2020-07-30 | crown_court | Neutral Citation Number: [2020] EWCA Crim 1049 No: 201703910/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 30 July 2020 LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE RECORDER OF NOTTINGHAM (HIS HONOUR JUDGE DICKINSON QC) (Sitting as a Judge of the CACD) R E G I N A v LOUISA MBADUGHA 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: rcj@epi | Neutral Citation Number:
[2020] EWCA Crim 1049
No: 201703910/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 30 July 2020
LORD JUSTICE HOLROYDE
MRS JUSTICE ANDREWS DBE
RECORDER OF NOTTINGHAM
(HIS HONOUR JUDGE DICKINSON QC)
(Sitting as a Judge of the CACD)
R E G I N A
v
LOUISA MBADUGHA
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 D Martin-Sperry
appeared on behalf of the
Applicant
Mr D Hughes
appeared on behalf of the
Crown
J U D G M E N T
1.
LORD JUSTICE HOLROYDE: On 8 June 2017, after a trial at the Central Criminal Court before HHJ Katz and a jury, this applicant was convicted of two offences, fraudulent evasion of duty (count 1) and fraudulent evasion of VAT (count 3). She was subsequently sentenced to a total of 3 years 6 months' imprisonment. Her application for an extension of time to apply for leave to appeal against conviction was refused by the single judge. The applications are now renewed to the full court.
2.
The charges related to the operation of The Italian Wine Company (to which we shall refer for convenience as "the company") during the period 2008 to 2013. The applicant was the financial controller of the company, which was based in Neasden. As its name implies, the company imported wine from Italy. In particular, it was supplied by an Italian company to which we shall refer as "SBF".
3.
The applicant was aged 59 and of previous good character at the time of the trial. She stood trial jointly with Livio Mazzarello, the sole shareholder in the company, and Steven Waters, its managing director. Others named in the charges were Renato Fornara and Marco Leonardi, respectively the manager and the accountant of SBF. All were alleged to have been knowingly concerned in the fraudulent evasion of duty payable upon the importation of wine by the company and of VAT payable upon the sale of the wine by the company.
4.
Mazzarello, Fornara and Leonardi were prosecuted in Italy. Mazzarello admitted in the Italian proceedings that he was a head promoter, founding member and organiser of a criminal association. That fact was in evidence before the jury at the Central Criminal Court. Mazzarello's case was that he had made the admission of part of an agreement with the Italian authorities which did not involve his receiving a prison sentence.
5.
The company was required to notify Her Majesty's Revenue & Customs ("HMRC") of each incoming consignment of wine and to pay excise duty on the imported wine. For this purpose, the Italian supplier SBF generated an electronic administrative document, with a unique administrative reference code for each consignment. The delivery driver had to carry a copy of the electronic administrative document. The company had to close an administrative reference code within five days of receiving delivery of the wine and had to submit monthly returns to HMRC. The company was also required to account for the VAT on sales of wine within the United Kingdom.
6.
The prosecution case was that the company had evaded nearly £35 million of duty and tax due by supplying false returns which understated the amount of wine imported. The hauliers carrying the wine from Italy to the United Kingdom were provided with two sets of documentation. One set of documents contained details of the full load and was only to be produced if the load was physically inspected by officers of HMRC. The other set of documents contained details of only a small part of the load, the fraudulent scheme being that only that portion of the delivery would be declared to HMRC and the rest would be sold separately without any duty or VAT being paid.
7.
The applicant was responsible for the company's accounts, invoices, VAT returns and payroll. From time to time HMRC carried out inspections in which the applicant participated. It was the prosecution case that the records kept by the company were a sham, the true records being stored on a computer server based in Italy. It became common ground during the trial that the Italian server did indeed contain the correct records. From those correct records it could be seen that the applicant had presented to the company's accountants, King & King, and to HMRC what was in fact a wholly misleading picture of the extent of the company's imports and sales of wine. She has always denied that she did so knowingly.
8.
On 17 April 2013 the applicant and her co-accused in this country, and the named conspirators in Italy, were arrested in a joint operation involving both UK and Italian authorities. At the company's premises a large quantity of concealed cash in both sterling and Euros was found. When interviewed under caution the applicant denied any knowledge of this cash. When challenged about disparities between deliveries which had been observed by HMRC officers and the relevant documentation, she said that the company also traded in other commodities as well as wine. In later interviews she made no comment.
9.
At trial, the prosecution adduced evidence as to the systems by which the company accounted for duty and VAT and the paperwork which was generated. Evidence was adduced of observations showing that the company was making cash sales of wine which did not appear in the company's records but did appear in the records held on the Italian server, and of the interception of loads coming in from Italy and the documentation seized from drivers.
10.
Officials of HMRC gave evidence of their contacts with the applicant, some of which were specifically following interceptions of loads. An employee of King & King, Anil Seechurn, gave evidence about his dealings with the applicant.
11.
At the conclusion of the prosecution case a successful submission of no case to answer was made on behalf of Mr Waters. The trial continued against the applicant and Mr Mazzarello.
12.
The applicant gave evidence. She accepted that others had been involved in fraudulent activity. Her case was that she had not been knowingly engaged in that fraud. She does not speak Italian. Information had deliberately been kept from her. She knew nothing about the Italian server. She called witnesses as to her good character.
13.
Mr Mazzarello gave evidence to the effect that the fraud was perpetrated by others in Italy and that he was not involved. He too called character witnesses.
14.
Thus, the issue for the jury was whether the prosecution had proved that the applicant was knowingly concerned in the fraudulent activity which had undoubtedly occurred. A similar issue fell to be decided in respect of Mr Mazzarello.
15.
The judge in summing up made clear to the jury that they must decide the case on the evidence. At Volume I, page 8C of the transcript, he emphasised that the issue at the heart of the case against each defendant was whether they were knowingly concerned. He continued:
i.
"There doesn't seem to be much dispute that fraud was going on. The question is whether they were knowingly concerned. How are we ever going to know they were knowingly concerned when they dispute it? There is no magic way to press a button and the answer comes out before you. It can't be done like that. You are going to have to look at all of the evidence and your inferences about whether you are sure somebody was knowingly concerned.
That is the only way of doing it, and that means you can use your logic, your common sense, in relation to evidence that you are sure about - what was going on, what did that person say, what did that person do, what else was happening, what the documents show, what they said about it, and you can use, as I said, logic and common sense to come to common-sense conclusions, based on evidence which you are sure about.
ii.
One thing you cannot do is speculate, guess. There is to be no guesswork and no speculation, please. That is forbidden."
16.
At page 18B the judge gave a further direction:
i.
"So examine the evidence and decide what you are sure the defendant in question was doing and saying at the material times, in the context of whatever else you are sure was going on. In that way, you may use logic and common sense to draw inferences; that is, to come to common-sense conclusions, but you must not speculate. And where there are alternate inferences available from the evidence, well, then you may only draw an inference of guilt against the defendant if you're sure that you can reject inferences consistent with innocence.
ii.
Just to expand upon that for a moment, two sides may say: 'These are the facts'. The prosecution will say, 'The inference you should draw is this.' The defence may say, 'No, the inference you should draw is that.' So you will have two different arguments about the proper inference you should draw. You can only draw the inference against a defendant consistent with their guilt if you're sure you can reject the ones that are consistent with their innocence. That's the way to approach it."
17.
The judge directed the jury as to was what meant by the phrase "being knowingly concerned". Later in his summing-up the jury sent a note asking for a further direction, in particular as to whether a person who turns a blind eye to something of which they are aware, can be knowingly concerned. At Volume II, page 18E the judge answered that question, referring the jury to his earlier directions, of which they had copies, and emphasising that there must be some participation in the offence with the required knowledge and intention.
18.
Mr Mazzarello absconded whilst the jury were in retirement and was not seen again during the trial. He was convicted in his absence of offences of fraudulent evasion of duty and of VAT. He was later sentenced to a total of 14 years.
19.
It is necessary next to summarise the convoluted history of the grounds of appeal, which have been advanced by and on behalf of the applicant. The notice of appeal was filed by the applicant acting in person. It was received by the Criminal Appeal Office on 30 August 2017. It was accompanied by wide-ranging grounds of appeal of the
applicant's own composition. She applied for an extension of time, her application being 43 days out of time, leave to appeal against her convictions, a representation order and permission to call a witness. The last of those applications appears to have related to Mr Sidney Kolinski, the senior partner of King & King and Mr Seechurn's employer. The applicant said of him, that her trial representatives had interviewed Mr Kolinski and he was available to attend court, but the applicant had never seen his statement and her lawyers had not called him to give evidence.
20.
The applicant's grounds of appeal included criticisms of her trial representatives, criticisms of and challenges to the evidence of Mr Seechurn, a complaint that she was convicted on purely circumstantial evidence and a complaint that a pop-up dialogue box which appeared when accessing daily delivery records on the computer system, was said by the prosecution to read "reserved by Louisa" when in fact it read in Italian "reserved for Louisa". We should note that that error of translation was noted and corrected in the course of the trial.
21.
In view of the criticisms which the applicant had made of her trial representatives, she was invited to, and did, waive her legal professional privilege. Trial counsel and solicitors provided their responses to the points made against them.
22.
The prosecution put in a respondent's notice answering each of the points advanced by the applicant.
23.
The single judge considered and rejected the original grounds of appeal, setting out his reasons in some detail.
24.
It is not entirely clear in what sequence written grounds were next put forward on behalf of the applicant by her present legal representatives. At some stage a document was filed with the court bearing the title "Redrafted Incomplete Grounds of Appeal". This unusual document is undated, silent as to its authorship and contains no clear identification of any specific grounds of appeal. It concludes by saying that the previous grounds of appeal drafted by the applicant were abandoned save in respect of the decision made at trial not to call Mr Kolinski.
25.
The hearing of the renewed applications was listed in July 2019. It was taken out of the list because counsel requested further time to perfect the grounds of appeal and to consider expert evidence. The hearing was next listed in October 2019. Unfortunately counsel was unwell. The case was therefore taken out of the list and it was re-listed for hearing on 11 December 2019.
26.
In the light of representations made shortly before that date, the hearing was converted from a substantive hearing to a directions hearing. Mr Sapsford QC and Mr Martin-Sperry prepared a note for that hearing, in which they said that an early decision had been taken to abandon almost all of the grounds originally put forward by the applicant when acting in person. They set out four grounds of appeal, lettered (a) to (d) and submitted in particular that it was essential for the representation order to be extended so that a forensic accountant could be instructed.
27.
The court gave a number of directions. They included the following. First, that the completed grounds of appeal were to be filed by 31 January 2020 and also served on trial counsel and solicitors. Secondly, that trial counsel and solicitors were to respond by 14 February 2020, and thirdly, that the defence were then to file their skeleton argument by 28 February 2020.
28.
Completed grounds of appeal were not filed as ordered. Instead, a document entitled "Provisional grounds of appeal and outline submissions" was filed on 29 January 2020. It contained three grounds of appeal; the fourth ground advanced in the earlier note having been abandoned. In summary, the three grounds were
(a)
the convictions are unsafe because the Crown had failed "to lead highly technical evidence in order to demonstrate that the "landscape" that the applicant was presented with and that she in turn placed in front of the auditors "was not such, viewed objectively, as to alert someone in her position and with her characteristics of any underlying extensive Italian fraud."
(b)
The judge failed properly to give the jury any direction as to how they should treat circumstantial evidence.
(c)
It was not disclosed to the jury that the fraud was a major "Mafia" type of financing operation.
29.
On 11 February 2020 trial counsel responded to those provisional grounds. They began by indicating that Mr Graffius (leading junior counsel at trial) had spoken about the case to both Mr Sapsford QC and Mr Martin-Sperry. Trial counsel summarised the evidence which the applicant had given, to the effect that she was not aware that she had access to a server in Italy, that she had simply used conventional accounting and banking software and that others in the company knew her passwords and could access them. Counsel pointed out that a prosecution witness, Mr Ford, who had considerable experience of investigations of this nature, had accepted in cross-examination that a person who knew another employee's password would be able to access that computer system in the name of that other employee. An extensive defence bundle had been provided to the jury during the trial. This included emails showing that Mr Leonardi, in Italy, had accessed the system, including setting up accounting records for others from which the applicant was specifically excluded, and had accessed and changed programs on the applicant's desktop.
30.
Trial counsel further indicated that a defence computer expert had been instructed, had been provided via the prosecution with a complete cloned copy of the Italian server, had advised in response to a large number of questions posed by trial counsel and had prepared two reports. He had not been called at trial but his reports had formed the basis of the cross-examination of Mr Ford. Mr Ford had accepted, amongst other things, that Mr Leonardi was one of the administrators of the computer system and that the pop-up dialogue box "Reserved for Louisa" would be created automatically by the program whenever her password was applied, which anyone with access to her desktop would be able to do.
31.
Trial counsel also stated that the applicant had not given instructions that Mr Leonardi should be contacted as a defence witness. His interview by the Italian authorities in 2013 had been disclosed, and counsel regarded the answers which he had given in interview by the Italian investigators as unhelpful to the applicant. They pointed out that he would have been liable to prosecution in this country and that, if called as a witness, he could have been questioned not only about his involvement in the offences charged against the applicant but also about his role in the broader fraud. As we have already noted, Mr Leonardi was of course named in the indictment as a joint offender.
32.
Trial counsel further pointed out that the applicant's defence at trial had been that she believed the business of the company to be legitimate. The nature of the criminal organisation operating in Italy was therefore irrelevant to her defence. Counsel took the view that reference to its size, nature and sophistication could potentially have undermined her defence of innocent involvement.
33.
A separate skeleton argument was not filed on behalf of the applicant either by the date ordered or at all. However, Mr Martin-Sperry submitted on 1 March 2020 a document entitled "Grounds of appeal in support of a renewed application for leave to appeal against conviction". This contained a number of narrative paragraphs setting out various features of the case and ended with grounds of appeal in the following terms:
i.
"
GROUNDS OF APPEAL
ii.
AND IT IS SUBMITTED THAT
1.
The Learned Judge failed to give the jury full directions in respect of how they should approach circumstantial evidence, as was required in a case of this nature.
2.
In all the circumstances of the case as set out above, the verdicts returned by the jury against Louisa Mbadugha were unsafe: The Court is invited to quash her convictions."
34.
Each member of the court had until this morning understood those words to indicate that only a single ground of appeal was now pursued. Each member of the court had, of course, considered the earlier grounds as part of the reading preparatory to this hearing.
35.
On 16 June 2020 Mr Hughes, appearing for the prosecution in this Court as he did below, submitted a response to that reamended ground. He indicated that he too understood that all but one ground of appeal had been abandoned and that his response was drafted on that explicit basis. Mr Hughes pointed out a number of factual errors in the amended grounds document and submitted that the judge's directions as to circumstantial evidence were appropriate.
36.
To complete this sequence of events the court has very recently received from the applicant herself an undated witness statement signed by her and a Form W by which she seeks to call Mr Leonardi as a witness. She relies on an interview of him by the Italian authorities on 15 May 2013, in which it is said that he indicates that he built the Italian server and installed the software. She asserts that:
i.
"Wrongly and to my detriment the Crown failed to make Leonardi available at the trial as the best person to give evidence as to what I would have seen, as he himself designed, built and maintained the servers."
37.
She went on in her statement to reiterate her core argument that there was no evidence that she had ever accessed or even known of the complete records kept on the Italian server.
38.
In his oral submissions to the court this morning Mr Martin-Sperry has indicated that he seeks to rely on all the grounds of appeal which have been put before the court at any stage, save for those initially drafted by the applicant when acting in person and save for the ground relating to the instruction of a forensic accountant. He acknowledges that a forensic accountant would not be able to assist on the important issue of the applicant's knowledge of and participation in the fraud.
39.
Mr Martin-Sperry sought to justify this approach on the basis that, in the most recent grounds of appeal, the terms of which we have quoted above, the phrase "in all the circumstances of the case as set out above" in ground 2 must be understood as relating to everything which had gone before and not merely to ground 1.
40.
In pursuing his argument Mr Martin-Sperry places particular emphasis on the Italian interview of Mr Leonardi in 2013 which, he argued, had not been disclosed and may not even have been known to the prosecution at the time of trial, with the result that trial counsel had been unaware of its contents and consequently unable to pursue the important points which he contends arises from it. Those points are illustrated by Mr Martin-Sperry by reference to some extracts from an imperfect translation of the interview, which he has provided to the court today.
41.
These matters are said to be of particular importance because, Mr Martin-Sperry points out, the jury in the course of the trial, had asked a question about who had access to which computer. That question had been referred to the witness Mr Ford, who had made a short statement indicating that further work would be necessary before he would be able to answer it.
42.
Mr Martin-Sperry urges upon the court that there is good reason to be anxious about the circumstances of the applicant's convictions, which he contends are unsafe in all the circumstances. In respect of his most recent specific ground, relating to the suggested absence of an adequate direction on circumstantial evidence, he relies upon the advice given in the Crown Court Compendium and on the specimen, directions contained in the relevant section of that valuable work. He argues that a direction along those lines was essential in this case, even if it may not be an essential in every case of circumstantial evidence.
43.
Mr Hughes, for the respondent, in his submissions this morning, told this court that there had in fact been full disclosure of all the material from the Italian server and that accordingly trial counsel were fully equipped with all relevant material and had indeed been able to refer it to their expert witness. The response provided by trial counsel, to which we have referred, explains, submits Mr Hughes, the reasons why no attempt was made at trial to call Mr Leonardi as a witness and why the expert evidence available to them was used as a basis for cross-examination of Mr Ford without calling the expert witness himself.
44.
Before coming to our views on the submissions made to this court, we must emphasise that the manner in which the grounds of appeal have been placed before the court has been wholly unsatisfactory. Rule 39.3(2) of the Criminal Procedure Rules contains specific provision as to the form of an appeal notice. Omitting a paragraph which is not relevant to the present case, the rule says this:
i.
"The grounds of appeal
must:
1)
Include in no more than the first two pages a summary of the grounds that makes what then follows easy to understand.
2)
In each ground of appeal identify the event or decision to which that ground relates;
3)
In each ground of appeal summarise the facts relevant to that ground; but only to the extent necessary to make clear what is in issue;
4)
Concisely outline each argument in support of each ground;
5)
Number each ground consecutively, if there is more than one;
6)
Identify any relevant authorities and;
i.
state the proposition of law that the authority demonstrates, and ii.
identify the parts of the authority that support that proposition..."
45.
That has not been done in this case. The latest iteration of the shifting grounds has not particularised the grounds of appeal in any way. Mr Martin-Sperry was unable to assist the court with where a particular argument was to be found. The attempt to rely on ground 2 as importing all that had gone before requires a most generous interpretation of the language of that ground and is, in any event, unacceptable as a method of placing grounds of appeal before the court. It makes it impossible for the respondent to know to what argument it is to respond. It makes it impossible for the court to consider, in advance of the hearing, precisely what issues need to be decided. This is especially so when, as in this case, counsel have come into a case after the single judge stage has been completed, because at that stage any fresh grounds of appeal will need to be considered in the light of the principles stated in
R v James
[2018] EWCA Crim 285
;
[2018] 1 Cr App R 33
.
46.
In fairness to the applicant, we have nonetheless considered all of the arguments now advanced on her behalf so that we can thereby ensure that she is not disadvantaged in what we recognise is a case of great importance to her. We consider, first, the various earlier grounds of appeal which are now said to have been encompassed by the terms of ground 2.
47.
Many of these submissions which have been made at earlier stages are, in reality, points as to the sufficiency of the prosecution's evidence to prove the elements of the offences charged, and as to the inherent improbability that a woman such as the applicant would be taken into the confidence of serious criminals engaged in a very substantial fraud. All those however were matters for the jury. They do not provide any ground of appeal.
48.
Further, some of the previous grounds of appeal sought, in our view, an unjustified opportunity to re-argue the case on a basis different from that which had been put forward at trial. In so far as heavy emphasis is now placed on the assertion that Mr Leonardi's Italian interview had not been disclosed and that its importance was therefore not known to trial counsel, we are satisfied that the argument is based on a mistaken premise. We are satisfied, as indeed is apparent from the contents of trial counsel's response - which indicates that there had been discussion between Mr Graffius and present counsel - that all relevant material had been disclosed and was available for consideration not only by trial counsel and solicitors but also by the defence expert witness.
49.
In any event, having considered the extracts from Mr Leonardi's interview, to which Mr Martin-Sperry has taken us this morning, we take the view that they raise more questions than they answer and cannot assist the applicant.
50.
We would emphasise that from all we have read it is apparent that the applicant was represented at her trial by experienced and competent counsel, who acted in accordance with her then instructions, and advised her in entirely sensible and realistic terms as to matters such as whether the defence expert witness should be called, or merely relied upon to provide material for cross-examination.
51.
We are satisfied that none of the grounds previously advanced provides any arguable basis for saying that the convictions are unsafe.
52.
As to the specific point relating to circumstantial evidence which is put forward in ground 1, the following considerations are, in our view, important. First, we do not accept that all of the evidence on which the prosecution relied against the applicant was circumstantial. The applicant's knowledge of the fraud was necessarily a matter of inference from the whole of the evidence. That being so, it seems to us, that the judge would have been in grave difficulty in seeking to summarise the relevant factors when in truth it was necessary, as he rightly directed the jury, for them to consider the whole of the evidence. In so far as the judge is criticised for not following the format suggested by the specimen directions in the Crown Court Compendium, we regard the criticism as misplaced in the circumstances of this case.
53.
Secondly, the applicant has not cited any authority to suggest that a judge is required to give a direction on the specific topic of circumstantial evidence in every case in which such evidence is adduced by the prosecution. As was pointed out by trial counsel in their response to the provisional grounds of appeal, by Mr Hughes in his recent written response, and indeed by the Crown Court Compendium itself, this court in the case of
R v
Kelly
[2015] EWCA Crim 817
, rejected any such general obligation. In that case, as in this, it had been argued that the judge had failed to give necessary assistance to the jury as to their correct approach to a case which depended to a substantial extent upon evidence of circumstances. Pitchford LJ, giving the judgment of the Court, said at paragraph 38:
i.
"It is not unusual for the trial judge to point out to the jury the difference between proof by direct evidence and proof by circumstances leading to a compelling inference of guilt. However, there is no rule of law that requires the trial judge to give such an explanation or any requirement to use any particular form of words. It depends upon the nature of the case and the evidence."
54.
Then at paragraph 39 Pitchford LJ went on to say:
i.
"The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt (see
R v Teper
[1952] AC 480
). However, as the House of Lords explained in
McGreevy
, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect:
Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty?
It is the task of the trial judge to consider how
best to assist the jury to reach a true verdict according to the evidence."
55.
Thirdly, we have listened carefully to Mr Martin-Sperry's submission that, in the particular circumstances of this case, a direction along the lines of the specimen contained in the Crown Court Compendium was essential. When asked to assist the court with what it was that the judge should have said to the jury but failed to say, Mr Martin-Sperry referred us to the terms of the specimen directions given in that work. However, in our view, the directions which the judge did give to the jury and ,which we have quoted earlier in this judgment, plainly instructed the jury not to speculate and to ensure that they considered other possible explanations raised by the evidence. The fact that he did not use the word "circumstantial" does not diminish those directions. The twin dangers identified by Pitchford LJ in the passage at paragraph 39 of
Kelly
quoted above are amply met by the terms in which the judge directed the jury in this case. His focus on the inferences which the jury might draw from the evidence as a whole was, in our view, entirely appropriate to the circumstances of this case.
56.
Turning to the application made by the applicant to adduce fresh evidence, we regard this as misconceived. Given that Mr Leonardi was named in the indictment as a joint offender, it is difficult to understand the basis on which it is said that the Crown were under an obligation to "make him available at trial". Nor is any indication given of how it is proposed his evidence should now be received by this court, bearing in mind that he would be liable to arrest and prosecution if he entered this country. Moreover, in so far as Mr Leonardi might now be able to give relevant evidence, he was equally able to do so at the time of trial. If the applicant wished him to be called as a witness, that is a matter which should have been dealt with at trial, bearing in mind that the contents of his interview by the Italian authorities had been disclosed. The response of trial counsel makes clear that they considered Mr Leonardi's position and took the view that, if he were to give evidence, he would be exposed to cross-examination and there would be a risk of causing detriment to the applicant's case. It is clear that they acted in accordance with the applicant's instructions. In our view, their assessment of the perils of seeking to call Mr Leonardi, even assuming it might have been possible for him to be brought to this country, was a realistic and sensible one.
57.
There is, in our judgment, no basis on which it could be argued that the applicant should now be entitled to run her case in a different way from the course taken at trial and now to seek to rely on Mr Leonardi. In any event, the applicant's witness statement contains nothing to suggest that Mr Leonardi would be able to give evidence which could materially assist her case and might therefore afford a ground of appeal. As we have indicated, Mr Martin-Sperry, despite his best endeavours, has not been able to persuade us to any different view. We are therefore satisfied that there is no prospect of this suggested fresh evidence being admitted pursuant to section 23 of the Criminal Appeal Act 1968.
58.
In those circumstances, we are satisfied that there is no basis on which it could be argued that the convictions are unsafe. If we had thought otherwise, we would have been willing to grant the applicant the necessary extension of time. As it is, no purpose would be served by our doing so, because an appeal cannot succeed. The renewed applications for an extension of time and for leave to appeal and the application to adduce fresh evidence are, for those reasons, all refused.
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5687143f4729c64e516b4bc9f876c4dda595b905c4f3ce46ab1d9b5ce5802c81 | [2024] EWCA Crim 188 | EWCA_Crim_188 | 2024-02-09 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation Number:
[2024] EWCA Crim 188
Case No:
202103036 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT IPSWICH
Recorder Benson KC
Ind No T20207011
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/02/2024
Before :
LADY JUSTICE ANDREWS
MRS JUSTICE CHEEMA-GRUBB
and
HER HONOUR JUDGE ROSA DEAN
(The Honorary Recorder of Redbridge)
- - - - - - - - - - - - - - - - - - - - -
REX
- v -
SIMON COOMBES (aka SIMON THARME)
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Non-counsel application
Hearing date: 9 February 2024
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lady Justice Andrews:
1.
On 4 February 2021, in the Crown Court at Ipswich following a trial before Mr Recorder Benson KC and a jury, the applicant Simon Coombes was convicted of one count of vaginal rape (Count 2 on the indictment) and one count of oral rape (Count 3). His co-defendant Luke Sullivan was convicted on the same occasion of raping the same complainant vaginally (Count 1) and orally (Count 4). The verdicts on Counts 3 and 4 were majority verdicts.
2.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
3.
The sentencing hearing took place on 2 July 2021. Mr Coombes received an extended sentence of 17 years 6 months comprising a custodial term of 12 years 6 months and an extended period of 5 years, in respect of each count, those sentences to run concurrently. Mr Sullivan also received an extended sentence, this time of 17 years, the custodial term of which was 12 years. Mr Sullivan’s application for leave to appeal against sentence was refused by the single judge and has not been renewed.
4.
Mr Coombes, who represents himself, seeks an extension of time of some 4 ½ months in which to renew his applications for extensions of 200 days in which to apply for leave to appeal against his conviction and 52 days in which to apply for leave to appeal against his sentence, following refusal by the same single judge. He also makes an application to adduce fresh evidence in connection with the appeal against conviction.
The delays in appealing and in renewing these applications
5.
It appears that before the single judge refused leave to appeal, solicitors named GT Stewart informed the Criminal Appeals Office that they were assisting Mr Coombes in his appeal. After the time for renewing the application had lapsed, a letter was sent to Mr Coombes informing him that he was now out of time, but it appears that because he had been moved to a different prison, that letter did not reach him until the end of February 2023. He then wrote a letter to the Criminal Appeals Office stating that he did not understand the procedure, and was waiting to hear from his solicitors. The solicitors wrote to the Court on 10 March 2023 requesting copies of the notification of refusal forms, and informing the Court that they were advising Mr Coombes.
6.
Three further sets of submissions were then sent by Mr Coombes to the court relating to his grounds of appeal, but the renewal forms were not returned. When a chasing email was sent to the solicitors, they responded on 25 April 2023 that they were no longer acting for Mr Coombes. He subsequently confirmed on 29 April 2023 that he wished to renew the applications. There was then a further hiatus awaiting the renewal forms, which, after further prompting were finally returned on 5 June 2023.
7.
As regards the original delays in seeking leave to appeal, Mr Coombes has said that he instructed trial counsel and solicitors to appeal and he understood them to be doing so, but they did not act on those instructions. The repeated adjournments of his sentencing hearing, COVID restrictions, his mental health issues and the fact that he was confined to his cell for 23 hours a day severely hampered his ability to make arrangements for appeal.
8.
The truth, however, is that although Mr Coombes did give those instructions, his trial counsel gave negative advice on appeal against conviction on 15 February 2021, which was passed on to him by his then solicitors. The Pre-Sentence Report expressly refers to Mr Coombes telling the author that his legal representatives had informed him that he did not have a case for appeal and that he intended to get a second opinion. There is clear evidence, therefore, that he had been advised that he had no grounds for appealing, and it is quite untrue that he understood that an appeal was being progressed.
9.
In fact in the light of complaints which he made about trial counsel following his conviction, all of which we find to be completely unjustified, she became professionally embarrassed. She had to withdraw from representing him on 25 March 2021 after being informed by her instructing solicitors that Mr Coombes thought she was working in league with the Prosecution to ensure a conviction because he discovered that (in common with many other criminal barristers) she both prosecutes and defends. This is evidenced by a contemporaneous attendance note for an administrative hearing relating to fixing the date of the sentencing hearing.
10.
That note makes clear, and it has been confirmed by trial solicitors, that Mr Coombes was made aware of counsel’s withdrawal. In fact he also sacked his trial solicitors and the representation order was transferred. This necessitated an adjournment of the sentencing hearing from 9 June 2021 to enable the new solicitors and counsel, who had only just been instructed, to get up to speed, and counsel to have a conference with Mr Coombes. The new solicitors and counsel represented Mr Coombes at the sentencing hearing. There is no evidence of advice having been given to Mr Coombes on an appeal against sentence, although we have seen the advice and grounds lodged in respect of Mr Sullivan (who also changed his representation before the sentencing hearing).
11.
In the light of this history there appears to be no reasonable excuse for the delay in seeking leave to appeal against conviction. The position in respect of appeal against sentence is less clear, but if positive advice had been given at a time when Mr Coombes was still legally represented it is almost inconceivable that the Advice and Grounds would not have been lodged with the Court of Appeal Office at or around the same time as the documents were lodged for Mr Sullivan’s appeal against sentence. Since Mr Coombes, in one of his many letters, was very critical of counsel who represented him at the sentencing hearing, it is possible that he too was sacked before he could give any advice on appeal. If not, the inference can be drawn that the advice he gave was negative.
12.
However, even where there is lengthy delay without reasonable excuse, the Court will always consider the merits of the proposed appeal. If there were, for example, strong grounds to doubt the safety of a person’s conviction it would plainly not be in the interests of justice to preclude them from being considered by the Full Court simply because of unjustified delay. Having taken into account the voluminous material that was placed before us, we are confident that this is not a case which falls within that category.
Factual Background
13.
The facts of the offending can be summarised as follows. In December 2018 the complainant, a married woman to whom we shall refer as “C”, was due to go to a social event in Cambridge organised by her work colleagues. She arranged a lift to and from the venue with one of those colleagues, a young man to whom we shall refer as “M”. The co-defendant, Luke Sullivan, was staying at M’s flat at that time. Mr Coombes, a friend of Mr Sullivan, who also knew M, was staying at an address a short distance away from M’s flat. Because both C and M planned to drink alcohol at the party it was arranged that Mr Sullivan would remain sober and be their driver for the evening. He would accompany them to Cambridge and drive M’s car back to M’s flat. He would drive back to pick them both up after the event had ended, and he would then drive C to her home before returning with M to his flat.
14.
In the event, when the car arrived to pick C and M up from the party venue at around 2.30 am on 9 December 2018, although Mr Sullivan was in the car, he had been drinking and Mr Coombes was in the driver’s seat. M and C had both had a considerable amount to drink. M became very angry with Mr Sullivan on the return journey because he had not remained sober as had been arranged, and an argument ensued. Whilst they were still in Cambridge, the car pulled over, M got out of it and he refused to get back in. Eventually Mr Coombes drove off without him. He then drove C and Mr Sullivan back to M’s flat, instead of taking C back to her home.
15.
On realising that the car was not going to turn round and come back for him, M contacted his father, who picked him up and drove him back to the flat. When they arrived, it was around 5.45 am. They discovered that the front door was locked and M had to enter through an unlocked window. Mr Sullivan was asleep on the living room sofa. M became very angry and threw him off the sofa. Mr Coombes and C were in the bedroom; C was in the bed and Mr Coombes was getting dressed. C was still fully dressed. M’s evidence was that she told him “these people are not good people” and that they should not have left him in Cambridge. Her eyes were glazed. She did not know where she was. She began to cry. When she got up he noticed that her clothing was ripped at the back.
16.
Subsequently Mr Sullivan and then Mr Coombes left. M’s father then saw C for the first time as she came out with M to go to the car. He saw that the back of her clothing was ripped and her buttocks were partly exposed. He got a jumper out of the car and wrapped it around her. He asked her if anything had happened to her and she said she did not know and could not remember anything. He asked if she wanted to go to the Police or to hospital, but she told him she did not know. She appeared to him to be in a state of shock. M’s father therefore drove C back home. On the way back she told him that she was sore and that she didn’t feel right. Later that day she told her husband, and subsequently her sister, that she believed she had been raped.
17.
The matter was reported to the police and both defendants were arrested on 10 December. In interview they both admitted having penetrative sex with C and in consequence no vaginal swabs were sent off to be forensically examined. However, C was medically examined. She was found to have approximately 18 injuries including bruising to her right eye socket, left arm, legs and abdomen. There was a deep scraping injury to the bottom of her vagina and another to the lips around her vagina on both sides but more prominent and deeper on the left. The abrasion injuries to her vagina covered a large surface area of internal tissue.
18.
The issue at trial was one of consent. The prosecution case was that it was obvious to the defendants that either C did not consent to having sex with them or that, because of her state of intoxication, she did not have the capacity to do so. The defence case was that C had become openly affectionate to both Mr Sullivan and Mr Coombes in the car after M had got out of it, and that she had willingly agreed to being taken back to the flat instead of being taken home. When they arrived C had first had sex with Mr Sullivan on the sofa and then she had initiated a threesome in the bedroom.
The proposed appeal against conviction
19.
The Respondent’s Notice served by the Crown provides comprehensive answers to each of Mr Coombes’ proposed grounds of appeal, which we adopt without repeating them. Mr Coombes was sent a copy of that document under cover of a letter dated 12 December 2022 . He has responded to it, though in our judgment he has provided no good answers to the points which the Crown makes. The same is true of the contents of the numerous lengthy handwritten letters which he has sent to the Criminal Appeals Office since the single judge refused leave to appeal, the latest of which was received in the office only two days ago.
20.
We are satisfied that there is nothing in any of the material we have seen which gives rise to any concern about the safety of these convictions. Mr Coombes gave evidence in his own defence and was cross-examined. Mr Sullivan did likewise. At the end of the day the jury had to decide whether or not they believed Mr Coombes’ and Mr Sullivan’s accounts of what happened in the period when they were alone with C, and it is clear that they did not. The jury were in the best position to consider and evaluate any inconsistencies in the evidence which they heard, and decide who was telling the truth.
21.
Mr Coombes makes a number of serious complaints about the conduct of his trial by his experienced trial counsel and her instructing solicitors. In view of those criticisms Mr Coombes was invited to and did waive privilege. We have read the responses from his trial counsel and solicitors, counsel’s attachments, including her attendance notes, and Mr Coombes’ lengthy replies. Suffice it to say that none of Mr Coombes’ litany of complaints about the conduct of his former legal representatives gives rise to an arguable ground of appeal with real prospects of success. There is no need to itemise the complaints. We are satisfied that there is no substance in any of them. His defence was competently and professionally prepared and presented, and his instructions were followed to the extent that it was permissible to do so as a matter of professional ethics. For example, counsel would not have been allowed to put to any witness that they had tampered with evidence or otherwise sought to pervert the course of justice without any evidence to support those allegations other than their client’s assertions.
22.
We are satisfied on the evidence that we have seen that whatever Mr Coombes may now say, his Amended Defence Statement was in accordance with his instructions and that he approved it.
23.
As the prosecution has confirmed, Mr Coombes’ bad character was not adduced in evidence at trial and his counsel did not seek to adduce it. All jury notes are logged and we have seen them; the jury did not ask for tapes of Mr Coombes’ interview to be re-played to them as he now asserts. If he was the person who made such a request, the judge was entitled to refuse it.
24.
There is contemporaneous evidence that Mr Coombes, far from being dissatisfied with his representation at trial, was highly complimentary about it, until he was convicted. On 31 January 2021 the trial solicitors mentioned in an email to counsel that Mr Coombes had described her cross-examination of C as “brilliant” and as leaving the witness with “nowhere to go”. Mr Coombes even sent counsel a thank you card before the verdicts were returned, with a handwritten message saying:
“Sorry I haven’t been the easiest client to work with (smiley face) whatever the outcome I know you did your best & I’m truly grateful. I hope by now it’s clear I’m innocent. Was nice meeting you.”
He has sought to explain this away as an attempt to apologise for his “out of control behaviour which continued throughout trial” and as a gesture of kindness because he said that he and counsel had had some disagreements. He suggests that the card was sent in the course of the trial and before he gave evidence. It is clear from its contents that this cannot possibly be true.
25.
There is also no merit in the application to adduce fresh evidence. Indeed most of the “evidence” that Mr Coombes says he wishes to adduce is not even properly identified. 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. If an application to adduce fresh evidence is made, among other matters the Court must have regard to whether the evidence would have been admissible at trial on an issue which is the subject of the appeal, whether there is a reasonable explanation for the failure to adduce it at trial, whether it appears to be capable of belief, and whether it appears to the Court that it may afford any ground for allowing the appeal. However in this case the “evidence” appears to consist of nothing more than bare assertions by Mr Coombes or inadmissible extracts from social media following the trial.
26.
The underwear that C was wearing that night, and whether she later changed it, is irrelevant to the central issue of consent. There was no need for any forensic examination of her underwear, since it was admitted that both defendants had vaginal sexual intercourse with her. She therefore had no reason to lie about what underwear she was wearing at the time, or to swap it. Doing so would not assist in “framing” Mr Sullivan or Mr Coombes. The suggestion that is now made by Mr Coombes is that she lied about the underwear that she was wearing in order to conceal from her husband the fact that she had had sex with two other men. However that makes no sense at all, given that she told her husband that she believed that she had been raped.
27.
In any event, the evidence on which Mr Coombes seeks to rely is not new. It was disclosed by the Crown and was available to be used at trial. The same is true of the photograph which Mr Coombes asserts is proof that C cut her own tights. His legal team would have been able to make an assessment as to whether it was capable of proving this, and, even if it were, whether the point was worth taking. It cannot be argued that a value judgment taken not to explore these matters with C was unreasonable.
28.
There is no evidence of any police misconduct, such as is alleged, and Mr Coombes merely asserts that there is evidence in the form of emails or text messages undermining the evidence of M without producing anything tangible to support that assertion. He has had ample time in which to do so. Even if, as Mr Coombes alleges M was “obsessed” with Mr Sullivan, that has no bearing on whether the sexual intercourse with C that evening, which took place when M was not present, was or was not consensual.
29.
There was ample evidence to support a conviction, not least the evidence of C herself and the medical evidence of her injuries, which Mr Coombes most unattractively seeks to blame on her husband, who he also accuses of attempting to pervert the course of justice by deleting messages from his phone. We have carefully considered all the material on which Mr Coombes relies, and are not persuaded that there is the slightest shred of any evidence to implicate the victim’s husband in any wrongdoing including, but not limited to, the violence experienced by C.
30.
The four witnesses of fact called by the Prosecution at trial who were not present at the time of the rapes all gave relevant and admissible evidence. In the case of C’s husband and sister they gave admissible evidence of recent complaint. In the case of M and his father, they gave highly probative evidence as to C’s appearance and behaviour in the immediate aftermath of the alleged offences. In addition, M was able to testify to C’s lack of sobriety when they both were collected from the party and how much alcohol they had consumed before they left. In the light of the most recent communication from Mr Coombes we have re-read M’s witness statement (we do not have a transcript of his evidence at trial, though it appears that Mr Coombes’ most recent solicitors sought and obtained trial transcripts). We cannot see anything in that statement which is inconsistent with what the Crown has said about his evidence in the Respondents’ Notice.
31.
As trial counsel’s negative advice on appeal records, Mr Coombes was repeatedly warned about his disruptive behaviour in front of the jury, which he has subsequently admitted was due at least in part to his taking cocaine. On 29 January 2021 he apparently suffered an anxiety attack. When that happened, the Recorder directed the jury in these terms:
“I am sure you will bear in mind that whether a defendant is guilty or not guilty, standing trial is a serious matter, is worrying, and no doubt one feels pressurised. Please, I’m sure you will, just bear that in mind.”
That direction was entirely appropriate. It was designed to ensure that the Jury did not hold Mr Coombes’ behaviour against him and that they concentrated on the evidence in the case. It could not possibly be characterised as a direction to the Jury that Mr Coombes was guilty.
32.
The Recorder was under no obligation to tell the jury that Mr Coombes suffered from any particular medical condition; that was a matter for Mr Coombes to raise himself if he wished, and in any event the expert psychologist Mr Rogers’ diagnosis of C-PTSD post-dated the trial. There is no evidence to suggest that Mr Coombes was unfit to stand trial, and his experienced legal team had no concerns in that regard.
33.
No valid complaint can be made about the summing up or the other legal directions given to the jury. The majority direction which was given was given in the entirely orthodox situation for which it is designed, namely, that after the prescribed period of deliberation the jury is unable to reach a verdict on which they are all agreed. Had they reached a unanimous decision to acquit, the verdicts would have been taken and no majority direction would or could have been given. Mr Coombes’ suspicions that there may have been a police officer on the jury are not a proper basis for complaint. The Recorder’s decision to continue the trial with 11 jurors after one was discharged for personal reasons was a matter of discretion, and given the stage at which that occurred, there is no prospect of Mr Coombes satisfying the court that it was improperly exercised. The efficient use of court resources is a legitimate matter to take into account, as the Prosecution have said.
34.
Trial counsel stated in her Advice that Mr Coombes mentioned to her that a juror spoke to him in the car park, but whilst this was inappropriate, as far as she could recollect nothing was said to suggest a jury irregularity which might provide a good ground of appeal. If a juror had felt that other members of the jury were behaving inappropriately, he or she would have sent a note to the judge, as the jury would have been instructed at the onset of the trial, and not raised it with the defendant in a car park. Had the defence legal team become aware of any jury irregularity that might give cause for concern, they would have raised it with the judge and the prosecution at the time it was brought to their attention. In any event, the lengthy delay in appealing would prejudice any investigation into a matter of that nature now.
35.
For all these reasons we agree with the single judge that there is no merit whatsoever in any of the grounds of appeal against conviction and that there is no justification for granting the extension of time or the application to adduce fresh evidence. We refuse the renewed application for an extension of time for appealing and we refuse the application to adduce fresh evidence. Even if we had granted the extension of time, we would have refused leave to appeal.
The proposed appeal against sentence
36.
The Judge had the benefit of a sentencing note from the Crown which submitted that the offences all fell within Category 2A of the Definitive Guidelines. This indicated five separate Category 2 harm factors. In addition, C had to receive medical treatment for a sexually transmitted disease that one of the defendants gave her; this was evidenced by a letter from a GP who specialised in sexual health matters. Culpability was said to be A because each offender acted with the other to commit these offences. Category 2A has a starting point of 10 years with a range of 9-13 years.
37.
The Prosecution identified as aggravating factors in the case of Mr Sullivan that the offences were committed under the influence of alcohol and that he had been entrusted to take C home, and in the case of Mr Coombes that he ejaculated into C’s vagina.
38.
Mr Coombes was 32 at the time of sentence. He was not of good character. He was subject to a community order at the time of the offending which was revoked on 4 October 2019. He had three convictions for breaches of a non-molestation order, and two previous offences of battery and one of threats to kill, committed against a partner or ex-partner.
39.
A pre-sentence report was prepared. The probation officer indicates that Mr Coombes was not co-operative in interview, although eventually he answered a number of questions in a manner which suggested to her that he wished to deflect from certain issues and take control of the interview. He maintained that he was innocent and that the criminal justice system was corrupt and all agencies had conspired to have him and Mr Sullivan convicted.
40.
The report does not show Mr Coombes in a good light. Despite describing C as “totally wasted” he refused to accept that someone with that level of intoxication would not be capable of consenting to sexual intercourse. On the contrary he told the probation officer: “It’s the 21
st
Century, everyone has drunk sex, if she regrets it afterwards, it’s her own fault.” (Pausing there, we note that he is now seeking to play down her state of intoxication). He demonstrated no victim empathy and no remorse. Reference is made to an extremely troubled childhood and to his exposure to violence within his immediate family. His mother was an alcoholic and had a number of abusive partners who exposed him to physical abuse. The author of the report assessed him as posing a high risk of re-offending, and a high risk of causing serious harm, both physical and psychological, to members of the public.
41.
There was also the expert report from the psychologist, Mr Rogers, which suggests that Mr Coombes had an insecure attachment disorder in childhood which may have progressed to a form of complex PTSD. Mr Rogers ruled out a diagnosis of ADHD, although he said that Mr Coombes displayed many of the symptoms of that condition. Although the condition from which he suffers may have partially explained his disruptive behaviour in court and the anxiety attack, it was not put forward as affording any explanation for the offending behaviour. Although Mr Rogers was instructed by the defence, his overriding duty as an expert was to the court and he was obliged to give his honest and impartial opinion on the matters on which he was asked to provide evidence. Despite Mr Coombes’ criticisms we have no reason to believe that he did not do so.
42.
The Recorder placed the offending into Category 2 A. He rightly identified more than one Category 2 harm factors but did not elevate the offending to Category 1. He found that both Mr Coombes and Mr Sullivan were
dangerous
, based partly on the conclusions of the authors of their pre-sentence reports, but also on his observations of their behaviour during trial and whilst giving evidence. He considered that a determinate sentence would not afford the public sufficient protection. He explained the 6 month differential between the custodial elements of the extended sentences on the basis of Mr Coombes’ previous relevant convictions.
43.
Although Mr Coombes appears to complain that the Judge placed the offending into Category 2B, that is a
lower
sentencing category, and we have therefore treated the complaint as being that it should have been placed in Category 2B not 2A. As to that, where an offender acts together with others to commit the offence, which happened here, that is Category A for culpability, and the Judge was right to put the offences into that category.
44.
There were plainly a number of Category 2 harm features. Whilst Mr Coombes is aggrieved at the finding of abduction, it is nothing to the point that C originally got willingly into the car. She thought she was being given a lift home, and the jury by their verdicts rejected the defence account that she had agreed to be taken to M’s flat instead. Whilst Mr Sullivan may have been too intoxicated to drive, Mr Coombes was not, and Mr Sullivan knew where C lived and could have given the necessary directions. The other category 2 features were properly identified by the judge.
45.
The starting point for sentence was 10 years with a range of 9 to 13. Mr Coombes was sentenced within that range; the custodial element of his sentence was 12 years and 6 months. The judge was entitled to move up from the starting point because of the multiple category 2 features and the aggravating features he identified. There was very little that could be said by way of mitigation, but such as there was, was in the psychologist’s report and pre-sentence report.
46.
Whilst Mr Coombes refers to his “good character and honesty,” and the fact that whilst in custody on a previous occasion he came to the assistance of a prison officer who was being assaulted, matters of that nature are of little weight in mitigation for two offences of rape committed, furthermore, in connection with two other offences of rape by a co-defendant. He had previous convictions for violence, which were rightly treated as aggravating features. He complains that he was denied an opportunity to provide character references, but there was more than sufficient time between his conviction and the sentencing hearing to have procured such references. In any event, in the light of Mr Coombes’ own behaviour and attitudes displayed during and after the trial, references of that nature are unlikely to have been afforded much weight in the sentencing process.
47.
The finding of
dangerousness
and the decision to impose an extended sentence were both justified. Mr Coombes appears not to understand what an extended sentence means. Although the overall sentence is 17 years and 6 months, the 5 year extension is to the licence period when he is released on licence after serving two thirds of his custodial term of 12 years 6 months.
48.
Although the custodial term of the sentence was towards the upper end of the sentencing range, we consider that it cannot be described as manifestly excessive. We therefore refuse the renewed application for leave to appeal against sentence out of time.
Loss of Time
49.
There remains the question of whether we should make a loss of time order. In
R v Gray & Others
[2014] EWCA Crim 2372 the then Vice-President of the Court of Appeal (Criminal Division) observed that:
“the only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985”.
In this case the single judge not only indicated that the Full Court should consider making a loss of time order in this case, but specifically drew Mr Coombes’ attention to the fact that he was doing so. Far from this acting as a deterrent, it appears to have encouraged Mr Coombes to bombard the Criminal Appeal Office with further correspondence.
50.
In a case in which the applicant is already serving a lengthy sentence this Court would usually draw back from making a loss of time order, but some cases are exceptional, and this falls into that category. There is absolutely no merit in any of Mr Coombes’ complaints, as he was told by the single judge. He was forewarned of the risk he took by renewing these applications. The sheer volume of the paperwork he has generated in respect of the appeal against conviction, in particular, has wasted a huge amount of court time. In all the circumstances, we consider that it is appropriate to make an order that 56 days should not count towards his sentence.
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",
"HER HONOUR JUDGE ROSA DEAN"
] | 2024_02_09-6044.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/188/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/188 | 884 |
f107bbb11be321d303e2b010327d65f095700b577e8dd3ff59c4f165c109d643 | [2019] EWCA Crim 752 | EWCA_Crim_752 | 2019-05-09 | crown_court | Neutral Citation Number: [2019] EWCA Crim 752 Case Nos: 2018/0110, 01102 & 00630/B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT HHJ TOMLINSON T.20140079 ON APPEAL FROM DERBY CROWN COURT HHJ WATSON T.20140991 Royal Courts of Justice Strand, London, WC2A 2LL Date: 9 May 2019 Before : LADY JUSTICE MACUR MS JUSTICE RUSSELL and HHJ JUDGE LEONARD QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : O & | Neutral Citation Number:
[2019] EWCA Crim 752
Case Nos: 2018/0110, 01102 & 00630/B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HHJ TOMLINSON
T.20140079
ON APPEAL FROM DERBY CROWN COURT
HHJ WATSON
T.20140991
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
9 May 2019
Before :
LADY JUSTICE MACUR
MS JUSTICE RUSSELL
and
HHJ JUDGE LEONARD QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
-
- - - - - - - - - - - - - - - - - - - -
Between :
O & N
Appellants
- and –
The Queen
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Daniel Bunting
(instructed by
Philippa Southwell of Birds Solicitors
) for the
Appellants
Mr James Marsland
(instructed by
The Crown Prosecution Service
) for the
Crown
Hearing dates:
28 March 2019
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Macur LJ:
1.
These two cases seek a retrospective review of the respective decisions to prosecute two individuals who claim to have been the victims of trafficking. In N, the applicant raised the issue at the outset but then pleaded guilty on 15 February 2015 to cultivation of cannabis, was sentenced and has served his custodial term. The Registrar has referred his case to the full court. N seeks an extension of time to do so, and permission to rely on fresh evidence relating to his status as a Victim of Trafficking (VOT). The Respondent raises no objection to us considering the merits of the case or having regard to the fresh evidence ‘de benne esse’. In O, the appellant did not raise the issue until serving a custodial sentence of 5 years, having been convicted by a jury of two offences of controlling prostitution for gain on 31 July 2014. The single judge has granted an extension of time and leave to her to appeal sentence. The single judge has referred O’s application for an extension and permission to appeal against conviction, which must rely on fresh evidence relating to her status as a Victim of Trafficking (VOT). Likewise, the Respondent raises no objection to us considering the merits of the case or having regard to the fresh evidence ‘de benne esse’. N and O await determination of their asylum claims to remain in the UK.
2.
The facts of the cases are distinct, but the principles of law to be applied to the respective facts are identical. Section 45 of the Modern Slavery Act 2015 does not apply. Giving the judgment of the Court in R v EK
[2018] EWCA Crim 2961
in a similar case to these, Gross LJ referred to the legal framework as “now well-travelled territory” and referred to the summary of the relevant law he provided in R v S(G) [2018] Crim 1824 at paragraphs 75 and 76; the principles derived from the decisions and guidance of the Court in R v M(L) and others
[2010] EWCA Crim 2327
;R v N(A) and others
[2012] EWCA Crim 189
; R v L(C) and others
[2013] EWCA Crim 991
and R v Joseph (Verna) [2-17] EWCA Crim 36 and others [2017] EWCA . We do not repeat them here but adopt them, as both Mr Bunting, who appears for the applicants, N and O, and Mr Marsland, who appears for the respondent in both cases, invite us so to do. Therefore , we have asked ourselves whether, (i) there is credible evidence that the applicant falls within the definition of trafficking in the Palermo protocol and the Directive; (ii) there is a nexus between the crime committed and the trafficking; and (iii) was it in the public interest to prosecute either N or O.
R V N
3.
The indictment arose out of N’s role as a ‘gardener’ of cannabis. He pleaded guilty to a single count of producing a controlled drug of class B. He was sentenced on 19 February 2015 to 16 months imprisonment.
4.
On 6
th
November 2014, police officers searched an address in Derby and found a sophisticated system for the production of cannabis. 464 plants were found in the loft and a number of bedrooms. N was the sole occupant of the premises. He was arrested.
5.
In interview, N claimed to have been born in Vietnam. He had lived in Cambodia from a young age. He was involved in a fishing accident. He was rescued and taken to France. He had lived in France for a time. He could not say where. He was kept in a basement. The man who kept him there had his face covered. He was told to go to England to help someone. He had arrived in the United Kingdom four months before he was arrested. He travelled lying down in a vehicle. His eyes were covered. He was taken to a house with only one bed. His journey to the premises involved being taken to a tube station by taxi with his face covered. He was let out and told to follow someone on the tube. He did so and was collected from a second tube station by taxi. His face was re-covered. He was taken to the premises from which he had been arrested. The plants were already there. He did not know what they were. He was told he was responsible for watering them and keeping them alive. He worked in order to pay off a debt which arose from his transportation to the UK. If he had left the house or not worked then “they would kill me”
6.
The police did not refer N to the National Referral Mechanism (‘NRM’).
7.
N has waived privilege. In an unsigned and undated proof of evidence given to his former solicitors, N repeated the account he gave in interview.
He said he was given instructions on feeding and watering the plants. He was provided with two mobile phones and told that he could access the internet. He said:
‘
I didn’t have anywhere to go so I stayed where I was. I didn’t have any money. I couldn’t speak the language. I thought I owed a debt to the people who took me from the house in France. I thought I would stay and do the work until I paid off my debt and then I could leave. I didn’t know how much my debt was, I was just hoping that after a while they would let me go. I was very grateful for them giving me food and a place to stay’.
8.
On 21
st
November 2014, during a preliminary hearing, the issue of trafficking was raised. The attendance notes of prosecution counsel states:
‘Defence are claiming that because he claims to be trafficked, we should not proceed in the public interest and just deport him as per our guidance. …
POLICE ACTION: can the immigration service confirm his status; whether it is believed he was trafficked; and what will happen to him in terms of deportation.
…What
are the police's views
on
whether
this is a trafficked person who
was
in
effect a slave and
should not be prosecuted?
9.
In response to the inquiries of prosecution counsel, a memorandum of 15
th
December 2014 from an unnamed police officer states:
‘
I’ve completed and submitted paperwork in relation to an Interpol check which has come back stating he is not known to the French authorities and that they have no record of him and that his fingerprints are not on their database.
In my opinion, the defendant was trafficked and was brought over here to carry out the task of ‘gardener’, however I take issue with the credibility of his account (stating he was locked in and that nobody came to the house whilst he was there) and therefore am of the opinion than he knows more than he is telling us. He stated in interview that he is scared of the persons that brought him over here and what they might do to him if he did not water the plants etc, which I am inclined to believe, however he did have two mobile phones in his possession and in my opinion did have the opportunity to leave the address.
’
10.
On 5
th
February 2015 N appeared at court, but the hearing had to be adjourned in the absence of an interpreter. His advocate recorded that he had spoken to prosecution counsel ‘
about the trafficking issue. It would appear that the investigation is underway. The court was told of the position.
’.
11.
On 19
th
February 2015 N appeared at court again
.
His advocate recorded that ‘
the
‘
defendant
instructed me that he wished to plead guilty’.
12.
N signed an endorsement:
‘
l [N] having been fully advised by my legal representatives wish to plead guilty to the offence of producing cannabis. I am aware that I could have a trial and raised the defence of duress. I am aware that I may face a custodial sentence
".
13.
The advocate for N in the court below has made a statement at the request of the Registrar. He states:
i)
‘
My
direct recollection of the case is limited
’;
ii)
‘I was aware that the issue of trafficking had been raised by the Crown and that enquiries had been undertaken by the Crown’;
iii)
‘My recollection is that the Crown, having been given the opportunity to examine further the question of trafficking, made it clear that they were satisfied that the defendant had not been trafficked and would not be further reviewing the case in light of the defendant being trafficked’;
iv)
‘Although my note is silent on the point, I must have advised [N]
of the
Crown’s position, as it was of direct relevance to the progress of the case and any decisions he wished to make’;
v)
‘I having seen my note I am certain I advised him of the evidence against him and, despite the position of the Crown, that on the basis of his account it was open to continue to pursue the matter to trial’;
vi)
‘I advised [N] that the defence of duress was still open to him on his account, even if the Crown were not accepting that he had been trafficked. I would have taken [N’s] instructions on how he wished to proceed with the case’; and
vii)
‘I accept the endorsement does not explicitly refer to “trafficking”, but in this case both trafficking, and duress were founded on the same account. In drafting the endorsement I must have been sufficiently concerned to ensure that before [N] pleaded guilty he understood and was aware of the implications of the plea, i.e. that he was not seeing to rely on his account of his entry to the UK and the allegations for anything other than mitigation.’
14.
In sentencing N, the Judge referred to a ‘
note attached to the door – that you were clearly told that you should not give any description or names of the individuals who brought you to the address and who must have come regularly to collect cannabis material
’.
15.
She accepted that N had ‘
acted under instruction’
and had been
‘involved under pressure
’, but that he had been involved in a ‘
very sophisticated and commercial grow
’. She noted the pressure including N being
‘in some difficulty because you do not speak English, you did not have accommodation and that was provided as part of the employment that you were required to undertake in the United Kingdom
’.
16.
A decision to deport N was made on 10
th
March 2015. On 30
th
April 2015, he was informed that he had failed to respond to the notification of the decision to deport and a deportation order was made. On 13
th
May 2015, he made a claim for asylum. On 2
nd
June 2015 an asylum screening interview was conducted. On 20
th
August 2015, the claim was refused and certified as being clearly unfounded.
17.
On 7
th
January 2016, N asserted that he was a victim of trafficking. On 3
rd
March 2016, he was referred to the National Referral Mechanism.
18.
On 19
th
May 2016, the Home Office acting as the Competent Authority concluded that there were reasonable grounds to believe that N had been a victim of human trafficking (‘the reasonable grounds decision’). On 6
th
October 2016, the Competent Authority concluded that N had been a victim of trafficking (‘the conclusive grounds decision’).
FRESH EVIDENCE
19.
N seeks permission to rely on the fresh evidence in his own witness statements; the decisions of the Competent Authority; in the Home Office’s file in relation to his proposed deportation and subsequent claim for asylum; and the files of his former solicitors, and CPS in the proceedings below.
20.
N provides an account of his decision to enter a plea of guilty:
‘I initially pled not guilty but was then advised by my solicitor to plead guilty, it was when I had a consultation with my solicitor who then told me it would be difficult to argue my case and I would likely be convicted. They told me I would receive a greater sentence if convicted after a trial. He told me he would ask for a lighter sentence for me if I entered a guilty plea
’.
21.
He does not say that he received any advice regarding the issue of trafficking, nor any discussion of potential referral to the NRM during the criminal proceedings.
22.
The Home Office file shows that on 2
nd
June 2015, N had an Asylum Interview. His claim for asylum was refused.
23.
The Competent Authority’s conclusive grounds decision:
(1)
Cites several international reports on the prevalence of human trafficking in Cambodia and Vietnam;
(2)
Records a number of issues giving rise to concern as to the Applicant’s credibility, but concludes that they ‘
relate more to the details of his asylum claim rather than the incidents that surround the trafficking elements of his claim
’, and that the credibility issues do not ‘
detract
’ from the ‘
core elements of the trafficking claim
’;
(3)
Finds a ‘
general level of consist
ency’ in the Applicant’s account of his trafficking, considering the accounts recorded in his interview with police upon his arrest, in the judge’s sentencing remarks, to a probation officer as recorded in an Pre - Sentence report, and in the submissions made to the Competent Authority;
(4)
Concludes that on the balance of probabilities, the Applicant was ‘
transported to the United Kingdom from France’
, was ‘
transported by means of threat or use of force or other form of coercion and of a position of vulnerability
’, and was ‘
made to work in the cultivation of cannabis
’; and
(5)
Concludes that ‘
in the absence of any evidence which undermines
[N’s]
account, it is accepted conclusively that he was trafficked to and within the UK
’.
GROUNDS OF APPEAL
24.
Mr Bunting relies on the written advice and grounds of appeal. If only the case had carried on the correct course, it was extremely unlikely that N would have been prosecuted. The Competent Authority rightly accept that N was a victim of trafficking. Whilst the Home Secretary had previously made an adverse finding of credibility against N, the NRM were aware of and acknowledging the same, subsequently carried out “a careful analysis” of his account and articulated the reasons why it should be accepted with reference to all the documentary evidence.
25.
The role of trafficked victims as ‘gardeners’ is well known. The offending commenced immediately after the applicant was brought to the United Kingdom and N maintained that the offending was forced to pay off monies owed to the traffickers and therefore shows the relevant nexus of offending to trafficked status.
26.
N had been compelled to act as he had; albeit that the circumstances fell short of duress. There was supporting evidence of this, as referred to by the Judge in her sentencing remarks. His possession of mobile telephones and access to Wi-Fi did not contradict this. He was not free to come and go as he pleased. He spoke no English, had no social or family network in the UK and feared violence.
27.
It had not been in the public interest to prosecute N. Whilst the offence to which he pleaded guilty was a serious one, in the circumstances described above, it was not so serious as to require a prosecution regardless of his status as a VOT. Had the information available now have been considered and the prosecution continued, there would have been an argument to stay the proceedings. The conviction is unsafe.
RESPONDENT’S SUBMISSIONS
28.
The Respondent’s Notice filed strenuously opposed the merits of the substantive application for permission to appeal. Whilst accepting that N should ideally have been referred to the NRM, it was said he should not be permitted to now seek to rely on his alleged status of a victim of trafficking. N had pleaded guilty. The analysis of the Competent Authority was flawed. The international reports of Vietnamese VOT’s employment as ‘gardeners’ was of little weight in circumstances where N does not assert that he was trafficked from Cambodia or Vietnam, but rather reached France having been rescued by a French vessel, following an accident on a boat.
29.
If the Court accepts that N was trafficked in the circumstances he asserts, and the Competent Authority accepted, a nexus between the trafficking and the offending will have been established, albeit not such as to effectively extinguish N’s culpability. N’s culpability remains significant. The evidence of compulsion is limited. The premises were unlocked. N had access to electronic devices. The evidence does not demonstrate that ‘
no realistic alternative was available but to comply with the dominant force of another
’. The decision to prosecute N was in accordance with CPS policy and the Applicant’s conviction is safe.
30.
However, Mr Marsland’s oral submissions departed markedly from the Respondent’s Notice. He accepted that the Conclusive Grounds Consideration Minute was a reasoned decision; N’s version of events was consistent from the outset and there was no contrary indication. He does not “press the point” of the guilty plea. Mr Marsland conceded that “if the Prosecution had been in possession of all the material now to hand, … the decision would be made that [N] was the victim of trafficking”
31.
On the other hand, he resisted the application and asserted that the crux of the matter was the lack of nexus of the offending to the trafficking and the degree of compulsion under which N acted. N had a realistic alternative to the offending. He was in unlocked premises and was not constantly supervised. He had means of communication with the outside world. He had a positive experience of French arresting authorities. He had not been trafficked from his home country and would be returned to France; his traffickers were said to have been Vietnamese and therefore posed no threat.
32.
Subject to this Court’s determination on nexus, he did not assert that this was a case in which public interest demanded prosecution.
Decision:
33.
We have no hesitation in finding that N was a VOT and are particularly struck by the candid assessment of the police officer in December 2014. (See paragraph 9 above.) We have no doubt that this would have to have been disclosed in any contested hearing. It coincides with the final assessment of the NRM in October 2016. There is no basis upon which to question the NRM finding. N has been consistent in his accounts of restriction of his autonomy, and there is objective corroboration for the material aspects of his account in this respect. We think Mr Marsland makes a realistic concession on this point.
34.
We also find there to have been nexus and compulsion associated with the trafficking. Mr Marsland’s arguments require us to ignore the undoubted fact of N’s isolation by virtue of his inability to communicate in English and his geographical ignorance. We accept the force of the rhetorical question put by Mr Bunting: ‘Communicate with whom? The French authorities?’ N’s account indicated he was in fear of immediate reprisals from his traffickers.
35.
In all the circumstances we agree that public interest did not require prosecution. The conviction is unsafe. We extend time, find that it would be unjust not to allow the applicant to rely on the fresh evidence, grant permission to appeal, and allow the appeal. The conviction will be quashed. The findings that we make regarding his status as a VOT and his extant asylum appeal justify his anonymity. We order accordingly.
R V O
36.
The indictment arose out of O ’s dealings with two women to whom we will refer as P and A. Count 1 alleged that she had trafficked P within the United Kingdom for sexual exploitation. She was acquitted by the jury of that count. Counts 2 and 3 alleged that she had controlled each woman for gain as a prostitute. She was convicted of these two counts.
37.
A had arrived at London City Airport on 21 July 2012. She was travelling under a false name. She had papers purporting to show that she was 16 years old and was travelling with a man who claimed to be her father. Having heard the evidence, the trial judge concluded for the purposes of sentencing that, although her precise age was not known, she was beyond doubt under 18.
38.
P arrived at Heathrow on 2 December 2012 claiming to be 27 years old. In evidence, she gave her date of birth as 30 May 1997 so that she would have been 16 on arrival. The clear implication from the jury’s verdict on count 1 was that they were not sure that she was under 18. The judge in sentencing said that he did not believe that she was 27 but was not convinced that she was not an adult.
39.
Each woman told a similar story. A said that she had been approached by O’s mother in Nigeria. That woman suggested that she travel to the UK where she would be looked after by O and placed in education. She was taken to O’s house. She started working as a prostitute that day. Thereafter for 18 months she worked as a prostitute at two different addresses often for seven days a week. She gave half her earnings to O or to a man she believed to be O’s husband. Some of her money was sent back to her mother in Nigeria.
40.
P also said that she had been approached in Nigeria by O’s mother, for whom she had worked, with a similar story namely that she would be looked after by O and placed in education. She took an oath not to speak to the police or cause any trouble. She travelled to the UK with false documents. O met her with another woman, who was a co-accused who had absconded before trial and was tried in her absence. They took her to a house. There she was told that she owed £42,000 to the traffickers and needed to work as a prostitute to pay it off. She was a virgin.
41.
Thereafter for the next 12 months she worked regularly as a prostitute at different addresses giving the money she earned to O or to O’s husband. P was allowed small sums for herself. She serviced up to 8 or 10 men a day. She became pregnant on two occasions. On each, O booked appointments for her to have those pregnancies terminated at hospital.
42.
The judge in passing sentence summarised the way in which the women had been treated by O and her co-accused. They were put to work in a most brutal way. They were in the main confined to the Woolwich area with very little freedom of movement. They were coerced to participate in unsafe sexual activity and coerced into seeing many customers. They lived in fear of exposure and being sent back to Nigeria and were too afraid to go to the police.
43.
Although O did not give evidence at trial, a positive case was put to the women. It was suggested that O had had nothing to do with arranging for them to come to the UK nor with meeting them at the airport. She had met P by chance in the street and because she was homeless O had allowed her to stay with her. A later moved in as well. They were already working as prostitutes. All three women continued as prostitutes sharing the rent but O had no part in the work of P or A and received none of their money. It was suggested that they were free agents.
44.
Matters came to light after P had approached a man in Woolwich in about December 2013 saying that she was hungry. He gave her some money. She asked for his telephone number which he gave her. Thereafter there was an exchange of messages during which she disclosed some details of her plight. He went to the police station to
report his concerns. That night, the police raided address where P and A were living and O’s house and she was arrested.
45.
She was interviewed on several occasions. She declined to answer questions but submitted two prepared statements. In them she detailed what she said were her dealings with the two women and the difficulties she said she had had with P’s boyfriend. She said nothing about her own arrival in the UK nor how she had become involved in prostitution.
46.
The nature of her grounds of appeal was such that O was required to waive privilege in respect of her instructions at trial. Counsel for the defence at trial has set out the instructions she gave in writing and in conference. She said that in 2007 a man called Idris had arranged for her to come from Nigeria to London to work in child care. She paid him £45,000 and took an oath that she would repay him. She said that after about a year, she saw an advertisement in Loot seeking ‘working girls. She decided to work as a prostitute which she did thereafter at a number of different brothels.
47.
O unsuccessfully applied for a residence card as the spouse of an EEA national on three occasions in November 2012, May 2013 and December 2013. Prior to trial, on 20 January 2014 she was served with illegal entry papers. She was convicted and sentenced in July 2014 and on 12 August applied for a Facilitated Returns Scheme which was denied because of the length of her sentence. In January 2015, she was served with a notice of decision to deport. She signed a disclaimer stating she wished to leave the UK without making representations. In April 2015 O made an asylum claim.
48.
On 19 October 2015, O was referred to the National Referral Mechanism by the Poppy Project. On 1 November 2016 her application for asylum was rejected.
49.
On 28 October 2015, the Home Office acting as the Competent Authority concluded that there were reasonable grounds to believe that the Applicant had been a victim of human trafficking (‘the reasonable grounds decision’). On 17
th
December 2015, the
Competent Authority concluded that the Applicant had been a victim of trafficking (‘the conclusive grounds decision’).
FRESH EVIDENCE
50.
O seeks permission to rely on the fresh evidence in her own witness statements; the NRM referral form; and the decisions of the Competent Authority.
51.
In interview with the Poppy Project in HMP Holloway, she confirmed her account that Idris had arranged her trip to London for £45,000 and described not merely an oath to repay the money but an elaborate and blood-curdling juju ceremony with threats of death if she broke the oath. She gave a detailed account of how she became involved in prostitution. Before she left Nigeria, she was given the name of Victor as the person who would meet her in England. He was not there at the airport to meet her. She said that she had met a man named by Jackson by chance shortly afterwards. She had nowhere to live so went to live with him in Woolwich and then Plaistow.
52.
After about six months, Victor contacted her. He and another woman introduced her to prostitution. She gave half her money to him to pay off her debt. He was violent to her on occasions. She later formed a relationship with and married a Slovakian national who was one of her clients. They never lived together, and she continued to work as a prostitute. After she had paid off half her debt, she rented the flat where P and A met her. In 2013, she learned that Victor had been deported so she could thereafter keep her money. In a subsequent statement she said she had paid over £12,000 to another prostitute’s boyfriend in order to enrol on a nursing course.
53.
She described meeting the two women but again denied that she had controlled either of them for gain.
54.
As part of her application for asylum, O made a detailed witness statement dated 19 May 2016 which followed and expanded on her statement to the Poppy Project. It included the sentence ‘’I remember providing a witness statement that discussed everything that had happened to me, including being a victim of trafficking.” As Counsel for the Appellant below pointed out in his note, that was untrue. She also said that she had sent money to Victor in Nigeria on two occasions after his deportation. She found out in April 2015 that he had attacked her mother in Nigeria and threatened her son.
55.
The Competent Authority’s conclusive grounds decision lacks the detailed analysis seen in N’s case above and makes no reference to the facts of the criminal proceedings as may be derived from the Court transcripts of summing up and sentencing remarks. It refers to the information provided on the NRM referral form completed on O’s behalf by the Poppy Foundation, which comprised details of assertions of expressions of fear and anxiety, signs of psychological trauma, injuries, fact of typical trafficking offence, perception, threats against family, intimidation and signs of ritual abuse and witchcraft; cites an international report on the prevalence of human trafficking in Nigeria and finds, “In the absence of any evidence which undermines [O’s] account” that she was trafficked to and within the UK.
GROUNDS OF APPEAL
56.
Mr Bunting relies on the written advice and grounds of appeal. The NRM had confirmed that the applicant was a victim of trafficking. There appears to be a nexus between the offending and trafficking; there is inevitably a “grey line” between a VOT who had removed themselves from trafficking and become a perpetrator. O’s case was “intertwined with the question of compulsion”. Whilst he accepts there were indicators that she had an element of free will, and she was not incarcerated, it was not enough to say that throughout the indictment period she was not acting under compulsion. She had little choice because of her personal circumstances, and she feared the juju oath. Threats had been made against her family abroad and the phenomenon of ‘debt bondage’ is well known.
57.
If the full circumstances had been known, the prosecution would not have been commenced/continued, The conviction is unsafe. However, if he failed in that argument, the facts would have significantly mitigated the serious offences for which she had been convicted and a reduced sentence would have been imposed.
58.
He recognises that this case is not as clear cut as that of N and the more serious the offence, the greater the degree of compulsion required to breach any apparent ‘nexus’. He prays in aid the fact that Victor was still able to exert influence, even when abroad. O was ‘unsophisticated’, in fear of reprisals and black magic. If trafficking had been raised by O, even if the CPS had proceeded, the jury would have been able to consider the nexus and therefore the conviction was unsafe.
59.
If this Court refuses permission to appeal against conviction, it should nevertheless consider O’s own position as a VOT to reduce her culpability and to substantially mitigate the sentence that would otherwise be appropriate.
RESPONDENT’S SUBMISSIONS
60.
Mr Marsland relies on the Respondent’s Notice filed. The Respondent’s Notice “acknowledges” the decision of the competent authority and that a VOT may make staged disclosures in which inconsistencies between accounts can arise, but notes in particular the similarity of O’s account to that of one of the complainants in the trial and that the evidence at trial, which the jury must have accepted to significant degree, contradicts O’s present account of her circumstances. O’s account is inconsistent to the instructions she gave to her legal team and in her applications for a residence card.
61.
If the Court accepts that O was trafficked, there is no nexus between the trafficking and the offending of which she has been convicted. O continues to maintain, as she did at trial, that P and A were working independently as prostitutes. There is no evidence that she was compelled ‘by the dominant force of another’ to control the prostitution of P and A for gain.
62.
Even if the Court were to find a nexus, the decision to prosecute O was in accordance with public policy and the conviction is safe. That is, the offences were serious and aggravated by features of O’s knowledge of the trafficking of P and A, O’s coercion of P and A to enter into prostitution, debt bondage, threats, P’s abortions and the age of A.
Decision:
63.
Whilst we have some misgivings regarding O’s status as a VOT, for the reasons indicated in the Respondent’s Notice, we give her the benefit of the doubt on this issue. However, this status does not establish nexus or compulsion at the relevant time. If O was a VOT on arrival in the UK, we have no doubt that she was complicit in trafficking P and A thereafter, and not by reason of coercion. Even on her own eventual account, there was a significant time interval between her own arrival, and significant geographical distance of her alleged ‘operator’, at the relevant time of these offences. She had demonstrated free will in the operation of her ‘business’ as sex worker, an ability to accumulate money and, she said, produce a simple accounting system for the earnings of other prostitutes.
64.
In any event, we agree that public interest did require prosecution. The trial Judge would rightly have dismissed any abuse of process argument suggesting otherwise and, since these offences preceded its enactment, the jury would not have been able to consider the defence afforded by section 45 of the Modern Slavery Act 2015. The conviction is safe. We refuse permission to appeal conviction.
65.
We consider the trial Judge’s assessment of the culpability withstands the finding that O was a VOT. That is, these were aggravated offences. There was no nexus between her status as VOT and offending as charged. There was no flaw in the sentencing exercise conducted by the Judge. The sentence was not manifestly excessive. We dismiss the appeal against sentence.
66.
O’s application for asylum is outstanding. Since, albeit with some hesitation, we confirm her status as a VOT, this will justify an order for her continued anonymity in any report of this case, at least until after her asylum claim is determined. We order accordingly. | [
"LADY JUSTICE MACUR"
] | 2019_05_09-4585.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/752/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/752 | 885 |
b5b4f1a5d552a68d1f17bba823109b01607767c38140f098c2fddb42f324a65e | [2022] EWCA Crim 315 | EWCA_Crim_315 | 2022-03-14 | crown_court | Neutral Citation Number: [2022] EWCA Crim 315 Case No: 202003047/ 202100408 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HH Judge Lockhart QC T20197333 Royal Courts of Justice Strand, London, WC2A 2LL 14 March 2022 Before : LORD JUSTICE WILLIAM DAVIS MRS JUSTICE CUTTS and HIS HONOUR JUDGE CONRAD QC - - - - - - - - - - - - - - - - - - - - - Between : ABDIRIZAK HUSSEIN ABDI Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2022] EWCA Crim 315
Case No: 202003047/
202100408
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HH Judge Lockhart QC
T20197333
Royal Courts of Justice
Strand, London, WC2A 2LL
14 March 2022
Before :
LORD JUSTICE WILLIAM DAVIS
MRS JUSTICE CUTTS
and
HIS HONOUR JUDGE CONRAD QC
- - - - - - - - - - - - - - - - - - - - -
Between :
ABDIRIZAK HUSSEIN ABDI
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Bernard Tetlow QC and Sanjeev Sharma
for the
Appellant
Michael Burrows QC
for the
Respondent
Hearing date : 3 March 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely by circulation to the parties’ representatives by email, released to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 14 March 2022 at 10.30am
Lord Justice William Davis:
1.
On the 10
th
November 2020 in the Crown Court at Warwick Abdirazac Hussein Abdi (to whom we shall refer as Abdi) was convicted of one offence of murder and two offences of wounding with intent. The following day he was sentenced to life imprisonment with a minimum term of 23 years in respect of the offence of murder. Concurrent determinate sentences of 9 years’ imprisonment were imposed in respect of the offences of wounding with intent. Convicted of the same offences was a young man named Frank Kenfack. A third man named Ngozi was acquitted.
2.
On 3 March 2022 having heard the submissions of Mr Bernard Tetlow QC and Mr Sanjeev Sharma on behalf of Abdi and Mr Michael Burrows QC on behalf of the respondent prosecutor, we announced our decision to dismiss Abdi’s appeal against conviction and to refuse his renewed application for leave to appeal against his sentence. We said that we would give our reasons in writing at a later date. We now do so.
3.
Abdi appeals against his convictions with the leave of the full Court. The basis of his appeal is that what is commonly referred to as gang evidence was wrongly admitted. His renewed application for leave to appeal against sentence was adjourned to follow the outcome of the appeal against conviction.
4.
At around 11.30 p.m. on 24 November 2018 a 16 year old boy, Jaydon James, was with friends in the street in the Wood End area of Coventry. A black Peugeot 407 car pulled up near to them. Some men, probably three in number, got out of the car and ran towards James and his friends. A chase on foot ensued. Some of those being chased got away. James did not. The chasing group caught up with him in a driveway at the side of a church. One of the group was armed with a large knife. James was stabbed in the back. The knife went right through his body. He died shortly afterwards from the effects of the stab wound. Two of his friends, Mohammed Wafi and Jack Glenn, sustained slash wounds to their legs from the knife. Wafi also was wounded to his back. Those involved in the attack returned to the Peugeot car which drove away at speed. A passing taxi driver was able to see something of the registration number. It had three letters and four numbers. The taxi driver thought that it was an Irish registration. He also caught sight of the driver. His description of the driver was consistent with Abdi’s appearance. The Peugeot had been stolen in Coventry three days earlier. At some point during the day on 24 November false number plates had been put on the car, the false number being NEZ 5156 which is an Irish registration. The car was abandoned later elsewhere in Coventry.
5.
Whoever was party to the use of the knife on the evening of 24 November was guilty of murder and of wounding with intent. At the trial of Abdi, Kenfack and Ngozi this proposition was not seriously disputed albeit that the jury were fully and properly directed in relation to intent. The defence of each of them was that they were not in the group which chased James and his friends nor were they in the car from which the group came and to which it returned.
6.
The prosecution case placing Abdi and the other defendants at the scene was circumstantial. We shall deal first with the case against Kenfack as it was without any consideration of gang material.
7.
Approximately 20 minutes before the incident in which James was killed the black Peugeot stopped at a petrol station about 1 ½ miles away from where he was attacked. CCTV footage from the petrol station showed the front passenger getting out of the car. The evidence showed that the front passenger was Kenfack. He was identified from the CCTV footage by a police officer who knew him. An expert in imagery analysis compared the CCTV footage with known images of Kenfack and concluded that there was strong support for the contention that he was the man. The CCTV footage showed that Kenfack had what appeared to be a knife concealed in the back of his jacket and that the car had passengers in the back seat as well as the driver. Further CCTV footage was recovered from an area close to the scene of the attack. The images were too dark for any identification of the figures visible on that footage. However, one of the figures was wearing clothing similar to that being worn by Kenfack when he was seen at the petrol station and was holding a long item consistent in appearance with a knife.
8.
After the event Kenfack’s mother showed a police officer a photograph which she had on her mobile telephone of Kenfack wearing clothes apparently matching the clothing he was wearing when seen at the petrol station on the night of the killing. That clothing was never recovered. In due course Kenfack was to admit that he had disposed of the clothing.
9.
The police spoke to Kenfack’s mother when, on 26 November, she reported him as missing. He was not at home because very shortly after the incident on the evening of 24 November he went to Oxford without saying anything to his mother about where he was going. It was a proper inference that he went to Oxford to lie low.
10.
Kenfack did not use his mobile telephone from the point at which he was seen at the petrol station until the next day. After some use on 25 November the telephone was not used again.
11.
When Kenfack was interviewed he said that he had not been in any Peugeot car on 24 November. He gave an account of his movements which did not involve that car at all. He gave a rather different account to the jury. In his evidence he admitted that he had been in the Peugeot car at around 4.30 p.m. on 24 November. He said that he had been picked up in the car and dropped in Coventry City Centre. At that point Abdi had also been in the car. He accepted also that he had later gone in the car to the petrol station but he said that he left the car before the incident involving Jaydon James. Kenfack acknowledged that he had lied in his interview.
12.
The circumstantial case against Kenfack was strong. It is true that there was no scientific evidence linking him to the murder of James. A blade was recovered at the scene which bore the DNA of Mohammed Wafi. It was plainly associated with the attack. No DNA or finger-mark linking Kenfack to the blade was recovered. At least one balaclava mask was found at the scene. This bore no scientific link to Kenfack. He could not be associated via any scientific evidence with the Peugeot. This lack of scientific evidence does not undermine the circumstantial case we have outlined.
13.
The circumstantial case against Abdi falls to be considered in the light of the evidence relating to Kenfack. There was evidence that they knew each other. They were in regular telephone contact. They had been seen together on occasion. On 24 November Abdi’s telephone called Kenfack at around 4.30 p.m. At this point Kenfack had just got into a taxi. After receiving the call he told the taxi to stop and he got out. He was picked up by the Peugeot. Mr Tetlow’s submission to us was that the prosecution could say no more than the car which picked up Kenfack was consistent with the stolen Peugeot. Mr Burrows took us to CCTV footage relating to the period just after Kenfack was picked up. The content of that footage provided compelling evidence that the Peugeot seen on the CCTV footage was the stolen Peugeot. As we have said Kenfack’s evidence to the jury was that Abdi also was in the car. The cell site evidence in relation to the telephones of Abdi and Kenfack was consistent with the two of them being together just after 4.30 p.m. That strand of evidence also indicated that the two telephones appeared to travel together into Coventry City Centre. The data indicated that both telephones remained in the same general area for about 1 ½ hours. What happened after that in relation to Abdi could not be the subject of any cell site evidence because Abdi’s telephone was not in use. No information was available. What could be said was that Abdi was not calling Kenfack during the evening of 24 November. There was only very limited information in relation to Kenfack. As we have said he did not use his telephone from the time of the sighting at the petrol station until the next day after which he no longer used the telephone at all. That scenario also applied to Abdi. These circumstances permitted the inference that Abdi had been with Kenfack on the evening of 24 November. His behaviour after the event was similar to that of Kenfack. He unexpectedly went to the home of a relative in Bolton. It was a proper inference that this was to keep away from Coventry i.e. the scene of the stabbing.
14.
When interviewed Abdi said that he had not telephoned Kenfack on the afternoon of 24 November and that he had not been in the Peugeot car. Although he did not give evidence, Kenfack’s evidence contradicting what Abdi said interview was not challenged. It was properly conceded that Abdi had lied in interview about being in the Peugeot.
15.
Taking all of those circumstances into account there was a clear case for Abdi to answer. The jury were entitled to find that at 4.30 p.m. on 24 November he was in the car which had been stolen days before the attack and to which false number plates had been attached on the day of the attack. It was a proper inference that by the afternoon of 24 November the Peugeot was ready to be used to transport the attackers. Abdi’s presence in the car at that time was of significant probative value. Moreover, he travelled in the car with Kenfack whose participation in the attack was demonstrable. After the attack his behaviour was very similar to that of Kenfack and indicative of involvement in the offences. Mr Tetlow points to the fact that from about 5.45 p.m. Abdi’s telephone was not in use. Thus, there was no evidence of where he was after that time. Moreover, the evidence demonstrates that he was not with Kenfack in the middle part of the evening because Kenfack was caught on CCTV in Coventry City Centre with no sign of Abdi. These factors would be of greater significance were it not for the fact that the car in which they had travelled together from 4.30 p.m. onwards was the car with false number plates which by then was an integral part of the plan to carry out an attack. We acknowledge that, just as in the case of Kenfack, there was no scientific evidence linking him with the stabbing. That does not undermine the circumstantial case that was established by the other evidence.
16.
It is against that background that we consider the submissions in relation to gang material. Mr Tetlow’s first submission is that the circumstantial evidence was insufficient to amount to a prima facie case. Neither he nor Mr Sharma appeared at trial. Thus, the submission cannot merely be met by reference to the fact that no argument was made to the trial judge that there was insufficient evidence for the jury to consider. Nonetheless it is telling that leading and junior counsel who represented Abdi at trial did not consider that a submission to the trial judge of no case to answer was appropriate. They did not mount any argument about the sufficiency of the prosecution absent the gang material when lodging grounds of appeal. Leaving that aside it will be apparent from what we have already said that we do not accept the proposition that there was no prima facie case. The matters we have set out establish a case to be left to the jury. We accept that the case against Kenfack was stronger because of the evidence identifying him at the petrol station. It was in part the strength of the case against Kenfack which supported the circumstantial case against Abdi.
17.
However, that submission is but one part of the case put forward by Mr Tetlow. The gravamen of the appeal is that the judge erred in admitting evidence relating to gang activity and that, linked to that error, the judge should not have admitted evidence of two occasions on which Abdi had been the victim of violence, namely being shot.
18.
The written ruling of the trial judge ran to over 50 typed pages. He conducted a comprehensive review of the law with particular reference to
Lewis and others
[2014] 1 Cr App R 1
,
Myers
[2016] AC 314
,
Awoyemi
[2016] EWCA Crim 668
,
Sode and others
[2017] EWCA Crim 705
and
H and others
[2018] EWCA Crim 2868
. The core principles he set out were these. Gang evidence would not be admissible unless it were relevant to an issue in the case. Even if gang evidence were relevant, it would be excluded if its prejudicial effect outweighed its probative value. Evidence of motive for an offence always will be relevant. Gang evidence in relation to an individual may be relevant where identity is in issue. The judge noted that gang evidence could be admissible as evidence to do with the alleged facts of the offence or as bad character evidence via Section 101(1)(d) of the Criminal Justice Act 2003 or via both routes. Whichever route was taken, he was required to consider whether admitting the evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted.
19.
The judge went on to consider the admissibility of the evidence of PS Ashton who had lengthy experience of street gangs in Coventry and who provided a history of two gangs in particular. By reference to the criteria set out in
Myers
the judge concluded that the officer was qualified to give general evidence about the gangs.
20.
Insofar as the individual defendants were concerned, PS Ashton was not permitted to give evidence of gang affiliation based on hearsay material. Rather, proof of their association with a gang required direct admissible evidence.
21.
The background evidence that was admitted was as follows:
1.
Prior to the events of 24 November 2018 there were two particular street gangs in Coventry. One gang was known as C2 and its geographical territory was the CV2 postcode, an area in the north east of Coventry. The other gang was known as RB7 with a base in the central area of Coventry.
2.
It was only in 2018 that the two gangs become separate entities. Before that there had been a single gang known as RB7. When the split occurred, rivalry between the two gangs became apparent and manifested itself in violence between them.
3.
The violence used involved the use of guns and knives. Members of C2 would be attacked by members of RB7 and vice versa. Agreed facts were placed before the jury which set out some 30 incidents from the latter part of 2018 onwards with the most recent event being a fatal shooting in March 2020 of Abdul Hasan, a member of RB7.
These matters were established by the evidence of PS Ashton together with the agreed facts.
22.
In relation to Jaydon James the evidence showed that his home was in the CV2 postcode i.e. near to the scene of the stabbing. There was video material posted on YouTube and graffiti near to the scene of the stabbing which indicated that James had been associated with the C2 gang albeit not associated with acts of violence. His mother gave evidence of a conversation she had had with him prior to his death in which he had said that RB7 members had robbed him of his jacket and that he feared further violence at the hands of RB7. James had shown his mother an Instagram post by someone called Reeko. In the picture Reeko was wearing his jacket. Reeko was identified as someone called Mwanza with a connection to RB7.
23.
The evidence of James’s association with C2 and its relevance to the attack on him was given further support by what was heard shouted by someone in James’s group as they were chased by the men who came from the Peugeot car, namely “it’s RB7” or something to that effect. This evidence formed part of the res gestae. Whoever shouted it appreciated that the chasing group was associated with RB7.
24.
The objection taken at trial to the admission of the gang evidence and the basis of the appeal before us in relation to that evidence is not that there was no proper evidence of gang rivalry in Coventry which manifested itself in serious violence. Clearly there was. The grounds of appeal begin with the argument that there was no clear evidence that the stabbings were gang related. We disagree. The evidence of James’s association with the C2 gang coupled with the location of the stabbing and what was said at the time of the incident amounted to at least prima facie evidence that the attack on him was gang related. However, this argument is not at the forefront of the appeal. The propositions on which Mr Tetlow principally relies are twofold. First, there was no proper evidential foundation for a finding that Abdi was a member of or closely associated with RB7. Second, evidence was admitted of two occasions on which Abdi was shot. These events had no evidential link to the stabbing of Jaydon James and his friends.
25.
The first issue is whether there was an evidential foundation for an assertion that Abdi was sufficiently associated with RB7 to render gang material relevant in his case. The prosecution relied on video material which had been posted on YouTube. Abdi appeared in three videos the content of which was said to indicate gang association. In “Realist Jo Jo Taking A Trip” the lyric referred to RB7. The jury had evidence that people identifiable as RB7 members appeared in the video. At a point approximately 1 minute 50 seconds into the video, the lyric was “trying to put a sting in their abs”. At this point Abdi was to the fore and was making what could be interpreted as a stabbing motion towards his chest. There was evidence from someone with expertise in rap and drill lyrics that this particular lyric referred to stabbing someone. The video was posted some time prior to the events of 24 November 2018. The other videos were called “Ten Toes Tap Drill” and “Realist Jo Jo Raindrop”. In the latter video there was specific mention of RB7 and references to shooting and shank. Shank is a slang term for knife.
26.
Mr Tetlow argues that appearance in videos and the use in those videos of violent lyrics should not automatically lead to the conclusion that someone is a gang member. That is correct. But that is not the same as saying that they cannot lead to that conclusion. So long as appropriate caution is advised by the judge (which is what occurred in this case) a jury is entitled to consider such material. If there was an alternative explanation for Abdi’s appearance in the videos, he did not choose to give it.
27.
In addition to the video evidence the jury had to consider the fact that Abdi was shown in the Instagram post by Mwanza. The two were standing together. Mwanza was wearing the coat allegedly stolen from Jayden James.
28.
Finally Abdi in August 2018 posted a picture of himself apparently taken at the Notting Hill Carnival under the moniker “realist-abbz”. This moniker demonstrates a link to the video material. Under the picture Abdi had typed “everybody want to talk about guns but nobody want to sell me one”. Mr Tetlow argues that this was a lyric from a commercially available rap song. So it may be but Abdi chose to post it. There was no explanation from him as to why he did.
29.
We are satisfied that there was an evidential foundation arising from this material to justify the proposition that Abdi at the very least was associated with RB7. Whether the jury accepted the proposition was a matter for them.
30.
The second matter is whether the judge should have admitted the evidence of the two occasions on which Abdi himself was shot. On 14 August 2018 he was shot with a shotgun when he was at an address in Wood End, Coventry. This is an area within the CV2 postcode. On the day after the shooting the police visited Abdi in hospital where he was awaiting surgery to remove shotgun pellets from his leg. Unsurprisingly the police wished to investigate the shooting. They wanted to know about the circumstances in which Abdi was shot. His response was to say that it was an accident and that he had not been threatened by anyone. He gave no further details and declined to make a witness statement. On 25 February 2019 Abdi was shot outside a gym in Hales Street near to the centre of Coventry. As had been the case in relation to the August 2018 shooting he chose to say nothing to the police about the circumstances in which he had been shot. He declined to make a witness statement.
31.
The evidence of the shooting incidents was admitted (a) in relation to August 2018 as a potentially gang related event which provided a motive for Abdi to be involved in the offences on 24 November 2018 and (b) in relation to February 2019 as a potentially gang related event by way of revenge for Abdi’s involvement in the offences on 24 November.
32.
In relation to both incidents the judge admitted the evidence pursuant to Section 98 i.e. it was evidence to do with the facts of the offences. This approach is in accordance with the decision of this Court in
Sule
[2012] EWCA Crim 1130
as confirmed in
Stewart
[2016] EWCA Crim 447
. We can find no reason to distinguish the reasoning to be found in
Sule
and
Stewart
. It is unnecessary for us to set out that reasoning here. The only distinction to be drawn between those cases and the facts in this case is that one of the shooting incidents relied on by the prosecution occurred after the offences allegedly committed by the accused. In
Sule
and
Stewart
all of the incidents occurred before the alleged offences and they were relied on as evidence of motive. Here one of the incidents was said to be by way of revenge. That equally amounts to a matter to do with the facts of the offences.
33.
We are quite satisfied that the evidence relating to the shootings in August 2018 and February 2019 was relevant to the issue of whether Abdi was involved in a gang. He may have been the victim on those occasions. But his reaction to the incidents was significant. He did not make any statement of complaint. An ordinary member of the public who was shot would show considerable interest in the identity of the person who had shot them and in the steps to be taken to bring that person to justice. Abdi’s reaction to be being shot on two separate occasions indicates that he had something to hide and/or that he proposed to deal with the issue himself. Either position demonstrates involvement in gang activity.
34.
The fact that there was a gap of approximately three months between Abdi being shot in August 2018 and the offences in November 2018 does not affect the relevance of the former event to motive. As was said in
Sule
at [12] “where the evidence is relied upon for motive it would be irrational to introduce a temporal requirement”. The same rationale must apply if it is said that the shooting was a revenge attack.
35.
Mr Tetlow’s submission is that there was no evidential link between the shooting incidents and the offences in November 2018. In relation to the shooting in August 2018 he submits that there was no evidence as to who was involved. He points to the fact that there were other incidents of violence between August 2018 and 24 November 2018. We consider that the absence of evidence as to who precisely was involved in shooting Abdi in August 2018 does not affect the admissibility of that event. The jury had evidence showing that Abdi was associated with RB7. They had evidence that there were many episodes of tit for tat violence. The precise identity of the gunman in August 2018 is not to the point. The same applies to the incident in February 2019 when Abdi again was shot.
36.
He argues that the admission of the evidence invited speculation. We disagree with that general proposition. In relation to each incident the jury was directed that they had to be satisfied that the shooting was a gang related event and that it provided evidence of motive (the August 2018 shooting) or evidence of revenge (the February 2019 shooting). The jury were clearly directed in relation to circumstantial evidence that they should not speculate and that they had to reject other reasonable explanations for such evidence before acting upon it. The judge referred specifically to the gang material as a species of circumstantial evidence. All of these directions were provided to the jury in writing.
37.
Mr Tetlow makes a particular submission in relation to the direction of law given by the judge in relation to the shooting in February 2019. To explain the submission we must set out the relevant direction. It was as follows:
“b.
Are we satisfied that AA was shot on 25.02.19 in a gang related event and that this was because he had been involved in some way in the attack on C2 on 24.11.18?
In dispute.
1.
If yes, then you could use it to support the other circumstantial evidence that you found to place him in the car and allow it to assist you in coming to a sure conclusion in his case.
2.
If no, ignore this piece gang material it cannot offer support.”
38.
Mr Tetlow argues that this direction is flawed. It begins by asking the jury whether they are satisfied that Abdi was shot in February 2019 in a gang related event because he had been involved in the attack on 24 November 2018. It goes on to say that, if the jury were so satisfied, they could use those findings to support other circumstantial evidence placing Abdi in the car i.e. at the scene of the attack. But the second part of the direction is redundant. If the jury were to answer the initial question in the affirmative, they would not need to use the evidence of the shooting to support other circumstantial evidence. It would be determinative on its own. We agree with Mr Tetlow’s analysis. With respect to the judge this particular direction is confusing. However, the initial question protected Abdi from any speculative exercise on the part of the jury. It required the jury to be satisfied that Abdi was involved in the attack on 24 November. The jury must have appreciated that this was the central factual issue in the case. There was no risk that they would speculate on this issue.
39.
Mr Tetlow criticises the use of the word “satisfied”. He points out that it was not made clear in the direction to which we have referred that “satisfied” meant “sure”. He goes so far as to say that this misdirection (as he categorises it) is sufficient on its own to render the convictions unsafe.
40.
In our view this submission by Mr Tetlow ignores the overall structure of the summing up. The passage of which he complains appears on page 38 of the written legal directions, the document provided to the jury running to more than 50 pages. In his introduction to the legal directions which the judge delivered orally he set out an overview of the case. The overview referred to the prosecution’s assertion that the offences were gang related and then set out the duty of the prosecution to prove that assertion. The judge then turned to the written directions. The first matter with which the directions dealt was the requirement on the prosecution to prove their case so that the jury were sure of it. In his subsequent direction in relation to circumstantial evidence the judge directed the jury that, in order to convict any defendant on the basis of such evidence, they had to reach “a sure conclusion” that the relevant defendant was guilty.
41.
In our view the direction given in relation to the shooting in February 2019, whilst infelicitously worded, was not flawed so as to undermine the safety of the convictions. It had to be read in the context of the directions as a whole. We are satisfied that the jury would not have read the direction to mean that for instance merely finding that the shooting was potentially or possibly a gang related event would be sufficient.
42.
The issue for us is whether the evidence relating to the shooting of Abdi in August 2018 and February 2019 was capable of having the effect for which the prosecution contended. We are satisfied that it was. The evidence was not to be viewed in isolation. It had to be considered together with the other evidence linking Abdi to gang activity to which we already have referred. It was for the jury to determine whether it did have that effect.
43.
We are grateful to Mr Tetlow and Mr Sharma for the careful arguments they have put before us. However, we are wholly unpersuaded that those arguments, whether taken singly or together, cast doubt on the safety of the convictions. So it was that we dismissed the appeal against the convictions.
44.
We turn to the renewed application for leave to appeal against sentence. The single point taken is that the minimum term of 23 years made insufficient allowance for Abdi’s age at the time of the offences (19 years 6 months) and for his relative good character. He had a single finding of guilt when he was aged 17 for offences of dishonesty. It is accepted that the appropriate starting point within Schedule 21 of the Criminal Justice Act 2003 (which was the statutory provision in force at the time of sentence) was 25 years. The murder was committed with a weapon brought to the scene for the purpose of attacking the victim. It is also acknowledged that the offence was aggravated by the planning involved. A car was stolen for the purpose of carrying out an attack on a rival gang. False number plates were attached to it. A group was assembled to put the plan into effect.
45.
Moreover, the minimum term imposed in respect of the offence of murder was required to reflect the offences of wounding with intent committed at the same time. This could not involve creating a cumulative total of the appropriate sentences. But it meant that some increase in the minimum term was necessary.
46.
The judge referred to Abdi’s age in his sentencing remarks and noted what was said in
Peters
[2005] 2 Cr App R (S) 101. He said this:
“….there should be no sudden acceleration of sentence levels due to age. There is a need for flexibility in that there is no sudden step change in maturity.”
That was the correct approach. The argument now put is that, notwithstanding what the judge said, the minimum term imposed did amount to a sudden acceleration of sentence. Had Abdi been 18 months younger, he would have been subject to a starting point of 12 years by reference to Schedule 21. The minimum term in the case of Kenfack (who was nearing his 17
th
birthday at the time of the offences) was 17 years. He was sentenced as the person who inflicted the fatal injury. It is not suggested that there should have been parity between Abdi and Kenfack. Rather, it is submitted that the minimum term in Kenfack’s case demonstrates that there was an undue acceleration of the sentence in relation to Abdi.
47.
We do not accept the argument that the judge failed to give sufficient weight to Abdi’s age. Had he been a mature adult who fell to be sentenced for a planned murder committed in the context of gang rivalry and for associated offences of wounding with intent, the minimum term would have been significantly greater than 25 years. The minimum term imposed on Abdi properly reflected the mitigating effect of his age.
48.
We do not consider that there is any arguable ground for an appeal against the length of the minimum term. In those circumstances we dismissed the renewed application for leave to appeal against sentence. | [
"LORD JUSTICE WILLIAM DAVIS",
"HIS HONOUR JUDGE CONRAD QC"
] | 2022_03_14-5288.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/315/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/315 | 886 |
dfcede37403c3a58fdc219c99407b362b0516ac7a6dc8496db44ddb959fea0e8 | [2005] EWCA Crim 3082 | EWCA_Crim_3082 | 2005-11-02 | crown_court | No. 2005/02592/B4 Neutral Citation Number: [2005] EWCA Crim 3082 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 2 November 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MRS JUSTICE RAFFERTY and MR JUSTICE MACKAY - - - - - - - - - - - - - R E G I N A - v - STEVIE O - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 40 | No.
2005/02592/B4
Neutral Citation Number:
[2005] EWCA Crim 3082
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 2 November 2005
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Phillips of Worth Matravers
)
MRS JUSTICE RAFFERTY
and
MR JUSTICE MACKAY
- - - - - - - - - - - - -
R E G I N A
- v -
STEVIE O
- - - - - - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
MR P SUTTON
appeared on behalf of
THE APPELLANT
MR A SUCKLING QC and MISS S PLASCHKES
appeared on behalf of
THE CROWN
- - - - - - - - - - - - -
J U D G M E N T
Wednesday 2 November 2005
THE LORD CHIEF JUSTICE:
1. On 13 April 2005, in the Crown Court sitting at Snaresbrook, the appellant was convicted of murder. He appeals against conviction by leave of the single judge.
2. The ground of appeal is that the trial judge wrongly admitted in evidence a statement made in the presence of the appellant which was prejudicial to the appellant and to which the appellant did not demur. We shall refer to this as the tacit admission.
3. After giving a brief summary of the facts, we propose to consider all the evidence that was adduced, then the issues as they appeared at the stage when the question of whether the judge should admit the evidence of the tacit admission arose, then whether that evidence should have been admitted and whether the appellant suffered any prejudice as a result of its admission.
4. The facts can shortly be stated as follows. At around 7.30pm on Wednesday 30 June 2004, the appellant was sitting with two friends, Luke Martin and Scott Cooper, on the pavement outside the Golden Lion Public House in Barking Road, Plaistow. Mohammed Omar, the deceased, was then 22 years old. He was accompanied by a young woman aged 17 who was related to him, Sahra Ali Hassain. As they walked along the pavement they drew level with the appellant and his friends. Words were exchanged and a fight broke out, during which the deceased's tee-shirt was ripped, and during which he punched the appellant to the head. He and Sahra Ali Hassain then walked away from the incident.
5. The appellant and his friends crossed the road. They walked along on the other side in the same direction as the deceased. They came upon a shop front that was being renovated and there they each picked up a piece of timber. The appellant ran across the road. He ran up behind the deceased, swung the piece of wood and hit him on the right side of his head. After that one blow he ran back to the other side of the road.
6. The deceased was taken to hospital. He was found to have sustained a serious fracture of the skull. In due course it transpired that his skull was somewhat thinner than the norm. He died from that injury.
7. A number of witnesses gave evidence at the trial about this incident. Sahra Hassain gave evidence. She said that she was a family friend of the deceased. She described how she was walking with him on that evening when they came across three boys sitting on bollards on the pavement. When they reached the boys one of them said, "What are you staring at?" The deceased responded with, "Why are you staring at us?" A fight then broke out, involving the deceased and all three boys. The deceased fell to the ground and was hit. A man in the vicinity shouted to those involved in the fight to stop and they did so. Sahra Hassain walked back the way she had come with the deceased, hoping to avoid the other three boys. But after they had gone some way along the road, the appellant came and hit the deceased from behind once on the rear of his head very hard with a piece of wood. She said that the deceased had not looked round when the blow was struck. The appellant was holding the piece of wood with both his hands when he struck the deceased.
8. Gerard Atowo gave evidence of witnessing the fight while he was on his bicycle in the area. He did not see how it started, but saw the deceased trying to defend himself. He saw the deceased punch the appellant to the head. He saw the fight break up and the deceased walk away. He then saw the three boys run across the road and arm themselves with wood. He was able to see what was happening because he was cycling in the same direction as the activity. He saw the appellant strike the deceased on the head with the wood.
9. Malachy Scullion also gave evidence of observing the three boys. He saw them pick up pieces of wood and run down the road. The appellant reached the deceased and swung a thick plank of wood onto the back of the deceased's head once very hard.
10. Sarah Scullion (Malachy's mother) gave evidence of seeing the appellant run past her son with a lump of wood held in both hands, she thought two or three feet long. He ran up to the deceased and hit him on the back of the head with a very loud bang.
11. Two other witnesses gave evidence of seeing these events. There was no significant difference between these accounts.
12. The evidence of the tacit admission was given by a young man called John Woolston, but that related to events two days after the deceased was killed. He had, however, seen the events that led to the death of the deceased. He described them in the same terms as those we have already given in relation to the other witnesses.
12. We turn to the issues as they appeared when the judge gave his ruling which is the subject of this appeal. The appellant had made formal admissions for the purpose of the trial one month before it began. These included the fact that he had struck the deceased on the head with a piece of wood and that this was the substantial cause of the deceased's death. He made a defence statement in the following terms:
"General Nature of the Defence
The defendant accepts that he was present at Barking Road, Plaistow E13 on the 30th June 2004.
The defendant will accept that he was involved in a fight with the victim in this case and that he himself after an initial fight armed himself with a piece of wood and struck the victim with it.
Matters on which issue is taken
In this matter the defendant did not intend to kill the victim and at the time believed that he was acting in self-defence.
Reasons
In this matter the defendant is a young man who was attacked by the victim, an older person of greater height and weight than himself, when the defendant intervened after the victim had attacked another youth at the scene.
The defendant was assaulted by the victim and was thrown to the ground and suffered concussion.
The defendant when attacking the victim with the piece of wood believed that the victim was about to assault him again."
13. By the time that the issue of the admission of evidence about the tacit admission was raised before the trial judge, only Mr Malachy Scullion had given evidence. Mr Suckling QC, who prosecuted and who appeared for the Crown before us, told us that at that point he understood that a defence of self-defence would be run and thus thought that this was a live issue. Mr Sutton, who appeared for the appellant and who appears today, told us that the statement that self-defence would be relied upon in the defence statement was mistaken and that so far as he was concerned, at all stages, the only issue was what intent, if any, the appellant had when he struck the fatal blow. We shall see the position as the judge understood it in due course.
14. We turn to the contentious part of Mr Woolston's evidence. He said that two days after the deceased was killed, in company with his girlfriend Tiffany Lipper, they encountered the appellant and his two companions. Tiffany said to the appellant, "Oh, why did you hit him for? I bet he ain't done nothing to you". One of the appellant's companions replied, "Of course we don't like Asian people. They stink. Why do they come over to our country?" The appellant said nothing. Tiffany then screamed at the appellant and Mr Woolston dragged her away. The three youths walked off smirking.
15. The prosecution sought to put this evidence before the jury pursuant to a common law rule of admissibility preserved by
section 118(1)(5)
of the
Criminal Justice Act 2003
as falling within "any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings".
16. The relevant common law rule was stated by Lord Atkinson in
R v Christie
[1914] AC 545
at 554 as follows:
".... the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part."
17. More recently this court considered this principle of admissibility in
R v Collins and Keep
[2004] 2 Cr App R 199
. In that case the appellant and a co-accused had been stopped and questioned by the police. The co-accused had told a lie and the appellant had not corrected this. This evidence had been placed before the jury on the basis that, by his silence, the appellant had acquiesced in and adopted the lie. At paragraph 34 Thomas LJ set out the following principles:
"From the authorities to which we have referred, it is clear that when an allegation is made against the accused in his presence:
i)
It is for the jury to determine whether a statement made in the presence of the accused calls for some response;
ii)
If it does, and if no response is made, the statement can only be evidence against the accused if by his reaction to it he accepts that statement as true; although that is a question for the jury to determine, mere silence cannot of itself amount to an acknowledgement of the truth of an allegation.
iii)
A distinction is made in the authorities between cases where the defendant is on equal terms with those making the accusation (in which case silence may be used against him) and those where the defendant is at a disadvantage (in which case silence cannot be used against him)"
In that case Thomas LJ held that the evidence should not have been put before the jury because it would not be right to draw adverse inferences from the accused's silence. One reason for this was that the appellant was not on equal terms with the police making the accusations and, furthermore, enjoyed a right to remain silent.
18. In the present case Mr Sutton argued before the trial judge, and repeated his argument before us, that the third principle enunciated by Thomas LJ was in play and that on the facts of this case the appellant was not on equal terms with Tiffany, who was making the accusation, but was at a disadvantage. The trial judge could not see that Thomas LJ's third proposition had any relevance to the facts of this case. Nor can we. Where the defence challenges the prosecution's intention to put before the jury evidence of the defendant's reaction, or lack of reaction, to a statement made in his presence, three questions arise: (1) could a jury properly directed conclude that the defendant adopted the statement in question? If so, (2) is that matter of sufficient relevance to justify its introduction in evidence? If so, (3) would the admission of the evidence have such an adverse effect on the fairness of the proceedings that the judge ought not to admit it?
19. So far as the first question is concerned, the judge appears implicitly to have accepted that it would be open to the jury to find, from the conduct of the appellant in smirking and walking away after his companion had stated that the appellant had struck the deceased "cos we don't like Asian people" that he was acquiescing in that statement. Given that the appellant had not at that time even admitted that he was the one who struck the fatal blow, we do not consider that a jury would be likely to draw from his silence the inference that he was both admitting that he had struck the blow and that he had done so because he disliked Asians. When confronted with a raging Tiffany, silence was perhaps not a surprising reaction. But this was essentially an issue for the jury. We have concluded that it was open to the jury to decide that the appellant had adopted the statement made by his companion.
20. We turn to the relevance of this evidence. The trial judge dealt with this in a passage in his ruling when he said:
"It does seem clear, from what I understand, that central to the issues that the jury will have to consider in this case, is why did the defendant, as is not in dispute, strike this Asian man over the head with a piece of wood? As I understand it from the defence case statement, it is the defence case that he did so in the honest belief, on the facts as he understood them to be, that he was under attack or the threat of apprehended attack. The Crown seek to meet that, they having the burden of proving that he acted unlawfully, by any evidence that is properly probative of what the true motivation and belief was which had caused this violence to take place. That is why, they submit, the evidence is probative of what was said as to its motivation."
On the position as he understood it, we consider that the judge was correct to conclude that this evidence was relevant on the ground that it might disprove the defence of self-defence.
21. On the position as Mr Sutton understood it, and as it turned out to be, we find it hard to see how the evidence had any relevance. The appellant had a fight with the deceased. He and his companions then armed themselves with pieces of wood, crossed the road, pursued the deceased and he struck him vigorously on the head from behind. It seems to us that the evidence plainly demonstrated that the appellant was at that time hostile towards the deceased and that his act in striking him was aggressive. There was at that point only one obvious issue for the jury: had the appellant intended to cause really serious injury when he struck the blow? It was not the prosecution's case that he intended to kill. On that issue the defence was aided to some degree by the medical evidence which showed that the deceased's skull was thinner than normal, albeit that he had been killed by a severe blow. Thus the obvious issue was: murder or manslaughter?
22. The evidence demonstrated hostility on the part of the appellant towards the deceased. The deceased had punched him in the head, which was an obvious immediate reason for that hostility. We cannot see that the question of whether the appellant's hostility was racially motivated in whole or in part had any bearing on the essential issue. Mr Sutton sought to persuade us to the contrary, but he did not succeed. If, as is likely, the jury concluded that the appellant did not acquiesce in the statement as to racist motive made by his companion, it had no effect at all. Mr Sutton suggested that the evidence may have led the jury to conclude that the appellant had a racial prejudice against Asians. If it did, we think that that was a conclusion they were entitled to reach. They might well have reached it from the simple fact of the initial altercation between three white youths and a young Asian man who was walking with a young Asian woman who was fully veiled.
23. Mr Sutton has suggested that such a conclusion may have prejudiced the jury to such an extent that they found that the appellant had intended to cause the deceased really serious physical harm, whereas they might otherwise have acquitted him of such intention. We can see no basis for this suggestion. The evidence of the manner in which the appellant struck down the deceased provides a ready explanation for the jury's verdict.
24. For these reasons the admission of the evidence in issue was in no way unfair to the appellant. The safety of his conviction for murder is not in doubt. This appeal is dismissed. | [
"MRS JUSTICE RAFFERTY",
"MR JUSTICE MACKAY"
] | 2005_11_02-625.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3082/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3082 | 887 |
8d97024b9dbd4bb4e72fa76eb3bcb23eec307791861ddaa3fdf4e202ea50e961 | [2019] EWCA Crim 1829 | EWCA_Crim_1829 | 2019-10-16 | crown_court | NCN: [2019] EWCA (Crim) 1829 No: 201902740 A1; 201902786 A1; 201902883 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 16 October 2019 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE COCKERILL DBE HIS HONOUR JUDGE BATE (Sitting as a Judge of the CACD) R E G I N A v LEON CHARLES JAMES SQUIRES BEN MICHAEL PICKERING ZAC MARTIN HIGGINS Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London | NCN: [2019] EWCA (Crim) 1829
No: 201902740 A1; 201902786 A1; 201902883 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 16 October 2019
B e f o r e
:
LORD JUSTICE SIMON
MRS JUSTICE COCKERILL DBE
HIS HONOUR JUDGE BATE
(Sitting as a Judge of the CACD)
R E G I N A
v
LEON CHARLES JAMES SQUIRES
BEN MICHAEL PICKERING
ZAC MARTIN HIGGINS
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 P Byrne
appeared on behalf of the
Appellant Squires
Ms C Dudley
appeared on behalf of the
Applicant Pickering Ms K Riekstina
appeared on behalf the
Appellant Higgins
J U D G M E N T
LORD JUSTICE SIMON:
1.
On 20 June 2019, in the Crown Court at Leeds, the appellants, Leon Squires and Zac Higgins, and the applicant, Ben Pickering, pleaded guilty to various counts on an indictment. On 19 July they were sentenced by Ms Recorder Turner as follows: Squires, aged 20 at the date of sentence, (count 2) assault occasioning actual bodily harm contrary to
section 47
of
the Offences Against the Person Act 1861
, a term of 9 months' youth detention; (count 3), assault by beating contrary to
section 39
of the
Criminal Justice Act 1988
, a consecutive term of 1 month. Pickering, aged 18, (count 2)
section 47
assault, a term of 9 months' youth detention. Higgins, aged 19, (count 1) inflicting grievous bodily harm contrary to
section 20
of
the Offences Against the Person Act 1861
, 2 years and 3 months' youth detention, (count 2),
section 47
assault, a consecutive term of 9 months.
The overall terms were therefore as follows: Squires 10 months; Pickering 9 months and Higgins 3 years' youth detention.
2.
Squires and Higgins appeal against that sentence with the leave of the single judge and Pickering seeks leave to appeal against his sentence, his application having been referred
to the Full Court.
3.
The charges arose out of an incident that occurred on 2 February 2019, shortly after 10.00 pm. Violence erupted at Leeds railway station involving Squires, Pickering and Higgins. The three of them had entered Leeds railway station together and began what started as a relatively good natured exchange on the concourse with two other young men, James Pearson and Lewis Longstaff. There was an initial exchange between Higgins and Lewis
Longstaff in which the latter kicked out at Higgins in an act which the Recorder described
as "horseplay". Squires, Higgins and Pickering then approached and spoke to Lewis Longstaff and the CCTV recording shows that the group laughed and joked at this point.
Lewis Longstaff then kicked at Pickering as he walked away and a mêlée then ensued.
Squires, Higgins and Pickering moved towards James Pearson and Lewis Longstaff and Higgins threw a punch. James Pearson pushed Higgins and Pickering away. Pickering then threw an uppercut to James Pearson, and Squires punched Lewis Longstaff to the back of the head. Following this Pickering kicked James Pearson and Squires threw a punch at him which did not connect. At this point James Pearson was alone and being set upon. Eventually he and Lewis Longstaff backed away from three others, following which Higgins ran up and hit Lewis Longstaff with a punch which knocked him unconscious. Members of the public were in the vicinity and witnessed what had
occurred.
4.
Police officers arrived on the scene and Squires, Pickering and Higgins were later arrested.
5.
The victim of the
section 20
assault, Lewis Longstaff, was taken to Leeds General
Infirmary. He was unconscious on arrival. He was incubated and underwent ventilation. An initial CT brain scan showed a number of acute haematomas and he was transferred to a Neuro Intensive Care facility where an intracranial pressure bolt and wire were inserted. He was sedated for two days in an induced coma. A further CT scan showed a chronic
subdural hematoma with mass effect.
6.
Subsequently his health showed some improvement but he still required significant input from health care professionals including physiotherapy and assistance to stand. He was undergoing speech and language therapy and was unable to swallow safely or adequately and had cognitive problems. A neurosurgical Registrar was of the opinion that he would
require extensive further rehabilitation.
7.
Squires, Higgins and Pickering were interviewed by the police. Higgins gave a largely
"no comment" interview. Squires and Pickering said they had been out drinking. Pickering said he had been acting in self-defence. Squires accepted that the victim had not been a threat to him and he was not in fear for himself. When he was told how
seriously Lewis Longstaff had been injured he expressed remorse.
8.
There was a basis of plea entered on behalf of Squires to the
section 47
offence which, although acceptable to the prosecution, was internally inconsistent and in the light of Mr Byrne's concession we need say no more about it.
9.
The court had two victim personal statements, both dated 7 June (4 months after the crimes were committed). Alison Pyman (Lewis Longstaff's mother) described being summoned to her son's hospital bed, seeing him in an induced coma and being told that if he survived he could have sustained permanent brain injury. She gives an account of the weeks spent in hospital, the setbacks, the pneumonia and the further bleeds to the brain which needed to be operated on and of an uncertain future now that her son was at home and the limiting
effects on his enjoyment of life as a result of the assault.
10.
Lewis Longstaff remembered nothing of the assault but recalls the slow and frustrating process of rehabilitation. He described the effect on his ambitions as a cricketer and on
his personal life. It is in the light of that evidence that the photographs of him looking
cheerful, put before the Recorder, must be read.
11.
Each of Squires, Pickering and Higgins were young men of previous good character and there were references which spoke of their good qualities. There were oral pre-sentence
reports in relation to Squires and Pickering, of which we have seen transcripts.
12.
The report on Squires noted his sense of shame and that he had clearly given thought to his behaviour on the date of the offence. He had attended college and had completed a level 2 NVQ in accountancy and was working with a civil engineering company which remained
supportive. He was physically well but frightened at the prospect of custody.
13.
The report on Pickering recorded that he had indicated his remorse and recognised that he should have reacted differently as events unfolded. He was involved in property renovation with his brother. He had suffered from mental health problems since his formative teenage years. He was physically well and could undertake an unpaid work
requirement.
14.
In passing sentence the Recorder remarked that on 2 February 2019, at the railway station in Leeds, the lives of five young men (the three offenders and the two victims) and their families had changed forever. Squires, Pickering and Higgins were before the court for their participation in acts of violence in the course of an ugly incident. They had all been drinking and had let themselves and their families down by their involvement in the
incident.
15.
The violence had had catastrophic consequences for Lewis Longstaff who was still unable to return to work. There had been some relatively minor injuries to James Pearson. The offending would have been extremely alarming for those members of the public who had
witnessed the crimes.
16.
The Recorder noted that Lewis Longstaff could have died after what happened to him that night and his problems continued. James Pearson's injuries could not be overlooked although they were less serious, including a black eye, bruising, abrasions to his face and bumps to the back of his head. There was no victim personal statement from him and the Recorder assumed he had made a complete and satisfactory recovery. Prior to the offending none of the offenders had had any previous convictions. Each had had the good
sense to plead guilty to the respective counts they faced.
17.
The Recorder bore in mind the ages of the offender and that the offending had been short lived with consequences far beyond those they could have imagined. She bore in mind the principle of totality and proportionately and strived to achieve parity between offences. She allowed a 25% discount as a consequence of the pleas which had been tendered at the plea and trial preparation hearing by each defendant. In relation to the
section 20
offence the Recorder remarked that Higgins had been alone when he had thrown the punch that floored Lewis Longstaff. However, she indicated each of the offenders had at various
stages played a leading role in the overall violence.
18.
The
section 20
offending fell into category 1, with a starting point of 3 years' custody and a range of two-and-a-half to 4 years following a trial. The starting point after a trial could
be contained at 3 years' custody, the resulting sentence therefore was a term of 2 years and 3 months' detention in a young offender institution.
19.
Count 2, the
section 47
offence, had been committed jointly by the three defendants and the Recorder saw no reason to distinguish between them. The starting point, after a trial, would have been a term of 12 months' imprisonment. The sentences were therefore
sentences of 9 months' youth detention; in the case of Higgins that would be consecutive to
the sentence on count 1.
20.
In relation to count 3 the sentence for Squires was a consecutive term of 1 month's
detention consecutive.
21.
For Leon Squires Mr Byrne makes what are essentially three points. First, the Recorder erred in appearing to treat the
section 47
offence as more serious because of the consequences of the
section 20
offence with which Squires was not charged. Secondly, the Recorder erred in placing the assault occasioning actual bodily harm into category 1 of the Sentencing Guidelines rather than category 2, and third, the Recorder erred in failing to distinguish the appellant from the other offenders on the basis of his agreed bases of plea.
As we have already noted, that point was not developed.
22.
For Pickering, Ms Dudley submitted first that the Recorder was wrong to conclude each of the offenders played a leading role in the relevant offences and sentenced them all on the basis of the serious injuries sustained by Lewis Longstaff. In doing so she failed to recognise the role played by Pickering. It was acknowledged that Pickering had in fact kicked the victim, Pearson, in relation to the
section 47
count and that this placed the offending in category 2. Secondly, she submitted that by failing to suspend the custodial sentence the Recorder had failed sufficiently to acknowledge the mitigation that was
presented on behalf of her client.
23.
For Higgins, Ms Riekstina submitted first, that the sentence of 3 years on count 1 was manifestly excessive. The offending in relation to the
section 20
offence did not form part of a group activity and accordingly the offending should have placed within category 2 of the sentencing guideline for the offence. Secondly, the sentence in relation to count 2, the charge of actual bodily harm, should have been ordered to be served concurrently with the sentence imposed on count 1, as the offences had arisen within a very short time of each other in the same location. In any event the Recorder should have had regard to the principle of totality, and should have paid more regard to the appellant's good character
and age at the time of the offence.
24.
We have considered all these submissions. The offences occurred late at night on the public concourse of Leeds station, when exuberance (no doubt fuelled by drink) developed into hostility and the sudden eruption of violence in which the two young victims were assaulted, and in the case of Lewis Longstaff suffered serious and long-lasting harm. Although all three were involved in the violence it was only in respect of count 2 (the
section 47
offence) that they were jointly charged. So far as the
section 20
charge is concerned, this was, in our view, a category 2 offence. Higgins was the only one charged with this offence and the fact that he was with others who were not participating when he committed the offence did not make it one of higher culpability - it was however one of the greatest possible harm. Category 2 has a range of 1 to 3 years and the predictable head injuries, and in this case the catastrophic consequences to Lewis Longstaff justified increasing the starting point towards the top of the range of 3 years. In addition, there was the
section 47
assault against James Pearson in which Higgins participated and which increased the seriousness of his offending. Against this there was his youth and good character to be weighed. In our view, the sentence on count 1 of 2 years and 3 months, with 25% credit for the plea, was a stern sentence but it was not manifestly excessive. We are however persuaded that the sentence on count 2 (the
section 47
offence) should have
been ordered to be served concurrently.
25.
As to the
section 47
offence with which each three defendants were charged, the most significant aggravating features were that it was a group attack, fuelled by alcohol, against a single victim, in a public place and witnessed by members of the public. We are quite satisfied that the Recorder was entitled not to suspend the sentences in relation to this offending. However, in our view, the appropriate sentence to reflect these features, but also the mitigation, should have been a term of 8 months' custody and with 25% credit the
sentence should have been a term of 6 months.
26.
Finally, the sentence in count 3, the offence by Squires of an assault by beating of Lewis
Longstaff, in our judgment, should have been a concurrent sentence.
27.
We give effect to these views as follows: on the appeal of Squires we quash the sentences imposed and replace with terms of youth detention of 6 months on count 2 and 1 month concurrent on count 3. The total sentence of 6 months' detention will replace the sentence
of 10 months imposed.
28.
On the application of Pickering, we grant leave, quash the sentence of 9 months imposed and replace it with a sentence of 6 months. On the appeal of Higgins, we quash the sentence on count 2 and replace it with a 6-month sentence to be served concurrently with the sentence on count 1 which will remain undisturbed. The total sentence in his case will be a term of 2 years and 3 months in place of the sentence of 3 years' detention. To this extent, the appeals are allowed. | [
"LORD JUSTICE SIMON",
"MRS JUSTICE COCKERILL DBE",
"HIS HONOUR JUDGE BATE"
] | 2019_10_16-4737.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1829/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1829 | 888 |
378530a33d8f3e2d7bcf28cfdb0a72ed7d412bd406a9201638eb2ee35b83308e | [2020] EWCA Crim 291 | EWCA_Crim_291 | 2020-02-13 | crown_court | NCN: [2020] EWCA (Crim) 291 No: 201804076 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 13 February 2020 B e f o r e : LORD JUSTICE SIMON MR JUSTICE EDIS MR JUSTICE CHAMBERLAIN R E G I N A v JUSTIN CLARKE 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 Crow | NCN: [2020] EWCA (Crim) 291
No: 201804076 B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 13 February 2020
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE EDIS
MR JUSTICE CHAMBERLAIN
R E G I N A
v
JUSTIN CLARKE
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.
NON-COUNSEL APPLICATION
J U D G M E N T
LORD JUSTICE SIMON:
1.
On 30 January 2018, following a trial in the Crown Court sitting at Woolwich, before Sir Peter Openshaw and a jury, the applicant (now age 64) was convicted of the murder of Paul Milburn (count 1), conspiracy to defraud (count 3) and offering to supply a Class B drug cannabis (count 4). The following day he was sentenced to life imprisonment for
murder with a minimum term to be served of 25 years less 492 days on remand.
2.
He renews his application for leave to appeal that conviction following refusal by the
single judge.
3.
Since the grounds of appeal are based on the trial process it is convenient to focus on those complaints, but before doing so we should at least refer to the striking
circumstances of what appears to have been a drug deal that went wrong.
4.
The charges arose out of events that occurred on the afternoon of Monday 26 April 1993. Paul Milburn had been a builder, but had fallen on hard times and turned to dealing in cannabis. He told friends that he was about to do a drug deal which might turn his fortune around. He borrowed a black Saab vehicle from a friend and drove to Noke Lane near St Albans for a pre-arranged meeting in the afternoon. At around 4.30 a passerby noticed a black Saab blocking the road and the driver slumped at the wheel. He called the police. When officers arrived they found the car engine revving and the driver dead at the wheel, with his foot on the accelerator. The driver's window was smashed. There
was £13,500 cash in the boot.
5.
A post-mortem examination established that he had been shot once, at close range, in the right shoulder. The bullet had killed him. A ballistic expert established that the window
had been broken before the shot was fired. The shot was fired from a revolver or
self-loading pistol and such a weapon could not be fired accidentally.
6.
The prosecution case was that the applicant, together with three associates, had arranged to meet Paul Milburn with a view to carrying out a fraudulent drug deal in a quiet country lane. The plan was to cheat him out of thousands of pounds by passing off bars of wax made up to give the appearance of blocks of cannabis resin. The four men had arrived in two cars to meet Paul Milburn and his associate (a man known as "Ginger") who were in the black Saab, driven by Paul Milburn. As the transaction was in progress the applicant, who had been hiding in nearby bushes, ran towards the Saab pointing a gun. Ginger made off across the fields, and the applicant broke the driver's window and shot him.
They all then fled the scene.
7.
At trial two of the applicant's associates gave evidence for the Crown describing the sudden and inexplicable conduct of the applicant in shooting Paul Milburn. A statement was read from the third of these associates. All three had been convicted of participation in the fraud, and the judge warned the jury to treat their evidence with caution since they
may have had their own reasons for giving evidence for the prosecution.
8.
The applicant disappeared before he could be arrested. Eventually he was traced in Germany where he was arrested nearly 13 years later, in February 2016. He was extradited to the United Kingdom and charged on 26 September 2016. He made his first appearance in the Crown Court on 29 September.
9.
Although it is broken down into a number of separate complaints, the focus of the grounds of appeal is that the applicant was tried while unrepresented and in his absence
that this was unfair and throws substantial doubts on the safety of his convictions.
10.
It is necessary now to consider what happened between the first appearance in the Crown Court in September 2016 and the trial that began on 15 January 2018. During this time he was represented by three firms of solicitors at various times. The trial was initially set for 17 March 2017 but was adjourned because he said he was not ready. A further trial was set for a date at the beginning of October 2017. The applicant was not represented and did not appear at the hearing. The prosecution applied for the trial to take place in his absence. That application was heard by Holroyde LJ on 5 October. The applicant said that Messrs Imran Khan Solicitors had been prepared to represent him at this stage, with Mr Khan QC acting as trial advocate; and that when he had become unavailable he was unable to find anyone else. The judge heard evidence from Mr Patel of Imran Khan Solicitors that their services had in fact been dispensed with in August 2017.
11.
Holroyde LJ granted an adjournment and making various orders designed to ensure that the applicant could obtain suitable representation and that the trial would go ahead on the next occasion. However, he warned the applicant that this should be regarded as his last opportunity to arrange representation and that if he did not engage with the process the
trial might proceed in his absence.
12.
The applicant failed to attend his trial on 15 January 2018 and the judge, having set out the history, ruled that the trial should proceed in his absence. The applicant provided no evidence of any steps taken to obtain representation and the judge decided that there were compelling reasons for the trial to proceed in his absence, including the fact that he was in custody in HMP Belmarsh, closely adjacent to the Crown Court and refusing to engage with the trial process, the public interest in pursuing the prosecution without further delay
and the position of witnesses including vulnerable witnesses.
13.
In our view, no properly arguable criticism can be made of this decision. Furthermore, the judge was careful to ensure the fairness of the trial in both directing the jury on the issue of the applicant's absence; in summing-up the case fairly, directing the jury to consider the motives for accomplices in giving incriminating evidence; and taking all
reasonable points that might be taken on the applicant's behalf.
14.
The applicant complains that by proceeding in his absence the judge failed to take into account his mental health. However, there is no suggestion, let alone supporting evidence, that he was unfit to participate in a trial or to attend court. He had been
represented by counsel and solicitors on 27 March 2017, 19 May (the date of arraignment), 9 June and 30 June 2017 and no suggestion had been made as to his
unfitness to participate in the trial.
15.
We note that on 24 January 2018, following enquiries, the court had been informed that no mental health concerns had been raised by the mental health team responsible for the applicant.
16.
It is clear that the applicant made a conscious decision not to attend his trial.
17.
A further point is taken that the trial was unfair or unlawful because the custody time limits were relied on so as to "coerce" the applicant into a trial for which he did not have adequate time to prepare, and that the trial was listed for 15 January 2018 to "punish him"
for his previous non-attendance at court.
18.
Both these contentions are wholly without merit. As the single judge noted, the custody time limits were repeatedly extended to
allow
him to obtain representation and the trial was listed on 15 January 2018 after further adjournments had been allowed for the same
reason.
19.
Finally, there is a complaint that the applicant was not served with all the prosecution material. That complaint is also baseless. All used and unused material was served by
the Crown and the judge was satisfied that the applicant had the documents.
20.
The impression that the applicant was engaged in "playing the system" is not dispelled by
the course of his renewed application for leave to appeal.
21.
The application was lodged by the applicant at the beginning of October 2018 (208 days out of time). From the start he asked for further time to instruct new lawyers and perfect his grounds. He was allowed some time for this purpose administratively, but nothing further was received and so the application was considered and was then refused by the single judge in May 2019.
22.
The application was renewed and listed for hearing on 30 July 2019. Shortly before that date the applicant made a request to vacate the hearing and indicated that he might wish to abandon the application. The request to vacate was granted by Males LJ who directed that the applicant must now confirm whether he wished to pursue or abandon the application. He was given until 30 September 2019 either to abandon the application or to lodge further grounds, and confirm or otherwise that counsel had been instructed. He was also told that if he failed to do so the case would be re-listed and that no further
adjournment would be given. Nothing further was heard from him.
23.
All letters to him from the Registrar's office have been returned with a letter from the applicant stating that he was refusing to accept any further correspondence from the Registrar whom he felt was persecuting him.
24.
We should add that yesterday afternoon the court received two communications: the first from the applicant and addressed to the Registrar beginning: "I hereby formally and unequivocally demand the de-listing of my application for permission for leave to appeal". The letter continues in the same tone with entirely unjustified complaints of bad faith against the Court of Appeal office. The second is a short email from counsel's clerk saying that subject to the "appellant" organising a third party contact and signing a client care agreement, a named leading counsel was happy to accept instructions by way
of Public Access.
25.
In the light of all the previous warnings, we declined to adjourn this hearing. Even with the assistance of leading counsel, this application has no prospect of success.
26.
This is a case in which a defendant has taken a conscious decision not to engage in the Criminal Justice System. It was his right to do so, but it was a choice made in the knowledge that it would have consequences because he was repeatedly warned that this would be so. There was no breach of his Article 6 rights. The trial was fair, despite the difficulties caused by the approach adopted by the applicant for reasons known only to himself. In the event the prosecution case was overwhelming. We are quite satisfied that
the convictions are safe. The renewed application is dismissed. | [
"LORD JUSTICE SIMON",
"MR JUSTICE EDIS",
"MR JUSTICE CHAMBERLAIN"
] | 2020_02_13-4830.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/291/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/291 | 889 |
5160d04fa12c8ec4edb0fb3ebe4c4c36df4b4730e8bda4ecbe9e7c662bbc7d4b | [2005] EWCA Crim 692 | EWCA_Crim_692 | 2005-03-11 | crown_court | No: 200400543 D2 Neutral Citation Number: [2005] EWCA Crim 692 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 11th March 2005 B E F O R E: LORD JUSTICE KEENE MR JUSTICE TUGENDHAT MRS JUSTICE GLOSTER DBE - - - - - - - R E G I N A -v- SHANE MIDDLETON - - - - - - - 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 | No:
200400543 D2
Neutral Citation Number:
[2005] EWCA Crim 692
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 11th March 2005
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE TUGENDHAT
MRS JUSTICE GLOSTER DBE
- - - - - - -
R E G I N A
-v-
SHANE MIDDLETON
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR M HEYWOOD
appeared on behalf of the APPELLANT
MR B M LINNEMANN
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE KEENE: On 12th December 2003, in the Crown Court at Wolverhampton before His Honour Judge Wood, this appellant was convicted of robbery, possession of a firearm when committing a Schedule 1 offence and attempted robbery. In due course he was sentenced to life imprisonment, with a recommended minimum of seven years three months. He now appeals against his conviction on two grounds by leave of the single judge, with his application for leave on a third ground being referred to this court by the single judge.
2.
The three offences to which we have referred were connected. On 8th November 2002, just before 1.30 in the afternoon, a lone masked man entered the National Westminster Bank in Warley. He produced a gun, which he held to a customer's head while demanding cash from the staff. He in due course left the bank with about £7,000 and was seen, without his mask, fleeing into a silver Ford Sierra, registration number H191 JMO. As he got into that car, a red dye pack which had been placed by the bank staff in with the stolen money exploded, and as a result the man left some of the money on the road and drove away in the Sierra, crashing it a few streets away. He then attempted to rob a man of his car by holding a knife to his throat, but he was prevented by getting away by other motorists blocking him in. The man then escaped in a white Ford Escort cabriolet. Again the registration number was noted: it was D882 CVG. That car was driven by an unknown person.
3.
The Sierra was in due course recovered. A black handgun and £4,000 in cash were found in the passenger footwell. That car had been sold to the appellant some time before the robbery. The police then found keys fitting the Ford Escort cabriolet in the flat where the appellant was arrested.
4.
It was the prosecution case that the appellant was the man who had carried out the bank robbery and had committed the other offences. They relied on his links to the vehicles which had been used, the fact that he had been picked out from a video identification procedure by a witness, and they also hoped to rely on evidence from the appellant's brother's girlfriend, a Miss Young, who said that the appellant and his girlfriend had come to her flat with a bag of red dyed money. Reliance was also placed by the Crown on evidence that the appellant had told his girlfriend's brother, a man called Gerald Preece, to hide him when he heard that his girlfriend had been arrested.
5.
It was the defence case that the appellant had loaned the two cars to his drug dealer as part of a potential sale and that they had been used by other people, unknown to him, in the bank robbery and the other offences.
6.
There were a number of witnesses who were able to give some sort of description of the robber, despite the mask, which seems to have consisted of black netting or some material of that kind. These descriptions indicated that the man was pale-skinned, probably white, generally around 5 foot 6 or thereabouts in height and in his late teens or twenties.
7.
The positive identification of the appellant to which we have referred came from a witness called Paul Cresswell. He was a man who ran a charity shop nearby to the bank. He gave evidence that he had heard someone say that there had been a bank robbery and he then went outside. He said he looked towards the bank and saw a man leaving it, walking quickly. The man walked past him while looking directly at him and then turned into an adjoining road. Mr Cresswell said that he followed the man to the corner. The man would at one stage have been no more than a metre from him. He could see most of the man's face, though not his hair because the man was wearing a hood. He too described the man as being white and having a pale complexion. According to Mr Cresswell's evidence, the man went to a Ford Sierra and got into the car, but before he drove away there was an explosion of red dye from the bag and so the bag and some money were left in the road. Mr Cresswell gave evidence that he had, after these events, attended a video identification parade and picked out the appellant.
8.
At trial the defence objected to the admission of the evidence about the identification procedure involving Mr Cresswell. It was contended, and indeed admitted by the Crown, that there had been a breach of Code D of the PACE Codes in that, contrary to Annex A paragraph D7, neither the appellant, nor his solicitor, had been shown the set of video images before they were shown to any witness. It was not submitted that the breach by the police was deliberate, but it was said that to admit the evidence would prevent a fair trial.
9.
The judge ruled against the defence on this application. He took the view that the purpose of the provision in paragraph D7 was to enable the suspect or his solicitor to object if it was thought that any of the images were inappropriate, in the sense that they were not broadly similar to the appearance of the suspect. Although the defence had criticised some of those selected, the judge saw the video images and he concluded that they were an appropriate selection. He also made reference to the fact that the set of images had been shown to another witness called Ackroyd, a man who made no identification, but that this process had been carried out in the presence of the suspect's solicitor, who had raised no objection to the selection of video images.
10.
Despite the breach of what the judge accepted was a mandatory requirement in the Code, he concluded that the breach did not create any risk of unfairness and for that reason he rejected the defence application.
11.
That ruling is now challenged in the first ground of appeal, which is the one referred to this court by the single judge. Mr Heywood, who appears today on behalf of the appellant, as he did at trial, submits that there was a flagrant breach of the Code which severely diminished the fairness of the trial. The appellant was deprived of the opportunity to object to the set of images shown. It is contended that the judge was wrong to have attached weight to the fact that the appellant's solicitor was present at the video identification parade. It is argued by Mr Heywood that the presence of the solicitor on that occasion was merely to ensure that the procedures at the parade were themselves properly carried out. His presence there was not intended to enable him to object to the images in question. By that stage of the process the breach of Code D had already occurred. Moreover, Mr Heywood points out that some of those shown in the nine video images have differences in appearance from the appellant: some of them have ear-rings; some seem older than the appellant. Moreover, it is said that Mr Ackroyd, who was the other witness who saw these images, failed to pick out anyone from the nine, even though he saw the robber from close to. He had described the robber as being fair-haired.
12.
The court has seen the video images of the appellant and the other eight men. Those other eight seem to us to comply with paragraph D2 of Annex A in that they do "resemble the suspect in age, height, general appearance and position in life". It is not expected that the other eight apart from the suspect will be entirely identical to the suspect.
13.
Of course, the fact that there was no breach of paragraph D2 of Annex A does not mean that there was no breach of paragraph D7, which is a separate provision. There clearly was a breach of D7. Nonetheless, the fact that there was no breach of paragraph D2 may be relevant to the issue of fairness on which the judge had to exercise his discretion. Paragraph D7 of the Annex reads as follows:
"The suspect or their solicitor, friend, or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any witness. If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection. Steps shall, if practicable, be taken to remove the grounds for objection. If this is not practicable, the suspect and/or their representative shall be told why their objections cannot be met and the objection, the reason given for it and why it cannot be met shall be recorded on forms provided for the purpose."
14.
The judge was undoubtedly right in saying that the purpose of this particular provision is to enable the suspect or his solicitor to raise any reasonable objection that may exist to the selection and, if practicable, to remove the grounds for that objection. That being so, in the view of this court it must be relevant, when there has been a breach, to ask whether there could realistically have been a reasonable objection to the set of images. The suspect or his solicitor has no unfettered or absolute right of objection.
15.
In the present case, it seems to us that the judge was entitled to take the view that there could not have been any reasonable objection to the set of images once the judge had seen those images which were shown to the witnesses. It is also to be noted that the appellant's solicitor sat through the whole of the video identification procedure involving the witness Ackroyd and saw the same nine images as were shown to the witness Cresswell before the procedure involving Cresswell took place. The procedure involving Ackroyd took place immediately before that involving Cresswell, and yet no point was taken at any time and no comment made by the solicitor on behalf of the appellant to the effect that any of the images were inappropriate. Now, while it is true that the function of the solicitor at that stage is as described by Mr Heywood, as we have summarised, the absence of any objection to the images selected seems to this court to be something which a judge can legitimately take into account when exercising his discretion. There was, in reality, an opportunity to raise an objection before Cresswell saw the images. We note that it is sufficient under the Code, paragraph D7, for the suspect's solicitor, rather than the suspect, to be allowed to see the images in advance.
16.
None of this prevents there from being a breach of paragraph D7 in this case, which, as we have pointed out, the Crown conceded, but the fact of a breach is not the end of the matter. What is crucial is to consider whether the admission of the evidence in such circumstances, where there has been a breach, would have such an adverse effect on the fairness of the proceedings that it ought not to be allowed: see section 78 of PACE. This was not a deliberate breach of the Code but an inadvertent one. There is no issue as to that.
17.
The function of this appellate court is to determine whether the trial judge exercised his discretion in a way which was not properly open to him. When we put the compliance with paragraph D2 as to the resemblance of the images to that of the appellant along with the fact that his solicitor saw them before the witness Cresswell saw them and made his positive identification, we conclude that the judge was entitled to exercise his discretion in the way which he did. No real unfairness resulted from his decision or from the breach of the Code to which we have referred. We consequently see no merit in this first ground.
18.
We turn to the two grounds on which leave to appeal was granted by the single judge. Both raise issues about hostile witnesses.
19.
The first relates to a woman called Jennifer Young, who was the girlfriend of the appellant's brother, Tyrone. She had given two witness statements to the police in November 2002 shortly after the robbery. The first was relatively innocuous, but the second gave vivid detail about the evening after the day of the robbery. She described how the appellant and his girlfriend, Karen Rawlings, had come to her house, where Karen had produced a number of £20 notes stained heavily with red dye. The appellant, according to this statement, had given Miss Young some of them and she could see a large amount of notes in Karen's handbag. She also said in that statement that the appellant told her to tell anyone who asked that she had sold the white Ford cabriolet to two black men and a white girl. That then was the significance of her second witness statement made shortly after these events and well before trial.
20.
When called at trial, however, by the prosecution, Jennifer Young said that when the appellant and Karen came round that evening, they had a normal conversation - nothing was said about money, dyed or otherwise. In these circumstances, the Crown applied to treat her as hostile and the judge granted that application. No complaint is made in this appeal about that ruling. However, it is submitted that the judge's directions subsequently to the jury on this were inadequate. It is accepted that he directed them that her out of court witness statements were not evidence of the truth of their contents and that the only evidence was what she said from the witness box. Indeed, we note that in dealing with Jennifer Young and with the witness called Preece, the judge said at page 4 of the transcript:
"Where they disputed what was in the witness statements, saying that it was wrong, you cannot prefer what was in the witness statements to what they said in court. That is because, as I've just said, their evidence in court is what counts and the witness statements are only used so as to assist you in your assessment of the evidence they gave."
21.
What Mr Heywood on behalf of the appellant criticises, in his succinct and attractive argument this morning, is the absence of further directions to assist the jury in how to treat this evidence from Jennifer Young which was given in court. It is submitted that the judge failed to remind the jury that she had been treated as a witness hostile to the prosecution and that any evidence which she gave adverse to the appellant had been elicited only as a result of cross-examination by the prosecution.
22.
Reliance is placed on the decision of this court in
Ugorji
[1999] 9 Archbold News 3 as authority for the need for a jury to be told to treat such evidence by a hostile witness with caution. We have been provided by the appellant with a transcript of that decision, which we have read. Reliance in particular is placed by Mr Heywood on what the court there said at page 5:
"In our view common sense suggests that where evidence has only been given as a result of a witness being treated as hostile the jury should be reminded of this in clear terms and told to bear it in mind when considering what weight to attach to the evidence.
Although the judge alluded in the passage to which we have referred to what happened by saying:
'... I did allow him [the witness] ... to be questioned in a particular way ...'
we do not think he went far enough. He should have explained that he had allowed the Crown to treat Mr Ramzan as a hostile witness and so cross examine him about his previous statement to the police and the jury should, therefore, bear this in mind when considering what weight to give to his evidence."
23.
Moreover, it is argued that the judge failed to direct the jury to consider whether this witness was creditworthy at all: see the well-known case of
Maw
[1994] Crim LR 841.
24.
It is to be borne in mind that what happens with a witness who has been held hostile will inevitably vary greatly from case to case, and the precise directions required of a judge will, to a certain degree, also vary as a consequence. The most fundamental direction is the one given by the judge in this case more than once, namely that the out of court witness statement by the witness is not evidence unless accepted as true by the witness at trial in respect of any particular part of it. The other direction which will almost invariably be required is one reminding the jury that if there is serious conflict between the witness' evidence in court and a previous witness statement, then they may reject the witness' evidence altogether. Beyond those directions, what the judge says to the jury will depend upon the circumstances of the individual case.
25.
Here, the judge gave both the directions to which we have referred. The first we have already covered. In respect of the second, we note that when dealing with this topic, again at page 4 of the summing-up, the judge said this:
"What they may have said earlier to the police is not evidence in the trial. If they said something wholly different to the police from what they said in evidence, of course that may lead you to discount and regard as unreliable what they said from the witness box."
He later went through Miss Young's evidence in more detail. He referred to her second witness statement and to her saying in court "I never said that to the police" about the red dyed money. Later she said in her evidence in court: "I could have said it while I was on drugs". She agreed in her evidence that she had said to the police that the appellant had told her to say that she had sold the Ford Escort to two black men, but that was not true. She then denied another part of her witness statement and the judge commented as follows:
"... that part of the evidence, you may have thought, looked pretty unreliable all round, because she was giving different explanations for what was in the statement and it was entirely unsatisfactory, you may have thought.
But fundamentally it cannot increase the Prosecution case to show that the witness has said confusing and unreliable things in a witness statement because that witness statement is not evidence in the case."
At the end of dealing with her evidence, the judge added:
"Members of the jury, that is my summary to you of the evidence she gave and I won't repeat the observation I made at the outset about the evidence from the witness box being that for you to assess as accurate and honest, or inaccurate and unreliable, what is in witness statements not being evidence in this trial."
26.
The question which we have to consider is whether those directions were sufficient or not. It seems to us that it needs to be borne in mind that in the case of
Ugorji
relied on by the appellant, the witness who had been ruled hostile actually accepted under cross-examination by the Crown that his witness statement was true in respect of the crucial part of it. In that situation this court took the view that the jury needed to be told to treat his evidence with caution.
27.
The present case was very different. The witness' evidence in court must have come across to the jury as confused and she never clearly accepted as true any part of her second witness statement which was really adverse to the appellant. That is something Mr Heywood has accepted in the course of argument. It follows that the jury must have realised that there was a very clear conflict between her evidence in court and the second witness statement which she had given to the police. In those circumstances, the judge's direction at page 4 of the transcript, to which we have already referred, indicated that the jury might well regard her evidence as unreliable. That was the sort of direction suggested by this court in the case of
Maw
. Given the circumstances of the present case, this court does not regard the judge's directions about Jennifer Young's evidence as having been deficient. They were sufficiently tailored to the factual circumstances of the case so as to give the jury proper guidance in their deliberations.
28.
The final ground concerns another witness ruled as hostile called Gerald Preece. He was Karen Rawlings' brother. In a witness statement he had described Karen and the appellant coming to his flat in North Devon. She had then gone out a little later and after that Gerald Preece described in his witness statement getting a phone call saying that she had been arrested. In the same statement he described the appellant then becoming very agitated and asking "How can I get out of here? Is there a back way?". Then the appellant, according to this statement, had asked to be locked into the next door flat to which Preece had a key. That was what then happened. However, in his evidence-in-chief at trial, Gerald Preece said that he could not remember what the appellant had said and that it was he, Preece, who had said that he would leave the appellant in the next door flat as his landlady might be visiting his own flat. The judge, in those circumstances, acceded to a prosecution application to treat Preece as hostile.
29.
That is now said to have been a wrongful exercise of discretion and that the Crown should not have been allowed to cross-examine him in the way that then ensued. Mr Heywood, in his helpful written skeleton, describes Preece's departure from his witness statement as "minimal". It is said that it made no practical difference whose idea it was that the appellant should be locked in the next door flat. Moreover, he says, the judge gave inadequate directions to the jury as to how to treat Mr Preece's evidence.
30.
We need not deal further with that last point in that the conclusions we have reached in relation to the judge's directions on Jennifer Young apply with equal force to this witness.
31.
As to the suggestion that Preece's departure from his witness statement was minimal, we have to say that we profoundly disagree. Preece's departures from that witness statement robbed his evidence of any value to the prosecution. He may not have been a vital witness in the prosecution's case, but his witness statement did demonstrate a reaction on the appellant's part to the news of Karen's arrest, a reaction which could well have been treated by the jury as an indication of guilt. It did matter whose idea it was that the appellant should be put into the next door flat. On the witness' original out of court version of events, the appellant was seeking to hide there from the police. On the version which he was giving in his evidence-in-chief at trial, the appellant was not. We have no doubt at all as to the correctness of the trial judge's ruling on this particular issue. It follows that we can see no force in this particular ground.
32.
We make it clear that we have considered this ground and the other two on a cumulative basis as well as separately, but, even when we put all these matters together, we have no doubts as to the safety of these convictions. The case against this appellant on these charges was a very strong one and this appeal is consequently dismissed. | [
"LORD JUSTICE KEENE",
"MR JUSTICE TUGENDHAT",
"MRS JUSTICE GLOSTER DBE"
] | 2005_03_11-471.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/692/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/692 | 890 |
874fa332c9e5c04e974da8b5bb83d73ae9b9557b211cf9c46aebbd8aaededcc2 | [2022] EWCA Crim 988 | EWCA_Crim_988 | 2022-07-19 | crown_court | Neutral Citation Number: [2022] EWCA Crim 988 Case No: 202200778 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK His Honour Judge Casey T20201871 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/07/2022 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE FRASER and MRS JUSTICE HILL - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - A Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2022] EWCA Crim 988
Case No:
202200778 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
His Honour Judge Casey
T20201871
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/07/2022
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE FRASER
and
MRS JUSTICE HILL
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
A
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Alexander Wright
(instructed by
T V Edwards LLP
) for the
Appellant
Mr Louis Mably QC and Alisdair Smith
(instructed by
CPS
) for the
Respondent
Hearing dates : 4 July 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Section 1 of the Sexual Offences (Amendment) Act 1992 applies in this case. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed. Reporting restrictions therefore apply in this case.
Dame Victoria Sharp, P.:
Introduction
1.
This application for permission to appeal has been referred to the Full Court by the Registrar. We granted permission to appeal at the hearing, and proceeded to hear the appeal. Because reporting restrictions apply in this case, and there is a familial relationship between the complainant and the appellant, we shall refer to them both using those terms.
2.
Between 21 and 25 February 2022, the appellant, who was then 21 years old, stood trial in the Crown Court at Snaresbrook before HHJ Casey and a jury on five counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003 (the 2003 Act). On 25 February 2022, he was convicted on two counts, counts 4 and 5 and acquitted of three counts, counts 1 to 3. On 29 April 2022, the appellant was sentenced by the trial judge to a total of 10 months’ imprisonment, suspended for two years. He became subject to the notification requirements under Part 2 of the 2003 Act for a period of 10 years and a Restraining Order was made, forbidding contact with the complainant.
3.
The grounds of appeal are in summary first, that the prosecution’s application made prior to the trial under section 28 of the Youth Justice and Criminal Evidence Act (the 1999 Act) should not have been granted. This was because the relevant legislation in force at the time did not permit the evidence of the complainant to be adduced by way of pre-recorded evidence under section 28 in circumstances where though she was 16 when she gave her ABE (achieving best evidence) interview, she was 18 by the time the application under section 28 was made. Secondly, at the ground rules hearing which then took place, the judge inappropriately restricted the questions the defence proposed to ask in cross examination. In the result, on either or both grounds, it is submitted that the appellant’s conviction is unsafe.
Facts
4.
The facts in brief are as follows.
5.
The appellant was born in the United Kingdom but was taken by his parents to live in Saudi Arabia when he was young. For the next few years, he and his parents lived there but the family returned to the United Kingdom every summer to visit and stayed with family members. The appellant and the complainant are cousins (his mother, and the complainant’s mother, are sisters). The complainant lives with her mother in her grandmother’s house. In 2011, when the appellant was 10 years old, his family returned to the United Kingdom, but the pattern of family visiting remained. This meant that the appellant and his brothers would often stay at the house where the complainant lived, with the visitors sleeping on the sofa, or sometimes on the floor in her bedroom.
6.
In December 2018, the appellant was 18 and the complainant was 16. The complainant’s account was that during the night of 29 December 2018, the appellant climbed into bed with her, and sexually assaulted her. There were two sexual assaults on that occasion (counts 4 and 5). He entered her bedroom and she told him to get out, to no avail. The first assault involved him fondling and sucking her breasts; she told him to stop but he did not do so. He then moved his hands down into her pyjama shorts and touched her vagina. She called him a “filthy prick” at which point he did stop, left her bedroom and slept elsewhere. She said that at no point did she consent to this activity. The complainant’s account was corroborated by her boyfriend who was on the telephone to her at the time; he heard someone enter her bedroom and her telling someone to leave.
7.
The complainant had previously exchanged Instagram messages with a friend in which she expressed concern that the appellant was visiting and said he had “touched her up” before (the allegations relating to “touching up” formed the basis of counts 1 to 3). The friend suggested the complainant should come and sleep at her house, but the complainant feared this would worry her mother who had not been told of the earlier incidents. Her friend advised the complainant to keep her boyfriend on the telephone and to put something heavy behind her bedroom door to make it harder for the appellant to come into her bedroom.
8.
On 30 December 2018, the complainant gave her account of what had happened to her friend, her boyfriend and her mother. On 9 January 2019, the complainant and her mother attended a specialist facility for victims of sexual assault where she was spoken to by specialist officers. On 30 January 2019, the complainant – who was still 16 - recorded her ABE interview. Thereafter, the appellant attended the police station on a voluntary basis and was interviewed in the presence of his solicitor. His account was that the complainant consented to the touching of her breasts. He denied he had touched her under her shorts.
9.
The central issues fo
r the jury to determine were, for count 1 whether any touching was sexual or just part of play fighting, for counts 2 to 3 whether the incident happened at all, and for counts 4 and 5 whether the appellant had touched the complainant’s vagina as she had alleged and whether there was consent, or at least a reasonable belief in consent, to the touching of the breasts.
The principal evidence at trial came from complainant in the form of pre-recorded evidence: her evidence in chief which consisted of her ABE interview and her cross examination, pre-recorded under section 28 of the 1999 Act. The prosecution also called other evidence including from the complainant’s friend and her boyfriend. The appellant did not give evidence at trial but adduced evidence from his mother regarding what the complainant had said after the incident.
Relevant chronology
10.
The complainant was born on 20 July 2002. At the time of the alleged assaults (on 29 December 2018) and her ABE interview, she was 16. By the time the appellant was charged (in September 2020) the complainant was 18. The appellant’s case was sent to the Crown Court on 21 December 2020.
11.
On 7 January 2021, when the complainant was still 18, the prosecution applied for the complainant’s evidence in cross examination to be adduced by way of pre-recorded video evidence pursuant to section 28 of the 1999 Act. The prosecution submitted that a witness qualified for this special measure if she was under 18 at the time of her ABE interview. The application was opposed by the defence. The defence did not oppose the admission of the complainant’s ABE interview as her evidence in chief. It was submitted however that as she had reached the age of 18 by the time of the section 28 application, the statutory provisions did not apply in her case, and she should be cross-examined over a live link. On 4 February 2021, HHJ del Fabbro heard the section 28 application. On 11 February 2021, he gave a ruling in which he allowed the prosecution’s application.
12.
On 22 April 2021, the ground rules hearing was held before the same judge. HHJ del Fabbro had directed that questions be served in advance of the ground rules hearing, and the defence served a list of 208 questions. The prosecution objected to about 40 of those questions, and having heard argument, the judge directed that the questions objected to should take the form proposed by the prosecution. On 29 April 2021, the complainant’s cross examination and re-examination took place and were video recorded.
Statutory provisions
13.
There have been a number of statutory developments over a period of years which have been designed to improve the quality of evidence in cases where witnesses are vulnerable, including by reason of their age.
14.
The 1999 Act has been amended over time and the relevant sections of that Act as amended are now as follows:
“Section 16
Witnesses eligible for assistance on grounds of age or incapacity
.
(1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—
(a) if under the age of 18 at the time of the hearing; or
(b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).
…
(3) In subsection (1)(a) “the time of the hearing”, in relation to a witness, means the time when it falls to the court to make a determination for the purposes of section 19(2) in relation to the witness.”
15.
Section 16(2) does not apply to this case.
16.
Section 17 of the 1999 Act concerns witnesses in fear or distress about testifying, and complainants in sexual offences and modern slavery offences. Section 17(4) of the 1999 Act provides as follows:
“(4) Where the complainant in respect of a sexual offence…… is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness’ wish not to be so eligible by virtue of this subsection.”
17.
Section 17(4) of the 1999 Act was not in force at Snaresbrook Crown Court at the time material to this appeal, because that section of the 1999 Act was not specified in the relevant Commencement Order (see para 25 below).
18.
Section 18 is headed “special measures available to eligible witnesses” and provides:
“(1) For the purposes of this Chapter—
(a) the provision which may be made by a special measures direction by virtue of each of sections 23 to 30 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and
(b) the provision which may be made by such a direction by virtue of each of sections 23 to 28 is a special measure available in relation to a witness eligible for assistance by virtue of section 17;
but this subsection has effect subject to subsection (2).
(2) Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless—
(a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and
(b) the notice has not been withdrawn.
(3) In subsection (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.
(4) The withdrawal of a notice under that subsection relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness’s evidence has been made by the court before the notice is withdrawn.
(5) The Secretary of State may by order make such amendments of this Chapter as he considers appropriate for altering the special measures which, in accordance with subsection (1)(a) or (b), are available in relation to a witness eligible for assistance by virtue of section 16 or (as the case may be) section 17, whether—
(a) by modifying the provisions relating to any measure for the time being available in relation to such a witness,
(b) by the addition—
(i) (with or without modifications) of any measure which is for the time being available in relation to a witness eligible for assistance by virtue of the other of those sections, or
(ii) of any new measure, or
(c) by the removal of any measure.”
19.
Section 19 deals with special measures generally:
“
Special measures direction relating to eligible witness
(1) This section applies where in any criminal proceedings—
(a) a party to the proceedings makes an application for the court to give a direction under this section in relation to a witness in the proceedings other than the accused, or
(b) the court of its own motion raises the issue whether such a direction should be given.
(2) Where the court determines that the witness is eligible for assistance by virtue of section 16 or 17, the court must then—
(a) determine whether any of the special measures available in relation to the witness (or any combination of them) would, in its opinion, be likely to improve the quality of evidence given by the witness; and
(b) if so—
(i) determine which of those measures (or combination of them) would, in its opinion, be likely to maximise so far as practicable the quality of such evidence; and
(ii) give a direction under this section providing for the measure or measures so determined to apply to evidence given by the witness.
(3) In determining for the purposes of this Chapter whether any special measure or measures would or would not be likely to improve, or to maximise so far as practicable, the quality of evidence given by the witness, the court must consider all the circumstances of the case, including in particular—
(a) any views expressed by the witness; and
(b) whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings.”
20.
Section 21 of the 1999 Act provides as follows:
“
Section 21
Special provisions relating to child witnesses
(1) For the purposes of this section—
(a) a witness in criminal proceedings is a “child witness” if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);
(b) [
repealed in 2009
] . . . and
(c) a “relevant recording”, in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
(2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must—
(a) first have regard to subsections (3) to (4C) below; and
(b) then have regard to section 19(2);
and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.
(3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements—
(a) it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief); and
(b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 24.”
(4) The primary rule is subject to the following limitations—
(a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;
(b) the requirement contained in subsection (3)(a) also has effect subject to section 27(2); ...
(ba) if the witness informs the court of the witness's wish that the rule should not apply or should apply only in part, the rule does not apply to the extent that the court is satisfied that not complying with the rule would not diminish the quality of the witness's evidence; and
(c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness’s evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).
(4A) Where as a consequence of all or part of the primary rule being disapplied under subsection (4)(ba) a witness's evidence or any part of it would fall to be given as testimony in court, the court must give a special measures direction making such provision as is described in section 23 for the evidence or that part of it.
(4B) The requirement in subsection (4A) is subject to the following limitations—
(a) if the witness informs the court of the witness's wish that the requirement in subsection (4A) should not apply, the requirement does not apply to the extent that the court is satisfied that not complying with it would not diminish the quality of the witness's evidence; and
(b) the requirement does not apply to the extent that the court is satisfied that making such a provision would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).
(4C) In making a decision under subsection (4)(ba) or (4B)(a), the court must take into account the following factors (and any others it considers relevant)—
(a) the age and maturity of the witness;
(b) the ability of the witness to understand the consequences of giving evidence otherwise than in accordance with the requirements in subsection (3) or (as the case may be) in accordance with the requirement in subsection (4A);
(c) the relationship (if any) between the witness and the accused;
(d) the witness's social and cultural background and ethnic origins;
(e) the nature and alleged circumstances of the offence to which the proceedings relate.”
……..
(8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then—
(a) subject to subsection (9) below, and
(b) except where the witness has already begun to give evidence in the proceedings, the direction shall cease to have effect at the time when the witness attains the age of 18.
(9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and—
(a) the direction provides—
(i) for any relevant recording to be admitted under section 27 as evidence in chief of the witness, or
(ii) for the special measure available under section 28 to apply in relation to the witness, and
(b) if it provides for that special measure to so apply, the witness is still under the age of 18 when the video recording is made for the purposes of section 28,
then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.”
21.
The explanatory notes for section 21(8) and (9) subsections say this:
“103. Subsection (8) provides that, if a court makes a special measures direction in respect of a child witness who was eligible for special measures on grounds of youth only, and the witness turns 17 before beginning to give evidence, the direction will no longer have effect. But if such a witness turns 17 after beginning to give evidence, the special measures provided for him will continue to apply. The intention is to reduce confusion for the witness and the court.
104. Subsection (9) provides that if a witness gave video-recorded evidence in chief or was cross-examined on video before the trial when he was under 17, but since turned 17, the video recording will still be admissible as evidence.”
22.
Section 22 extends the provisions of section 21 to other witnesses, in addition to child witnesses, in the following terms:
“Section 22
Extension of provisions of section 21 to certain witnesses over 18
(1) For the purposes of this section—
(a) a witness in criminal proceedings (other than the accused) is a “qualifying witness” if he—
(i) is not an eligible witness at the time of the hearing (as defined by section 16(3)), but
(ii) was under the age of 18 when a relevant recording was made;
(b) [
repealed in 2009]…
and
(c) a “relevant recording”, in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
(2) Subsections (2) to (4) and (4C) of section 21, so far as relating to the giving of a direction complying with the requirement contained in section 21(3)(a), apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section).”
23.
Section 27 deals with ABE evidence. It is headed “Video recorded evidence in chief” and provides (in part) that:
“(1) A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness.
(2) A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.”
In the subsequent sub-sections of section 27, more detailed provision is made for situations in which only a part of the ABE interview is played, a witness is called for cross-examination, and other circumstances which are not relevant to the instant case.
24.
The relevant parts of Section 28 provide as follows:
“Section 28
Video recorded cross-examination or re-examination
(1) Where a special measures direction provides for a video recording to be admitted under section 27 as evidence in chief of the witness, the direction may also provide—
(a) for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and
(b) for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be.
(2) Such a recording must be made in the presence of such persons as Criminal Procedure Rules or the direction may provide and in the absence of the accused, but in circumstances in which—
(a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made, and
(b) the accused is able to see and hear any such examination and to communicate with any legal representative acting for him.”
25.
Section 28 of the 1999 Act was brought into force in relation to Snaresbrook Crown Court by statutory instrument, the Youth Justice and Criminal Evidence Act 1999 (Commencement No 18) Order 2020 (the Commencement Order). That Order brought section 28 into force from 24 August 2020 if two conditions are satisfied. The first condition is that proceedings take place before one of a number of specified Crown Court locations. Snaresbrook is included in that list. The second condition is that the witness is eligible for assistance by virtue of section 16 of the 1999 Act.
The parties’ submissions
26.
Mr. Alexander Wright appeared for the appellant, as he did at the section 28 application, the ground rules hearing and the trial. He submitted, as he did before HHJ del Fabbro, that section 16(1)(a) of the 1999 Act makes a witness eligible for assistance only if they are under the age of 18 at the time of the hearing. Section 16(1)(3) clarifies that “the time of the hearing” refers to the time of the hearing of the application for special measures i.e. when it falls to the court to make a determination for the purposes of section 19(2) in relation to the witness. For present purposes, this was on 4 February 2021. Since this was after the complainant became 18, section 16(1)(a) did not apply. It follows that the Commencement Order conditions were not satisfied, the section 28 procedure was not available and the (cross examination) evidence from the complainant taken in this form should not have been adduced at the appellant’s trial. Though the complainant’s evidence in chief could properly be given by way of her recorded ABE interview, she should have been cross examined over the live link and in the usual way, that is, without notice of the defence questions to the prosecution and the court. The judge’s ruling was therefore wrong as a matter of law; and the use of the section 28 procedure undermined the safety of the appellant’s conviction.
27.
As for the ground rules hearing, Mr Wright submitted that some of the changes made at the prosecution’s invitation to the questions proposed by the defence, also had a serious effect on the fairness of the appellant’s trial. His principal example concerned one question which in the original defence draft was in this form: “So as soon as you told him that you were not happy he stopped? This was changed at the judge’s direction to this: “Did he stop as soon as you told him you were not happy?”
28.
Mr Louis Mably QC for the respondent, who did not appear below, provided a helpful analysis of the relevant legislation. He also identified what was described in his written submissions, as a possible route for the judge to have concluded that the section 28 procedure was available in this case. He did not press this point in oral argument however, but realistically and fairly identified the reasons why this court might take the view that the judge’s interpretation of the relevant legislation was erroneous. In the result, Mr Mably’s main focus was on the issue of safety of the appellant’s conviction. He submitted that it cannot be said that the making of the section 28 direction or its implementation at trial, affected the safety of the appellant’s conviction. Further, to the extent there was any restriction on the questions that could be put in cross examination, this was not improper and cannot be said to have rendered the appellant’s conviction unsafe.
Discussion
29.
It is helpful to start with a summary of how the material parts of the legislative scheme for special measures operates under the current legislation. A witness is eligible for special measures assistance if section 16 of the 1999 Act or section 17 applies. Section 16 applies in the case of a witness aged under 18 at the time the court is considering the special measures application (and in certain circumstances not material here). The complainant had attained the age of 18 by the time of the prosecution’s application for a measure under section 28, and therefore she was not eligible under section 16. She was however eligible for assistance under section 17(4) of the 1999 Act which applies in the case of a complainant in respect of a sexual offence. Section 18 provides that in the case of a witness eligible under section 17, the special measures available are those set out in sections 23 to 28 which include evidence by live link (section 24), video recorded evidence in chief (section 27) and video recorded cross examination and re-examination (section 28).
30.
Section 19(2) provides that where a witness is eligible for assistance under section 16 or section 17, the court is empowered to make a special measures direction. When considering making a direction, the court must determine whether any of the measures available in relation to the witness would be likely to improve the quality of the witness’s evidence, and, if so, which of those measures would be likely to maximise the quality of the evidence. Having made a determination in that regard, the court must make a direction accordingly. The court’s determinations pursuant to section 19(2) are subject to a “primary rule” set out in section 21 which serves as a presumption in the case of a witness eligible by virtue of section 16(1)(a) (that is, aged under 18 at the time of the court hearing to consider the making of a direction), and who has been interviewed on video with a view to the recording being admitted as his or her evidence in chief. In such a case, subsection (3) provides that the primary rule is that the court must make a direction for the recording, or recordings to be admitted in evidence in chief under section 27, and for any evidence given by the witness which is not given by means of video recording (whether in chief or otherwise) to be given by live link under section 24.
31.
Section 22 extends the primary rule in the case of a qualifying witness, namely a witness who was aged under 18 at the time the recording was made, but who has attained that age at the time of the hearing. In such a case, the primary rule is extended to the extent that the court must direct that the recording be admitted as evidence in chief under section 27. The complainant was a qualifying witness in this regard. The special measure we are concerned with here, video recorded cross examination, is provided for by virtue of section 28 and pursuant to section 18, is available in the case of a witness eligible for assistance by virtue of section 16 and section 17. Importantly however, at the material time, namely when the application for the special measure was made (on 4 February 2021) section 28 was only partially in force for Snaresbrook: it was only in force for witnesses eligible for assistance by virtue of section 16
32.
In our view, it is plain from an ordinary reading of the relevant legislation, including the Commencement Order, that the appellant’s submissions on the availability of section 28 at the material time, are correct. The complainant was not eligible for assistance by virtue of section 16, because of her age at the time the section 28 application was made, and this was the only route available because of the terms of the Commencement Order.
33.
We are unable to accept the way round this difficulty proposed by the prosecution below and accepted by HHJ del Fabbro. The judge accepted that the primary rule as extended to the witness by virtue of section 22, made the section 28 special measure available in her case. This was on the basis that the wording of the primary rule in section 21(3)(b) in relation to live links, indicated that the rule permitted a direction for video recorded evidence “otherwise” than evidence in chief.
34.
As Mr Mably accepted however, section 22 does not extend the primary rule to a qualifying witness in respect of the live link provision where the words “or otherwise” are contained: section 21(3)(b). The rule is only extended in respect of recorded evidence in chief: section 21(3)(a), and see section 22(2). In any event, in its natural and contextual meaning, the phrase “or otherwise” in section 21(3(b) caters for the position where a video recorded cross examination has been directed in an appropriate case. The provision does of itself make available a measure under section 28, or make any particular measure available. It simply informs the court how it should proceed in the case of measures that are available by virtue of section 18, read with sections 16 and 17. Nothing in section 21 or section 22 directly, or by way of a deeming provision, makes a witness eligible under section 16 for section 28 purposes, or otherwise makes a measure under section 28 available. It follows that the route adopted by the judge, namely that sections 21 and 22 of 1999 Act when read together permitted the pre-recording of the complainant’s cross-examination pursuant to section 28, whereas her age at the time did not, does not accord with the meaning of the statutory scheme. Nor does it accord with the terms of the Commencement Order which plainly restricted the operation of section 28 to a witness eligible under section 16 only.
35.
This conclusion is consistent with the terms of the relevant Criminal Practice Direction. This provides as follows:
“Criminal Practice Direction V Evidence 18E: Use of s.28 YJCEA 1999; Pre-recording of Cross-examination and Re-examination for Witnesses Captured by s.16 YJCEA 1999 18E.1
When Section 28 of the Youth Justice and Criminal Evidence Act 1999 (s.28 YJCEA 1999) is bought into force by Statutory Instrument for a particular Crown Court, under that SI, a witness will be eligible for special measures under s.28 if (i) he or she is under the age of 18 at the time of the special measures determination; or (ii) he or she suffers from a mental disorder within the meaning of the Mental Health Act 1983, or has a significant impairment of intelligence and social functioning, or has a physical disability or a physical disorder, and the quality of his or her evidence is likely to be diminished as a consequence.”
36.
The question that then arises is whether the use of the section 28 procedure in these circumstances affected the safety of the appellant’s conviction. We are not persuaded that it did. First, in our view, the admission of the recording is a procedural irregularity the mere fact of which does not invalidate the proceedings, or affect the safety of the conviction. Secondly, it seems to us that this part of the appellant’s case is based on a misconception, namely that the receipt of the pre-recorded cross examination of a witness is unfair to a defendant without more. Different measures have been adopted over time for the receipt of evidence to refine and improve the criminal trial process – including the use of screens, live links and the receipt of pre-recorded evidence. Provided the relevant safeguards are in place, there is nothing inherently unfair to a defendant in the jury receiving such evidence. In this context we note that during the course of the application before HHJ del Fabbro, the judge asked Mr Wright whether there would be any prejudice (to the defence) if the section 28 procedure were to be adopted, and Mr Wright expressly accepted there would not be.
37.
We note too that in the course of the summing up, about which no criticism is made, the jury were given specific directions on the different ways that they had received evidence during the trial. The trial judge said: “Obviously you have had evidence on oath from the witness box. However, it has been presented to you in other forms too. In this case there have been the pre-recorded, video interview and then cross-examination. The status of this evidence would have been no different had it been given from the witness box; it is the same. Such measures are now routine in the Crown Court and is certainly not a matter that should be held against the defendant in any way. Their use therefore has no weight in the case and must not affect your deliberations.”
54.
We turn next to the issue of the ground rules hearing. The gravamen of Mr Wright’s submissions before us did not concern the holding of the ground rules hearing
per se
, but what was described in the written grounds as an “improper restriction on questioning.” This related, as earlier indicated, to amendments made by the court to questions which the defence proposed to ask in cross examination, following objections by the prosecution.
55.
We start by noting two points. First, directions were given about this feature of the evidence in the summing up, where the trial judge said: “Regarding the pre-recorded cross-examination carried out by Mr Wright for the defence, as [the complainant] was quite young he was not permitted to question and in particular challenge [the complainant] in the same way, or for the same amount of time, as a defence advocate would have questioned and challenged an older witness. This does not mean, however, that [the complainant’s] evidence is not disputed, and you should not regard the limited manner of the questions as in any way lessening the extent to which it is disputed.” Secondly, the Criminal Practice Directions (at PD1A) provide in relation to vulnerability, that: “1. The overriding objective requires that in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that the parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings. 2. Vulnerability of a party or witness may impede participation and also diminish the quality of the evidence. The court should take all proportionate measures to address these issues in every case.”
56.
Turning then to the specific issues raised, there is, with respect to Mr Wright, little merit in this ground of appeal. The appellant was not prevented from cross examining the complainant on any topic Mr Wright considered relevant to the defence. Further, the changes made to the questions drawn to our attention were, in our judgment both “light touch” and sensible; they did not alter the substance or the nature of the questions, or disguise or change the way that the complainant’s evidence was tested, let alone lead to answers that would not otherwise have been given and could not be challenged. During the course of the ground rules hearing, Mr Wright made the point to the judge with regard to the questions under consideration, that the complainant was no longer a child. The judge was obviously aware of this, as he was that this was a sensitive case in which an allegation of sexual assault was made by one young family member against another – and where, as the judge observed, the complainant was barely out of her teens. In the result, the adjustments made were in our judgment unobjectionable and proportionate in all the circumstances, simply splitting one question into two for example, or slightly simplifying the language used or converting some of the closed statements to be put, to open questions.
57.
We do not accept either that Mr Wright’s ability to challenge the complainant was compromised. Mr Wright relied on one matter in particular. The complainant said in cross examination that she had to tell the appellant twice before he stopped. This was something she had not said in her ABE interview. The judge had indicated at the ground rules hearing that Mr Wright would be able to ask a follow up question in such circumstances, i.e. if matters were mentioned in cross examination that were not in the complainant’s ABE interview. In relation to the interchange highlighted by Mr Wright, this is precisely what happened (in a part of the cross examination to which attention was specifically drawn in the summing up).
62.
For the reasons we have identified, the section 28 procedure was not available in this case. We are not satisfied however that its use or the decisions made at the ground rules hearing, affected the safety of the appellant’s conviction. This appeal is, accordingly, dismissed. | [
"MRS JUSTICE HILL"
] | 2022_07_19-5392.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/988/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/988 | 891 |
43fa64dd7573ba2b1847e9f36841f4e9ee07aaaca764ab66d54de01e7f4aaf0e | [2013] EWCA Crim 2398 | EWCA_Crim_2398 | 2013-12-20 | crown_court | Case No: 201300229 C1 Neutral Citation Number: [2013] EWCA Crim 2398 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHELMSFORD CROWN COURT - MR JUSTICE OWEN Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/12/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE MITTING and RECORDER OF LEEDS - HIS HONOUR JUDGE COLLIER QC - - - - - - - - - - - - - - - - - - - - - Between : PAUL BARRY TAYLOR Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Case No:
201300229 C1
Neutral Citation Number:
[2013] EWCA Crim 2398
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
CHELMSFORD CROWN COURT - MR JUSTICE OWEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/12/2013
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE MITTING
and
RECORDER OF LEEDS - HIS HONOUR JUDGE COLLIER QC
- - - - - - - - - - - - - - - - - - - - -
Between :
PAUL BARRY TAYLOR
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
O Pownall QC and A Rafferty
(instructed by
Devas, Lewis & James Solicitors
) for the
Appellant
K S Khalil QC and C Morgan
(instructed by
CPS
) for the
Respondent
Hearing date: 14 November 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
The appeal
1.
This is an appeal against conviction brought with the leave of the single judge to raise four grounds all of which concern the fairness of a trial conducted some 33 years after the events that formed the subject matter of the indictment.
2.
The appellant, Paul Barry Taylor was born on 9 March 1952 and is now aged 61 years. In his early twenties he served for two years in the army. On his discharge he married his wife Beverley in 1974 and they and their family lived in Peterborough. The appellant worked as a jobbing builder. Between October 1968 and September 1983 he acquired several convictions for offences of dishonesty. On 3 March 1980 he was sentenced at Huntingdon Crown Court to a term of 3 years imprisonment for an offence of wounding, four offences of burglary, two offences of obtaining property by deception, an offence of theft and for breach of a suspended sentence. On 15 August 1980 he was sentenced to 3 months imprisonment consecutive for further offences of theft and obtaining by deception. Otherwise, the appellant received non-custodial penalties. He had never been convicted of a sexual offence and save for the offence of wounding had not been convicted of an offence of violence. In the 1980s the appellant left the Peterborough area. Subsequently, he settled in Devon and re-married.
3.
The complainants to whom we refer in the course of this judgment are entitled to anonymity under the provisions of the Sexual Offences (Amendment) Act 1992 and we shall use initials to identify them.
4.
Between 8 October and 4 December 2012 at Chelmsford Crown Court before Owen J the appellant was tried on an indictment containing seven counts. The jury returned unanimous verdicts of guilty and on 5 December 2012 the appellant was sentenced as follows:
Count 1:
On 5 March 1979, rape of DD, contrary to section 1(1) of the Sexual Offences Act 1956: 16 years imprisonment;
Count 2:
On 15 March 1979, buggery with DD, contrary to section 12(1) of the Sexual Offences Act 1956: 16 years imprisonment;
Count 3:
On 15 March 1979, rape of DD, contrary to section 1(1) of the Sexual Offences Act 1956: 16 years imprisonment;
Count 4:
On 8 April 1979, attempted rape of LW, contrary to section 1(1) of the Criminal Attempts Act 1977: 9 years imprisonment;
Count 5:
(alternative to count 4): On 8 April 1979 indecent assault of LW, contrary to section 14(1) of the Sexual Offences Act 1956: no verdict taken;
Count 6:
On 28 June 1979, rape of ASF, contrary to section 1(1) of the Sexual Offences Act 1956: 14 years imprisonment;
Count 7:
Between 10 July 1979 and 2 March 1980, murdered Sally Ann McGrath: imprisonment for life, minimum term 18 years.
All sentences were ordered to be served concurrently. The time spent by the appellant on remand in custody (421 days) was ordered to count towards sentence.
5.
The prosecution case was that in his twenties the appellant was a sexual predator. He made no secret of the fact that he engaged in extra-marital sexual intercourse. In his social activities he had a certain easy charm that was attractive to some women. However, the prosecution set out to establish that once a woman was in his control he could turn into a dominant, frightening and violent man should his demand for sexual relations be met with reluctance or refusal; that he carried out a series of violent sexual attacks on women, both those the subject of counts in the indictment and, on 8 August 1974, upon a 17 year old girl, LB, and on 24 August 1979, upon his 15 year old sister-in-law, AF. The prosecution relied on features common to the attacks as supportive of the separate complaints and as evidence of propensity.
6.
As to count 7, Sally Ann McGrath, known as Sally, disappeared from home where she lived with her parents on 11 July 1979. It was the prosecution case that the appellant was the last person to be in Sally’s company before she died.
7.
On 1 March 1980 Sally McGrath’s body was discovered at Wild Boar Spinney in a remote wooded plantation called Castor Hanglands, some 9 miles to the north west of Peterborough town centre. Although the body was decomposed the pathologist at post-mortem found fractures to the right side of the skull and across the base of the skull. There was also found bruising to the right temple and a fractured nose. There had been at least two blunt force impacts to the head and another to the face. The body was found in the same remote area and within 600 metres of the position in which the prosecution asserted the appellant had, two weeks before Sally McGrath’s disappearance, raped ASF. On 11 July 1979 the appellant was on bail for an alleged offence of burglary. He was required as a condition of his bail to report to Bridge Street police station in Peterborough each day at 6.00 pm and to remain at home each night between 9.00 pm and 6.00 am. Between 7 July and 19 August 1979 the appellant reported daily on time except on 11 July when he phoned the police station at 5.49 pm stating that his vehicle had broken down. He later appeared at the police station at 8.00 pm. At 9.00 pm a police officer received a call from the appellant asking to speak to DC Keith Chamberlain, the officer in charge of the burglary enquiry. At 10.30 pm DC Brooks was sent to the appellant’s home at 70 Paynesholme in the Paston area of Peterborough. The door was answered by the appellant’s wife, Beverley, who said that her husband was not at home. DC Brooks looked for but could not find the appellant’s blue Bedford van. When the appellant was interviewed on 9 April 1980 he claimed that he had all along been at home but had told his wife to say that he was not. The prosecution contended that the appellant must have had something important to conceal if he was prepared to take the risk of being summoned for a breach of his bail conditions.
8.
At about 10.45 pm on the night of 11 July 1979 a van of similar appearance to that owned and used by the appellant was seen in the main street of the village of Castor. About 15-30 minutes later it was seen apparently emerging from a track leading into the woods. On Friday, 13 July 1979 the appellant advertised his blue Bedford van for sale in the Peterborough Evening Telegraph. He later told a fellow inmate in prison that he had cleaned his van thoroughly before he sold it.
9.
The prosecution adduced evidence that while he was in custody on remand awaiting trial for the offences for which, in August 1980, he was sentenced to 3 years imprisonment, when aware that the body of Sally McGrath had been found, the appellant wrote to his wife on three occasions directing her to recover his clothing from the police and to destroy it. While in custody he bragged about his sexual exploits, including his violence towards his sexual conquests, and admitted on more than one occasion to the murder of Sally McGrath.
Application to stay the indictment
10.
On 31 May 2012 the trial judge, Owen J, considered the written and oral submissions made on behalf of the appellant and the prosecution upon the issue whether the indictment should be stayed on the ground of abuse of process of the court. In a written judgment, handed down on 5 July 2012, the judge refused the application. Ground 1 of the appeal is that the judge was wrong to do so. The appellant asserts that it was not possible after such a lengthy delay for a fair trial to take place. As it seemed to us, and as was acknowledged by Mr Pownall QC on behalf of the appellant, since the challenge is to the safety of the verdicts the emphasis in the appeal should be upon the question whether the appellant has been convicted following a fair trial. This, we apprehend, was the view of the single judge who concluded that ground 1 interlocked with the appellant’s other grounds which assert that evidence was wrongly admitted during the trial.
11.
It was common ground before the judge that evidence available to the prosecution in 1980 was sufficient to establish a prime facie case of murder against the appellant. Nonetheless a decision had been made not to prosecute. It follows that the responsibility for the delay was, fairly and squarely, that of the prosecution. It is, however, well known that a stay of the indictment will not be granted in the absence of such prejudice to the defence that a fair trial cannot be held. When assessing whether there has been serious irremediable prejudice the court will bear in mind its power to regulate the admission of evidence and the ability of the trial process to ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate directions from the judge (see
Crown Prosecution Service v F)
[2011] EWCA Crim 1844
per Lord Judge CJ at paragraph 24). At paragraph 48, Lord Judge reiterated that justification for delay is relevant only to the extent that it bears upon the question whether a fair trial is no longer possible by reason of prejudice to the defendant occasioned by delay which cannot fairly be addressed in the trial process.
12.
The decision not to prosecute appears to have been based upon the advice of Treasury counsel. Without viewing the advice for himself Owen J accepted Mr Khalil QC’s assurance on behalf of the respondent that the decision not to prosecute in 1980 was made upon a consideration of the available evidence. No misconduct was revealed. Mr Pownall QC invited this court, as he had invited the trial judge, to view the advice given by counsel in case there was material revealed that went to the issue of fault and might be relevant to the fairness of the trial. We acceded to that request and, having read a copy of the advice, which does not contain counsel’s signature, we are quite satisfied that in the landscape of the administration of criminal justice in 1980 the advice given was appropriate. We saw no reason why the advice should not be disclosed to the appellant and disclosure took place. It is plain that no manipulation of the process of the Crown Court has taken place that would have justified a stay of proceedings upon the first of the grounds identified by Sir Roger Ormrod in
Derby Crown Court, ex parte Brooks
[1985] 80 Crim App R 164 at pages 168-169. A ‘cold case’ review took place in 2010 – 2011 into the evidence relating to the death of Sally McGrath the result of which was the indictment faced by the appellant in 2012.
13.
The judge concluded, rightly in our view, that the nature of the error in assessment of the merits of the prosecution case in 1980, if it was properly so called, did not in any event bear upon the question whether a fair trial could take place. He turned to examine the effect of delay and accepted that (1) many of the witnesses were dead; if on that account their evidence was read it could not be challenged in cross-examination; (2) witnesses giving oral evidence would rely to a significant extent upon the truth and accuracy of their witness statements and the scope for cross-examination was thus reduced; (3) lines of enquiry which may have been open to the defence in 1980 were now effectively closed; (4) the appellant himself said that his own recollection of events in 1979 was minimal; and (5) the appellant when interviewed during separate enquiries in 1979 and 1980 did not, if the police summaries were admitted in evidence, have the protection of contemporaneous recording that he would have had after the Police and Criminal Evidence Act 1984 and, furthermore, the summaries made after each interview were not presented to the appellant for his acknowledgement or denial.
14.
The judge proceeded to examine each of the counts in the indictment and to assess the impact of delay upon the defence case as he understood it to be. He concluded that the disadvantages suffered by the appellant were peripheral to the main issue between the defence and the prosecution and/or that the trial process would be able to deal with the issues arising, particularly by a consideration whether to admit evidence that could not be effectively challenged. The application to stay the indictment was refused.
15.
The judge was aware that at the time of his ruling he did not have such a grasp of the detail of the evidence as that he would acquire during the course of the trial. He would therefore keep his decision under review. No application was made to the judge during the trial to conduct that review. It is now submitted, however, that there remained short-comings in the investigation and in the availability of evidence that did in fact have a fatal impact upon the fairness of the trial.
Grounds of appeal
16.
The appellant advances the following grounds of appeal:
(1)
Due to the passage of time the appellant could not, and did not, have a fair trial. It is now submitted as a new but un-pleaded ground of appeal that the judge’s directions to the jury on the subject of delay should have included but did not include references to specific shortcomings in the available evidence disclosed in respect of each of the incidents on which the prosecution relied.
(2)
The trial judge wrongly permitted the prosecution to adduce the evidence of LB and AF, whose complaints of rape and attempted rape were said to support the counts in the indictment. The appellant had been tried and acquitted in 1975 and 1979 respectively. Important evidence was no longer available.
(3)
The trial judge wrongly permitted the prosecution to adduce evidence of ‘cell’ confessions made by the appellant. All but one of the witnesses had since died; the circumstances could not be investigated adequately and the evidence could not be challenged effectively.
(4)
The trial judge wrongly permitted the prosecution to adduce evidence of the appellant’s responses to questions in an interview under caution held on 9 April 1980; the interviews were not recorded contemporaneously; nor were the summaries of interview shown to the appellant for acknowledgement or denial.
The evidence at trial
LB
17.
The appellant was charged with an offence of rape upon LB for which he was tried at Leicester Crown Court in 1975. The jury returned a verdict of not guilty. The judge nonetheless permitted the prosecution to adduce in 2012 the evidence of LB, both as capable of supporting other complainants unconnected with her and as evidence of bad character going to the issue, under sections 101 and 103 of the Criminal Justice Act 2003, whether the appellant had a propensity for sexual violence towards young women. It is not submitted that the evidence was inadmissible for the purpose sought by the prosecution but that it should have been excluded for the following reasons:
(1)
There was no transcript of the original proceedings available by which the defence could ascertain what it was that troubled the jury about LB’s evidence;
(2)
There were no witness statements available as to recent complaint, no exhibits and no defence solicitors’ file;
(3)
There were no statements available from investigating police officers, the doctor who examined the complainant, or from friends who had been in LB’s company;
(4)
There was no record of interview with the appellant;
(5)
When questioned about these matters in evidence, the officer in the case, Detective Superintendent Hill, said that no attempt had been made to trace and interview witnesses referred to by LB in her witness statements.
18.
LB said that on 8 August 1974 when she was aged 17 she was living in Peterborough. She went with the appellant in his MGB sports car to the Norfolk Public House in Peterborough. When they left he said they were driving to his place of work to fetch some money that he owed to LB. That was an excuse. When he stopped the car the appellant told her that he was going to rape her. He pulled up her dress; he pulled at her top causing her buttons to pop and marks to her breasts; he pulled off her tights and pants and inserted his penis into her vagina. It slipped out twice because of the rake of the seat and the confined space. Eventually he desisted and returned LB to her flat. On the following day she went to the police station with her friend. She took with her the clothes she had been wearing. The police recovered some of the buttons from her dress in the appellant’s car together with her tights and some jewellery. In cross-examination LB agreed that she had said in her witness statement dated 13 August 1974 that she and the appellant had been sharing a meal with others in a Chinese restaurant and the debt that the appellant said he was going to repay had arisen from the division and payment of the bill. She agreed she had said in her statement that when the appellant first stopped the car he leaned over and kissed her. She agreed that she had not minded that. It was pointed out that she had said nothing in her statement about being scratched on her chest when her dress was removed and that she had not been consistent as to whether the appellant had been physically able to penetrate her vagina in the confines of the car. It emerged in re-examination that in her 1974 statement LB had claimed that the appellant threatened to tie both the witness’s hands and had produced a cord which he dropped when she pulled away. Then he started to kiss her. She did not resist at first but when she did the appellant said he was going to rape her. When he pulled off her dress and she started to cry the appellant became very angry. He forced his penis into her vagina but she pushed him away. However, during an interview in 2010 when the case was reviewed LB said that the appellant had not managed to penetrate her. As she put it, “I managed to talk him round so he didn’t”. In a later interview on 13 October 2010 she said he had inserted his penis. On 20 October 2010 she said he had not. She then changed to an assertion that his penis was inserted but “he couldn’t do it because of the way the chair was”.
19.
At the trial in 2012 the prosecution called Joseph Cifaldi. Mr Cifaldi had made a statement to the police in June 1980, several years after the trial of LB’s complaint. Mr Cifaldi fitted stereo systems in cars. He recalled that two men had been watching him work, Geoff Fry, who owned the garage, and the appellant. The appellant was talking about a trial which had taken place four years earlier in which he had been accused of raping a girl in an MGB. He told them that the jury could not believe it was possible to rape a girl in an MGB. He said he had “got off with it”. Mr Cifaldi asked him, “Is it possible?”. The appellant replied, “Yes”.
20.
When introducing the evidence of LB to the jury the judge reminded them of Mr Pownall QC’s submission that all they could be sure about was that at the time when the evidence was considered by the jury in 1975 they had a doubt about the appellant’s guilt. The judge reminded them that he had given them a direction as to the evidence of similar complaints made by women unknown to one another to the effect that the evidence of one complainant may be supportive of another. However, although they were not re-trying the allegation of rape made by LB, they could not act on her evidence unless they were sure of its truth and reliability.
21.
During the course of his legal directions to the jury (provided also to the jury in writing) the judge, with the approval of the parties, gave a direction upon the exigencies of delay generally as follows:
“We then come to a very important feature of this case, which is the question of delay. As you know there has been a delay of over 33 years between the events with which you are concerned and the trial of the defendant; in the case of the evidence of [LB], 38 years. You will all know from your experience that memory is fallible and fades with time. You must approach the evidence in this case with great care. You may only rely on the evidence of events so long ago if, bearing in mind the period that has elapsed and the difficulty inherent in remembering events so far in the past, you are sure of it.
But in this context you will also bear in mind that virtually all of the witnesses were seen by the police in 1980 [during the investigation into the murder of Sally McGrath], and then made witness statements. Those statements recorded their recollection at the time and, as each of those witnesses agreed, their recollection at the time and, as each of those witnesses agreed, their recollection was likely then to have been significantly better. But when assessing the reliance to place upon a witnesses’ evidence, bear in mind and make due allowance for the difficulty faced by the defence in testing the evidence in cross-examination when a witness has no recollection of the events in question other than by reference to their witness statements made over 30 years ago.
There is a second way in which the quality of the evidence may have been affected by the very lengthy delay in bringing this case to trial. Many witnesses, as you know, have died or can no longer be traced. Records have been lost or destroyed, with the consequence that some lines of enquiry are closed off. You must bear in mind that the delay may therefore have affected the ability of the prosecution to discharge the burden of proof and, secondly, handicapped the defence in the preparation and conduct of the defence.”
During his summary of LB’s evidence the judge reverted to his direction on delay reminding them that the cross-examination of LB exemplified the difficulties that are inherent in giving evidence about events so long ago. The judge reminded the jury that they would have to ask themselves whether they were satisfied so that they could feel sure of LB’s evidence as to the manner in which she said the defendant behaved towards her.
22.
Having completed his summary of the evidence relevant to LB the judge then drew the jury’s attention to a series of admissions scheduled as agreed evidence. Those admissions itemised each of the documents which were no longer available to the parties by reason of the passage of time.
AF
23.
The evidence of AF was in a similar category and the judge gave the jury the same warning that they could not act on her evidence unless they were sure of it. AF is the sister of the appellant’s then wife, Beverley, and was living with the appellant’s family. She was aged 16 at the time. The appellant argues that this evidence should not have been admitted. There was no transcript of the court proceedings. It was not known whether the jury had returned a verdict of not guilty on the judge’s direction or after a retirement. AF admitted that she had lied on oath to the court on that occasion. It was, submitted Mr Pownall QC, essential to the fairness of the trial in 2012 that the appellant should know exactly what she had said on the earlier occasion.
24.
The defence case was that the appellant had assaulted AF causing her a wound. This was the offence of wounding in respect of which he had received a sentence of imprisonment in 1980 (paragraph 2 above). He denied, however, that there had been a sexual assault on her. However, the appellant had made a witness statement in Form MG11T about the incident to the police on 25 August 1979, the day after it occurred. In it the appellant said that he was in a public house. AF was there with her boyfriend. After a while AF asked the appellant to give them a lift home. First, he dropped off the boyfriend. The statement continued:
“While they were saying good night I had my fish and chips and when we pulled off I had a handful of tit off [AF], she didn’t move away so I decided to go out of town to see about having a bit like. We drove to towards Helpston and pulled up on the side of the road and I got out and filled the radiator up with water.
Q:
Where did you get the water from?
R:
It was in a gallon container in the back of the van.
Go back in and had a bit of breast like. She didn’t push away so I thought I would be alright for intercourse. I said, “Come on in the back of the van”. She started saying, “No, no, no”. I just lost my temper and hit her. She said, “Alright”. We got in the back of the van and she took her trousers off and I took mine off and I went to put it in and I can’t remember I burst out crying. She put her arm round me and said, “Alright, come on let’s go home. I won’t tell Bev”. I had an old pullover laying in the van and I put some water from the can onto the jumper and then we both cleaned our faces up. She cut her lip bad. It had blood on it so I threw it out of the van. I can’t remember anything about the bra. We went home where Bev asked what had happened. [AF] eventually told her what happened. Bev phoned for the police and I waited for them to come”.
25.
AF gave evidence that she moved in with her sister and the appellant during the summer of 1979, just before her 16
th
birthday on 7 June. From time to time the appellant would tell her that when she was 16 he was going to fuck her. On 24 August after the appellant had dropped off her boyfriend he drove them in his van to a dirt track. Then he claimed that he was out of petrol. He went to the back of the van and fetched a red can. He returned to the driver’s seat and put the can in the foot well. At this point his attitude changed. He was no longer the man she had known. He ordered her into the back of the van. She asked the reason why. He said “I told you, I am going to fuck you”. He grabbed the back of her hair and punched her in the face. He picked up the can and hit her with it. She said she thought that he was going to kill her. She begged him not to touch her and to take her back to Beverley. She was, however, forced into the back of the van where he ordered her to remove her clothes. He ripped off her bra and pulled down his own trousers and underwear. He lay on top of her while she was telling him that she was a virgin and begging him not to do it. He was telling her to shut up while pressing her neck with his thumbs. As he was about to insert his penis into AF’s vagina he broke down saying that he and his wife were not getting on. The appellant appeared to revert, “just like that”, and the witness demonstrated by clicking her fingers. The appellant bathed the wound to her mouth but there was blood everywhere. On the journey home he threw AF’s damaged clothing out of the window. As soon as Beverley saw her sister she started to swear at the appellant repeatedly asking, “Did he do this to you?” The appellant, out of sight behind Beverley’s back, was miming with his hands in prayer as though beseeching AF not to tell the truth. A complaint was made to the police. AF said that at the Crown Court she pretended she had suffered her injuries in a fight outside the chip shop where they had stopped on the way home from the pub. The appellant pleaded guilty to wounding and a verdict of not guilty was returned upon the count of attempted rape.
26.
In cross-examination the witness admitted that she had in the past told lies, including a false allegation that she had been sexually abused by her father. She explained that she had lied about him in order to be taken away from her parental home. She had withdrawn the allegation not long afterwards. She agreed that in a statement dated 18 October 1979 she had withdrawn her allegations against the appellant. That was because, the witness said, she was protecting Beverley and the children. She denied that she had exaggerated the incident to others by claiming that the appellant had bathed her wound with a garment belonging to the deceased Sally McGrath. Evidence was called to rebut her denial and to suggest that the witness was prone to exaggeration. On the other hand, a neighbour Mrs Dot Stringer gave evidence which was read that shortly after the incident had occurred she visited the house and AF made a complaint to her that was consistent with the account both she and, later, the appellant had given.
DD (Counts 1 – 3)
27.
The appellant contends that he was unable satisfactorily to investigate and challenge DD’s evidence. She made a witness statement at the time saying that she had consensual sexual intercourse with the appellant. The circumstances of the making of that statement could not be investigated. She told the jury in the present trial that she had been advised by police officers not to proceed with her complaint. It was no longer possible to examine the car in which the first act of non-consensual sexual activity had allegedly taken place. Establishments to which DD was taken were not visited or, if they were, the results of any enquiries were not known. An important witness for the defence, Mrs Lang, was deceased at the time of trial. Dr Myska, who examined DD and gave evidence, had no independent recollection of the occasion.
28.
DD was aged 19 and lived in Peterborough with her parents, brother and sister. She worked in a boutique in Peterborough. Thursday, 15 March 1979 was her day off work. She said that at lunchtime she went to the Bull hotel in the centre of Peterborough to meet her friend Roseanna. There was other evidence that the Bull was a regular of the appellant. DD stayed with him until closing time. They were both drinking. DD’s evidence was that Roseanna did not turn up. Roseanna Lester gave evidence that she did meet DD at the Bull but DD was still there when she left. DD said that at closing time she accepted the appellant’s offer of a lift. He took her to a hired red Austin Princess in the car park of the Bull. He did not take her home. He took her to a place called The Ram Jam Inn several miles north west of Peterborough on the A1. DD said that she was confused and concerned and telephoned her friend, Janet Draper, who was working in the boutique, from a phone box. Ms Draper gave evidence that DD sounded distressed and scared and was asking for help. DD told her she had had a few drinks and was with a man called Paul. She wanted to go home. DD handed the phone to the appellant. She asked Paul to bring DD back to the Bull. By this time, said Ms Draper, Tony O’Rourke had arrived at the boutique. He took the phone and also spoke to the appellant. Ms Draper again took over and Paul agreed to bring DD back to the Bull. DD said the arrangement was that they would meet in the Bull at 7.30 pm. However, the appellant drove them to a deserted track and stopped the car. He was “snarling” and demanded that she suck his penis. He hit her and called her a prostitute. He would kill her if she did not do what he told her. He was talking about being in the army and knowing about killing people. She obeyed him. The appellant was drinking from a whisky bottle. He put the bottle into DD’s mouth; the whisky spilled and soaked her clothes. He told her to remove her pants. She pleaded with him to stop but he was adamant. He pushed her legs apart and inserted his penis into her vagina. He turned her over and used the whisky bottle in her vagina. He then penetrated her anus with his penis.
29.
DD said that the appellant then drove to the village where there was a pub called the Angel. The appellant said she would be killed if she told anyone what had happened. She spoke to a woman behind the bar saying, “This man has raped me and I need help”. The landlady came over, called her a whore and put her out into the street. She went to a phone box and took out her diary to find a number. The appellant followed her, seized the diary and dragged her to the car. The landlady of the Angel was Linda Macintosh who made a statement on 28 March 1980. The statement was read. She knew the appellant because he had been working on the barn at the premises. She said he arrived with a young woman who was sick in the toilets. In the bar she was becoming loud and excitable and the appellant, who was standing alongside, appeared to be embarrassed. The woman was drunk; she told her to get out and pulled her by the arm to the door. Outside, the woman was saying that she did not wish to go home with the appellant. According to Mrs Macintosh the woman made a telephone call for a taxi from the kiosk outside. Paul turned up in the car; he told her to get in and he would take her home.
30.
DD said that she was then taken to a house where the appellant’s friends lived. She tried to convey that she needed help but there was none. She thought she had better be quiet so as not to anger the appellant. Maureen Lange’s statement was read. In it she said that she and DD had been alone together. DD did not have a hair out of place. She just sat there. Ms Lange said in her statement that DD seemed a bit afraid to say anything to her and once or twice the appellant entered the room where they were sitting. However, Mrs Lange saw no marks on DD. As they were leaving, DD told her that the appellant would not take her home and she advised the appellant that he had better do so. The suggestion made on behalf of the appellant was that if she had a complaint of rape to make about him DD had ample opportunity. Mr Lange gave evidence that both DD and the appellant had been drinking. He got as much coffee into the appellant as he could because he was drunk and he was also driving.
31.
The appellant then drove to the Haycock Hotel where he booked a room. DD said that she was raped and he ejaculated. She agreed that she had asked for body lotion so that she could take a bath. Staff at the hotel gave evidence. Its effect was that there was nothing to indicate to them that anything was wrong with DD. Indeed in the hotel reception DD told the appellant to shut up. The appellant ordered a meal. When it was taken up he and DD appeared to be having sexual intercourse. The request for baby lotion was made about 15 minutes later. The following morning the appellant’s manner had, according to DD, completely changed. He said he wanted to meet DD’s parents. When he dropped her she tried to conceal where she lived by taking a round about route to her home. When DD arrived home her sister saw the state she was in and took her almost immediately to the doctor’s surgery where DD was examined by Dr Myska, but it does not appear that a full medical examination took place. Dr Myska’s note read:
“16 March complaining of rape. Picked up by Paul Taylor at the Bull Hotel last night and went out to Wynford. Raped in car. Stayed at Haycock. Raped again. No joy in prosecution.”
Dr Myska gave evidence. He had made no note of any bruising to DD’s face. He said in evidence that if he had seen bruising he would have made a note. He could not recall the reason why he had added the comment, “No joy in prosecution”, but thought that might have been his judgment upon DD’s account to him.
32.
DD said that she was not in a mental or physical state to pursue her complaint against the appellant. Statements were taken but no prosecution followed. DD did reveal some of these events to her friends and evidence was given of her complaints. In cross-examination it was put to her that the only sexual activity that took place was at the Haycock Hotel and that activity was entirely consensual. A short statement made on 19 March 1979 by DD was put to her. It read:
“I understand that my father … made a complaint to the police that I was raped. This in fact is not the case. I was in the company of Mr Paul Taylor … on the afternoon and evening 15 March 1979 and I did book in with him and stay the night with him at the Haycock in Wansford. Whilst in the company of this man I had sexual intercourse with him on several occasions, each time with her consent. I do not wish the police to make any further enquiries into this matter on my behalf.”
Asked why she had made this statement DD replied that she had been advised not to pursue her complaint. She thought that “in the end the truth would out”.
33.
When, a year later, the police re-visited her, DD mentioned a place she thought the appellant had taken her, the Old Greetham Hotel. The evidence at trial was that the building had since been demolished. It had been situated opposite The Ram Jam Inn, the establishment referred to in DD’s evidence. In her statement of March 1980 she said that at one point in a pub the appellant had picked her up so that she could look through a window to the kitchen. It was suggested that this activity would not imply coercion. DD made a further statement in 2010 in which she said, in relation to the alleged act of buggery in the car, that she felt as if she was being ripped open. On the contrary, in her March 1980 statement she said, “It didn’t hurt too much”. DD responded in evidence that she was at the time suffering from piles that had bled.
34.
DD’s sister, who had been a nurse, gave evidence that when DD arrived home she was near to collapse, stuttering and could barely talk. She took DD to the doctor but she was only with him for a minute or two. Two of DD’s friends called the following morning when she repeated her claim of rape. DD’s parents had died by the time of trial. Their statements were read. Mr D did not give details of his daughter’s complaint. He said, however, that she was a different girl after the incident. Mrs D said her daughter had told her about parts of her experience but not all of it. On Friday, 16 March 1979 DD had given some details to Ms Draper and Mr O’Rourke. The complaint to Ms Draper was inconsistent. DD told her that she had been kept in a flat and it was there that the whisky bottle had been used.
35.
The appellant was not interviewed about DD’s allegations until 9 April 1980, after Sally McGrath’s body had been found. He was then in Bedford prison. Detective Chief Superintendent Muirhead and Detective Superintendent Cooper interviewed the appellant. The interview was not recorded. After each interview a summary was prepared on a Dictaphone, the recording was transcribed into Mr Muirhead’s notebook, and the notes were subsequently checked against the recording. That summary was not at the time shown to the appellant for agreement. According to the police officers they were following their normal procedure. The judge directed the jury that the required procedure for the recording of interviews and the presence of a solicitor had, for the protection of the suspect, changed very considerably following the introduction of the Police and Criminal Evidence Act 1984. The officers gave evidence that when interviewed on 9 April 1980 the appellant denied knowing DD, and denied that he had picked her up in the Bull. However, when the officers mentioned the Haycock Hotel the appellant recalled the occasion and said that, having been in the cocktail bar of the Bull with a woman, they went together to the Haycock Hotel where overnight they had consensual sexual intercourse. He denied giving the girl a rough time, denied buggery and denied using a whisky bottle on her.
36.
When interviewed again about the matter in December 2010 the appellant said he had no recollection of the occasion.
LW (Counts 4 and 5)
37.
In 1979 LW was aged 24 and living in Peterborough. On 8 April her niece was christened. A party was held at 15 Caithwate in Peterborough. LW attended. Later she asked her sister to order a taxi but the appellant offered her a lift instead. He also offered a lift to others. Having dropped them off first, he did not take LW home but to a lay-by. LW said that he “came on to” her. She resisted and pushed him away. He lent over to the passenger side attempting to kiss and touch her. After the attack she ended up out of the car without her shoes and she ran, she thought, for her life. She went to a friend’s house. The police were not called. She made a statement in April 1980 in the course of the investigation into Sally McGrath’s death. In it she said that 8 August 1979 was not the first time that the appellant had made a grab for her. He was a show off.
38.
The child who was christened was Mr and Mrs Crown’s infant daughter. Mrs Crown was LW’s sister. Mr Crown could not recall the evening. Mrs Crown said that LW had a reputation for becoming upset and irritable in drink. That is why she went home. She said that the appellant was away for 45 minutes. His wife Beverley was angry with him when he returned. The appellant told his wife that LW was drunk and would not get out of the car. Next day LW made a complaint to Mrs Crown that the appellant had not taken her home. He attacked and tried to rape her. At first, Mrs Crown accused LW of lying to her. LW’s other sister was called to give evidence. She said that later on during the night of the christening she was alone with the appellant in the sitting room. He pulled her from the settee, sat across her chest, and pinned her arms with his knees. He tried to place his hand under her shirt but she fought him off. He responded, “Come on you slag, you know what I fucking want, you’re just like your sister, full of promises but you don’t put out”. When LW’s sister spoke to LW the following day she confirmed the appellant had attempted to rape her.
39.
Christine Sturridge was the friend to whose house LW fled. She was unfit to attend court. She made a statement in March 2011 which was read. She described LW being dishevelled, very frightened and upset. She made a complaint that a man who had given her a lift had attacked her. She did not want the police called. Her husband Tony eventually walked LW home. The appellant makes the point that if Mrs Sturridge was correct, since the police were not called to her home, the complainant gave no account until a year later. However, in a later interview LW said that she thought that the police had attended. After LW’s statement was made some 32 years elapsed. There was no available medical evidence.
40.
The appellant was not interviewed about this matter until December 2010. He said that he had no recollection of such an incident. The witness claimed to have suffered a black eye. It is submitted that there was no means of challenging this assertion since the witness’s attention had not been drawn to the issue at the time and no independent recollections remained.
ASF (Count 6)
41.
ASF was aged 17 in 1979. Her parents were Italian nationals. On 17 June ASF said she was walking along the riverbank in Peterborough when she came across two men. They were the appellant and Paul Stringer. They were launching a small boat from a trailer. They got into conversation and ASF took a fancy to the appellant. They offered her a ride in the boat and she agreed. At the conclusion of the trip she thanked the appellant and was hoping to meet him again. On 28 June she finished work at 4 – 4.30 pm. As she was walking home she saw the appellant’s Bedford van at a garage. Paul Stringer was sitting inside and the appellant had been filling up. The appellant saw her and asked if she wanted to go on his boat again. She said she did. She sat in the front of the van between the two men. The appellant told her that they needed to fetch parts for the boat but instead they ended up in a wooden area. When they stopped Paul Stringer got out. He seemed nervous. The appellant changed his manner towards ASF completely; he became menacing and nasty. He dragged ASF out of the van by her legs and told Stringer to fuck off with the van for half an hour. She found herself on the ground. The appellant grabbed her T-shirt which was ripped from top to bottom. She tried to struggle but he was too strong for her. He moved her jeans to her knees and, using a condom, penetrated her vagina. AF was menstruating and told him so. It did not prevent the act. As Stringer was returning some minutes later the appellant stood up and threw the condom away. Again the appellant’s manner appeared to switch suddenly. He was now saying that he was going to buy them an ice-cream. He gave ASF £2 to £3 to replace her damaged clothing. She was dropped near to Bridge Street police station and on her way home bought herself a new top.
42.
On arrival home ASF told her mother what had happened. Her mother told her that she had to go out and find this man. For the sake of the family’s honour she must marry him. ASF found out where the appellant lived, went to his home and knocked on the door. Beverley Taylor answered. When ASF realised that the appellant was married she left the house. Outside the gate she saw Paul Stringer who was the appellant’s next door neighbour. He asked her into his house. There she met his mother, Dot. She told Dot what had happened. Dot encouraged her to go to the police. ASF did go to the police and a statement was taken but ASF did not wish to proceed with a complaint.
43.
Nothing further happened until 1980 when, on 6 March, five days after the discovery of Sally McGrath’s body, she was interviewed by DS Peck. She showed him the wood in the general area of which the rape had occurred but she could not be specific. ASF stated in evidence that during the investigation into Sally McGrath’s death she had seen a ‘photofit’ picture (in fact an artist’s impression) in the newspaper. She thought it fitted the man who attacked her except that she would have added a longer fringe. ASF knew exactly who her attacker was because she would see him from time to time and, she said, he would jeer at her because she had accused him of rape. The significance of ASF seeing the drawing in the newspaper in connection with the disappearance of Sally McGrath was that ASF thought the man sought by the police bore a strong resemblance to the man who had raped her. As a result she contacted the police. This recognition of the appellant took on added significance when the police re-interviewed Paul Stringer.
44.
Dot Stringer made a statement on 13 March 1980. She had in the meantime suffered two strokes and had no recollection of events. Her statement was read. In it she confirmed the complaint made by ASF. She said she challenged the appellant about it and he asked her to help him. He said that otherwise he would get 5 years. He wanted to see ASF. However ASF refused to see him. When Dot asked him why he had done it he replied, “I think it’s the booze”.
45.
Paul Stringer gave evidence. He was 16 in 1979 when he worked for the appellant. He confirmed ASF’s evidence both about the boat trip and the subsequent drive to the woods. He said that the atmosphere changed when they arrived in the wood. The appellant told him to fuck off with the van. The appellant was kissing ASF and was pulling at her blouse. He knew ASF wanted him to help her but he could not. As he drove the van down the track away from them he was crying. When he returned 10 minutes later he saw that ASF’s top was ripped. She was crying as she straightened her skirt. The appellant was alongside her with his jeans around his ankles. A condom was still attached to his penis which he removed and threw away. When they returned to Peterborough Stringer told ASF to get out of the van. When she had gone the appellant told him to keep his mouth shut. Stringer recalled the day ASF came looking for the appellant. He took her into his home and he started crying saying that he was sorry. ASF replied that it was not his fault. On 14 March DS Peck asked Stringer to take him to the place where the rape had occurred. Stringer, who had no regard for DC Peck who, he said, drank with his father, led him to the spot in Castor Hanglands. The place was marked on a plan for the jury. It was 600 metres away from the position in which Sally McGrath’s body had been found. Stringer had made a statement on 15 April 1980 in which he had said that the sexual activity between the appellant and ASF was consensual. He had walked off so as not to be in the way. Asked why he had made that statement, he replied that he thought he was implicated in the rape and wanted “to keep it simple”. He was also scared of the appellant. He said that he should have told the truth and still felt responsible for what had happened. He had told his father about it; his father had advised him not to inform the police.
46.
When ASF first described the route taken into the wood she referred to a tractor sign she had seen. She also recalled seeing a mobile library. Complaint is made that no attempt was made to identify the sign or the mobile library. Since she had not followed up her complaint no-one took ASF to the wood in 1979. By 1980 she could not identify it. Mr Stringer senior was deceased. The defence would have wanted to explore with Mr Stringer what his son had told him, if anything, about the alleged rape, his relationship with DS Peck and his son’s knowledge of the murder of Sally McGrath. Mrs Stringer had suffered strokes, did not have a recollection independent of her statement, and could not be cross-examined. The police officers who received ASF’s first complaint could not be asked about the conversation that led to her decision not to proceed with the complaint.
47.
When the appellant was interviewed about ASF in December 2010 he denied the occasion and circumstances put to him. His case at trial was that if intercourse had taken place it was consensual.
48.
No statements were taken from the parents and family of ASF.
Sally Ann McGrath (Count 7)
49.
The preponderance of the evidence was that Sally McGrath signed on at the employment exchange in Peterborough at around lunchtime on 11 July 1979 and then went to the Bull hotel. She did not return home on 11 July and on Saturday 14 July she was reported missing. Melanie Atkin gave evidence that she was in the Bull hotel with a man named John Collins. She knew the appellant and his wife. The appellant was in the Bull that afternoon and came over to the table where Ms Atkin and John Collins were sitting. She introduced Mr Collins as her father because her regular boyfriend was Harvey Gibbs. They spoke together for about 15 minutes. She also said that she saw Sally McGrath in the Bull, although she had not before mentioned that in her statement. Ms McGrath was seen in the Bull that day by other witnesses: Nina Krall, a member of the bar staff; Patricia Hills, one of Sally’s friends; Ursula Hay, an acquaintance who had known Sally for nine years; and Peter Choradostki, the head porter at the Hotel.
50.
Patricia Hills said that she had seen Sally McGrath in the back bar of the Bull on 11 July talking to “two blokes”. Ursula Hay was an important witness. She too had been to the employment exchange, in her case to sign off because she was about to go to Dubai to visit her sister. When she arrived at the Bull with her boyfriend she saw Sally McGrath sitting on a stool at the bar. Ursula knew one of the group, Brian May, who was talking about working in Germany. Mr May also gave evidence. He agreed that he was in conversation with Ursula. Ursula Hay said that Sally was talking to another man in the group, not known to Ms Hay. She got the impression that this man liked Sally. Brian May and the second man seemed to know one another. They may have been in the same line of work; it was just the four of them. At about 2.30 – 2.45 pm. Ms Hay left the Bull. Her boyfriend had already gone. Ms Hay made a witness statement in which she had described the man talking to Sally. He was quite scruffy, and had quite long, dark hair. He was wearing a black leather jacket. He had quite high prominent cheek bones. Subsequently she sat down with an artist at the police station, provided her description and an impression of the man she described was produced. It was on that drawing, published in a local newspaper, that AF later superimposed a fringe so as to produce a likeness to the man who had raped her.
51.
On 10 July 1980 Ursula Hay attended an identification parade in an attempt to identify the man in the Bull who had been with Sally. Ms Hay said in evidence that shortly before she attended the parade, either the day before or on the morning of the parade, she was shown by Detective Sergeant (“DS”) Waling, the officer who had been taking her statement, a photograph of the suspect; by implication, it was a photograph of the appellant. Ms Hay said the person in the photograph did indeed resemble the man she had seen with Sally. When DS Waling gave evidence he said he did not “think” that he had shown the witness a photograph. He agreed that it would have been quite wrong to have done so. However, Ms Hay says she was profoundly affected by what had occurred. She said it was morally wrong. When she attended the parade she deliberately picked out a person whom she knew was not the person she had seen in the Bull. She is recorded at the time as saying “I am not sure but I think it is this gentleman”. In evidence she said, “I pulled someone out who looked nothing like that”. She continued that the man who had been sitting with Sally was in fact on the parade. He was the man standing third from the left. It was established that the person standing in that position was the appellant.
52.
Brian May gave evidence that he was working in Germany, four weeks on and one week off. He recalled being in conversation with Ursula Hay. There was another man present who was talking to Sally and chatting her up. The man appeared to be in the building game, like him. Sally and the man got up together to go. Mr May said that, months later, when he was at Heathrow Airport on his return from Germany, he was arrested for Sally’s murder. He was in custody for three days during which time he made three witness statements. On 19 March he had given a description of the man in whose company he had been at the Bull as aged about 35 - 40, 5’9 to 5’10, reasonably slim, clean shaven, no spectacles, fair to blondish hair, receding slightly in the front and fairly short, sallow complexion, reasonably smart. In his second statement, made on 20 March, he said he had recognised the man when he was standing at the bar but he appeared to have changed his appearance. Before he had been scruffy now he was clean and tidy, well groomed and wearing a suit.
53.
In his third statement, however, he said he was shown 12 photographs of males by Detective Superintendent Heppleston. He positively identified photograph number 8 as the man talking to Sally McGrath in the Bull. That person was the appellant. However, the appearance of the appellant in the photograph selected by Mr May bore no resemblance to the description he had given in his statements. He was taxed about this in cross examination but denied that he had been put under any pressure to identify Paul Taylor. He confirmed in re-examination that when he was making his identification from the photographic line up he was telling the truth.
54.
Brian Harris owned a garage. He said that he had employed the appellant as a part time welder, he thought in the summer of 1976 for a period of 6 weeks. The only vehicle the appellant worked on was an MGB Roadster which belonged to Brian May. May brought the car to the garage because he was a friend of the appellant’s. Brian May gave evidence that he could not afford to pay for the repair and re-spray and had simply handed over the log book. When asked by Mr Pownall QC whether the man who worked on his car was the same man he had seen in the Bull on 11 July he said he thought not. Nonetheless, as we have said, he confirmed that when he picked out the man in photograph 8 as the man in the Bull he was telling the truth. Detective Superintendent Hepplestone gave evidence that he had shown the album and photographs to Mr May. Detective Superintendent Heppelstone did not know the identity of anyone in the album. He was performing the task simply because he was standing in for another officer. When Detective Chief Superintendent Muirhead gave evidence he accepted that there was a suspicious similarity between the first two statements made by Brian May on 19 and 20 March 1980 respectively. The second was a longer version of the first. It was put to him that only one of them was intended to see the light of day. Mr Muirhead said that he certainly would have wanted to ask the officer who took the statements what was happening. It would, he accepted, have been quite wrong to have shown photograph 8 to Brian May before the identification procedure took place. However, Brian May had not alleged that he had been shown any photograph of the appellant before he made his identification.
55.
Of relevance to the resolution of the truth of this evidence was the appellant’s own account in interview. On 25 March 1980 he was visited in prison by Detective Sergeant Siwicki who completed a questionnaire signed by the appellant. In it he said that he had only visited the Bull in the evenings with his wife, the last occasion being in 1973 or 1974. He was seen again on 9 April. This was, of course, some days after Mr May had identified him from the photographs and the same day on which the appellant was interviewed about DD. The appellant was reminded that he had done a welding job for Mr Harris on a car owned by a man he had seen again in 1979. The appellant replied that he remembered the man. He had been working in Germany and was the owner of the MGB. The next time he saw him was in the Bull. He agreed that it was a lunchtime. The appellant was asked if he could recall on that occasion speaking to a man and a woman sitting at a table. He replied that it was Harvey’s girlfriend. She was there with the man she was calling her dad. When asked if he could recall the father the appellant replied that he did not really think that he was her father and he told Harvey that when he saw him later.
56.
A good deal of further evidence was either called or read upon the issue whether any sighting of Sally McGrath had taken place on the afternoon of the 11 July 1979 elsewhere than at the Bull and at any later time on or after 11 July. Peter Thompson worked as a doorman and lived in a bedsit. He gave evidence that he had spent the Saturday night before 11 July 1979 with Sally McGrath. They arranged to meet again on Tuesday 10 July but that night they did not stay together. They had agreed to meet in the Fleece Public House on the evening of Wednesday, 11 July. He went there but Sally did not turn up. He never saw Sally again. When he was first interviewed by the police as to Sally’s movements it was put to him that he had been seen on the Wednesday evening with Sally at another public house, confusingly called the Bull and Dolphin. He said he could have been but it was definitely the evening before Sally was going to sign on. Peter Thompson was also arrested for the murder of Sally McGrath. When interviewed under caution he said he had been with her on either the Tuesday or the Wednesday night. However he was still referring to the evening before Sally was going to sign on at the employment exchange. There is no doubt that the date Sally signed on was Wednesday, 11 July. Found in the back garden of the property where Thompson had his bedsit were the remains of a fire. In the ashes were found two keys which fitted the lock in Sally McGrath’s home. They were, however, identical and fairly common keys, looked new, and neither of them appeared to have been used with any frequency. Thompson said he had no knowledge of the keys and had never been into the garden which served a number of separate units in the building.
57.
It emerged that on 18 August 2010, in the course of the cold case review, DS Peck (since deceased) had spoken to WDC Bowen about the day of Sally’s disappearance. He said he recalled seeing and being with the appellant on that day. A contemporaneous note of the conversation made by another officer implied that DS Peck may have been saying that the sighting could have taken place in the evening of 11 July 1979. However, on 15 May 1980 DS Peck had made a witness statement about the sighting in which he said that from 2 pm on 11 July 1979 he had been on duty. He described his movements and concluded that he had not seen either the appellant or Sally McGrath that afternoon or evening. The appellant now contends that an avenue of enquiry had been lost to the appellant in the course of time. The judge reminded the jury in detail of this evidence during the course of his summing up.
58.
Paul Stringer and Michael Stallion gave evidence to the effect that Sally McGrath was known to the appellant. Each of them had made inconsistent statements about this subject in March 1980 and they were cross examined upon their statements. The judge directed the jury that they must consider the explanations given by the witnesses for their inconsistencies. The appellant now contends that the judge should, in this context, have given the jury a further direction to the effect that when, so long after their statements were made, witnesses change their accounts they should treat their retraction with caution.
Cell confessions
59.
The prosecution sought leave to adduce the evidence of witnesses to whom it was alleged the appellant had made damaging admissions while in prison. The appellant objected to the admission of the evidence on the grounds that it was inherently unreliable and he had no means of challenging its truth. The judge heard submissions on 24 October 2012. It was thought that two of the witnesses were available to give evidence; six others were dead. Of the latter, in two cases the prosecution was unable to identify any evidence that might support the account they had given in witness statements. The judge excluded their evidence under section 78 of the Police and Criminal Evidence Act 1984. As to the rest the judge postponed his ruling until he could better assess the risk of unfair prejudice to the appellant. On 30 October 2012 the judge ruled in favour of the prosecution as to the remaining witnesses and gave his reasons on 8 November 2012.
60.
Robert France’s witness statement was taken by DS Waling on 17 February 1981. Mr Pownall QC submitted that DS Waling was a discredited witness who had shown Ursula Hay a photograph of the appellant before asking her to attend an identification in which he was the suspect. The judge ruled that the reliability of the evidence could be explored in cross examination. In the event the witness was unavailable and the evidence was not adduced.
61.
Mark Thomsett made a witness statement to Detective Chief Superintendent Muirhead on 11 February 1981. The judge ruled that the reliability of his evidence could be tested in cross-examination.
62.
The judge turned to those witnesses who had since died. Although the interests of justice test in section 116 (4) of the Criminal Justice Act 2003 did not apply to the evidence of witnesses who had died (only to those who were not present through fear) the judge examined the terms of subsection (4) in order to reach a conclusion upon the reliability of the evidence and the ability of the appellant to challenge it. In this context the judge considered relevant the question whether a pattern of behaviour by the appellant was revealed by the evidence. The effect of the evidence, the judge found, was that the appellant would brag to fellow inmates about his violent sexual exploits. The evidence as to what the appellant said was, on the other hand, fragmentary and not always consistent. This tended to undermine the appellant’s objection that it was unreliable because it may have been fed to the witnesses by corrupt police officers. The judge ruled admissible the evidence of four of the deceased witnesses: Keith Shaw, Bruce Pope, Robert Brown and Frederick Clarke.
63.
Keith Shaw’s statement dated 17 March 1980 was read. He said he had known the appellant since March 1979. He was friendly with the Stringer family who lived next door to the appellant. They became friends when Mr Shaw moved in with the Stringers for a week while he was separated from his wife. He next saw him in November 1979 when they were on remand together in Bedford prison. Both men were sentenced to three years imprisonment. They would walk together on exercise. By this stage Sally McGrath’s body had been found and the appellant raised the investigation in conversation. On 4 March 1980, three days after the body was discovered, the appellant wrote to his wife, Beverley, from prison, “Arrange with Mr H to get my clothes back from the police and then burn the lot, boots as well, okay?” He sent her a reminder on 10 March. On 10 March Keith Shaw wrote a letter to his own wife telling her that the appellant was talking about the murder. Shaw said in his statement that the appellant seemed relieved when Peter Thompson had been arrested. The appellant observed, “That will keep them off my back”, When Thompson was released Shaw told the appellant that he should not have left the girl under the leaves. The appellant “went white” but denied that he had known the girl. On 14 March the appellant wrote to his wife that Shaw was winding him up. He asked again whether his clothes had been collected from the police.
64.
Keith Shaw made a further statement on 28 March 1980. In it he said that since he had made his first statement he had told the appellant (from information provided by his probation officer) that his blue van had been sent for forensic examination. The appellant responded that they would find nothing because he had cleaned the van before he had sold it. The appellant was visited by police officers. After the visit the appellant became cocky and seemed relieved, saying, “They’ve got fuck all on me for the murder”. In a further statement Shaw said that at about 4.30 pm on 3 April 1980 he and the appellant had fallen out. In anger Shaw said, “I know you killed that girl in Peterborough and so do the police”. The appellant responded, “Yes, but just let them try proving it”.
65.
Mark Thomsett gave evidence that he was in prison with the appellant and Shaw. Shaw told him that the appellant was a murder suspect. The police had visited Shaw and wanted to know what Shaw could “get out of” the appellant. On one occasion when Thomsett was walking in the exercise yard with a prisoner called “Twiggy”, Thomsett said to the appellant, “You did do it, didn’t you?” The appellant replied, “Yeah”, and walked off. Thomsett denied that he had been offered any inducement to provide this information and said that he had received none.
66.
Robert Brown’s evidence was read. He shared a cell with the appellant for over four months. The appellant boasted of beating and raping women on three or four occasions. He also told him that he took his sister-in-law in a van to some “spare” ground, the same area where he had taken an earlier woman. He had beaten her when she decided she did not want sex.
67.
In October 1979 Bruce Pope had been remanded in custody to Bedford prison for a week. One of his cell mates was the appellant. The appellant told him that he taken a girl he had met in Peterborough in his van to some waste ground where there were bushes. They got out of the van. He removed her clothes down to her bra and pants and then she resisted intercourse. He gave her “a good fucking hiding” and left her there. Pope said he did not believe the story because if it was true the appellant would not be telling him. Pope thought the girl was called Sally Ann. The only other women he mentioned were his wife, Beverley, and his sister-in-law. After a week Pope was granted bail.
68.
Frederick Clarke made a statement in August 1981. He said he shared a cell with the appellant in about September 1980 for six weeks when serving a sentence of 9 years imprisonment for robbery. Clarke was aware that the appellant was suspected of the murder of a girl in some woods. It was clear from the appellant’s conversation that he had known the girl. She was “a bit of a slag, a pub pick up”. Clarke would pump the appellant for information. The appellant said the police could never prove it. He told Clarke that he had met the girl in the Bull. She was talking to an army bloke who was on leave. This was the last day she was seen. On other occasions the appellant told him contradictory things, including that she had gone off with the army bloke.
69.
In the course of providing his legal directions to the jury at the commencement of his summing up the judge explained (Transcript page 27C):
“The cell confession evidence. Approach this evidence with considerable care. If you are sure that the defendant said what he is reported as having said, then plainly it represents important evidence in support of the prosecution case. But if you are left in any doubt that these statements were made, then they can be of no assistance to the prosecution and you must ignore them. Bear in mind in particular that there may be reasons why a prisoner would wish to be seen to be assisting the police. As one of the officers who gave evidence agreed in cross examination, people in custody are in a vulnerable position, possibly looking for favours, capable of telling lies for their own gain. But also bear in mind when assessing such evidence that the reported conversations occurred over a period of months, and that the content of each was both fragmentary and different, one from the other.”
In common with all other of the judge’s legal directions to the jury, this direction was disclosed to counsel in writing in advance and approved. The written direction accompanied the jury into their retirement.
Interviews 9 April 1980
70.
As we have noted at paragraphs 34 and 53 above, the prosecution relied upon two interviews under caution conducted with the appellant on 9 April 1980 at HMP Bedford for the appellant’s response to questions about DD and 11 July 1979 when Sally McGrath went missing after visiting the Bull hotel. The prosecution also adduced the evidence of the appellant’s admission to sexual intercourse with ASF to whom the appellant referred as “the Italian girl” in the woods at Castor Hanglands. He maintained in interview that ASF “was all for it”.
71.
The appellant contends that the judge should have excluded this evidence because it was gathered in contravention even of the standards for police interviews with suspects that prevailed in 1980. The appellant could not reasonably have been expected to remember the contents of the interviews after such an interval of time and could not, accordingly, mount an effective challenge to evidence that was inherently unsafe. The appellant could not remember events put to him in interview in 2010.
72.
Having heard argument on 10 October 2012 the judge ruled as follows:
“Mr Pownall QC contends that judged by contemporary standards, the interviews would clearly be inadmissible in that they contravene the provisions of PACE and the current Codes, in that they were not tape recorded, and there is no evidence to suggest that he was advised that he had the right to have a solicitor present. That is plainly the case; and I also accept his submission that prior to the implementation of PACE it was the practice to prepare contemporaneous notes, which were then offered to an accused for signature, but that did not happen in this case. But I am not persuaded that the admission of the evidence would have such an adverse effect upon the fairness of the proceedings that I ought not to admit it. The records of interviews, such as they are, contain a robust denial of the offences and, as I have already observed, nothing amounting to a confession. The relevant officers are available for cross examination and can be questioned upon any passages with which the defendant takes issue. If and insofar as there is challenge to the content of the interviews, the jury will be directed that since 1980, and in particular since the implementation of PACE, practice has changed for the protection of the rights of the individual the subject of questioning by the police, and that they should approach such evidence with caution.”
73.
As before, the judge prepared his direction to the jury in writing and gave it to counsel for approval. It concluded:
“But I direct you to exercise considerable caution when considering the evidence that you heard as to the content of those interviews, and in deciding what reliance you can place on it.”
74.
It is submitted that the judge did not go far enough to warn the jury of the dangers arising from specific aspects of the evidence. He should have referred to the risk of miscarriage of justice arising from deliberate or unconscious manipulation of questions and answers re-constructed after interview (or “verballing”).
Discussion
Stay of prosecution
75.
For the reasons given by the judge in his ruling on 5 July 2012 we are satisfied that he was fully justified in refusing the application to stay the indictment. We have already expressed our view that the decision not to prosecute for these offences in 1980 was understandable by application of the rules of evidence which prevailed at that time.
76.
DD (counts 1 -3) was available to give evidence and a wealth of material had been served on or disclosed to the defence with which to challenge her account. The appellant’s interview in April 1980 was self-serving. His account that intercourse was consensual was in some measure supported by the evidence, written and oral, of others.
77.
There had been no investigation into the attempted rape of LW (counts 4 and 5). However, her complaint was investigated a year later, following the discovery of Sally McGrath’s body, and statements were taken. The complainant, LW, was available to give evidence; so also was LW’s sister, Mrs Crown, who hosted the christening party, and MW, another sister, who described the appellant’s behaviour towards her on the same night. Pamela Gregus gave oral evidence evidence of identity. Mrs Sturridge, the friend to whom the complaint was made, had made witness statements in 1980 and 2011. She was unfit to attend court to give evidence and her evidence was read. However, in her case the jury received the usual direction of law to the effect that her evidence of the complaint made to her did not constitute independent support for the prosecution case; further, that the evidence was over 30 years old, “when attitudes to talking about such matters and complaining to the police may have been very different”.
78.
There had been no contemporaneous investigation into the allegation of rape made by ASF (count 6). Mrs Dot Stringer had taken ASF to the police station where she reported her complaint of rape but she did not wish to proceed with it. On 6 March 1980, shortly after the discovery of Sally McGrath’s body, she was interviewed by DC Peck. She made a complaint of rape subsequently recorded in a statement of August 1980. On 7 March 1980 ASF took DC Peck to the general area in which she had been assaulted. Again she did not wish to proceed with her complaint. Members of the Stringer family were also interviewed in 1980 and made witness statements. It was Paul Stringer who showed DC Peck the spot where he had left ASF and the appellant to have sexual intercourse. The crucial witnesses, ASF and Paul Stringer, were available to give evidence; so also were Terry Stringer and Lesley White who gave live evidence of the complaint of rape made by ASF to their mother and Paul.
79.
There had been a full investigation into the murder of Sally McGrath (count 7) in 1980 and many statements, some of which assisted the defence, were taken in the course of it. The main witnesses, Melanie Atkin, Patricia Hills, Ursula Hay, DS Waling, Peter Choradotski, Brian May and Peter Thompson were available to give evidence. A great deal of evidence was available to be adduced orally and read to the jury at the request of the defence for the purpose of (i) casting doubt upon the prosecution’s assertion that the appellant was the last person to be in Sally McGrath’s company while she was alive and (ii) establishing that Sally McGrath had a risky lifestyle that may have exposed her to harm from a number of sources. It is, we accept, undoubtedly true that the very considerable interval between the events covered by the indictment and the trial created disadvantages for the appellant. However, the trial process was fully capable of making due allowance for those difficulties and, properly directed, the jury was able, if appropriate, to reflect their judgment upon those difficulties in their verdicts.
Hearsay evidence in general
80.
We accept Mr Pownall QC’s submission that care was required to ensure that evidence should only be admitted if it was fair to do so having regard to the difficulties presented to the defence in challenging it. This acceptance embraces with particular force the evidence of witnesses who had died or who could not be expected to have any present recollection of events described in witness statements made over 30 years previously. Those statements became admissible as evidence of the matters stated in the circumstances provided by section 120 (4) of the Criminal Justice Act 2003. The fact that the rules of evidence had changed in favour of the introduction of hearsay statements does not, in our view, have any adverse bearing on the justification for bringing the prosecution. What mattered was whether, under the rules as they became, the evidence was fairly admitted.
81.
This court examined the state of Strasbourg and Supreme Court authority upon the admission of hearsay evidence in
Riaz and others
[2012] EWCA Crim 1509
,
[2013] 1 WLR 2592
(Hughes LJ, Vice President, Dobbs and Globe JJ). The court re-iterated that the importance of the hearsay evidence to the case remained a vital consideration when deciding upon its admissibility (judgment, paragraph 2) but there was no overarching rule that “sole or decisive” evidence was inadmissible. It was not submitted by the appellant in the present case that any of the evidence admitted as hearsay under section 116 of the 2003 Act was sole or decisive and no such submission could have succeeded.
82.
The court further explained (judgment, paragraphs 5 and 6) that the Supreme Court in
Horncastle
[2010] 2 AC 373
had not ruled that hearsay evidence was only to be admitted if it was demonstrably reliable. Article 6 ECHR required a fair trial. The test was whether
either
the evidence was demonstrably reliable
or
there existed sufficient tools available to the jury to make the assessment whether it was reliable. Accordingly, when reaching a judgment whether hearsay evidence should be admitted the court should assess the risk of unreliability and the extent to which the reliability of the evidence could safely be tested and assessed. The court gave examples of features which tended to demonstrate reliability: the disinterest of the maker of the statement; evidence independent of the hearsay which dovetailed with it. The questions that the trial judge should pose are (judgment, paragraph 7): (i) Is there a specific statutory gateway (sections 116-118 of the Criminal Justice Act 2003) permitting the admission of the evidence? (ii) What material is there which can help to test or assess the hearsay? (iii) Is there an interest of justice test to be applied to admissibility? (iv) If there is no specific gateway, should the evidence be admitted under section 114 (1)(d) of the 2003 Act? (v) Ought the evidence nonetheless be ruled inadmissible under section 78 Police and Criminal Evidence Act 1984 by reason of the unfair prejudice that would otherwise arise? (vi) If the evidence is admitted, should the case subsequently be stopped because the case is based wholly or partly on hearsay evidence which is so unconvincing that a conviction based upon would be unsafe (section 125 (1) of the 2003 Act)?
83.
The court reminded trial judges of the fact that even where the interests of justice did not apply to the gateway of admission, application of the factors to be considered in section 114 (2) provided a useful guide upon the issue whether the admission of the evidence may give rise to such prejudice that it ought to be excluded under section 78 PACE 1984. In the present case the judge assumed that the interests of justice test did apply and he looked carefully at the questions (i) whether and to what extent the evidence was supported and (ii) whether there existed means by which the reliability of the evidence could be tested.
Admission of the evidence of LB and AF
84.
The appellant concedes (upon the principle established in
Z
[2000] AC 483
) that notwithstanding the appellant’s previous acquittal of offences allegedly committed against LB and AF their evidence was admissible in his later trial for other offences. Challenge is made to the judge’s decision on the ground that there no longer existed material that would have assisted the jury to assess the reliability of the evidence which the previous juries had rejected.
85.
LB gave oral evidence. She had made a witness statement in August 1974 that was available to the defence; so also were the contents of her later interviews in 2010. There was available to the jury evidence that had not been considered in 1975. Mr Cifaldi made his statement in June 1980 and made a further statement in 2011. In our view, the absence of the trial papers from Leicester Crown Court and the defence solicitors did not of itself render the admission of the evidence unfair. In
R (Ebrahim) v Feltham Magistrates Court
[2001] 1 WLR 1293
, at paragraph 25, Brooke LJ pointed out that a judgment of the fairness of proceeding applied both to the prosecution and the defence. As to the assessment of fairness where relevant evidence was missing he said, at paragraph 27:
“It must be remembered that it is a commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.”
We would respectfully add that in this respect the fairness of the proceedings before a jury will be secured by a direction from the judge pointing out that where ‘holes’ exist the burden is upon the prosecution to remove any doubt thereby created. That is the effect of the direction given by Owen J upon the impact of delay in the present case.
86.
AF was the appellant’s sister-in-law when she returned home with an injury to her mouth which the appellant admitted causing. Neither AF nor the appellant had ever asserted to the police that they had sexual intercourse. All that had changed since the appellant’s acquittal of attempted rape was that AF now said she had lied at the Crown Court as to the circumstances in which the injury was inflicted. In important respects AF was giving an account similar to that given by the appellant in his witness statement. There was no doubt that the appellant made that statement. It provided powerful support for the truthfulness of AF’s present account and to the hearsay evidence of Mrs Dot Stringer to whom a complaint was made by AF.
87.
We conclude that the evidence of LB and AF was properly admitted in support of the evidence of other complainants.
The admission of hearsay evidence during the trial
88.
Despite invitation from the court Mr Pownall QC and Ms Rafferty cannot now identify those witnesses to whose hearsay evidence the defence made objection at trial. Much of the evidence read was read without objection. This is not a promising point from which to argue that hearsay evidence should not have been admitted. We have already identified the issues in the case to which that evidence was relevant. It is quite clear to us that the judge permitted evidence to be read if it was of any assistance to the appellant. We have nonetheless considered afresh the fairness of the admission of the evidence generally.
89.
We have summarised the evidence given in relation to counts 1 – 3 at paragraphs 27 – 36 above. Janet Draper, a friend of DD whom she telephoned for assistance from a kiosk outside The Ram Jam Inn club or pub, gave oral evidence as to DD’s complaint and demeanour. Tony O’Rourke’s statement was read. It was relied upon by Mr Pownall QC in his cross examination of DD. Mrs Mackintosh, the landlady at the Angel public house was deceased. Her evidence, favourable to the appellant, was read. Mrs Lang, to whose home the appellant had taken DD before their onward journey to the Haycock hotel, was also deceased. Her evidence, in general favourable to the appellant, was read. Her husband, Conrad Lang, who was present on the same occasion, but not always in the same room with DD and his wife, gave oral evidence, relying in large measure on his witness statement made in 1980, and he was cross examined. The Haycock hotel witnesses, Lelby Howard, assistant manager, Sheila Sims, receptionist, and Robert Croft, night porter, all gave evidence in person. DD’s sister, Rosalee, and the general practitioner, Dr Myska, to whom the complaint was made both gave oral evidence. Dr Myska’s note of the meeting had survived and was used to effect in cross examination. The statements of DD’s parents were read. They concerned the limited complaints made by DD to them and DD’s condition when she arrived home. The appellant’s denial in interview during April 1980 of non-consensual sexual intercourse was placed before the jury.
90.
We have summarised the evidence relevant to counts 4 and 5 at paragraphs 37 – 40, and 70, above. LW gave oral evidence as did all the significant witnesses, save for Mrs Sturridge.
91.
We have summarised the evidence given in support of count 6 at paragraphs 41 - 48, and 78, above. It was conceded by Mr Pownall QC in the course of argument that ASF was a compelling witness. The evidence of Paul Stringer and ASF herself was critical. Both witnesses gave oral evidence. All their witness statements were available to the defence to deploy as they wished. The evidence read was that of DS Peck and Mrs Dot Stringer. The evidence, including the evidence read to the jury, could be and was vigorously tested by cross examination of the witnesses who gave evidence orally. All the points available to the appellant could be and were made to the jury and it was for the jury to judge their impact on the reliability of the accounts given by the significant witnesses. There could hardly have been and there was no challenge to the fact that sexual intercourse had taken place between the appellant and ASF in the circumstances they had both described. In an interview by DS Chamberlain with the appellant on 2 August 1979 the appellant accepted that intercourse had taken place, but he maintained that it had been consensual. The issue was one of consent. Only three people were present on the admitted occasion. The critical issue for the jury was whether ASF and Paul Stringer were telling the truth about the circumstances. As to Mrs Dot Stringer’s evidence of the complaint made by ASF her hearsay evidence was supported by the oral evidence of her three sons. We recognise that identification of the place the incident occurred was of importance to the issues that arose in count 7 and that DS Peck was no longer available to give evidence of his journeys to Castor Hanglands with ASF and Paul Stringer. However, the spot identified by Stringer was at the time located on a plan and both witnesses were available to give evidence of those circumstances.
92.
We have summarised the evidence concerning count 7 at paragraphs 49 – 58, and 79 above. The only evidence relevant to count 7 that was read to the jury was either uncontroversial or helpful to the defence.
93.
Subject to the cell confession evidence to which we shall refer below we are not persuaded that any unfairness or prejudice was caused to the appellant by the admission of evidence read to the jury. Either the evidence was, by reference to other evidence, demonstrably reliable, or the means were available to test the reliability of the evidence by cross examination of other witnesses. Furthermore, as we have said, it was open to the appellant to give evidence either as to the issue raised by the hearsay evidence or to explain how he was at a disadvantage through failing memory.
Judicial directions as to delay and hearsay evidence
94.
We have referred to the judge’s directions to the jury on the issue of delay at paragraph 21 above. In the course of that direction the judge explained to the jury how the delay in prosecution had affected the ability of the defence to test the evidence of witnesses who were no longer available to give evidence in person. We have noted how, when specific issues were raised by the defence as to the loss or destruction of records, or the absence of contemporaneous enquiry, they were referred to by the judge as matters to be considered by the jury. As to evidence that was read, the judge distinguished between the evidence that was agreed and evidence from witnesses who were unavailable through death, illness or other reasons. As to those who were unavailable to give oral evidence, the jury were directed that they should bear in mind the attestation as to the truth of the statement made by each of the witnesses, but:
“...the statements have not been verified on oath before you. You have not been able to assess the witness for yourselves, nor has the evidence been tested in cross examination. For those reasons you must approach such evidence with considerable caution. You must also consider such evidence in the context of the case as a whole, taking account of the degree to which it may be supported by the other evidence in the case, whether given on oath or contained in other witness statements that were read to you.
There is a distinction to be made between statements read by the prosecution and those read on behalf of the defence. So far as those read by the prosecution are concerned, they form part of the prosecution case, and are therefore relied on to satisfy you so that you feel sure of the guilt of the defendant. But the defendant does not have to prove his innocence, and reliance is placed upon the witness statements read to you by the defence in support of its case that the prosecution have not discharged the burden of satisfying you as to the defendant’s guilt. But you will also bear in mind that much of the evidence read to you related to events at the Bull and Dolphin public house and in particular whether Sally McGrath was there on the evening of Tuesday 10 July or Wednesday 11 July 1979; and in the case of witness statements read in relation to that issue by the prosecution, the witnesses were available, and the defence could have called for their attendance if they had wished to cross examine them.”
95.
This, among the judge’s other legal directions, was provided to the jury also in writing. The judge’s proposed directions were discussed with counsel who made contributions to the final form in which the directions were given. All of them were, in the end, agreed. Defence counsel made no application to the judge either before or after the summing up that he should make any additions to these directions. In this respect, neither the grounds of appeal nor the appellant’s Further Skeleton Submissions submitted to the court on 11 November 2013 made any criticism of the judge’s summing up, including his directions of law. However, at the oral hearing of the appeal Mr Pownall QC sought to raise for the first time a ground that the judge had failed, in the course of his summary of the evidence, to highlight for the jury each occasion on which delay may have made more difficult the task of challenging the evidence, where a line of enquiry may have been denied to the defence, and where the passage of time may have affected the reliability of the evidence. Mr Pownall QC disarmingly accepts full responsibility for the failure to alert the judge. He informed the court that he was not present when the summing up was in progress. No satisfactory explanation was tendered, however, for the failure to raise this matter as a written ground of appeal, with adequate notice to Mr Khalil QC, before the hearing.
96.
We have already referred, at paragraphs 21 and 22 above, to occasions on which, in relation to LB, the judge did make specific reference to the effect upon memory of the passage of time and when the jury’s attention was drawn specifically to the loss of evidence. At page 39 of the transcript of summing up the judge drew attention to the defence point that neither Mr Fry nor the appellant had at the time been asked to confirm Mr Cifaldi’s recollection of his conversation with the appellant in 1980 (see paragraph 19 above). In the case of AF the judge reminded the jury of Mr Pownall’s cross examination of the witness and, at page 185 of the transcript, he invited the jury to recall the submissions Mr Pownall had made in his final address. Several witness statements were read to the jury on the subject of AF’s reliability at the request of the defence and the judge provided the jury with a full summary of them.
97.
As to the evidence of DD, at page 49 of the transcript of his summing up the judge reminded the jury of the inconclusive evidence about the Old Greetham Hotel. At page 51, he pointed out that the appellant’s absence of recollection in December 2010 of events concerning DD was another problem caused by the delay in prosecution. At page 63, he reminded the jury that, as an exception to the majority of witnesses, DD’s sister, Rosalee had not been asked about the matter in 1980. She had first made a witness statement in February 2011. At page 68, the judge reminded the jury of Janet Draper’s evidence that DD had made an inconsistent complaint to her of being held in the appellant’s “flat” when she had been attacked with a whisky bottle and raped. When dealing with the evidence of the appellant’s interview with the police in April 1980, at page 69, the judge reminded the jury of Mr Pownall’s cross examination as to the reliability of the note made and the failure of the officers to show the appellant the note for his agreement.
98.
The judge reminded the jury at page 77 that Mr Crown was no longer able to give meaningful evidence of the evening of the christening party attended by LW. While the judge reminded the jury of the hearsay evidence of Mrs Sturridge that LW made a complaint to her, at page 78 he also reminded the jury of Mrs Crown’s evidence that LW had been drinking and was rather upset even before she left the party with the appellant.
99.
As to the evidence of ASF, at page 94, the judge drew attention to the fact that Mrs Dot Stringer was unable to attend trial to give evidence of the complaints made to her and, for that reason, her evidence was read. He also reminded the jury at pages 95 – 96 of the evidence of Terry Stringer and Lesley White who confirmed that ASF came to the house complaining that she had been raped by the appellant. We do not consider that a specific reminder was required of the absence of evidence from police officers to whom ASF then made the complaint with which she declined to proceed. These matters had been put to the complainant herself.
100.
As to the murder of Sally McGrath (summing up, transcript page 109 et seq) the judge first identified the evidence of the deceased’s movements on 11 July 1979. There was an abundance of evidence, partly oral and partly read, that was largely uncontroversial. The judge explained where the hearsay evidence and the oral evidence fitted into a pattern and where it did not. The thrust of the defence case was that the appellant had not been the last person to see Sally McGrath alive. Since there had been a full police investigation at the time, the material required to advance that case was available to the defence and fully summarised by the judge. From page 116, the judge summarised in detail the evidence relating to the presence of Sally McGrath and the appellant in the Bull hotel, on several occasions pointing out possible gaps in the evidence identified by Mr Pownall in cross examination.
101.
The judge proceeded at page 138 to summarise the evidence that might support the conclusion that Sally McGrath was seen elsewhere or in other company on 11 July 1979, including with Peter Thompson. He again explained where the evidence, oral and read, did and did not knit together. In the course of his summary the judge described in detail the evidence available as to DS Peck’s sighting of the appellant on 11 July. He did not specifically speak of DS Peck’s death as a disadvantage to the defendant’s case but the jury can have been in no doubt of the importance of the issue having regard to the care with which the judge dealt with it. In his conclusion upon the topic of Sally’s movements on 11 July, at page 155, the judge pointed out the significance of the evidence in that “if that was the Wednesday the 11
th
and if the other witness statements relied upon by the defence also accurately date the matter as Wednesday the 11
th
, then the two are entirely inconsistent. She could not have been in two places at once”.
102.
At page 156, the judge turned to the evidence that the deceased and the appellant were known to one another, including the inconsistencies between statements made by witnesses at the time of the investigation and their more recent statements and/or their oral evidence. These observations applied in particular to Paul Stringer and Michael Stallion. The judge was, in effect, drawing attention to the changes in account that had emerged over time. Those changes were fully explored by Mr Pownall in cross examination.
103.
The summing up, at page 158, described the evidence that a blue van was sighted in the area of Castor Hanglands on the evening of 11 July. Ms Helen Clarke and Mr David Rager gave oral evidence; both had made statements at the time of the investigation. Mr Pownall made use of Mr Rager’s statement in cross examination to helpful effect. The judge pointed out to the jury at page 160 Mr Rager’s recent certainty that the van he had seen was blue rather than blue or white as he had said at the time; and that there had been one person in the van on its return journey rather than two as he said in his statement in 1980. This was, the judge said, another example of a witness’s difficulty in recalling events of such an age.
104.
At page 161 the judge dealt with the appellant’s disposal of the van and his failure on time to report to the police station on 11 July. As we understand it none of this evidence was controversial. What was in issue were the inferences, if any, that the jury could properly draw from the appellant’s conduct.
105.
At page 165, the judge turned to the evidence of Sally McGrath’s lifestyle, including her regular visits to a local RAF station and her drug consumption. None of this evidence was disputed by the prosecution and it was read. The question for the jury was whether it cast doubt upon the prosecution case that the appellant was the last person to be with Sally on 11 July.
106.
Finally, at page 175, the judge dealt with the circumstances in which the deceased’s body was discovered and the post mortem examination, none of which was in dispute.
107.
It seems to us that the judge’s command of the evidence and the legal issues concerning the evidence with which he had to deal in his summing up was complete. He was fully entitled to expect, if the defence wished any particular disadvantage arising from the delay in prosecution to be drawn to the jury’s attention, that they would be listed for him for his consideration in advance of final speeches. This was not done. Having reviewed the summing up for the purpose of assessing the merits of the criticism now made of the judge, it has become quite apparent to the court that those features of the consequences of the passage of time on which the appellant could, with some justification, rely had emerged in the course of cross examination of the witnesses who gave oral evidence and that, contrary to the new ground now advanced, the judge did give them the prominence they deserved. In our judgment this was a masterly collection of the evidence and the issues that was calculated to provide the jury with optimum assistance while at the same time being scrupulously fair to the appellant. In our view, the new ground is without merit and leave to pursue it is refused.
Admission of cell confessions
108.
We accept, as did the judge, that the decision whether to admit hearsay evidence of ‘cell’ confessions required the utmost care to ensure that the appellant did not suffer unfair prejudice. We have already noted the judge’s decision to postpone consideration of part of the prosecution’s application until he was in possession of the necessary facts. It is clear from the judge’s ruling of 8 November 2012 that he was anxious to ensure either that the evidence was demonstrably reliable or that the jury had adequate means by which to test its reliability.
109.
In the case of Keith Shaw there were means by which the reliability of the evidence could be considered. First, at the same time that Shaw was in conversation with the appellant about the course of the police investigation, the appellant had been writing letters on the same subject to his own wife. Second, Shaw, Thomsett and the appellant had all been in prison at the same time. Thomsett gave oral evidence which enabled the defence to explore the circumstances in which it was claimed the appellant had made damaging admissions or observations. This is an example of evidence described by the Vice President in
Riaz
as dovetailing with other evidence in the case. Third, Thomsett’s evidence included the revelation from Shaw, which was in any event implicit in the number of statements made by Shaw that Shaw had been asked to keep the police informed of any further comments by the appellant about the Sally McGrath investigation. That enabled the jury to understand the importance of applying the judge’s direction as to the witness’s possible self-interested motivation for the evidence. Furthermore, although the evidence was relevant and, depending upon the view of the jury, probative of guilt, taken at its highest there was still available to the defence an argument that the conversations established did not amount to a frank confession but only to cynical comment on the state of the investigation into the appellant.
110.
As to the evidence of Robert Brown, the particulars allegedly given by the appellant of his attack on his sister-in-law amounted to a repeat of the confession he had already made in writing in 1980, of which Robert Brown can have known nothing unless he had been fed the information by the police. Provided the jury could exclude the latter possibility the similarity between the two provided compelling support for Brown’s evidence that the context was one of the appellant bragging about his sexual exploits. It is noteworthy that the appellant was said to have been admitting to a fellow prisoner an incident to part of which he pleaded guilty in the Crown Court.
111.
Brown’s evidence and the evidence of Bruce Pope was mutually supportive since both claimed that the appellant had told him about his sister-in-law. Pope’s evidence was important because he was saying that in October 1979, four months before the discovery of Sally McGrath’s body, the appellant was claiming to have given a good hiding to a woman on some “waste ground with bushes” and left her there. This was strikingly reminiscent of the circumstances in which Sally McGrath’s body may have been left in Castor Hanglands on 11 July 1979. The implication was that by that stage the appellant was feeling confident that he had got away with murder. Pope’s evidence linked with that of Frederick Clarke because by September 1980 the appellant certainly was under suspicion of the murder and, although equivocal in his revelations to a man who was not before known to him, he was more circumspect than he was with Keith Shaw, whom he knew, and Bruce Pope to whom he spoke before he came under suspicion.
112.
In our judgment, the judge was the entitled to find that there was a pattern to the appellant’s behaviour revealed by disparate sources of evidence whose effect the jury could properly be left to consider provided they received the appropriate warning. In order to avoid what the judge considered unfair prejudice to the appellant he authorised the editing of statements so as to exclude the more flamboyant passages that the appellant would have little or no means of challenging effectively.
113.
The jury was provided with the agreed details of the witnesses’ criminal records. When approaching his summary of the cell confession evidence the judge reminded the jury of the terms of his warning about the need for caution. In the case of Bruce Pope the prosecution called DC Hilton to give evidence about the circumstances in which Pope’s statement came to be taken. Mr Pownall QC cross examined DC Hilton about the vulnerability of prisoners in the appellant’s position to evidence such as Pope’s. DC Hilton agreed, and the judge endorsed that evidence in his summing up, pointing out at the same time that the jury had evidence from other witnesses speaking of a period over a matter of months. He repeated his instruction that the jury should treat the evidence with the utmost caution. Pope’s witness statement was taken by DC Bacon who was also called to give evidence and was cross examined as to the circumstances. Notwithstanding that there was not available to the defence the prison records that would have been available in 1980 and 1981 to cross check the evidence of the prisoners with the records as to where they were housed, it seems to this court that the evidence was properly admitted and the directions provided by the judge appropriate to the circumstances. The witness statements themselves were made close to the time of the events they were describing and they gave circumstantial detail of the environment in which the conversations took place. The room for such manifest falsehood as inventing the opportunity for the conversations to take place was so vanishingly small that we consider the judge was justified in discounting it. We notice that the defence did not in this respect, as it did not in others, invite the judge expressly to raise the matter with the jury in his summing up. We infer that at the time of the trial it had not occurred to the defence that such a direction was necessary.
Interviews April 1980
114.
We have rehearsed above the circumstances of the interviews under caution that were admitted in evidence and the warnings the judge gave about them. We do not accept that they should have been excluded. The officers who were engaged in the process of conducting the interviews were available to give evidence and did give evidence as required. No application was made to hear the evidence in a
voir dire
. We are not surprised that this was so because in some respects the defence relied on the interviews as self-serving. The prosecution did not rely upon the content of the interviews for their semantic accuracy. It relied upon them for the thrust of the appellant’s admissions when he made them.
115.
In the case of DD the defence case conducted at trial followed the admissions and denials made in interview. There was no contemporaneous interview about the allegations made by LW. At trial the appellant admitted sexual intercourse with ASF. He denied that she did not consent. This was the same account as he had given to DC Chamberlain on 2 August 1979. When he was interviewed again in April 1980 he agreed that they had gone to Castor Hanglands with Paul Stringer. He admitted sexual intercourse but denied that it was non-consensual. That was the thrust of Stringer’s own account in 1980. As to 11 July 1979, the day Sally McGrath went to the Bull hotel, the prosecution relied upon the interview for the appellant’s recollection that he met people who can only have been Melanie Atkin and Brian May. It provided important support for the evidence of those witnesses that they spoke to the appellant in the Bull hotel that afternoon and, in the case of Brian May, for his identification of the appellant as the man who was in company with Sally McGrath and left the Bull hotel with her. The importance of the evidence lay not in any explicit admission (the appellant made none) but in the circumstances the appellant was able to recall that tied in with the witnesses’ evidence. The sole issue for the jury was, in this respect, whether the evidence of the police officers that the circumstances were recalled, and mostly volunteered, by the appellant was truthful and accurate. That, it seems to us, was a matter for the jury to consider, properly directed by judge, as they were, as to the caution required.
116.
In our judgment, the judge was entitled to reach the conclusion he did that the evidence could be admitted without unfair prejudice to the appellant.
Conclusion
117.
We have surveyed the major part of the evidence, the judge’s decisions upon the admissibility of evidence and the summing up because a trial of this seriousness well over 30 years after the events which it concerned did, we are satisfied, raise important issues of fairness for consideration. At the conclusion of our examination of the grounds we are left with the firm conviction that the trial was fairly and properly conducted, that the verdicts of the jury were amply justified by the evidence, and that they are safe. For this reason the appeal against conviction is dismissed.
Sentence
118.
There is no appeal against sentence. However, the criminal appeal office, for whose efforts we are grateful, has spotted that the sentence of 9 years imprisonment imposed upon count 4 of attempted rape was unlawful because at the relevant time the maximum sentence for the offence of rape under the Sexual Offences Act 1956 would have been 7 years imprisonment. It was not until the Sexual Offences Act 1985 that the maximum sentence for rape was increased to life imprisonment. We therefore dispense with the formalities, quash the sentence of 9 years upon count 4, and substitute a concurrent sentence of 7 years imprisonment. Otherwise the judge’s orders will remain in force. | [
"LORD JUSTICE PITCHFORD",
"MR JUSTICE MITTING"
] | 2013_12_20-3325.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2398/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2398 | 892 |
91aad8970d384081df5191154b85869f9471d5ebc9f46115bce28ee9d6723119 | [2008] EWCA Crim 1667 | EWCA_Crim_1667 | 2008-07-08 | crown_court | No: 200801745/A5 Neutral Citation Number: [2008] EWCA Crim 1667 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 8th July 2008 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE SILBER SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - R E G I N A v GORDON CULLEN - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 | No:
200801745/A5
Neutral Citation Number:
[2008] EWCA Crim 1667
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 8th July 2008
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE SILBER
SIR CHRISTOPHER HOLLAND
- - - - - - - - - - - - - -
R E G I N A
v
GORDON CULLEN
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr J Duffy
appeared on behalf of the
Appellant
- - - - - - - - - - - - - -
J U D G M E N T
1.
Sir Christopher Holland: Gordon Cullen is aged 47. On 22nd June 2007 and 10th August 2007 at Mold Crown Court he pleaded guilty to a number of offences. In the result he pleaded guilty to seven counts on an indictment of selling material bearing a false trade mark, to four counts of possession of material bearing a false trade mark, to three counts of making an article infringing copyright and to three counts of dishonestly failing to notify a change in circumstances contrary to section 111A of the Social Security Administration Act. On 6th March 2008 for the trade mark offences he was sentenced to 32 months' imprisonment on each count, those sentences to be concurrent with each other. In respect of the three counts relating to the Social Security Administration Act, he was sentenced to 16 months' imprisonment. The court directed that those sentences would be concurrent with each other, but consecutive to the sentences for the trade mark offences. The overall result, a sentence of a total of four years. A confiscation order in the sum of £130,000 was made with three years' consecutive imprisonment in default of payment.
2.
He appeals the sentence with the leave of the single judge.
3.
Turning to the facts, they are as follows. In January 1994 the appellant submitted a claim for income support on the basis that he was a carer for his disabled daughter. In September 1996 he submitted a claim for incapacity benefit on the basis of back pain and from then on, until his arrest in October of 2006, he was paid both benefits. He also claimed housing benefit until he purchased his council home on 9th June 2003.
4.
However, from 7th October 2001 he had been working on a market stall once a week, but he had wholly failed to inform the Department of Work and Pensions about his change in status. In the overall result, as reflected by his admissions, between 18th October 2001 and 20th October 2006 he was paid a total of £66,827.05 to which he was not entitled.
5.
These offences came to light as the result of an undercover operation targeting traders at the market where the appellant worked to see if there was any benefit abuse and any trading standards offences. The appellant was sighted on a number of occasions working at a stall.
6.
On 15th October 2006 a search warrant was executed at his home address and a great many items were seized. He was at the time in Thailand on holiday and he was arrested on his return on 20th October. The items that had been seized from his home were examined. There was a quantity of computer hard and software designed for the production of counterfeit DVDs and CDs and computer games, and, further, the raw material for the manufacture of counterfeit articles. His financial records were examined and it was established that, in addition to receiving his state benefits, he had been in receipt of substantial additional income from May 2000 onwards. There were also documents relating to the purchase of two timeshares in the United States and the purchase of two large motor vehicles. Yet further, there was evidence of numerous trips abroad. It was established that the appellant had been manufacturing and selling the counterfeit goods at his market stall and also over the internet where he had set up a website. In all he had made a profit of around £190,000 in January 2005 and October 2006.
7.
Those were the facts. Additional material before the sentencing judge was a basis of plea, a past record, which for present purposes was good, and a pre-sentence report in which it was said:
"During interview, Mr Cullen expressed remorse for his behaviour and became visibly upset when discussing the impact it has had on his family. He stated these offences were motivated purely by financial gain and admits that he viewed it as a way of making 'easy money'."
8.
Turning then to the sentencing by His Honour Judge Merfyn Hughes QC, the range of offending was reviewed, and the judge then explained his sentence in these terms:
"The sentence which you will now serve will be one of four years' imprisonment. It's important that you understand how that is made up. For each of the 14 counts on the indictment contrary to the
Trade Marks Act 1994
a sentence of four years' imprisonment will have been appropriate after a trial. That will be reduced to one of 32 months giving you credit for those matters to which I have referred. So far as the offences contrary to the
Social Security Administration Act 1992
are concerned, a sentence of two years following a trial would in my judgment have been appropriate but again giving you credit for your plea of guilty that will be reduced to 16 months. Those terms of 32 and 16 months will run consecutively with each other making a total of four years' imprisonment."
9.
Before this court Mr Duffy on behalf of the appellant takes precisely one point. The submission he makes is this. The criminality, that is the basis for the sentencing exercise, demanded the imposition of concurrent sentences. That is that the criminality engaged in the benefit offences and the trade mark offences all can properly fall to be considered as one and therefore the imposition of consecutive sentences was wrong in the light of all the circumstances. That submission was advanced carefully in writing. It has been considered further by this court with the benefit of Mr Duffy's address.
10.
In the upshot we are unable to accede to it. In the judgment of this court this was a carefully crafted sentencing exercise which properly reflected the criminality that was here apparent. The matter started with the benefit offences. Those were offences which impinged directly upon the receipt of benefit from the public. It then moved to the trade mark offences, which, to a very substantially extent, impinged upon those who are the possessors of those trade marks. There are two separate pieces of criminality here. Those separate pieces of criminality are properly reflected by the imposition of carefully adjudged consecutive sentences. For those reasons, this appeal against sentence is dismissed. | [
"LORD JUSTICE RICHARDS",
"MR JUSTICE SILBER",
"SIR CHRISTOPHER HOLLAND"
] | 2008_07_08-1573.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1667/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1667 | 893 |
43fd62c23f234d4702f10e47dec06a0a3e7bb27a1674cdda668d763ed234c8d7 | [2005] EWCA Crim 1408 | EWCA_Crim_1408 | 2005-05-26 | supreme_court | Case No: 2004/4327/A2 Neutral Citation Number: [2005] EWCA Crim 1408 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWCASTLE CROWN COURT HHJ MILFORD Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 26 May 2005 Before : LORD JUSTICE LATHAM MR JUSTICE NEWMAN and HIS HONOUR JUDGE TILLING - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - ADAM RICHARDSON Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | Case No:
2004/4327/A2
Neutral Citation Number:
[2005] EWCA Crim 1408
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE CROWN COURT
HHJ MILFORD
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 26 May 2005
Before :
LORD JUSTICE LATHAM
MR JUSTICE NEWMAN
and
HIS HONOUR JUDGE TILLING
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Appellant
- and -
ADAM RICHARDSON
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr T Hedworth,QC
(instructed by Brian Heggarty, David Gray & Co) for the
Appellant
Mr D Robson, QC
(instructed by
The Crown Prosecution Service) for the
Crown
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Latham :
1.
This is an appeal against the length of a minimum term set by HHJ Milford QC at the Crown Court at Newcastle, following the appellant’s plea of guilty on re-arraignment to the offence of murder. The judge set the minimum term at 14 years and six months having given credit for the six months which had been spent in custody prior to sentence. The judge arrived at the minimum term under
Schedule 21 to the Criminal Justice Act 2003
(“
the Act
”). By taking a starting point of fifteen years and concluding that the aggravating and mitigating factors balanced each other out.
2.
At about 8.30 pm on the 1
st
January 2004 the 55 year old victim (“the deceased”) was making his way home from a public house where he had purchased four bottles of beer when he was confronted by the appellant. The appellant, then aged 22 had been squatting at a flat nearby and was in possession of some stolen goods which he tried to sell to the deceased in order to fund his heroin addiction. An argument ensued during the course of which the appellant produced a knife and used it to strike the deceased in the neck. The single stab wound caused serious arterial damage from which the deceased died. The appellant left the scene. He was subsequently arrested; when interviewed, initially denied being anywhere near the scene of the incident. Eventually, however, he admitted that he had been there, and had confronted the deceased. He said that the death was a combination of accident and self defence.
3.
The deceased was described in the evidence as a gentle and considerate man. He had, however consumed a considerable amount of alcohol that evening. His blood alcohol level was found to be 2½ times the limit for driving. There was, however nothing in the evidence which would suggest he was so affected by drink as to be incapable. It was apparent that he was accustomed to drinking large quantities of alcohol.
4.
As we have already indicated, the appellant ultimately pleaded guilty on re-arraignment. A written basis of plea, which was accepted by the Crown, was put before the judge. It was in the following terms:
“1.
The defendant approached the deceased and attempted to sell him stolen goods.
2.
A dispute arose as to the price the deceased was to pay. The argument became heated.
3.
The defendant momentarily lost his temper and produced a knife which he had for his own protection and lunged at the deceased with only minimal force, causing the injury from which he died.
4.
The deceased’s use of violence was not premeditated and he had no intention to kill.
5.
The Crown cannot gainsay any of the above.”
5.
It was in these circumstances that the judge had to consider firstly the starting point, and then the aggravating and mitigating factors in accordance with
Schedule 21
of
the Act
. It may be helpful to set out the way in which the judge carried out his task. He said:
“First, I must fix the starting point under
Schedule 21
. I am satisfied that you do not meet the criteria for either a whole life sentence or a thirty year starting point, and the Crown do not seek to persuade me otherwise. Accordingly, the starting point, fixed by
the Act
is 15 years. I must then consider the aggravating features and the mitigating features of the case which might cause addition or subtraction to that figure. As to the aggravating features, despite the arguments of your counsel, I accept that this deceased man was particularly vulnerable. He was more than 30 years older than you, he is described as looking older than his actual age and he was disadvantaged at the time through a high level of alcohol in his system. He was two and a half times the limit.
This offence involves the use of a knife which you were carrying, having taken it from the flat where you were living. In the written basis of plea, which I honour, you say you were carrying it for your defence. But had you not been carrying it the deceased would be alive, and when you took it out immediately before using it you then used it offensively. I regard the carrying of this knife in a public place as a particularly significant aggravating feature.
Additionally, you have been previously convicted of affray, an offence of violence in a public place, for which you were sentenced to 9 months imprisonment at this Crown Court, this offence occurring almost two years previously to the day.
As to the mitigating features, there was no intention to kill, your intention was to cause grievous bodily harm. There was no planning or premeditation. You are young, you are only 23 years of age, and you have pleaded guilty and have thus demonstrated your remorse, albeit that that plea was entered on the morning of your trial. I also have regard to your background which is written up in the psychiatric report and everything which has been advanced on your behalf by your counsel Mr Hedworth QC.
Taking all these factors into account the aggravating features and the mitigating features, they seem to me to balance themselves out and the minimum term I would fix is 15 years.
However I must take account of the time you have spent in custody thus far, which is six months, which would not otherwise count. This reduces the minimum term to 14 years and six months.”
6.
The appellant does not seek to suggest that the judge was wrong to take 15 years as the starting point. Mr Hedworth’s submission is that there were no aggravating factors. Firstly he submits that a healthy 55 year old man could not properly be described as “particularly vulnerable because of age or disability”, which is the wording in paragraph 10 (b) of
Schedule 21
to
the Act
. Secondly, he submits that, in the circumstances of this case, the appellant’s possession of a knife cannot be regarded as a factor aggravating the murder. The fact that he had the weapon with him, for defensive purposes, resulted in his committing murder rather than assault, but that was a matter properly to be subsumed within the fixing of the starting point. Lastly, he submits that the previous offence of affray was not of sufficient seriousness to justify treating it as an aggravating factor.
7.
Schedule 21
imposes on the sentencing judge the requirement to consider the sentence in a structured, two stage process. As this court has said in
R –V- Peters
[2005] EWCA Crim 605
at para 3, the purpose is “…..to ensure consistency of approach to sentences”. And its practical application is well exemplified by the way the judge dealt with the sentencing exercise in the present case. Leaving aside the question of evaluation in relation to the criteria for fixing the starting point, and the individual aggravating and mitigating factors, the main difficulty in any two stage process is to ensure that there has been no double counting. That is the main complaint that Mr Hedworth makes in the present cas. It was, he submits, because the appellant was carrying the knife that death resulted; and accordingly the possession of the knife had been taken into account by the judge in fixing the starting point at 15 years. Whilst accepting that paragraph 10 of Schedule 1 does not purport to set out an exhaustive list of aggravating factors, he submits that it is significant that the use of a weapon is not one of them. Indeed the only mention of a weapon is in paragraph 5(2)(b) which identifies a murder involving the use of a firearm or explosive as being a case which would normally result in a 30 year starting point.
8.
It seems from us that Mr Hedworth's submission is correct to this extent, that the use of a weapon such as a knife, will not necessarily, and of itself, be an aggravating factor. For example if a knife is picked up in the course of a quarrel, or a fight, and then used in the fatal attack, it is difficult to see how the use of the knife can then be said to be an aggravating factor. That is why the offence is one of murder. Equally, if a person has a lawful excuse for the possession of a knife in a public place, for example where he or she has just bought a kitchen knife and is taking it home and a fight ensues in which the knife is used it would be difficult to describe the carrying or the use of the knife as an aggravating factor. But that is not this case. Although the basis of plea, which the judge said that he honoured, was that the knife was carried for defensive purposes, nonetheless the appellant had no lawful excuse for carrying it. That was what the judge considered to be the aggravating factor. The Judge did not consider that the use of the knife was the aggravating factor. It follows, in our judgment that the judge was not guilty of double counting.
9.
Accordingly the question that this case poses is whether or not the judge was entitled to treat unlawful possession of the knife as an aggravating factor. In our view he was. This court has repeatedly held that if a weapon such as a knife is unlawfully carried by someone in a public place and injury or death has ensued, the sentence imposed by the court must reflect an element of deterrence. As Swinton Thomas LJ said in
Pollin
[1977] 2 Cr App R (S) 356:
“The general public is concerned, rightly so by the violent use of knives are used and serious injuries are caused then the court must impose severe sentences.”
10.
And in the context of the problem with which are faced, this court upheld the conclusion of the sentencing judge that the possession of the knife by the appellant in
R –v- Peters
(supra) was an aggravating feature where the judge had concluded that the appellant appeared to be one of those “to whom the cultural possessing of a knife in the street is acceptable”. In
Attorney General’s Reference 33
of 1996 [1997] Cr App R(S) 10, this court considered sentencing guidelines in manslaughter cases and, in particular, cases of manslaughter where the offender has caused death by the use of a knife. In that case, the defender became involved in a fight with other young men in the car park of a nightclub, produced a knife, and stabbed a number of his opponents one of whom died. In interview he said that he had been attacked and had produced the knife in self defence. He said that he was carrying it in case he had trouble with others with whom he had recently fought. Kennedy LJ, giving the judgment of the court, said at page 18:
“Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field and if justice is to be done sentencers must not be put in straight jackets, but for the reasons identified in this judgment it seems to us that where a defendant deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction on a contested case in the region of ten or twelve years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count of carrying an offensive weapon which would separate and normally a consecutive sentence, but that seems to us to be a somewhat cumbersome approach.”
11.
There is no doubt that the case of
Peters
and
The Attorney General’s Reference No 33 of 1996
can be distinguished factually from this case. In
Peters,
Judge LJ clearly put the appellant in that case in a different category from the appellant in the present case who, on the basis of his plea, could not properly be described as one to whom the cultural possessing of a knife in the street is acceptable. In
Attorney General’s Reference No 33 of 1996
the knife in question was a butterfly knife which Kennedy LJ described at one point in his judgment as a “weapon of a sinister type”. But it seems to us that these distinctions merely go to the extent to which the unlawful possession of the knife in question aggravates the offence. The mischief with which these cases were concerned was the unlawful carrying of a knife in a public place. The consequence of carrying the knife is that is available for use. The fact that it is being carried is some evidence that the carrier may be prepared to use it. In our judgment that is sufficient to justify the conclusion that a court can treat the unlawful possession of the knife as an aggravating factor. The extent to which it should be so treated in any particular case will depend entirely on the circumstances. We therefore consider that the judge was entitled, as a matter of principle, to treat the appellant’s unlawful possession of the knife in the present case as an aggravating factor, and that it was appropriate for him to do so in this case.
12.
We turn then to the other two factors which the judge considered had aggravated the offence. The previous conviction for affray, whilst certainly capable of being an aggravating factor, does not seem to us to have played very much part in the judge’s ultimate conclusion. And we need say no more about it. He was, however, clearly concerned by the nature of the incident in the sense that it was a confrontation between a young man and a significantly older man who was affected by alcohol. We are doubtful whether the deceased could properly have been described as “particularly vulnerable because of age or disability”, as envisaged in paragraph 10(b) of
Schedule 21
. But the fact of the matter is that the murder arose out of the appellant’s persistent and determined criminal conduct in seeking to sell stolen property to passing strangers. On the evidence it is clear that the deceased, who was a mild and gentle man would not have provoked a confrontation. The murder therefore arose out of provocative and aggressive solicitation in a public place. That is behaviour which, in our view, is properly described as an aggravating factor even though it does not fall within any of the factors specifically identified in Paragraph 10 of the Schedule. The overall circumstances, however described, were therefore properly treated by the judge as a matter which should be weighed in the balance as an aggravating factor. Despite the fact that there were the mitigating factors as identified by the judge, we do not consider that the balance that he eventually struck was one with which this Court could or should interfere.
13.
Accordingly this appeal is dismissed. | [
"LORD JUSTICE LATHAM",
"HIS HONOUR JUDGE TILLING"
] | 2005_05_26-523.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1408/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1408 | 894 |
02dc09065c73aa968b93c68d60f1ba71087a29c5d21a8db41de1b143a3ae6638 | [2016] EWCA Crim 1654 | EWCA_Crim_1654 | 2016-08-04 | crown_court | Neutral Citation Number: [2016] EWCA Crim 1654 Case No: 20154190 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday 4 August 2016 B e f o r e : LORD JUSTICE LLOYD JONES MR JUSTICE CRANSTON MRS JUSTICE ANDREWS DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A V ANDREW MCEVOY - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street Lo | Neutral Citation Number:
[2016] EWCA Crim 1654
Case No:
20154190 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday 4 August 2016
B e f o r e
:
LORD JUSTICE LLOYD JONES
MR JUSTICE CRANSTON
MRS JUSTICE ANDREWS DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
V
ANDREW MCEVOY
- - - - - - - - - - - - - - - - - - - - -
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 I Fessal
appeared on behalf of the
Appellant
Mr M Tanney
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (As Approved by the Court)
1.
LORD JUSTICE LLOYD JONES: On 18th August 2015 in the Crown Court at Blackfriars before His Honour Judge Peter Clarke QC, the appellant was convicted on a single count of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. On 25th September 2015 he was sentenced by Judge Clarke to a suspended sentence order of 12 months' imprisonment suspended for 24 months. There was an unpaid work requirement, a supervision requirement and an alcohol treatment requirement.
2.
The appellant committed the offence during the two year operational period of a suspended sentence of 18 months' imprisonment imposed by magistrates on 18th June 2013 for an offence of assaulting a police officer. No separate penalty was imposed in respect of that.
3.
Having been convicted of an offence listed in schedule 3 to the Sexual Offences Act 2003 the appellant was required to comply with the provisions of Part 2 of the Act, notification to the police for 10 years. Having been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the appellant was included in the relevant list by the Independent Safeguarding Authority.
4.
He now appeals against conviction by leave of the single judge. Reporting restrictions apply in this case. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
5.
On 3rd August 2014, almost exactly two years ago, the complainant, a seven-year-old girl, alighted from a train with her parents and her older sister at Victoria Station in London. They walked along the platform which was busy with many people walking in both directions. The appellant was walking along the platform towards them. The prosecution case was that as the appellant walked past the complainant he grabbed her bottom. She did not react immediately and the incident was not seen by any member of her family. As the family approached the ticket barrier the complainant said to her mother: "Someone touched my bum."
6.
The Crown's case relied on the evidence of two German nationals, Thomas Nischwitz and Tobias Feth, whose statements were read to the court at the trial. Both men witnessed the incident and approached the complainant's parents to tell them what they had seen.
7.
Following the incident, the appellant was approached by the complainant's parents and then the police. He was sitting on a train, appeared to be asleep and was intoxicated by alcohol.
8.
At the trial the statements of the complainant's parents were read, her ABE interview was played and the court saw CCTV footage of the platform. In addition the evidence of Thomas Nischwitz and Tobias Feth was read.
9.
At trial the appellant gave evidence. His case was that he was intoxicated and could not remember the incident. If he did touch the complainant it was likely to have been accidental as a result of his intoxication. He said he was homosexual and had always been homosexual. He was in due course convicted by the jury.
10.
On this appeal, brought by leave of the single judge, three grounds of appeal were initially advanced. First, that the judge erred in admitting the hearsay evidence of Thomas Nischwitz and Tobias Feth. Secondly, that the judge erred in admitting the ABE interview of the complainant. Thirdly, that the judge failed in summing-up to deal properly with the issue of the applicant's drunkenness and in particular to emphasise the component elements required if the offence was to be made out that the action had been intentional.
Ground 1 The admission of hearsay evidence
11.
On 8th August 2014 both Thomas Nischwitz and Tobias Feth made witness statements to the police. Thomas Nischwitz said that on the day in question he saw the appellant walk past the complainant. The appellant then turned back, leaned down and touched the complainant's bottom. He moved his hands further between her legs and grabbed her bottom. It was not a brushing motion but a firm grab. Whilst quick it was definitely intentional. In his opinion the grab was sexual. He was shocked and looked at his friend who also saw what happened. The complainant did not react and continued walking with her family. She then turned around and felt her bottom. She looked confused. Mr Feth approached her stepfather and told him what had happened.
12.
Tobias Feth's statement said that the appellant walked towards the complainant, bent over slightly and grabbed the whole area of her bottom with his left hand. In his opinion it was a deliberate act and was not an accident. He believed the act to be sexual. The complainant looked behind her as if to see what had happened. She started to speak to her parents and then started to cry. Her parents appeared confused so he approached her stepfather and told him what had happened.
13.
The case was listed for trial on 23rd February 2015. Neither Mr Nischwitz nor Mr Feth attended. The Crown conceded that the witnesses were crucial to the prosecution case and without them there was no case against the appellant. The Crown also indicated that it was not appropriate to apply for their statements to be read under section 116(2)(c) and (d) of the Criminal Justice Act 2003, as it could not be shown that all reasonably practicable steps had been taken to secure their attendance. The Crown informed the court that both witnesses were university students and that their home and university addresses were known to the police. As a result, the case was adjourned.
14.
On 23rd March 2015 the case was listed for mention. The Crown informed the court that contact had been made with Mr Feth who was willing and able to attend to give evidence. Mr Nischwitz was away on holiday but the Crown anticipated no difficulty in his attending. The case was fixed for trial on 17th August 2015.
15.
On 17th August 2015 neither Mr Feth nor Mr Nischwitz attended court. DC Peak gave evidence that both British and German police had attempted to contact the witnesses by a series of telephone calls and emails to which the witnesses had not responded. The most recent telephone call had been made on 30th May 2016. The German police had not however visited the home or university addresses of the witnesses. As all reasonably practicable lines of enquiry had not been exhausted by the prosecution, Crown counsel, Mr Tanney, who also appears today, indicated that no application under section 116 could be made for the statements to be read. However, he indicated that if the judge was prepared to entertain such an application counsel would make it. It is fair to say that the principal application made by Mr Tanney was for the matter to be adjourned so that all reasonable lines of enquiry could be pursued. The judge indicated that he was not minded to adjourn, at which stage Crown counsel formally applied for the statements to be read. A written application was handed to the judge.
16.
Counsel for the appellant, Mr Fessal, who also appears before us today, opposed the application on the basis that the Crown had accepted and virtually conceded that all reasonable steps had not been taken by the German authorities to secure the attendance of the two witnesses. Matters had moved no further forward since 23rd February 2015 when the Crown's position was that it was wrong to make an application for the statements to be read. No efforts had been made to contact the witnesses since 30th May 2015, despite the case having been listed for trial since 23rd March 2015. The evidence of the witnesses was pivotal, both to the prosecution and the defence. It was the submission of Mr Fessal on behalf of the appellant that unless he could test the evidence in cross-examination the appellant would be deprived of a fair trial.
17.
The judge allowed the application. He indicated that he was surprised by the Crown's concession that not everything that could have been done had been done. It seemed to the judge that a great deal had been done. He also drew a distinction between what had been done by the authorities in this jurisdiction and by the German police. The judge decided to admit the evidence. The jury would be told that the evidence was not agreed by the defence and that the defence had wished to cross-examine the witnesses.
18.
Section 116 of the Criminal Justice act 2003 reads, in relevant part, as follows:
"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
...
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken ... "
19.
The burden of proof of the conditions of admissibility under section 116(2) lies on the party seeking to rely on the hearsay statement. As it was the Crown in this case, the burden lay on the Crown to prove to the criminal standard that those conditions had been satisfied. In determining what is reasonably practicable in this context, the importance of the evidence will be a relevant consideration. Here, the evidence was of pivotal importance to the case because the two German students were the only two persons who claimed to have seen the assault and the CCTV footage did not show the exact moment of the alleged assault.
20.
In our view it is clear that the burden was not discharged. It was not reasonably open to the judge to conclude that the conditions laid down by the statute had been satisfied. Indeed, the Crown had effectively conceded as much earlier in the hearing. Mr Tanney had very frankly stated in terms that the Crown had not exhausted all practicable lines of enquiry.
21.
In particular, although the German police reported through Interpol that they had not been able to contact the students by phone, email or personal messages, there was no evidence that the German police had made any attempt to ascertain where they were at university or that either the home address or university address of either of the students had been visited by the German police. In this regard we note the observations of Hughes LJ in
R v Riat
[2013] 1 All ER 349
that if a witness is lost, all reasonable practical steps must have been taken to get him before the court and that this will include not only looking for him if he disappears, but also keeping in touch with him to avoid his disappearing. Here the last response received from either of the students had been on 23rd March when Mr Feth indicated that he would be able to come to give evidence in July. No efforts had been made to contact the witnesses since 30th May 2015.
22.
We are satisfied that the admission of this evidence in the form of hearsay statements resulted in potential prejudice to the appellant in that his counsel was unable to challenge these two witnesses on various inconsistencies in the details of their accounts which were potentially relevant to the defence case, that if there was any touching it was accidental, inadvertent touching caused by the appellant's drunken state. Accordingly the appeal will be allowed on this ground.
23.
In these circumstances we propose to mention grounds 2 and 3 only very briefly. Ground 2, which is no longer pursued by Mr Fessal as an independent ground is that the judge erred in admitting the statements of the complainant in the ABE interview. His submission is that this ABE interview, which in fact was not made until 16th July 2015 (that is nearly a year after the incident) was not admissible.
24.
It seems to us that the judge was correct in his conclusion that while the fact that this was obtained so long after the incident meant that it should be treated with considerable caution, this was not inadmissible. In fact, the ABE interview did not include anything which was inconsistent with or went further than the complaint she made to her mother immediately after the incident. It is also significant that Mr Fessal made it clear that if it were admitted he would not seek to cross-examine the complainant. Moreover the judge in his summing-up did include an appropriate warning for the jury in relation to the reliability of this evidence, given that it was taken so long after the incident. Accordingly it seems to us there is nothing in this ground.
25.
Ground 3, for which leave was given, was that the judge failed to give a clear direction that before the jury could convict the appellant they must be sure that any touching was intentional as opposed to accidental. The judge dealt with this in his summing-up. He did at one point direct the jury:
"The allegation is made under the legislation that was passed in 2003 and the allegation is that on 3rd August the defendant intentionally touched A, a child under the age of 13, in fact 7 years old at the time, as you have heard, and the touching was sexual."
He then went on to direct the jury as to requirement that the touching was sexual and to tell them that drunkenness was no defence. If matters rested there, with the single reference to the requirement of intention, we can see that it might be debatable whether the judge had done sufficient to draw to the minds of the members of the jury the requirement that the touching must be intentional. In particular it is unfortunate that the possibility of inadvertent touching was not addressed in the context of drunkenness. However, two further matters persuade us that the jury cannot have been under any misapprehension as to the requirement of intentional touching. First, the judge emphasised that the jury must be sure that the touching was sexual. The touching could not be carried out with a sexual motive unless it was also intentional. This alone excludes the possibility that the jury could have convicted on the basis of an inadvertent touching. Secondly, at the conclusion of the summing-up Mr Fessal in the presence of the jury said to the judge that it was important to remind the jury that the touching must have been intentional and not an accidental touching. The judge replied that a touching would not be sexual if it was unintentional.
26.
In these circumstances, while the direction could have been clearer, we are satisfied that the jury could not have been under any misapprehension in this regard.
27.
Accordingly, the appeal against conviction will be allowed on ground 1.
28.
We should add this. The history of this case does not reflect well on the operation of the criminal justice system. The incident occurred almost exactly two years ago. The matter was listed for trial in February 2015. At that point things started to go wrong. The German witnesses were not there so the trial was adjourned. There was then a mention in March 2015. At that stage the German students said that they would be able to attend the trial. The trial was set for August. Of course August is a time when students, especially foreign students, are not likely to be at home or at university. It is therefore not surprising that they did not attend the trial in August 2015. Nothing seems to have been done to ensure that they were there. Moreover, there was no ABE interview of the complainant until July 2015. The case was then tried in August 2015 and sentence was passed in September 2015. Perfected grounds of appeal were dated 29th October 2015 and there is a manuscript note on the perfected grounds of appeal which states "Received 29th February 2016." The matter has come before the court for hearing only today which is 4th August 2016.
29.
We should say that in the circumstances which were before the judge we can understand why the judge was anxious to avoid a further adjournment. However, in our view he erred in principle in admitting the statements. More generally, the British Transport Police, the CPS and the courts have not distinguished themselves so far as this case is concerned. The appeal will be allowed. | [
"LORD JUSTICE LLOYD JONES",
"MR JUSTICE CRANSTON",
"MRS JUSTICE ANDREWS DBE"
] | 2016_08_04-3815.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1654/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1654 | 895 |
fdad9c1daefd4f573ff98cada573698b73d207a72eb4b447668a4c530ecb1ada | [2006] EWCA Crim 1395 | EWCA_Crim_1395 | 2006-07-07 | supreme_court | Neutral Citation Number: [2006] EWCA Crim 1395 Case No: 200503241C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT Mr. Justice Fulford 200503241C3*1 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 July 2006 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE BURTON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - RICHARD BATES Appellant - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2006] EWCA Crim 1395
Case No:
200503241C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Mr. Justice Fulford
200503241C3*1
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
7 July 2006
Before :
LORD JUSTICE MOORE-BICK
MR. JUSTICE BURTON
and
SIR RICHARD CURTIS
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
RICHARD BATES
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr. Charles Miskin Q.C.
and
Mr. Mark Fenhalls
(instructed by
Kenneth Bush
) for the
appellant.
Mr. John Hilton Q.C. and Mr. Philip Bennets
(instructed by the
Crown Prosecution Service
) for the
respondent.
Hearing date: 16
th
June 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Moore-Bick:
1. Background
1.
On 3 May 2005 in the Central Criminal Court before Fulford J. and a jury the appellant, Richard Bates, was convicted of murder and was sentenced to life imprisonment with an order that he serve a minimum term of 20 years. His co-accused, James Garside, was also convicted of murder and received the same sentence. The victim was Marilyn Garside, the estranged wife of James Garside. It was the prosecution’s case that Garside had hired Bates to murder her.
2.
Marilyn Garside was stabbed and killed on 2
nd
October 2001 when she answered the front door of her elderly mother’s house in Rose Lane, Romford. The prosecution alleged that Garside was the only person who knew that Marilyn would be visiting her mother, Mrs. Barbara Rawle, that day and that she would answer the door rather than her mother, who walked with difficulty.
3.
At about 5:45 p.m. that afternoon someone rang the doorbell of Mrs. Rawle’s house and Mrs Garside went to answer it. As she opened the door she was stabbed several times and fell to the ground. Mrs. Rawle, who had gone to her assistance, saw a man walking slowly away from the house towards the garden gate. She was afraid that he might return, so she shut and locked the front door. She did not see the man reach the gate but when she looked out again he had left and had closed the gate behind him. Mrs. Rawle summoned an ambulance, but her daughter died soon after the attack. As a result of the attack there were bloodstains in various places on and around the door. Blood stains were also found on top of the wooden gatepost and on the gate latch.
4.
The appellant and Garside were tried together at the Central Criminal Court between April and June 2003. It was the appellant’s case that Marilyn Garside had been murdered on the instructions of her husband who had hired an unknown person to kill her. In support of its case that the appellant was the murderer the prosecution relied in part on partial profile DNA evidence which it submitted tended to show that the appellant had been present at the scene of the crime.
5.
For much of the trial the prosecution kept open its position in relation to Garside, but after the evidence was complete it took the view that it could not invite the jury to convict him otherwise than on the basis that he had engaged the appellant to carry out the murder. As a result, despite objections from the appellant’s counsel, the judge in his summing up directed the jury that they should consider the case against Garside only if they had already reached the decision to convict Bates.
6.
In due course, on 19
th
June 2003, both men were convicted of the murder of Marilyn Garside. The appellant then sought leave to appeal against his conviction on two grounds: one relating to the admissibility of the DNA evidence, the other relating to the judge’s direction that the jury should only consider the case against Garside if they had already reached a decision to convict the appellant (what later became known as the “path to conviction”). The application was referred by the single judge to the Full Court which on 2
nd
July 2004 gave leave to appeal on the second ground and quashed the conviction:
[2004] EWCA (Crim) 1751
. It did so, however, only because it was satisfied that counsel had misunderstood the effect of the judge’s ruling and that as a result the appellant had not had the benefit of the final speech to which he was entitled. In those circumstances the court did not find it necessary to consider the first ground of appeal and, having quashed the conviction, ordered that there should be a re-trial. However, it is relevant to mention that in the course of giving judgment Hooper L.J. said that, given the way in which the prosecution had presented its case, Garside would have been denied a fair trial if the judge had left the case against him on an alternative basis and that the judge had given the only direction that he could have given under the circumstances.
7.
Following the quashing of the appellant’s conviction Garside also lodged an appeal against conviction. His appeal was allowed and a re-trial was ordered in his case as well. As a result a second trial of both men took place at the Central Criminal Court before Fulford J. between February and May 2005.
8.
At the second trial the prosecution made it clear from the outset that its case was that Garside had hired the appellant to kill his wife and that it would not invite the jury to convict him unless they were sure that appellant had committed the murder. In support of its case that the prosecution sought to rely on the same partial profile DNA evidence as had been adduced at the first trial. Having held a voir dire, the judge ruled that the DNA evidence was admissible and in due course it was placed before the jury. As at the first trial the judge directed the jury that they could not convict Garside unless they were sure that the appellant was the person who had killed Marilyn Garside. In so doing he no doubt had in mind what this court had said when giving judgment on the first appeal.
9.
The appellant sought leave to appeal against his conviction on the same two grounds as before. The single judge gave leave on the first ground, which had not been considered by the court on the previous occasion, but referred the application on the second ground to the Full Court.
2. The nature of DNA evidence
10.
In
R v Doheny & Adams
[1997] 1 Cr. App. R. 369 Phillips L.J. gave a succinct description at pages 371-372 of the nature of DNA itself and the process by which it is analysed in order to determine the statistical likelihood that the sample of material from which it was taken came from a particular person. However, it was common ground on the present appeal that the techniques now in use, although in substance the same as those described in that case, involve an extension and refinement of those that were in use in 1990 when that case was being prepared for trial. The jury in the present case were provided with a simplified summary of the nature of DNA and the techniques now adopted in the analysis of samples under investigation and we think it may be useful to describe those features of the process which have a particular bearing on the present appeal by reference to that summary. The process currently employed is known as ‘SGM Plus’, but no doubt as time goes on the techniques we describe will be further extended and refined and this summary will become out of date in its turn.
(a) The process of analysis
11.
As is well-known, DNA is a complex molecule in the form of a double helix. DNA analysis ultimately relies on the fact that different regions (or “loci”) contain repeated blocks of material known as “alleles”. The loci are given individual designations (“D3”, “D8” etc.) and the analysis is directed to 10 loci at which the alleles are known to vary widely between individuals. Although the loci at which the alleles are found are the same in everyone, the number of blocks making up the alleles at each locus differ from person to person. An allele formed of 17 blocks would be described as “allele 17”. At each locus there are two alleles, one inherited from the father and one from the mother, so, for example, a person might have alleles 14 and 17 at locus D3. That is normally designated “D3 14, 17”. In addition to the 10 loci the analysis also includes a sex indicator, amelogenin. This is ‘X,X’ in females and ‘X,Y’ in males.
12.
A person’s DNA profile is currently built up by reference to the alleles present at the chosen 10 loci and the sex indicator. This represents an advance on previous techniques which we understand were limited to 6 loci. In due course it may be possible to refine the technique still further by including additional loci. The identification of alleles is carried out by gel electrophoresis. This process uses an electric current to draw samples of DNA through a gel and separate the alleles. Lasers are used to detect coloured markers that have been applied to the sample earlier in the process and the resulting data are fed into a computer which produces the results in graphical form. The interpretation of the graphs calls for a high degree of skill and experience and can give rise to differences of opinion, as indeed occurred at the trial in the present case. However, it is unnecessary to describe that aspect of the process in any greater detail because it was accepted that for the purposes of the appeal the summary of the results produced by the prosecution could be accepted as correct.
13.
If a fresh sample of DNA from a single contributor is obtained the analysis will produce a complete profile for the person from whom it was taken. Such a profile will identify 2 alleles at each of the 10 loci together with the sex indicator. (We use the term “complete profile” in the sense that it is complete in relation to the 10 loci analysed, although many other loci exist in respect of which no analysis is undertaken.) When testing material for a match with a particular suspect the first step, therefore, is to obtain a complete profile of the suspect’s DNA for the purposes of comparison. A profile of DNA obtained from stains, hair or other materials found at a relevant location can then be prepared in the same way and the two compared. Data drawn from empirical research is available to enable analysts to calculate the statistical likelihood of any person within the population having a particular allele at a particular locus. Using that data it is possible to estimate the statistical likelihood that a particular sample of DNA originated from the person whose profile is being used for comparison. This is usually referred to as the “match probability”.
(b) Copying and the production of artefacts
14.
The process of preparing a sample for analysis involves copying a known amount of the DNA within it a number of times by a process known as a polymerase chain reaction (“PCR”). It is unnecessary for the purpose of this case to describe that process in any detail; its significance for present purposes lies in the fact that it can generate pieces of DNA which were not present in the original sample. These are known as “artefacts”. The most common of these artefacts appear on the graph as a low peak one unit below the true peak which denotes an allele. These are known as “stutters”. Stutters are frequently observed in profiles produced by the method we have described and account has to be taken of them when interpreting the results of the analysis, but they are well documented in the scientific literature and it is accepted that they do not prevent a reliable analysis from being produced by an experienced analyst.
(c) Mixed profiles and partial profiles
15.
The procedure as we have described it assumes that a full profile can be obtained of the DNA recovered from the scene of the crime or other relevant location and that the sample contains the DNA of only one person. However, in practice samples often contain the DNA of more than one person, in which case the analysis will produce what is known as a “mixed profile”. A mixed profile can be identified by the presence of more than two alleles at any single locus. In such cases it is necessary to identify the number of contributors to the profile and to establish separate profiles for each of them. This gives rise to certain difficulties in the interpretation of the results of the analysis to which we shall return. Moreover, even in a case where there is only one contributor to the sample, it may not be possible to obtain a complete profile, that is, to identify two alleles at each of the 10 loci. A profile in which, for whatever reason, some alleles cannot be identified is referred to as a “partial profile”.
16.
In a mixed sample originating from two or more persons it is often the case that one person (the “major contributor”) will have contributed much more of the DNA present than the others (the “minor contributors”). That results in higher peaks appearing on the graph at the locations of the major contributor’s alleles and lower peaks appearing at the locations of alleles obtained from the minor contributors. Where the major contributor and a minor contributor have the same allele at the same location the peak produced by the minor contributor’s allele will be hidden by that produced by the major contributor’s allele. This phenomenon is known as “masking” and may account for the apparent absence of an allele belonging to the minor contributor. The presence of a stutter in the profile of the major contributor may also mask an allele in the profile of the minor contributor.
17.
If only a partial profile can be obtained from the sample under test there will be some loci at which only one allele, or perhaps no alleles at all, have been found. That may be due to a variety of causes which include masking, the loss of some molecules from the sample and the tendency of molecules with a high molecular weight to degrade. In very rare cases there may be no allele at that locus. Such “voids” are potentially significant because, if the missing allele did not match either of the alleles at that locus of the person under investigation, it would establish conclusively that he (or she) had not provided that sample of DNA. Every partial profile carries within it, therefore, the possibility that the missing information excludes the person under investigation, but there is currently no means of calculating the statistical chances of that being the case.
3. The present appeal
18.
With that introduction we can turn to the circumstances giving rise to this appeal. Samples of material were obtained from seven locations in the vicinity of the murder. Most were found on or near the front door but one was found on the wooden gate post at the end of the garden. They were all tested in accordance with the procedure described earlier and produced a series of mixed partial profiles. The results were presented in the form of a table produced by Miss Bridget March of the Forensic Science Service who had carried out the analysis. The table included for the purposes of comparison the full DNA profiles of the appellant and Marilyn Garside. There is no dispute for present purposes that the alleles identified in the table of results had been correctly called.
19.
One of the samples taken from the front door handle (sample area 4a) contained DNA from several contributors and gave no reading for sex indicator. However, the results of analysis showed one allele at each of loci D8 and D19 which did not match the appellant’s profile, so it was clear that he cannot have been a contributor to it. It plays no further part in our discussion. The other samples contained a major profile and a minor profile. Although the experts could not exclude the presence of more than one contributor to the minor profile, it was accepted that there was nothing to indicate that there had been more than one contributor and the argument before us proceeded on the assumption that there had in fact been only one.
20.
All the samples tested contained the male sex indicator (X,Y) showing that one of the contributors was male. Moreover, the other sample taken from the front door handle (sample area 4) and the sample taken from the gate post (sample area 2) each contained eight alleles matching those of the appellant. (For reasons which will become apparent, we think that it is helpful to concentrate on those two samples, although the principles applicable to them are equally applicable in the case of the other samples.) However, none of the samples tested showed any alleles at loci D16 or D18 and in the case of locus D2 one allele (allele 22) was found in three of the samples (including samples from areas 2 and 4) and no alleles were found in the remaining three.
21.
When calculating the probability match for each sample Dr. Evett, the expert statistician called on behalf of the prosecution, attributed a value of 1 to each of the voids, treating it as neutral. On that basis he calculated the probability match in the case of samples 2 and 4 to be 1 in 610,000. This means that one person in every 610,000 has the particular combination of alleles found in those two samples. Put another way, if the total population of this country is assumed to be about 60 million, there are only about 100 people who share this particular combination of alleles. Moreover, if one assumes that about half of the population are male and half female, the presence of the male sex indicator means that in statistical terms this combination of characteristics is shared by about 50 males, some of whom are likely to be quite young and some quite elderly.
22.
In the case of a full profile match the match probability is estimated as being about 1 in 1 billion (1,000,000,000) for an unrelated person. A full profile match is therefore very strong evidence that the sample in question came from the person who provided the DNA for comparison. A match probability of 1 in 610,000 is clearly much less compelling, but it may have strong probative value if, for example, there is other evidence linking the accused to the offence.
23.
As the table of results in this case shows, at least twelve of the appellant’s alleles were consistently absent from the samples tested, but it was accepted that for all the loci apart from D2 and D18 their absence is satisfactorily explained by masking. It was agreed that their absence can therefore properly be treated as neutral for the purposes of calculating a match probability. As a result attention was directed to the voids at loci D2 and D18, particularly that at D18 where no alleles were reported.
24.
At the trial Mr. Miskin Q.C. submitted that the judge should exclude the DNA evidence on the grounds that it is impossible to ascribe any statistical value to the potential exculpatory effect of the voids in a partial profile. Professor Balding, the expert statistician called on behalf of the defence, said that it is not correct to ascribe a value of 1 to the voids because of the potential exculpatory effect of the unreported alleles, but since it is not currently possible to calculate that effect in statistical terms it is not possible to produce a true match probability. Thus, in the case of the two samples taken at areas 2 and 4, the true statistical match probability is not 1 in 610,000 but something rather lower.
25.
The judge rejected that submission. In a detailed and lucid ruling he explained the nature of the evidence and described the choice facing the court in the following terms:
“13. What are the consequences of the impossibility of assigning a statistical weight to the voids? The alternatives are to exclude the evidence entirely or to admit it subject to an appropriate warning to the jury of the limitations of the evidence, and particularly highlighting the fact that although what was found was consistent with Bates’ DNA profile, the voids at D2 and D18 in particular may have contained an allele or alleles, the presence of which would have been wholly exculpatory.
14. In arriving at the correct conclusion it is important to remember that scientific evidence frequently only provides a partial answer to a case, or to an issue in a case. However, the test of admissibility is not whether the answer is complete, but whether science can properly and fairly contribute to the matter in question. . . . . . . . . ”
26.
He held the evidence was admissible and that it could safely be put before the jury who could evaluate it together with Prof. Balding’s reservations and his explanation of significance of the voids. He was fortified in his conclusion by the fact that Prof. Balding in his evidence on the voir dire had himself agreed that there was no objection to adopting that course if the judge was of the view that the jury could grasp the concepts involved.
27.
The primary ground of appeal in this case rests, as did the application before the judge, on the impossibility of ascribing any statistical value to the potential exculpatory effect of the voids in a partial profile. In the hands of Mr. Miskin this ultimately found expression in two submissions: (a) that the effect of the decision of this court in
Doheny and Adams
is that only statistical evidence can properly be placed before the jury in relation to DNA analysis and that in the case of a partial profile the inability to take account of the potential exculpatory effect of voids invalidates any match probability; (b) that to invite the jury to assess for themselves the evidential value of a partial profile, having explained to them the potential significance of the voids, is to invite them to embark on an exercise which they are ill-equipped to undertake because it requires them to weigh up something which is inherently unquantifiable. He submitted that whether or not the test put forward by the judge in paragraph 14 of his ruling was correct in relation to other kinds of scientific evidence, it was not the correct test to apply in the case of DNA analysis.
28.
Perhaps the first point that should be made is that the evidence derived from the testing carried out by the Forensic Science Service in the present case was presented to the jury in the form of statistical match probabilities of the kind contemplated in
Doheny and Adams
. Moreover, we can find nothing in that case to support the proposition that only match probability calculations which take into account the statistical value of every conceivable possibility are admissible in evidence or that evidence based on partial profiles must be rejected in every case. That does not reflect the approach taken by Prof. Balding in his evidence to the judge on the voir dire, nor do we think it is consistent with good sense. The court in
Doheny and Adams
was primarily concerned to provide guidance of a general nature in relation to the presentation of DNA evidence and to expose and eradicate the so-called “prosecutor’s fallacy” which elevated the significance of the evidence beyond its proper level. It was not concerned with the distinction between full profile evidence and partial profile evidence, although there are passing indications in the judgment that the court may have had partial profile as well as full profile evidence in mind - see, for example, the reference to “the frequency with which the matching DNA characteristics are likely to be found in the population at large” at page 374E. Moreover, it is necessary to bear in mind that in one sense all profiles currently obtainable are partial inasmuch as present techniques only allow testing at 10 loci. We were told that at the time when the tests considered in
Doheny and Adams
were performed the analysis was carried out by reference to 6 loci; now it is carried out by reference to 10 and we were told in the course of argument that advances in technology may make it possible to test by reference to many more. It remains the case, however, that the presence of one allele at one locus that does not match the profile of the comparator is sufficient to exclude that person as the contributor.
29.
We agree that the starting point, as Mr. Hilton Q.C. for the prosecution submitted, is to ask whether the evidence is relevant in the sense of being probative of a matter in issue between the prosecution and the defence. In our view it plainly is. It is important to understand that the results of the testing procedure and the statistical analysis based on them indicate what proportion of the population has the reported alleles at the relevant loci. In the case of the samples taken from areas 2 and 4 it is one person in 610,000 in each case, or a total of roughly one hundred persons in a population of 60 million. That would remain the case even though there might be an allele in one of the voids which exculpated the appellant. If, on the other hand, a “missing” allele matched the appellant’s profile, the match probability would be reduced and the chances that the sample had been contributed by the appellant increased accordingly.
30.
We consider that the judge’s approach to the question was entirely correct. We can see no reason why partial profile DNA evidence should not be admissible provided that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it. There may be cases where the match probability in relation to all the samples tested is so great that the judge would consider its probative value to be minimal and decide to exclude the evidence in the exercise of his discretion, but this gives rise to no new question of principle and can be left for decision on a case by case basis. However, the fact that there exists in the case of all partial profile evidence the possibility that a “missing” allele might exculpate the accused altogether does not provide sufficient grounds for rejecting such evidence. In many cases there is a possibility (at least in theory) that evidence exists which would assist the accused and perhaps even exculpate him altogether, but that does not provide grounds for excluding relevant evidence that is available and otherwise admissible, though it does make it important to ensure that the jury are given sufficient information to enable them to evaluate that evidence properly. Moreover, as the court observed in
Doheny and Adams
at page 373D, the significance of DNA evidence depends to a large extent upon the other evidence in the case. By itself such evidence, particularly if based on a partial profile, may not take the matter far, but in conjunction with other evidence it may be of considerable significance.
31.
In the present case the judge summed the case up to the jury in an exemplary manner. He dealt with the DNA evidence fully and fairly in simple and straightforward terms and took particular care to ensure that they were made aware of its limitations and of the potential significance of the voids. We have no doubt that the jury were capable of understanding the evidence and of making proper use of it, guided as they were by the summing up. The fact that they could not assess with any statistical accuracy the chances that there might have been a “missing” allele which exculpated the appellant did not prevent them from making proper use of the evidence for what it could establish. Moreover, this is not a case in which the DNA evidence stood alone; there was other evidence linking the appellant to the scene of the murder which provided the context in which its significance fell to be assessed.
32.
In our view the judge was right to admit this evidence. We are unable to accept the submission that the conviction is unsafe on this ground.
4. The path to conviction
33.
The second ground of appeal is that the judge was wrong to direct the jury that they should only consider the case against Garside if they were sure that the appellant was the person who killed Marilyn Garside. The single judge referred the application for leave to appeal on this ground to the Full Court, mindful, no doubt, of the fact that the court had considered and ruled on that question on the first appeal.
34.
There was no argument as such on this matter before the trial judge. Counsel for the appellant did raise the question, but only in a way which suggests that he was seeking to ensure that his concern appeared on the record. The judge made it clear that he intended to direct the jury in those terms and nothing more was said about it.
35.
The issue which the appellant seeks to raise on this occasion is precisely the same as that which was before the court on the first appeal and it arises in the same context, save for the fact that at the second trial the prosecution had made its case clear from the outset and counsel for the appellant (who had also appeared for him at the first trial) had the benefit of this court’s analysis of the position. That included, of course, its finding that on the previous occasion there had been a misunderstanding as to the effect of the judge’s ruling so far as the appellant was concerned. The judge at the second trial directed the jury in accordance with the observations of this court on the first appeal, to which we have referred, and in those circumstances we had some doubt whether it was open to the appellant to invite the court to reconsider the question. However, we allowed Mr. Miskin to make his submissions and are content for present purposes to deal with the question on the merits.
36.
In our view the considerations which arose at the second trial were for all practical purposes precisely the same as those which arose at the first trial. The prosecution’s case was that Garside had engaged the appellant to kill his wife and that the appellant had done so. It was no part of its case that, if the appellant did not kill Marilyn Garside, she had been killed by some other person whom Garside had hired to carry out the murder. From Garside’s point of view that was an important matter because it limited the case against him and so restricted the range of possibilities which he and those representing him had to address. It would have been quite unfair to him for the judge in his summing up to have left the case to the jury, explicitly or by implication, on the basis that they could convict Garside even if they were not sure whether the appellant had committed the murder. In paragraph 30 of the judgment given on the first appeal Hooper L.J. said
“Given the way in which the prosecution had presented its case, Garside would have been denied a fair trial if the judge had left the case against Garside on an alternative basis. Thus, the only way for the judge to have given effect to what Mr. Miskin wanted him to do would have been for the jury to be directed that when considering Garside’s case, they could only convict Garside if they convicted Bates, but that when considering Bates’ case they could convict Garside without convicting Bates. The jury would have been utterly bewildered if they had received that direction.
The only direction which the judge could have given in the circumstances was the one he gave.
” (Emphasis added).
37.
In the light of that observation it is difficult to see what other direction the judge at the second trial could have given. Mr. Miskin submitted that the effect of the judge’s ruling was to elevate the direction from one dealing with the evidential position to one of law and that as such it was incorrect because a secondary party may be convicted despite the fact that the principal is acquitted (for example, because the evidence admissible against one is not admissible against the other). As a matter of law, that may be so, but that is not the issue in this case, as the court’s judgment on the first appeal makes clear. The issue here is simply whether, in the light of the way in which the prosecution had put its case against Garside, it would have been fair to him to leave the case to the jury on an alternative basis. Plainly it would not.
38.
For these reasons we consider that the judge was clearly right to direct the jury as he did and accordingly leave to appeal on this ground is refused. | [
"LORD JUSTICE MOORE-BICK",
"SIR RICHARD CURTIS"
] | 2006_07_07-867.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1395/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1395 | 896 |
8c48dd2c1f7fabdd75cb8a03224ae4ace05df2f96e96831191811823bffbfa3c | [2005] EWCA Crim 3637 | EWCA_Crim_3637 | 2005-12-21 | crown_court | No: 200504142/A8 Neutral Citation Number: [2005] EWCA Crim 3637 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 21st December 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE JACK MR JUSTICE OPENSHAW - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 86 OF 2005 (CHRISTOPHER JAMES SMITH) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal | No:
200504142/A8
Neutral Citation Number:
[2005] EWCA Crim 3637
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 21st December 2005
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE JACK
MR JUSTICE OPENSHAW
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 86 OF 2005
(CHRISTOPHER JAMES SMITH)
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR R HORWELL
appeared on behalf of the ATTORNEY GENERAL
MISS J DAGNALL
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under
section 36 of the Criminal Justice Act 1988
, to refer a sentence said to be unduly lenient. We grant leave.
2.
The offender is 23 years of age, having been born in November 1982. He was charged with attempted rape and sexual assault on a child under 13 as an alternative. His first court appearance was on 21st August 2004. On 23rd March 2005 he pleaded guilty to attempted rape.
3.
On 8th July he was sentenced by His Honour Judge Fish, at Manchester Crown Court, to a 3 year community rehabilitation order, with a condition that he reside at a hostel or as directed by a probation officer. He was also made the subject of a sexual offences prevention order for 5 years and he is subject to the notification requirements of
section 81 of the Sexual Offences Act 2003
.
4.
The sentencing process was somewhat protracted. Indeed, we are told by counsel who appeared in the court below and appears before us that the matter was adjourned on some seven or eight occasions, in order for reports, psychological and otherwise, to be obtained. Initially, there was an issue as to whether he was fit to plead. Thereafter probation reports were obtained in relation to what might be the appropriate sentence.
5.
The facts were that the victim was 3 years old, having been born on 4th November 2000. She is the offender's niece. On 19th August 2004, he had been out drinking with his brother, who is the father of the victim. They returned to the offender's brother's house to change before they went out again. There were a number of people at that house, including a 14 year old girl who was a friend of the family.
6.
The victim was put to bed. A little later the 14 year old took the victim's 2 year old sister upstairs to her bedroom, which she shared. The offender was in the children's bedroom getting changed. The 14 year old went downstairs.
7.
A little later, the offender's brother went upstairs and looked into the girl's bedroom and at this stage the offender was sitting on the side of the victim's bed, without his underpants. The brother accepted the offender's explanation that he was getting changed. Some little time later, of the order of 45 minutes, the 14 year old went upstairs to check the children and, when she opened the bedroom door, she saw the offender lying on the little girl's bed. The little girl's shorts and knickers were around her ankles and the offender's left hand was touching the top of her right thigh. The offender was startled and sat up, saying: "We were just watching Snow White". The little girl pulled up her knickers and jumped off the bed. The 14 year old reported the incident to her mother. The police were informed.
8.
The offender was interviewed on 20th August. At first he denied that anything inappropriate had taken place. But then he admitted having pulling the girls clothing down, and stroking her leg and bottom. He said he had stopped when his brother came in. Then he admitted that he had exposed his penis to the girl and had tried to put it in her bottom. He said he would probably have continued if the 14 year old had not entered the room. He said he had got carried away and was experimenting.
9.
There were two psychiatric reports, a psychological report and pre-sentence probation reports before the sentencing judge. The offender is assessed as not suffering from any mental illness, but he is within the category of mild mental retardation or of having a mild learning difficulty. His IQ places him below the threshold of intellectual ability which would have permitted him to attend a sex offender programme. An adapted sex offender programme for offenders of his IQ is not available within the probation area where he lives. The only adapted programmes in that area are within the Prison Service.
10.
The offender, according to the reports, displayed a high level of naivety about relationships and sexual contact. A programme was arranged for the offender, to be conducted on a one-to-one basis by his supervising officer at a bail hostel. It was on that basis and on the recommendation of the probation officer at that time that the judge made the order to which earlier we have referred.
11.
On behalf of the Attorney-General, Mr Horwell draws attention to the aggravating features in this case: first, the extreme youth and vulnerability of the victim; and, secondly, that the full offence of anal rape was not committed because the offender was disturbed, rather than because of any want of intention on the offender's part.
12.
Mr Horwell draws attention to the mitigation to be found in the offender's admission that he had sought to penetrate the little girl, without which there would not have been evidence supporting the allegation of attempted rape.
13.
Furthermore, save for a caution for an offence of dishonesty, the offender was of previous good character. He pleaded guilty. He suffers from a degree of mental retardation to which we have referred and does not seem to understand the gravity of that which he did. It is also said that the offence was not premeditated, though having regard to his decision to change his clothes in the little girl's room, that aspect, as it seems to us, must be open to question.
14.
The submission which is made on behalf the Attorney-General is that a community penalty failed to reflect the gravity and circumstances of the offence, in particular the youth and vulnerability of the little girl, and was unjustifiably the circumstances, which were not wholly exceptional so that a non-custodial penalty for such an offence against a child might possibly be contemplated.
15.
On behalf of the offender, Miss Dagnall submits that the sentence passed was not unduly lenient, particularly in view of the offender's mental retardation. He has a recurring drink problem and we understand that he is due to appear tomorrow at a hearing arising from his failure to comply with a number of aspects in relation to his residence in the hostel. He has, as is apparent from the reports which are before us, on many occasions taken alcohol when he should not have done and to excess. He has not attended at meetings when he should have done and he has not paid his rent as he should have done.
16.
Miss Dagnall rightly points out that the judge's sentence was passed in the light of the probation officer's recommendation in the report of 7th July, which was the most recent of the reports before the judge.
17.
There are before this Court further reports dated 26th September and 16th December 2005. To the substance of those reports we shall, in a moment, refer.
18.
Miss Dagnall canvassed the possibility that, having regard to the fact that one-to-one encounters had been taking place between the offender and his supervising officer, it might be possible for the offender to be moved to a different area where an appropriate Sex Offender Treatment Programme might be available in the community.
19.
We take all of those considerations into account. Miss Dagnall adds, by reference to the judge's mention of a figure of 5 years as being an appropriate custodial term for this case, if a community order were not made, that that represents somewhat too high a figure.
20.
This case was, for the Crown Court judge and remains for this Court, a very difficult one in which to identify the appropriate sentence. It seemed to the judge, on the material before him, including the probation officer's recommendation, that a community penalty was the best option at that time, it being contemplated that, while resident at a hostel, the offender would be able to undertake specific offence-focussed work related to sex offences against children. It is now apparent, from the further reports prepared for this Court, that this has proved to be impossible. There is, as we have said, no adapted Sex Offender Treatment Programme available for this offender, in the community. Even if there were, it is apparent from the further reports that it is doubtful whether he could successfully participate in such a programme. The work needed to reduce the risk of re-offending will not be possible pursuant to the existing order.
21.
In any event, this, as everyone has always recognised, was a very serious offence, in view of the age of the child, who was harmed to a degree not presently ascertainable. Although no grooming was involved and the offender does not pose the same risk as a predatory paedophile, the offender's decision to change his clothes in the child's bedroom shows a degree of planning and preparation, whether or not the offender himself is conscious of this. Clearly the offender presents a risk to children because, in the terms of the report, dated 26th September 2005 "deviant sexual arousal towards children is present." The probation officer's view now is that a sentence of imprisonment of more than 3 years is necessary, if the offender is going to be able to complete a 9-month adapted Sex Offender Treatment Programme.
22.
In our judgment, the order made in the court below was unduly lenient. We would have expected there a custodial sentence, even on a guilty plea, of at least 5 years, as the judge himself recognised had he thought custody appropriate. Taking into account double jeopardy, that is to say that the offender is being sentenced a second time, and all the other circumstances of this case, we quash the order made in the Crown Court. For the purpose of preventing the commission of further offences and securing the offender's rehabilitation, we substitute under the
section 85
the
Powers of Criminal Courts (Sentencing) Act 2000
, an extended sentence of 5 years, the custodial term of which will be three-and-a-half years and the extended licence period of which will be 18 months. That sentence will run from the date on which the offender surrenders. We make an order that he surrender by noon tomorrow. We also make an order that he shall be disqualified from working with children. He will also be liable indefinitely to comply with the notification provisions of the Sex Offenders Act. | [
"(LORD JUSTICE ROSE)",
"MR JUSTICE JACK",
"MR JUSTICE OPENSHAW"
] | 2005_12_21-669.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3637/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3637 | 897 |
b9e377e2741d60c7ed138057901f8555b0ee46aa5f1adba10828251c629c0e47 | [2016] EWCA Crim 92 | EWCA_Crim_92 | 2016-03-23 | crown_court | Neutral Citation Number: [2016] EWCA Crim 92 Case No: 201500063 C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES His Honour Judge Dodgson T20130751 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/03/2016 Before : LORD JUSTICE GROSS MR JUSTICE COOKE and HIS HONOUR JUDGE BURBIDGE QC (SITTING AS A JUDGE OF THE CACD - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - ZN Respondent - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2016] EWCA Crim 92
Case No:
201500063 C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
His Honour Judge Dodgson
T20130751
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
23/03/2016
Before :
LORD JUSTICE GROSS
MR JUSTICE COOKE
and
HIS HONOUR JUDGE BURBIDGE QC
(SITTING AS A JUDGE OF THE CACD
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Appellant
- and -
ZN
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment.
Copies of this transcript are available from:
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Philip Rule
(instructed by
The Registrar of Criminal Appeals
) and
Ramya Nagesh
for the
Appellant
(neither of whom appeared in the Court below)
Frederick Hookway
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing dates : 12 February, 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment As Approved by the Court
Lord Justice Gross :
INTRODUCTION
1.
On the 5
th
December, 2014, in the Crown Court at Kingston-upon-Thames, before HHJ Dodgson, the Appellant was convicted of two counts (counts 4 and 5) of Breach of a Non-Molestation Order, contrary to s.42A of the Family Law Act 1996 (“the FLA 1996”).
2.
The FLA 1996 provides, insofar as relevant, as follows:
“
42. Non-molestation orders.
(1) In this Part a ‘
non-molestation order
’ means an order containing either or both of the following provisions –
(a) Provision prohibiting a person (‘the respondent’) from molesting another person who is associated with the respondent; ….
42A Offence of breaching non-molestation order
(1) A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.”
3.
On the 9
th
January, 2015, she was sentenced by HHJ Dodgson on both counts to concurrent Community Orders for a period of twelve months with an unpaid requirement of 40 hours and a supervision requirement.
4.
On the verdict of the jury, the Appellant was in breach of paragraph 1 of a Non-Molestation Order made by a High Court Judge in the Family Division, dated 21
st
May, 2013 (“the Order”), which provided as follows:
“ The Respondent, ZN, is forbidden to
intimidate, harass or pester
the Appellant, PR, and must not instruct, encourage, assist or enable any other person to do so, or in any way suggest that any other person should do so.”
(Italics added.)
5.
The Appellant was acquitted of a further three counts of Breach of a Non-Molestation Order.
6.
The Appellant appeals against conviction by leave of a different constitution of the Full Court, limited to a single Ground, following refusal of leave by the Single Judge.
7.
The single Ground of Appeal was that the Judge misdirected the jury as to the definition of harassing conduct.
8.
The direction in question was in these terms (at pp. 7 – 8 of the Transcript of the summing-up):
“ What does ‘harassing’ mean? Harassment means causing alarm or distress. Intimidation has its ordinary meaning. I’m not going to try and define that anymore. It’s an ordinary English word. You’re quite capable of discerning amongst you what that means.
Now, we’ve also got the word ‘pestering’ in the indictment. ….I direct you that in the circumstances of this case, pestering is not something that you need concern yourself with. That is not to say that the Crown say there was no pestering. They may well say that there was, of sorts, but it does not fit within a particular legal capsule, if I can put it in that way…..It would require a course of action. …..in these circumstances, just really cross out ‘pestering’. You’re going to be considering: were these communications harassing or intimidating….? ”
9.
For the Appellant, Mr Rule (who did not appear in the Court below) submitted that, when considering whether the conduct was “harassing”, the jury ought to have been directed to consider whether it was oppressive and unreasonable.
10.
We were grateful to both Mr. Rule and to Mr. Hookway, who appeared for the Crown (here and below), for their assistance.
THE FACTS
11.
The Appellant was a qualified solicitor. From about 1997, she was in an intermittent intimate relationship with Mr PR (“the Complainant”), who was at the time her employer or supervisor and was himself married. The relationship ceased around the end of 1999 but resumed again around 2002 to 2003. The couple had a daughter together and she was born in April 2004 but, by that time, their relationship had once again finished. Their daughter (“K”), initially lived with the Appellant but Family Court proceedings over the period 2005 – 2010 culminated in K going to live with the Complainant who had three other children from a previous relationship. Under the terms of that Court Order, the Appellant was permitted contact with her daughter which had to be arranged with the Complainant.
12.
On the 14
th
May, 2013 (for reasons which are not before us), the Complainant made an
ex parte
application to the High Court for a Non-Molestation Order. A temporary order was granted on the same day, including a provision for it to be reviewed by a High Court Judge at a hearing on the 21
st
May, 2013. At that hearing, which the Appellant did not attend, Theis J made a further order (as above, “the Order”), expressed to last indefinitely insofar as it applied to the Complainant. Paragraph 1 of the Order was in the terms already set out. The Order was served originally by e-mail and a further copy was also sent by post on the 24
th
May, 2013.
13.
We turn next to the e-mails sent to the Complainant (and others) in 2013, forming the gravamen of the Counts on which the Appellant was convicted.
14.
Count 4 related to the following e-mails:
i)
25
th
May:
The Appellant sent an e-mail to the Complainant regarding the care arrangements for K and expressing concerns about her relationship with her nanny.
ii)
29
th
May:
This e-mail expressed concerns for K’s wellbeing, stated that K wanted to be with the Appellant and reiterated her proposals for care arrangements, accused the Complainant of failing to provide financially for her or their daughter and further accused the Complainant of hiding the truth which, she stated, would come out.
iii)
16
th
July:
This e-mail was purportedly sent to the Complainant by the Appellant’s mother. It invited K on holiday and stated that the author would not stop writing to the Complainant and his daughter despite the police having spoken to the Appellant in this regard. The e-mail accused the Complainant of overriding his daughter’s wishes to her detriment and of untruthfully telling others that K did not want to live with her mother. It was stated that the Complainant’s attempts to silence the Appellant and her mother from telling the truth would not work. The Complainant was accused of being angry, of trying to cut the Appellant out of her daughter’s life, of concealing the truth and getting others to lie on his behalf. Near the end of the e-mail, this is said: “There is growing interest in this story in the locale, particularly since it forms part of and is integral to your own attempt at a personal cover up”.
iv)
24
th
July:
This e-mail too purported to come from the Appellant’s mother. It addressed similar matters to those raised in previous e-mails. It went on to make reference to a letter written by a psychotherapist from The Priory, stated to have raised concerns about photographs of young girls found on the Complainant’s computer and the risks said to be posed by his unaccompanied contact with K. It was said that some parents (at K’s school) had seen the letter:
“ …which is in the public domain and forms the basis of a press article about you. The article and photos will be distressing to your children which is a pity but will vindicate ZN and the suggestion she is lying. What the parents want to do with the information they have is up to them and nothing to do with ZN who does not encourage or influence them. We now have family who are parents at the school and naturally no court order will prevent us from contacting them or them from speaking freely about the matter within the school or outside, particularly whilst there are concerns about her welfare. ”
The e-mail then returned to the familiar themes of where K was to live and whether K wished to visit the Appellant and her mother over the summer. Finally, this e-mail concluded as follows:
“ If telling the truth or writing to ask to see K amounts to harassment of you so be it. K will see our dismissal of your continuing attempt to silence us and force us to walk away from her via orders etc. as a measure of our commitment to protect her and yours to cover up the truth.”
15.
Pausing there, it may be noted that all the e-mails were copied to a Mr. Simon Hall who worked with the Complainant at the same firm and (it would appear) had been helping him liaise with the Appellant, including as to access arrangements.
16.
Count 5 related to an e-mail sent, it would seem, on both the
10
th
and
13
th
October 2013
, by the Appellant to the Complainant and copying in various other individuals who were said to have responsibility for K’s welfare. Mr Hall was again copied in. The Appellant expressed regret that the Complainant had not permitted K to join her on holiday in the summer. She invited K on a further holiday over Halloween and requested contact with her at Christmas. She again expressed concern about his refusal to allow K to visit the Appellant and the effect it was having on K’s emotional wellbeing. The e-mail moved on to addressing the Complainant’s “psychiatric issues” and referred to the “…imagery on your computer and your fixation with young girls dressed in school uniform…absolutely relevant in terms of K’s welfare as she hits puberty”. Continuing, the e-mail asserted that it was essential that K had females around her who were aware of the situation and the risks posed to her. The e-mail made it clear that the letter from the therapist (referred to above) had been seen by others and that the Appellant would share the information in her daughter’s best interests.
17.
In interview, the Appellant made no comment to the questions put to her.
18.
The
prosecution
case on Counts 4 and 5 was that the Appellant sent the e-mails which were intimidating and/or harassing and were intended to be so. She was aware of the terms of the Order and she had no reasonable excuse for sending the e-mails.
19.
The
defence
case on Count 4 was that the Appellant did not know the terms of the Order before sending the first e-mail; the second e-mail was neither intimidating nor harassing; the third and fourth e-mails had been sent by her mother and had nothing to do with her. As to Count 5, the e-mails were neither intimidating nor harassing. In seeking to protect her child she had a reasonable excuse for sending the e-mails she did.
20.
In very broad terms, the issues for the
jury
were whether or not the Appellant sent the e-mails (Count 4 only); whether or not the e-mails were intimidating or harassing and were intended to be so; if so, whether or not the Appellant had a reasonable excuse for sending them. There were also issues as to whether or not the Appellant knew of the terms of the Order which are no longer of concern on this appeal.
21.
Some mention should be made of the Complainant’s and the Appellant’s evidence (as recorded in the Judge’s Summing-Up). The Complainant found the 25
th
May e-mail totally bewildering. The 29
th
May e-mail left him feeling “bewildered and battered”. It had to be viewed in the context of a chain of events and the experience was really horrible. The 16
th
July e-mail left him feeling bullied and threatened. It was intimidating to him. The 24
th
July e-mail he found “ghastly, bullying, intimidating and wrong”. The 10
th
October e-mail had an effect on him which was intimidating and harassing and made him feel absolutely ghastly. It was getting bigger and bigger. He saw it as bullying and he did not know when the next e-mail was going to arrive or what it would say. In cross-examination, he denied that he had an inappropriate interest in children; he had no inappropriate images on his computer; nor was it a matter he had discussed with either the Appellant or his therapist. The topic had never been raised in the Family Court. He was upset to be accused of such things. He had received counselling from The Priory but it had nothing to do with a sexual interest in pubescent girls.
22.
Giving evidence, the Appellant averred that when she and the Complainant were in a sexual relationship he developed an obsession with dressing her as a school girl and caning her. It was one of the matters which prompted them to seek help for him at The Priory. She had spoken to his psychotherapist on her own about the matter. Later, it became apparent to her that the Complainant had images on his computer of 11 – 14 year old children dressed in school uniform; she had seen 60 or 70 such images. She was not really concerned at the time. She was now concerned for her daughter’s welfare – the Complainant might abuse K as she approached puberty. Her various other concerns echoed those which appear from the e-mails set out above. Her parents were also very concerned as to K’s welfare. As to the 25
th
May e-mail (sent at a time when she was not aware of the terms of the Order), she accepted that “it was rather intimidatory in tone” but it was just a matter of fact. She did not think that the 29
th
May e-mail amounted to harassment and it had not been her intention to harass or intimidate – although she accepted that the tone of the penultimate paragraph was “rather intimidatory”. The e-mails of 16
th
and 24
th
July were written by her mother and she did not know that her mother was going to write them. She did not think that the 10
th
and 13
th
October e-mails were harassing or intimidating. They were simply to ask about access. The passage about young girls was a reply to something said by the Complainant. She had provided the letter from the Complainant’s psychotherapist to a friend who was a parent at the school. She was motivated to write the e-mails by K’s unhappiness and K’s desire to live with her.
23.
In cross-examination, the Appellant agreed that she had made no mention in the Family Court proceedings of the Complainant’s alleged sexual predilections although it was a matter about which she had told the CAFCASS officer. She did not accept that the 25
th
May e-mail was harassing. At the time of sending the 29
th
May e-mail, she was not thinking straight and hoped that the Complainant might come round to her way of thinking.
24.
The Appellant was convicted by the jury.
THE RIVAL CASES
25.
For the Appellant, Mr Rule’s essential submission was that the Judge’s direction as to harassing conduct omitted reference to any element of oppression; it was that element which set the threshold, so justifying the attachment of criminal liability to the Appellant’s conduct. Mr Rule referred us to a number of authorities in this regard, to which we shall come. “Oppression” added something and could not be equated to “without reasonable excuse”; accordingly, the Judge’s several references to the question of whether the Appellant had a “reasonable excuse” for what she did went to a separate issue and did not make up for that failure to deal with the element of oppression. Mr Rule placed emphasis on the context in which the e-mails had been sent, their intermittent nature and the “cessation” between July and October 2013. The Judge’s direction was in error; he had omitted an ingredient of the offence – oppression comprised a missing additional element. If that was right, then it was a “leap too far” to conclude that the conviction was safe.
26.
For the Crown, Mr Hookway underlined that the Judge’s direction had been agreed after discussion with counsel. However, he very fairly accepted, that it was now difficult to say that a reference to “oppression” should not have been added. The thrust of his argument was that the conviction nonetheless remained safe. Given the contents of the e-mails, the Complainant’s evidence and the Appellant’s evidence “conceding” that passages in the 25
th
and 29
th
May e-mails were intimidatory, oppression would not have added much.
DISCUSSION:
27.
The matter falls conveniently under two broad headings:
i)
Was there a misdirection? (“Issue I”)
ii)
If yes, was the conviction nonetheless safe? (“Issue II”)
Issue I:
28.
We return to the Judge’s direction (set out above). As is apparent,
“pester”
dropped out of the picture and no more need be said about it. No complaint is or could be made as to the Judge’s direction in respect of “
intimidate
”. However, with respect to the Judge and for the reasons which follow, it seems plain to us that there was a mis-direction as to the meaning of “
harass
”. In fairness to the Judge, his direction was agreed with counsel (then appearing) but that feature cannot preclude our conclusion.
29.
The Judge defined harassment as “causing alarm or distress”. It is to be inferred that the Judge’s formulation is taken from s.7(2) of the
Protection from Harassment Act 1997
(“the 1997 Act”). S.7(2) is in these terms:
“ References to harassing a person include alarming the person or causing the person distress. ”
Whereas the Judge
equated
harassment with causing alarm or distress, s.7(2) of the 1997 Act speaks of harassment
including
alarm or distress. The difference is significant and goes to the minimum threshold requirement for conduct to warrant the sanction of the criminal law.
30.
S.1(1) of the 1997 Act contains the prohibition of harassment and is widely drafted:
“ (1) A person must not pursue a course of conduct –
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts harassment of the other.
….. ”
S.1(3) contains various defences, to one of which we shall return (below). S.2 provides (
inter alia
) that a person who pursues a course of conduct in breach of s.1(1) is guilty of an offence.
31.
Given the width of the prohibition (s.1(1)) and the criminal offence which flows from a breach of that prohibition, a key issue here is the need to distinguish between conduct which, however objectionable, does not justify invoking the criminal law and conduct which crosses the line and results in criminal liability. This is especially so when regard is had to the many and variety of areas where allegations of harassment (justified or not) may arise: by way of examples, the workplace, the field of Public Order and family or domestic situations.
32.
Many actions that cause alarm or distress will not amount to harassment; hence, the requirement, well established in authority (see below), that the conduct must also be oppressive. The requirement of oppression – always and of course to be considered in context – serves as a yardstick, helping the law to draw a sensible line between the give and take of daily life and conduct which justifies the sanctions of the criminal law. As will thus be appreciated, by equating harassment with the causing of alarm or distress and omitting any mention of the element of oppression, the Judge’s direction fell into error.
33.
Relatively few citations suffice to make these observations good. In
Thomas v News Group Newspapers Ltd
[2001] EWCA Civ 1233
;
[2002] EMLR 4
, the defendants published articles about police sergeants being demoted after the claimant (referred to as a “black clerk”) complained about racist jokes. The issue for the Court was whether it was arguable that the articles harassed the claimant by inciting racial hatred against her. For our purposes, the importance of the case lies in the observations of Lord PR MR (as he then was), at [29] – [31]:
“ 29. Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.
30. The act does not attempt to define the type of conduct that is capable of constituting harassment. ‘Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.
31. The fact that conduct that is reasonable will not constitute harassment is clear from section 1(3)(c) of the Act….. ”
34.
Majrowski v Guy’s and St. Thomas’s NHS Trust
[2006] UKHL 34
;
[2007] 1 AC 224
concerned the question of whether s.3 of the 1997 Act created a statutory tort for which an employer could be vicariously liable. For present purposes, the observations of Lord Nicholls and Baroness Hale furnish valuable guidance on drawing sensible lines. At [30], Lord Nicholls said this:
“ …..courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. ”
At [66], Baroness Hale expressed the point this way:
“ All sorts of conduct may amount to harassment. …. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”
35.
In
Dowson and others v Chief Constable of Northumbria Police
[2010] EWHC 2612 (Admin)
, Simon J (as he then was) dealt with 6 linked claims made by police officers of Northumbria Police, complaining that the actions of a Detective Chief Inspector amounted to harassment of officers under his command for which the defendant was vicariously liable. In the course of his review of a number of authorities, Simon J (at [132]) cited the following passage from the judgment of Gage LJ in
Conn v Sunderland City Council
[2007] EWCA Civ 1492
, at [12]:
“ ….It seems to me that what, in the words of Lord Nicholls in
Majrowski
, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognising what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law. ”
At [142], Simon J set out, with respect, most helpfully, his own summary of what needed to be proved as a matter of law in order for the claim in harassment to succeed:
“ (1) There must be conduct which occurs on at least two occasions,
(2) which is targeted at the claimant,
(3) which is calculated in an objective sense to cause alarm or distress, and
(4) which is objectively judged to be oppressive and unacceptable.
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”
36.
In
R v Haque
[2011] EWCA Crim 1871
;
[2012] 1 Cr App R 5
, the defendant was charged with putting his brother in fear of violence by harassment, contrary to s.4(1) of the 1997 Act. Giving the judgment of the Court, Hooper LJ accepted (at [69]) that s.1 of the 1997 Act is so broadly defined that it may be necessary to “import non-statutory requirements into the definition of the offence”. In accordance with prior authority, the Crown thus had to prove,
inter alia
, that the conduct in question was oppressive; the Crown did not need to prove that the defendant’s conduct was also unreasonable as s.1(3) provided that it was for the defendant to show that his conduct was reasonable (at [73]).
37.
Turning from the 1997 Act to the Family Law context from which the present case emanates, our understanding is that the wording of the Order is the “standard” wording when such injunctions are sought – or, at least, this wording is very widely used. In this regard, the observations of Sir Stephen Brown P, in
C v C
[1998] Fam. 70
, at 73, are instructive as to the gravity which is required before the law is engaged:
“ ….[Molestation] implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court….
There has to be some conduct which clearly harasses and affects the applicant to such a degree that the intervention of the court is called for.”
38.
Finally, in this review of authority,
Blackstone
, at B2.180, provides a very useful summary:
“ The definition provided by s.7 is clearly inclusive and not exhaustive… ‘Harassment’ is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to produce the consequences described in s.7. By s.1(3) of the Act… reasonable and/or lawful courses of conduct may be excluded. The practice of stalking is arguably the prime example of harassment….but a wide range of other actions could, if persisted in, be so categorised. A course of conduct which is unattractive and unreasonable does not of itself necessarily constitute harassment; it must be unacceptable and oppressive conduct such that it should sustain criminal liability…… Harassment includes negative emotion by repeated molestation, annoyance or worry. The words ‘alarm and distress’ are to be taken disjunctively and not conjunctively, but there is a minimum level of alarm or distress which must be suffered in order to constitute harassment. ”
39.
Pulling the threads together:
i)
We respectfully agree with and adopt the opening lines of this passage from
Blackstone
as providing a concise, working understanding of “harassment”; thus, to repeat:
“The definition provided by s.7 is clearly inclusive and not exhaustive… ‘Harassment’ is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to produce the consequences described in s.7. By s.1(3) of the Act… reasonable and/or lawful courses of conduct may be excluded.”
ii)
Harassment, within the meaning of the Order, cannot simply be equated with “causing alarm or distress”.
iii)
The danger of doing so is that not all conduct, even if unattractive, unreasonable and causing alarm or distress, will be of an order justifying the sanction of the criminal law.
iv)
Here, the Judge’s direction ought to have included a reference to the jury needing to be sure that the conduct was oppressive, not merely causing alarm or distress.
v)
Some such further wording, dealing with the element or ingredient of oppressive conduct, would have served to focus the jury’s mind on the distinction between criminal conduct and conduct (however unpleasant) falling short of attracting criminal liability.
vi)
Accordingly, there was a misdirection in this case as to the meaning of the word “harass” in the Order.
40.
For completeness, we add this. S. 1(3)(c) of the 1997 Act affords a defendant a defence; a course of conduct will not amount to harassment if the defendant shows that “…in the particular circumstances the pursuit of the course of conduct was reasonable”. Accordingly and for the reasons given in
R v Haque (supra)
, certainly where the 1997 Act is directly applicable, the Crown does not need to prove that a defendant’s conduct is
unreasonable
. The present case involves offences allegedly committed in contravention of the FLA 1996, rather than the 1997 Act. In our judgment, however, “harass” in the Order is to be read as it would be under the 1997 Act, so that the Appellant would not be in breach of the Order if she could make good the defence under s.1(3)(c) of the 1997 Act. In that regard, the Judge’s direction (see, esp., at p.11 of the summing-up) was amply fair to the Appellant, perhaps generous as to the burden of proof.
Issue II:
41.
Despite the misdirection we have found, was the conviction nonetheless safe? The point is a short one but critical to the outcome of this appeal.
42.
We have not found this question straightforward. On the one hand, it can properly be said that the Crown’s case was strong; the contents of the e-mails did the Appellant no credit and were extremely objectionable. The Judge’s direction as to the word “intimidate” could not be faulted. Moreover, as recorded in the summing-up, the Appellant herself accepted that some of the contents of two e-mails were “rather intimidatory in tone”. On the other hand, our conclusion as to a misdirection involves the Judge having omitted to give the jury a direction as to an important, central element or ingredient of the offence.
43.
On balance, we have come to the conclusion that while a jury may very well have convicted the Appellant had the Judge given a correct direction as to the meaning of “harass” in the Order – given the objectionable content of the e-mails – we cannot be sure that they
must
have done so; we accept Mr Rule’s submission that that would be a “leap too far”. It is possible, not simply fanciful, that a focus on the point that not all objectionable conduct causing alarm and distress constitutes harassment
might
have resulted in an acquittal. For our part, we also would not wish to read too much into the Appellant’s acceptance that a part of two e-mails was “intimidatory in tone”, in the light of her evidence as a whole, as summarised by the Judge.
44.
In the circumstances, we are driven to allow the appeal. | [
"LORD JUSTICE GROSS",
"HIS HONOUR JUDGE BURBIDGE QC"
] | 2016_03_23-3735.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/92/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/92 | 898 |
b2299ffb06ee49b10896fe93d468759388574394b7a2cbf73c746dc426bc4688 | [2006] EWCA Crim 2359 | EWCA_Crim_2359 | 2006-10-17 | supreme_court | Case No: 200503140 A8 Neutral Citation Number: [2006] EWCA Crim 2359 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT BIRMINGHAM POPPLEWELL J. Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 17 th October 2006 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE JACK and MR JUSTICE MITTING - - - - - - - - - - - - - - - - - - - - - Between: David William Beatty Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Tra | Case No:
200503140 A8
Neutral Citation Number:
[2006] EWCA Crim 2359
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT BIRMINGHAM
POPPLEWELL J.
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 17
th
October 2006
Before:
LORD JUSTICE SCOTT BAKER
MR JUSTICE JACK
and
MR JUSTICE MITTING
- - - - - - - - - - - - - - - - - - - - -
Between:
David William Beatty
Appellant
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Edward Fitzgerald Q.C. and Paul Taylor
(instructed by
Scott-Moncrieff, Harbour and Sinclair
) for the
Appellant
Tim Raggatt Q.C.
(instructed by
The Crown Prosecution Service
) for the
Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Scott Baker:
Introduction.
1.
This is a reference by the Criminal Cases Review Commission on sentence under
section 9 of the Criminal Appeal Act 1995
.
2.
On 15 March 1991 the appellant, David Beatty, was sentenced to life imprisonment. It was a discretionary life sentence under the statutory regime then in place. The tariff is said to have been 8 years, but that has not been confirmed. The appellant had earlier pleaded guilty to rape, kidnapping and making threats to kill.
3.
The sentencing judge in the Crown Court at Birmingham was Popplewell J. It is plain from his sentencing remarks that the doctors originally had in mind that a hospital order would be appropriate. Indeed, an interim order had been made under
section 38 of the Mental Health Act 1983
(
the 1983 Act
) so that the appellant could be assessed.
4.
Popplewell J. said expressly that had a hospital order been appropriate it would have been the most appropriate disposal. However, the evidence before the judge showed that it was not. The judge had no power to make a hospital order unless the statutory conditions were met. That required the supporting evidence of two appropriately qualified psychiatrists, one of whom had to give evidence orally.
5.
What the judge had, was the evidence of Dr Strickland, who said the appellant’s condition was not treatable. This opinion appears to have come as something of a surprise. Certainly it came as a severe shock to the appellant. The judge had no option but to pass an indeterminate sentence. He said:
“Above all I have to bear in mind the danger that you present to the general public. It is expressed by Dr Strickland in his report in 1990, when he described you as being an extremely and very dangerous man who constituted a grave and immediate danger to the public. In his most recent report he expresses the view that this was a very serious offence, and you must be considered to be a dangerous man. I have to bear in mind that in 1976 you committed an offence of rape on a small child, for which a hospital order was made.”
The facts.
6.
We turn to the facts of the index offence and the earlier 1976 offence. In 1990, the appellant (then aged 33) was married and working as a mortuary assistant at the East Birmingham Hospital. Whilst working at the hospital, he met a 17 year old girl (the complainant) with whom he formed a relationship. He subsequently left his wife and in April 1990 the appellant and the complainant went on holiday together. However, following the holiday their relationship ended. The appellant refused to accept that the relationship was over and on 4 May 1990 he telephoned the complainant. She made it clear to the appellant that she did not want to get back together with him. The appellant then went out and bought a replica revolver and 50 rounds of blank ammunition.
7.
At approximately 16.45 the appellant arrived at the hospital mortuary office where he found the complainant working. He told her that he wished to resume their relationship following which he put her against one of the chairs and threatened her with the revolver. He showed her the rounds of ammunition inside the revolver causing her to believe that the weapon was real. The appellant then led the complainant to his car at gun point. Once inside the car, he threatened her further with a stanley knife and then drove the car out of Birmingham. During the course of the journey he subjected her to physical violence. The complainant told the appellant that if he did not turn the car round and take her back she would jump out. The appellant then agreed to turn round and at that point stopped the car. However, instead of turning round he threatened the complainant again with the stanley knife and placed a pair of handcuffs on her wrists. He then drove to an area near Nottingham where he stopped the car again. He led the complainant out of the car across a field and into a remote wooded area. He stripped her naked and forced her to the ground. He positioned the revolver on the ground so that it was pointing towards her genitals and then raped her. After the incident, he allowed her to get dressed and they walked back to his car. On the way back to the car, the complainant tried to take the revolver from the appellant. However, he pulled it away from her and told her that he was going to shoot her. He then fired the revolver several times into the air as if it were a genuine firearm.
8.
Several days later the complainant reported the incident to the medical secretary at the East Birmingham Hospital, following which the appellant was arrested and charged. In interview he accepted that he had hit the complainant and threatened her with the revolver and the stanley knife but stated that he and the complainant had had consensual sexual intercourse.
9.
In 1976, aged 20, in Northern Ireland the appellant pleaded guilty to attempted murder, wounding with intent to cause grievous bodily harm, rape and common assault. A hospital order was made and he was sent to Broadmoor.
10.
At the time of the offences he had fantasies of doing something outrageous. He dressed in black, including a black balaclava and pretended he was a member of the I.R.A. He went into the mountains and into someone’s house where there was a young boy whom he locked in a cupboard. Then he abducted an 8 year old girl who he took into the hills, where he raped her and stabbed her twice before leaving her for dead. Mercifully she survived and made, so it is said, a complete physical recovery. The appellant was made the subject of a hospital order under
section 60 of the Mental Health Act 1959
, but for some reason no restriction order was made in respect of his discharge. After 6 or 7 years in Broadmoor he was transferred to spend 1 year in Eastdale Unit. He was then discharged to a hostel in Birmingham. Thereafter, he remained unsupervised in the community.
11.
The risk of subsequent relapse was obviously not foreseen and any future Mental Health Review Tribunal considering the possibility of the appellant’s release into the community will need to ensure that lessons have been learned from what tragically proved to be an error in 1985.
Sentence and subsequent history.
12.
Following the appellant’s pleas of guilty in November 1990 an interim hospital order was, as we have said, made under
section 38
of
the 1983 Act
. This was based on the evidence of Dr Strickland and Dr Bond. Their opinion was that he was suffering from a longstanding personality disorder. Dr Strickland described him as suffering from a significant degree of personality disorder amounting to a psychopathic disorder as defined in
the 1983 Act
. Dr Bond agreed he was suffering from a psychopathic disorder within the meaning of
the 1983 Act
. He described the condition as “a persistent disorder or disability of mind which results in abnormally aggressive and seriously irresponsible conduct.” The situation was complicated by an underlying depressive illness.
13.
The question was whether the appellant’s psychopathic disorder was treatable, for unless it was the conditions for making a hospital order were not met and the judge, as in the event happened, could not make one. The medical evidence put before Popplewell J. at the conclusion of the interim assessment indicated it was not.
14.
This case has been referred by the Criminal Cases Review Commission for the court to consider afresh the sentence because, so it is submitted, contrary to the evidence before Popplewell J. the appellant’s condition was indeed treatable.
15.
At the time of sentence in March 1991 the judge had an opinion from Dr Strickland that a hospital order should not be made. He said in his report:
“Given the amount of treatment input he has had in the past, and our ability fully to comprehend his latest offence, it was felt that we could not with certainty come to the opinion that Mr Beatty was treatable, as defined in the
Mental Health Act 1983
. Mr Beatty himself expressed a high degree of motivation to receive treatment here, although part of this seemed to be based upon the fact that his wife was visiting him here regularly and it appeared that she was going to be more accepting of him were he to be in hospital rather than prison. Our principal concerns were that we would be left with a man on whom we could make little psychological impact, and as such he would remain in hospital forever.”
16.
Among the other material before the judge was a report from Dr Rimmer. He too reported that the appellant was suffering from psychopathic disorder but said there was insufficient evidence to suggest that his condition was treatable and he therefore made no medical recommendation.
17.
In consequence the judge had no option but to pass a life sentence. The appellant sought leave to appeal. His renewed application came before the Full Court presided over by Steyn L.J. on 30 April 1993. There were further medical reports. Dr Strickland had assessed the appellant again in May 1992. He said the appellant suffered from a severe disorder of personality amounting to a psychopathic disorder. He added:
“It is also my opinion that it is in the nature of this disorder that despite his wish for treatment he would not prove amenable to treatment and, therefore, I have been unable to recommend his admission to hospital.”
Dr Bond had reported in December 1991 (just 9 months after sentence):
“However, if his mental condition continues to deteriorate, then I would hope that eventually it would be possible to arrange for his transfer to a psychiatric hospital for treatment in conditions of maximum security under the terms of section 47/49 of the
Mental Health Act 1983
.”
His report was supplemented by a letter to the Criminal Appeal Office in which he said:
“If and when this case comes to appeal, I strongly recommend that consideration should be given to making Mr Beatty the subject of a hospital order with restrictions under the terms of section 37/41 of the
Mental Health Act 1983
, in substitution for his life sentence. Again, this course of action would require the approval of a Consultant Forensic Psychiatrist from Ashworth Hospital, the S.H.S.A and the admissions panel.
Obviously, at this stage, an assessment from Dr Ian Strickland would help to clarify whether there is any prospect of Mr Beatty being offered treatment in Ashworth Hospital, either under section 47 or
section 37
of the Mental Health Act. I would be happy to comment further on this case in the light of any recommendations received from Dr Strickland.”
18.
Steyn L.J., giving the decision of the court referred to the new material from Dr Bond and Dr Strickland. He said it was clear that Dr Bond took the view that a hospital disposal was a desirable one but that he also took the view that the appellant was a dangerous man. He went on:
“Dr Strickland’s report, which is dated 9 July 1992, says that the applicant does not suffer from mental impairment, or mental illness as defined in the
Mental Health Act 1983
but that he does suffer from a severe disorder of personality, a psychopathic disorder. He expresses the view that he would not be amenable to treatment.
The upshot of these two reports together is that there is no material before this court on which the court could possibly substitute a hospital order. The statutory preconditions are not satisfied.”
He concluded by saying that in the court’s judgment a perfectly proper sentence had been imposed and that the court was therefore bound to dismiss the application.
19.
Following the rejection of the appellant’s application for leave to appeal against sentence there appears to have been concern in a number of quarters that he was not in hospital. The appellant’s counsel, Mr Millington, wrote to the medical director at Broadmoor mentioning these concerns. It was agreed that the appellant should be assessed by a Broadmoor psychiatrist. He was seen by Dr Meux who recommended a further trial of treatment under sections 47/ 49 of
the 1983 Act
. He reported:
“There is no doubt that he is a formidable treatment prospect….I find it difficult to firmly say that he is not currently amenable to treatment or that treatment would not prevent a further deterioration in his condition. I believe that he currently deserves a further trial of treatment in hospital. If this were unsuccessful he could, of course, be returned to a custodial setting should that be deemed appropriate, although he may resist this including behaviourally. After a period of eight years in Broadmoor Hospital he appears to have managed for six years in the community with no statutory supervision, during which time he married, held employment and apparently avoided alcohol abuse. This past apparent ability to respond to treatment needs to be further capitalised upon.”
20.
On 9 March 1994 the appellant was admitted to Broadmoor Hospital as a transferred patient under sections 47/49 of
the 1983 Act
. His mental condition was categorised as psychopathic disorder.
21.
At a case conference in June 1994 the appellant mentioned difficulties about talking about his history of sexual abuse. Further input was sought from a psychologist and a psychotherapist. At a case conference in February 1996 there was universal agreement that the appellant should remain in hospital for further treatment and that long term psychotherapeutic work was required. There followed encouraging signs that he was amenable to treatment.
‘Technical lifer’ status.
22.
An important event occurred on 11 August 1997. The appellant was then granted what is known as ‘technical lifer’ status. The basis for this decision is set out in a letter from the Home Office of 14 August 2002. It records:
“Following Mr Beatty’s 1994 admission to Broadmoor, we were advised that there were key issues arising from his sexual abuse that were being revealed to clinicians for the first time. We are satisfied that these issues were significant in understanding Mr Beatty’s offending and clarifying his treatability. We further considered that this new information was sufficient to cast doubt on the medical evidence at trial.”
23.
A helpful summary in relation to ‘technical lifer’ status is to be found in the ninth edition of the Mental Health Act Manual by Richard Jones at p277. A ‘technical lifer’ is a person who, although sentenced to life imprisonment is treated as though he had originally been made the subject of a hospital order with a restriction order under
sections 37
and
41
of
the 1983 Act
. ‘Technical lifer’ is a non statutory status, based on an administrative process entirely within the discretion of the Home Secretary. In assessing an application for ‘technical lifer’ status, consideration is given to whether there is reason to believe the court’s decision to impose a life sentence rather than a hospital order was made because the sentencing court has prevented from making a hospital order by reasons beyond its control, such as:
•
the unavailability of a suitable hospital bed;
•
the lack of provision of proper clinical information to the court;
•
medical reports that in hindsight do not appear to have recorded accurately the patient’s mental state at the time of the offence;
•
where a mentally disordered offender should have, but refused, to plead guilty to manslaughter on the ground of diminished responsibility and was in the result convicted of murder (for which a life sentence is mandatory).”
24.
If the Secretary of State considers that there is reason to believe that but for such reason the sentencing judge would have imposed a hospital order, with a restriction order without limit of time, he will refer the matter to the trial judge and the Lord Chief Justice for consultation. Following that consultation, and taking the recommendations of the trial judge and the Lord Chief Justice into account, the Secretary of State may exercise his discretion to grant a person ‘technical lifer’ status.
25.
It is not the practice of the Secretary of State to refer every request for ‘technical lifer’ status for judicial consideration. He only does so where it is clear either that the court was unable to make a hospital disposal, or where there is clear subsequent evidence which might have altered the court’s decision, and there are grounds to believe that the trial judge’s decision would have been different had that evidence been taken into account. The Secretary of State may take the view, upon consideration of the relevant information, that there is no reason to suggest that the sentencing judge would have imposed a hospital order, in which case he does not consult the judiciary.
26.
In
R v Secretary of State for the Home Department ex parte Williams
, 21 June 1994, unreported the court said:
“The effect of being classified as a ‘technical lifer’ is that the patient is treated, for the purposes of discharge, as though a hospital order under
section 37
and a restriction order under
section 41
of
the 1983 Act
had been made instead of the imposition of a sentence of imprisonment. He is treated with a view to rehabilitation and eventual release direct from hospital into the community. His case will not be referred to the Parole Board and he will not be released on life licence.”
27.
The Secretary of State has, or had, an equivalent system for determinate sentence provision but it is of no relevance to the present appeal. A ‘technical lifer’ can be discharged from hospital in three possible ways. Each can be initiated under
the 1983 Act
only by the Home Secretary. They are:
“(i) a conditional or absolute discharge under section 42(2);
(ii) a discharge made under section 50(1)(b);
(iii) through the operation of section 74(2).”
28.
Following the grant of ‘technical lifer’ status the appellant continued to make good progress and in October 2001 was moved from Broadmoor to Chadwick Lodge, a medium secure unit, where he remains.
Fresh evidence.
29.
We were invited to consider the following fresh written evidence.
•
Dr Meux, report of 31 January 2005.
•
Dr Exworthy, reports of 24 October 2002 and 18 February 2004.
•
Dr Bond, report of 14 June 2006.
•
Dr Sen, report of 4 September 2006.
30.
Additionally, the court heard oral evidence from Dr Exworthy and was provided with a file containing various other reports and medical records relating to the appellant. Each of these four psychiatrists is of the opinion that the appellant’s condition is treatable. Dr Sen speaks only of the position since October 2001 when the appellant was transferred from Broadmoor to Chadwick Lodge, but the other three consider he has been treatable since the life sentence was passed upon him. The progress the appellant has made since 1991 amply supports this view. Dr Exworthy thinks the case conference reports prior to sentence illustrate some confusion within the team whether the appellant was indeed untreatable. He thought it significant that Dr Strickland seemed to stand in isolation amongst his peers in finding the appellant was not treatable. Dr Meux points out that Dr Strickland had expressed a lack of certainty about the appellant’s treatability whereas the statutory test in
section 37(2)(a)(1)
of
the 1983 Act
is whether the treatment is
likely
to alleviate or prevent a deterioration of his condition. Dr Meux observes that certainty in relation to treatability is rare, not least because it depends on predicting an individual’s future mental state and behaviour and interaction with a not fully predictable therapeutic environment.
31.
Dr Meux regards it as unfortunate that the appellant’s hints of sexual abuse given as early as when he was at Ashworth Hospital, were not sufficiently explored. They were later regarded as highly relevant to the granting of his ‘technical lifer’ status. A more lengthy and detailed
section 38
assessment might have increased the chances of elaborating appropriately on issues relevant to treatability with the result that the court might have been better informed.
32.
Dr Meux concludes by pointing out that the appellant’s subsequent treatment in Broadmoor Hospital from 1994 has demonstrated that he can respond to treatment. He has shown that he can develop trusting therapeutic relationships wherein he can share information with his carers, including in relation to complex emotional issues, and then therapeutically address them and make progress. There was clear evidence that detention in hospital had both alleviated and prevented a deterioration of his mental disorder.
33.
Dr Bond had, of course involvement in the appellant’s case before the imposition of the life sentence. Having read Dr Exworthy and Dr Meux’s reports he expressly agrees with their opinions. It is his view that the appellant probably was treatable within the meaning of
the 1983 Act
. He says he was concerned about the final decision not to recommend a disposal under sections 37/41 of
the 1983 Act
. He says this decision was made after a relatively short period of assessment in Ashworth Hospital.
34.
The fresh evidence was all one way; the appellant was treatable in 1991.
35.
Mr Timothy Raggatt Q.C., who has appeared before us for the prosecution, did not challenge any of the fresh evidence which we heard
de bene esse
. He had very little to ask Dr Exworthy in cross-examination save to elicit that a good deal had emerged from the appellant himself since his application for leave to appeal against sentence was refused. There was no fresh evidence from Dr Strickland; nor has he been asked to comment on any of the fresh evidence adduced on behalf of the appellant. We were told he is no longer in practice.
36.
Mr Edward Fitzgerald Q.C., who has appeared on behalf of the appellant, submits that all along there were indications that the appellant was treatable. First, he was treated over nine years at Broadmoor from 1976 to 1985. His condition improved to the extent that he survived in the community for over five years at a time when he was not subject to after-care or supervision. Secondly an interim hospital order was made precisely on the basis that the appellant might well require treatment for his severe personality disorder. Third, after admission to Ashworth hospital his assessments were neither, consistent, unanimous nor clear; there were indications that he was treatable. Fourth, the opportunity for an extended period of assessment was not taken up and pointers to more profound problems, i.e. a history of sexual abuse in childhood, were not followed up. A much more thorough assessment was made after his transfer under
section 47
.
37.
Mr Fitzgerald also has formidable criticisms of Dr Strickland’s conclusions on treatability. First, he put the test too high: “It was felt that we could not
with certainty
come to the conclusion that Mr Beatty was treatable.” Second, he was far from ruling out the possibility of treatability. Third, he did not have full information about the appellant’s history of childhood sexual abuse and fourth he seemed to stand alone in his conclusion that the appellant was not treatable.
38.
In order to establish that the criteria in sections 37/41 are currently met the appellant relied on the oral evidence of Dr Exworthy (as well as his written report) and the written evidence of Dr Sen. We initially had some concern that Dr Exworthy has not seen the appellant since early 2004. However we are satisfied the statutory criteria are met. Furthermore, Dr Sen has been the appellant’s responsible medical officer for the past five years. A bed is available for him at Chadwick Lodge Hospital where he continues to be detained.
39.
Before leaving the history of the case we should mention that the court was provided with a copy of the most recent Mental Health Review Tribunal decision of 13 March 2006 directing that the appellant should not be discharged. The tribunal’s reasons refer to the good progress that the appellant has made but point out that there are still problems that need to be addressed.
40.
Section 23(1) of the Criminal Appeal Act 1968
provides that the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice receive any evidence which was not adduced in the proceedings below.
Section 23(2)
requires the court in considering whether to receive such evidence to have regard in particular to:
a)
whether the evidence appears to the court to be capable of belief;
b)
whether it appears to the court that the evidence may afford any ground for allowing the appeal;
c)
whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal;
d)
whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
41.
The thrust of the appellant’s case is that Dr Strickland got it wrong. Mr Fitzgerald submits that all four criteria are met. The evidence is plainly capable of belief; it would have been admissible before Popplewell J.; there is a reasonable explanation for the failure to adduce it and it affords a ground for allowing the appeal. We agree with his submission and Mr Raggatt has not seriously argued otherwise. There remains the overriding criterion whether admission of the evidence is necessary or expedient in the interests of justice. We are satisfied that it is. Mr Raggatt is not so much concerned with the facts of this case as with the consequences for other cases and the floodgates argument. He points out that the exercise of hindsight is very easy where psychiatric issues are concerned and at that
the 1983 Act
makes express provision for transfer of prisoners to hospital. The court, he submits, should guard against retrospective diagnosis. Mr Fitzgerald’s response is that this is not a case of retrospective diagnosis at all; the problem was caused by a faulty diagnosis. In truth the appellant was treatable all along. In our view the evidence that we heard
de bene esse
should be admitted and accordingly we have admitted it.
Should the appeal be allowed?
42.
Mr Raggatt submits that for most, if not all, practical purposes the appellant is in the same position as if a hospital order with a restriction order had been made.
Section 47
is in comparable terms to the court’s powers under
section 37
of
the 1983 Act
. It gives the Secretary of State power to direct a prisoner’s transfer from prison to hospital if he is satisfied by specified reports that the prisoner suffers from a relevant condition and, in a case such as the appellant’s, that the condition is amenable to treatment. He can exercise that power if he thinks, having regard to the public interest and all the circumstances, it is expedient to do so. A transfer order under this section has the same effect as a hospital order.
43.
Section 49
gives the Secretary of State power, where he makes a transfer direction under
section 47
to make a further direction called a restriction direction which is in effect a restriction order under
section 41
.
44.
These powers are important powers that allow the transfer of prisoners to hospital whose mental condition dictates that they should be in hospital rather than in prison but who, for whatever reason, did not meet the criteria at the time of sentence.
45.
Why, it is argued vary the appellant’s sentence when Parliament has provided by
sections 47
and
49
to put him in a similar position to that in which he would have been if the judge had imposed a hospital order with a restriction rather than a life sentence in the first place? Why should, the appellant be treated any differently from a prisoner who has become mentally ill during the course of his sentence.
46.
Mr Fitzgerald has a number of answers. In the first place, he submits, there is now ample evidence that at the time of sentence the statutory conditions were met for the imposition of a hospital order, and that where the conditions are met a hospital order ought to be made. The issue was treatability. The fresh evidence on this is now all one way. None of the witnesses was cross-examined to suggest the appellant was not treatable at the time of sentence. Leave was not sought to call fresh evidence from Dr Strickland. Further, events have amply shown that the applicant was indeed treatable. Considerable progress has been made.
47.
There is clear authority that where the conditions for a hospital order are met at the time of sentence a hospital order rather than a discretionary life sentence should be imposed, see
Mitchell
[1997] 1 Cr App R (S) 90 and
Hutchinson
[1997] 2 Cr App R (S) 60. This is so even where the information establishing that the conditions for making a hospital order comes to light after the imposition of the life sentence, see
De Silva
(1994) 15 Cr App R (S) 296. This situation is to be distinguished from that in which mental illness supervenes after the sentence has been imposed. In such a case administrative transfer by the Secretary of State under
section 47
is the correct course, see
Castro
(1985) 7 Cr App R (S) 68.
48.
It is important however to note that there is a significant distinction between
sections 37
and 47 in that under
section 37
the offender is released to freedom when the doctors think he has been cured (subject to any restriction order under
section 41
). But under
section 47
if the offender is cured of the illness he is returned to prison to serve the remainder of his sentence.
49.
Mr Fitzgerald submits that there is a parallel with cases in which the Court of Appeal quashes a conviction for murder and substitutes one for manslaughter by diminished responsibility on the ground that the court is satisfied the nature of the appellant’s mental condition was not recognised at the time of conviction but is subsequently in the light of fresh evidence on appeal, see e.g.
Borthwick
[1998] Crim LR 274,
Weekes
[1999] 2 Cr App R 520 and
Hobson
[1998] Cr App R 31
. That, however, is a different situation where the issue goes to conviction rather than sentence. Further, this court has, on a number of occasions expressed the need for caution in assessing fresh medical evidence relating to diminished responsibility when the defence was not run at the trial. Lord Bingham C.J. made these observations in
R v Criminal Cases Review Commission ex parte Pearson
[1999] 3 All ER 498
, 517E:
“Wisely and correctly, the courts have recognised that the statutory discretion conferred by s23 cannot be constrained by inflexible, mechanistic rules. But the cases do identify certain features which are likely to weigh more or less heavily against the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision making faculties are unimpaired not to advance before the trial jury a defence known to be available; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false, or which is for any other reason unpersuasive. But even features such as these need not be conclusive objections in every case.
The overriding discretion conferred on the court enables it to ensure that, in the last resort, defendants are sentenced for crimes they have committed and not for psychological failings to which they may be subject
.” – my emphasis.
50.
Section 11(3) of the Criminal Appeal Act 1968
provides that, inter alia, the Court of Appeal can quash a sentence if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below and in place of it pass such sentence or make such order as the court below had power to pass or make when dealing with him for the offence.
51.
Plainly the subsection is sufficiently wide to permit the court to re-sentence the appellant on information placed before it which was not put before the sentencing judge. As Beldam L.J. pointed out in
Sawyer,
16 December 1993, unreported, the subsection gives the court an opportunity to review the sentence, its effect on the appellant, and to consider whether having regard to the circumstances which were then before the court and which have happened since, it is necessary in the interests of justice for the court to confirm a sentence of the length imposed. He went on:
“Without regarding the judge’s sentence as wrong we believe that in the interests of justice we can review the sentence in the light of the circumstances as they now are.”
Such an approach clearly allows the Court of Appeal to substitute a sentence on the basis of psychiatric and other evidence coming to light after the sentence was passed.
52.
Mr Fitzgerald relies strongly on the fact that ‘technical lifer’ status was granted to the appellant in August 1997. The appellant had already been transferred to Broadmoor under
sections 47
and
49
of
the 1983 Act
In March 1994. ‘Technical lifer’ status was only granted after consultation with the trial judge and the Lord Chief Justice to ascertain whether a hospital order would have been made had the sentencing judge been in a position to do so. It will be recalled that Popplewell J. in his sentencing remarks had indicated that he would have made a hospital order had the criteria been met.
53.
If the decision is made that a transferred prisoner should be treated as a ‘technical lifer’, the Home Office guarantees:
a)
that the ‘technical lifer’ will not return to prison when he is well enough to leave hospital;
b)
that his tariff date will no longer be taken into consideration in deciding whether he is entitled to be discharged into the community;
c)
that when he leaves hospital, will go out on absolute or conditional discharge under the Mental Health Act rather than on life licence.
54.
A life sentence prisoner who is not eligible to be treated as a ‘technical lifer’ will remain detained in hospital until at least his tariff date, even if he would have been discharged into the community if he had been detained under sections 37/41.
55.
A ‘technical lifer’ who is discharged on a conditional discharge has the opportunity to apply to the Mental Health Review Tribunal or the Home Secretary for his conditional discharge to be made absolute. A transferred prisoner discharged on life licence will remain on licence for life.
56.
A ‘technical lifer’ on conditional discharge cannot be recalled to prison as he is not on life licence and can only be recalled to hospital if he meets the admission criteria for compulsory treatment under the Mental Health Act.
57.
In short, the Secretary of State undertakes to treat a ‘technical lifer’ for all purposes as if he had been detained under sections 37/41 of
the 1983 Act
and to abide by any decision of the Mental Health Review Tribunal.
58.
‘Technical lifer’ status has now been abolished. On 2 April 2005 Baroness Scotland of Asthal Q.C., Minister of State at the Home Office, announced in the House of Lords that henceforth life sentence prisoners who had been transferred to psychiatric hospital for treatment would no longer be considered for ‘technical lifer’ status. All life sentence prisoners would have their future release determined by the Parole Board and be subject to life licence on release. She said that the decision that had been taken in the light of the judgment of the European Court of Human Rights in
Benjamin and Wilson v The United Kingdom
(2003) 36 EHRR 1
which had found that the ‘technical lifer’ policy was in breach of Article 5(4) of the European Convention on Human Rights. The announcement did not affect those who had already been granted ‘technical lifer’ status or the consideration of any pending applications. However, no new applications would be considered after 2 April 2005.
59.
In referring the present appeal the Commission point out that while the effect of the applicant’s ‘technical lifer’ status may be identical to a hospital order there are potential benefits both for the appellant and the criminal justice system for his life sentence to be replaced with a hospital order. These are:
i)
the unequivocal placement of someone who is mentally disordered into a regime of expert medical care from which he can progress, if it becomes appropriate, into a less secure regime under proper supervision and safeguards;
ii)
the substitution would reflect the change of approach signalled by the decision in
Benjamin and Wilson
and continued in the Home Office decision to make no further use of ‘technical lifer’ status.
Further, it should be noted, the making of an order under sections 37/41 would not preclude the applicant from being returned to hospital under
the 1983 Act
should his behaviour cause any anxiety to those monitoring his condition subsequent to any release.
Conclusion.
60.
There is in our view an important distinction to be drawn between a life sentence prisoner who develops a mental illness or disorder post sentence and who is transferred to hospital under
sections 47
and
49
of
the 1983 Act
and one whose condition was such at the time of sentence that the judge should have made a hospital order with a restriction under
sections 37
and
41
of
the 1983 Act
. This distinction was recognised by the device of the grant of ‘technical lifer’ status which, for reasons we have explained is no longer granted. The present case falls fairly and squarely with the latter category. It is not as if some treatment or drug has come into existence subsequently that was not available or known about at the time of sentence in 1991. If Popplewell J. had had the evidence before him that we have had it is inevitable that he would have made a hospital order with a restriction. Indeed he expressly said when passing sentence that it would have been the most appropriate disposal. He did not make such an order solely because he did not have evidence that his condition was treatable within the meaning of
section 37
. There is now overwhelming evidence that it was.
61.
Bearing in mind the criteria for granting ‘technical lifer’ status we think it is very difficult to envisage circumstances where, ‘technical lifer’ status having been granted, the court would not substitute a hospital order with a restriction for a life sentence. ‘Technical lifer’ status is only afforded if the prisoner is treatable.
62.
It is obviously important, perhaps even more so now that ‘technical lifer’ status is no longer granted, that those who should have been the subject of a hospital order under sections 37/41 rather than life imprisonment should have the position rectified on appeal. That said, however, the court will always scrutinise with great care cases in which an appellant seeks to rely on psychiatric evidence directed to his mental state at the date of sentence that was not advanced at the time. Each case is likely to be decided on its own specific facts.
63.
The appeal against sentence is allowed. The life sentence will be quashed and will be substituted with a hospital order with a restriction under sections 37/41 of
the 1983 Act
. | [
"LORD JUSTICE SCOTT BAKER",
"MR JUSTICE MITTING"
] | 2006_10_17-938.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2359/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2359 | 899 |
3db5b586d65ee3b8b648b9255eb6eb62b7cfc51f40fded79cbbfe41cf0f23689 | [2007] EWCA Crim 1205 | EWCA_Crim_1205 | 2007-04-24 | crown_court | Case No: 2006/4649/D5 2006/4846/D5 Neutral Citation Number: [2007] EWCA Crim 1205 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 24 April 2007 BEFORE: LORD JUSTICE TUCKEY MR JUSTICE BENNETT MR JUSTICE GROSS - - - - - - - - - - - - - - - - - - - - REGINA -v- JOSEPH WILLIAM BRACK JOSEPH JAMES BRACK - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4 | Case No: 2006/4649/D5 2006/4846/D5
Neutral Citation Number:
[2007] EWCA Crim 1205
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Tuesday, 24 April 2007
BEFORE:
LORD JUSTICE TUCKEY
MR JUSTICE BENNETT
MR JUSTICE GROSS
- - - - - - - - - - - - - - - - - - - -
REGINA
-v-
JOSEPH WILLIAM BRACK
JOSEPH JAMES BRACK
- - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
MR D WATSON
appeared on behalf of the APPLICANT CROWN
MR
A
BARRACLOUGH
appeared on behalf of the RESPONDENTS
- - - - - - - - - - - - - - - - - - - -
JUDGMENT
1.
LORD JUSTICE TUCKEY: On 31st October 2005 in the Liverpool Crown Court before Judge MacMillan, the respondents to this application, Joseph William Brack, who is now aged 63, and his son, Joseph James Brack, now aged 41, both pleaded guilty upon rearraignment to separate offences of concealing criminal property, contrary to
section 327(1)(a)
of the
Proceeds of Crime Act 2002
. On 12th May they were sentenced respectively as follows: Father, nine months' imprisonment suspended for two years; son, community punishment order for 200 hours. Other counts on the indictment against father for possessing goods with a false trademark for sale or hire contrary to the Trademarks Act 1994 were left on the file on the usual terms.
2.
Following the conviction the Crown applied for a confiscation order and the hearing of this application came before Judge MacMillan on 18th August 2006. He dismissed the application. The Crown appeals with the leave of the single judge against this decision.
3.
Before coming to the proceedings under
the 2002 Act
, the facts giving rise to the conviction were shortly as follows. On 3rd September 2004 Merseyside Police executed a search warrant at a cash and carry warehouse operated by the father at which the son was employed. At the warehouse £93,185 was found wrapped in three shopping bags in a safe and a further £10,470 was recovered from a drawer in an office.
4.
The father pleaded guilty to the offence to which we have referred on the basis that he had evaded the tax due on legitimate business earnings and had placed the money out of reach of the Revenue. The money which he had stashed away in that way was not from any previous unlawful trading or the sale of counterfeit goods, but rather from the undisclosed profits of legitimate trading.
5.
The son was found to have cash of about £9,000 concealed in a hollow under the floorboards of his house. He pleaded guilty on the basis that he had received the cash from his father as a loan to enable him to finance his intended wedding and honeymoon. When he had received and concealed the cash he did not know that it represented criminal property but suspected that it might represent the proceeds of his father's tax evasion. As well as the money concealed under the floorboards of his house, the son was found to be in possession of over £4,000 in cash when he was arrested. The total amount of the cash recovered from father and son in this way was about £117,000. The cash seized was forfeited by magistrates and did not in the event feature in the proceeds of crime proceedings.
6.
In those proceedings, the prosecution case was supported by statements of information prepared in accordance with
section 16
of
the 2002 Act
by DC Simpson, an officer with the Merseyside Financial Investigation Unit. These statements made it clear that the application was made on the basis that the father was alleged to have benefited by £800,000, of which about £625,000 was available. In the son's case the amounts were £195,000 and £188,000 respectively. Statements of response were served on behalf of the Bracks. The father claimed that the benefits identified by the prosecution came from his genuine business as a wholesale market trader. He also produced psychiatric reports which indicated that he was suffering from dementia with secondary depressive and anxiety symptoms, which meant that he could not give a clear account of his present situation and history and would be unable to remember details of his income and business dealings. His son said that he had always worked as his father's employee, mainly running market stalls for which he was paid £100 a week.
7.
That is a brief overview of how things stood when
the 2002 Act
application came before the judge. His task was prescribed by the Act. Section 6(4) required him to decide whether the defendant had a criminal lifestyle (a) as defined by section 75 of the Act, and, if so, whether he had benefited from his general criminal conduct (b). For the latter purpose the court was required to assume that any property transferred to or expenditure incurred by the defendant in question after the relevant day (that is to say six years before proceedings were started) or any property held by him at any time after conviction was the result of his general criminal conduct unless this assumption was shown to be incorrect or there would be a serious injustice if the assumption was made - see section 10(1) to (6). If the court decides that a defendant has benefited, it must go on to decide the recoverable amount and make a confiscation order in that amount -section 6(5) - subject to the other provisions of sections 6 to 9.
8.
So that was the judge's task. We turn to see what happened when the judge heard the application. The hearing started with Mr Barraclough, counsel for father, explaining to the judge the difficulty he had in obtaining instructions from his client and saying:
"He is not able to remember details, etc. We are going to have to establish, amongst other things, how he purchased two properties together worth some £½m."
The judge said "Yes". Counsel then said:
"We say it is simple enough if you go to the first assumption you see that it is property transferred to him many years ago. The Crown, of course, say you ignore that because it was still held by him after the conviction. I say that is not a logical approach to take."
To which the judge said: "I agree with you." This refers to two houses, one in which the father was then living, which were said to be worth £475,000. One was purchased in November 1995 and the other (the father says) about 20 years ago. On the face of it that was not property acquired after the relevant date but was property held by the father after his conviction - see section 10(3)(a) - and so on the face of it fell to be considered as a benefit from general criminal conduct.
9.
Following this exchange with the judge in which it appears that Mr Barraclough, for reasons which are not fully or satisfactorily explained, had succeeded in knocking out about £475,000 of the claim, the judge went on to say that discretion should be used as to when the draconian powers contained in this Act were to be deployed. It should, he said, be used for "BMWs and yachts, what have you, of class A drug dealers". Counsel for the prosecution, Mr Watson, said that these were lifestyle offences and the judge said:
"Yes, but both men were in employment as market traders. I do not wish to cast slur over something but one does know from one's experience of life and on the Bar [we think he meant at the Bar] and the Bench that market traders have a somewhat free and easy view so far as VAT, Inland Revenue and so forth is concerned, as father Brack concedes. The assets that these two men have accumulated over the years in my view is probably attributable to their earnings as legitimate market traders."
To which counsel for the prosecution replied:
"I can see that that finding would probably rebut the presumption so far as they are concerned. But, of course, the Crown bring this application in part on the basis that although, as your Honour knows, there was no conviction in relation to these offences, there were two large caches of counterfeit goods from different sources found on the premises."
Counsel went on to point out that as well as the houses to which we have referred, father had substantial sums in bank accounts. The investigation had revealed that £180,000 had been paid into his bank accounts at various times of which £120,000 remained at the time of this hearing. The judge did not respond to that but simply adjourned the hearing and when later that morning he was told that no settlement of the case had been possible he simply dismissed the application without further argument. In the course of the discussion about what the judge's order would be, Mr Watson did say:
"In other words, your Honour is saying that you think it unjust to apply the assumptions in this case."
To which the judge said:
"No, I think I will dismiss the application."
There were further exchanges which suggest that the judge was simply saying "no" to whether his ruling was that he was declining to deal with the application or whether he was dismissing it. But when invited to indicate whether the application had been dismissed on the basis that it was unjust, the judge did not say in terms that this is what his decision had been.
10.
One has every sympathy with busy Crown Court judges faced with having to deal with applications of this kind. They are often complex, as this one was, and sometimes lead nowhere. The legislation requires the court to perform mental gymnastics. But the judge must embark on the task which the statute requires him to perform and spell out the basis for any decision which he makes. Here the respondents admittedly did have a criminal lifestyle for the purposes of the Act because they had been convicted of money laundering - see paragraph 2A of Schedule 2 to the Act. But it is not clear from the extracts of the transcript which we have quoted or elsewhere whether the judge dismissed the application because the assumption that the respondents had benefited from general criminal conduct was incorrect, or, if the assumption was made, there would be a serious risk of injustice or, if either of those grounds were his reasons for dismissing this application, what were his reasons for doing so?
11.
In his spirited submissions to us this morning, Mr Barraclough has sought to defend the judge's approach. He says that the judge was obviously following section 6. He was not declining to follow the statutory route which was prescribed for him and that he was entitled to reach the decision on the papers that the assumption that these respondents had received benefit was incorrect and that this is the decision he made. Alternatively, if he did not make that decision and/or if he made that decision, he decided that the making of a confiscation order in this case would result in a serious risk of injustice to the respondents on the ground that they had paid what was due from them by having the £117,000 forfeited and it would be wrong for the court to go further than that.
12.
Skilfully though those submissions were put, we do not accept them. It does not seem to us that one can spell out of the exchanges which took place in what must have been a very short space of time - they occupy no more than five pages of transcript - the judge went through the steps which the Act required him to follow.
13.
Before reaching any conclusion in this case, some consideration and/or reference to the evidence was necessary. We do not say that in every case it is necessary for the judge to hear oral evidence, but if he is to reach a decision some reference to the evidence upon which the decision is based must be made. It was not enough for the judge simply to say that the prosecution should not have made the application, as he appears to have done at one stage. There was nothing to suggest that the application was an abuse of process and section 6 gave the prosecution an unqualified right to ask the court to proceed, which the court must do - see section 6(1) - if the two conditions set out in subsections (2) and (3) were satisfied, which they were in this case.
14.
It follows that we think the judge's decision was flawed and we must allow this appeal and quash that decision. We have jurisdiction to determine the matter ourselves (section 32(2)(a)) but have already indicated that we would not do that today. The most appropriate course is for us to direct that the Crown Court should proceed afresh under section 6 and so we make an order to that effect under section 32(2)(b) of the Act. | [
"LORD JUSTICE TUCKEY",
"MR JUSTICE BENNETT",
"MR JUSTICE GROSS"
] | 2007_04_24-1081.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1205/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1205 | 900 |
8ee1a05080a221cc4c340078abeb2b31f78934d735d8db02057cc5520579c7ee | [2024] EWCA Crim 275 | EWCA_Crim_275 | 2024-03-08 | crown_court | Rex v Jack Davies Case Nos 202301097/B2 202301291/B2 Court of Appeal Criminal Division [2024] EWCA Crim 275 , 2024 WL 01241633 Before: Lord Justice Lewis Mr Justice Wall The Recorder of Norwich Her Honour Judge Robinson (Sitting as a Judge of the Court of Appeal (Criminal Division)) Friday, 8 March 2024 Representation • Miss S Wass KC and Miss S Lalani appeared on behalf of the Applicant. Judgment | Rex v Jack Davies
Case Nos 202301097/B2
202301291/B2
Court of Appeal Criminal Division
[2024] EWCA Crim 275
, 2024 WL 01241633
Before: Lord Justice Lewis Mr Justice Wall The Recorder of Norwich Her Honour Judge Robinson (Sitting as a Judge of the Court of Appeal (Criminal Division))
Friday, 8 March 2024
Representation
•
Miss S Wass KC and Miss S Lalani appeared on behalf of the Applicant.
Judgment
Lord Justice Lewis:
1.
On 9 March 2023 in the Inner London Crown Court the applicant Jack Davies was convicted of manslaughter. On 12 April 2023 Davies was sentenced to 11 years' detention in a young offender institution. Davies was 19 at the time of the killing and 20 at the time of conviction and sentence. He is now aged 21. Applications for leave to appeal against conviction and sentence were refused by the single judge. The applicant now renews those applications.
2.
The facts can be stated shortly. On 8 February 2022 Davies was with three others. They were Yusuf Aydin, Benedict Paul and Geraldo Annan. They had something to eat at a fast food restaurant. They then set off in a car together. Aydin was driving, Davies was in the front passenger seat, Paul and Annan sat in the ear.
3.
At a roundabout they saw the victim, a young man of 21 called Bartosz Wyrzykowski who was with a woman who was referred to in the case as "witness C". Ayden stopped the car on the roundabout. He and the other three, including Davies got out of the car. There was a confrontation between Aydin and Bartosz. There is CCTV footage of the events at the roundabout.
4.
Bartosz and witness C moved away from the roundabout at Lionel Road. They were followed by Annan, Paul and Aydin. Davies got into the driver's seat of the car, which was still on the roundabout, and moved it off the roundabout and stopped it at the side of the road. He was in the car for approximately 14 seconds. He got out of the car and stood next to it for approximately 10 seconds and can be seen on CCTV looking down Lionel Road. He then ran at speed down Lionel Road in the direction of the others. That can be seen on CCTV.
5.
Bartosz was stabbed part of the way along Lionel Road near a nursery. There is no CCTV of this part of the incident. Annan produced a machete-style knife which he said had been in his waistband and which he had had with him in the car. He stabbed Bartosz twice, once to the stomach and once to the leg. Sadly Bartosz died of his wounds.
6.
Aydin and Davies are seen on CCTV running back to the car. Paul and Annan also got into the car, although you cannot see that on the CCTV. The four of them then drove to a house owned by the mother of Davies' girlfriend, although other members of the group knew family members connected to that house as well.
7.
Each of the four was charged with murder or in the alternative with manslaughter. Annan (the stabber) was said to have unlawfully killed Bartosz intending to kill or cause him serious bodily harm. His defence was that he had acted in lawful self-defence. The other three were charged with murder on the basis that they encouraged or assisted Annan intending that Bartosz be caused serious bodily harm, or alternatively that they encouraged or assisted Annan intending that some harm be caused to Bartosz.
8.
In addition to the CCTV footage, there was evidence from a number of witnesses. We propose to refer simply to one or two witnesses but we have considered the evidence given by all the witnesses and Miss Wass's helpful comments about other witnesses. So the fact that a witness is not named in this judgment does not mean that we have not considered that witness's evidence. We have considered it all.
9.
The witnesses includes witness C. She described the confrontation near the roundabout when she said all four males got out of the car and were aggressive. She also gave evidence that on Lionel Road one male struck her and she described that individual in terms of height and haircut but also in terms of ethnicity and build and one of the questions was whether the jury could accept that the man she described as hitting her on Lionel Road was Davies. Witness C also described the later part of the incident more generally in Lionel Road near the nursery, saying that Bartosz was surrounded by four males and then Bartosz fell to the floor. She had not herself seen the actual knife that was used to kill him.
10.
Other witnesses gave accounts of what they had seen. Kelly Seguss, for example, identified a different car from the black Seat Leon in which the four had arrived at the roundabout and in that respect at least she must have been mistaken. She also described a confrontation at the roundabout and referred to two groups of people. One was a group of two and the description of those two people are easily capable of being understood as referring to Bartosz and witness C. The other group was a group of four males. She described one as punching the man. She said that Bartosz and witness C went down Lionel Road and all four followed. Another witness said that she saw four or five people running up Lionel Road. Other witnesses gave their accounts and they had seen two perpetrators at the time of the stabbing; one stabbing, one less involved.
11.
At the trial, Miss Wass KC for Davies submitted that there was no case for Davies to answer. She submitted that there was no evidence that Davies was part of a joint enterprise to cause serious injury to Bartosz and no evidence safely identifying Davies as being present at the time Bartosz received the injuries which caused his death. Further, Annan had produced the knife when he was going down Lionel Road and was near the nursery where Bartosz was stabbed. He had not produced the knife at the roundabout.
12.
The prosecution at the trial submitted that the evidence did raise a case from which a jury could properly conclude that Davies was part of a group in which he, Aydin and Paul were secondary parties, while Annan was the principal party and the killer.
13.
The evidence was that the four got out of the car at the roundabout and had an altercation with Bartosz. Three followed Bartosz down Lionel Road and Davies moved the car off the roundabout and within seconds had got out of the car, looked to see what was happening and then ran at speed and joined the pursuit of Bartosz in Lionel Road. The prosecution said there was evidence which, if the jury accepted it, indicated that four people were present at around the time Bartosz was attacked and stabbed. Davies and Aydin were seen on CCTV returning from the incident, Aydin first and Davies second. The prosecution submitted that there was evidence on which the jury could properly find that Davies had been active in the initial confrontation with Bartosz, active in the infliction of unlawful violence on witness C and active in running down Lionel Road to lend encouragement and support to the continuing unlawful violence being used against Bartosz. The prosecution said there was evidence from which the jury could infer that Davies knew that Annan had a knife. Annan had an interest in knives and Davies knew Annan. The jury could infer that more specifically Davies and Annan had been together that day and had spent some time in the car where Annan had with him what was described as a large machete-type knife.
14.
The judge dismissed the application and held there was a case for Davies to answer. She identified the main submission in the following terms. She said:
"The main submission is that there is insufficient evidence against this defendant in terms of identification and in terms of any fact pointing to encouragement in this attack, and/or the actual stabbing."
15.
The judge noted that it is accepted that the law is that presence alone would not be sufficient and there had to be some encouragement at the time of the commission of the offence. The judge noted that the CCTV footage showed the car at the roundabout where the victim and witness C were walking and the car coming to a stop. It showed Aydin getting out and confronting the deceased. It showed others getting out, two moved closer to Aydin and the deceased and Davies stood behind the car but in close proximity. The judge noted that Davies got into the car and moved it away from the roundabout. The deceased backed off into Lionel Road with the other three following him. Within seconds Davies had got out of the vehicle, turned, looked at what was happening in Lionel Road and then ran at speed from the car to rejoin the group. The judge recognised that there were variable descriptions from the witnesses as to what had happened in Lionel Road. Then the stabbing having occurred all four run back to the car, they get into the car and they drove off to an address that she described as connected with Davies. The judge noted that Annan was a man who habitually carried knives or was linked to knives and he was travelling in the car with Davies at a time when he had a knife. The judge said this:
"And so even if this one was spontaneous in the sense that there was no planning or a prearranged meeting, the evidence suggests that there are four men in a car who know each other to a greater or lesser extent. The evidence is that the first defendant is a man who habitually carries knives or is linked to knives and that this defendant was in the car with him. The evidence is that there was a hostile confrontation and he was one of the number who was present at that time, and that he then joined the group which continued the hostile confrontation which then ended up with the stabbing, and that they all left together …"
16.
The trial continued. Davies did not give evidence. The judge properly directed the jury as to the circumstances in which adverse inferences could be drawn from the fact that Davies had not given evidence at his trial.
17.
The jury convicted Annan of murder. The jury found that Aydin, Paul and Davies were not guilty of murder but they were guilty of manslaughter.
18.
In her sentencing remarks, the judge said that by their verdicts the jury were sure that each of those three men encouraged Annan and intended that some harm came to Bartosz and that each knew that Annan had a knife. The judge said this of Davies:
"You and your co-defendants had got out of the car, witnessed and supported Aydin in the confrontation between him and Bartosz. You decided of your own volition to move the car away from the roundabout, and parked it nearby. You knew the incident was not over. You waited by the car, and then got out and watched what was happening. Then, you ran at some speed towards the group, when the physical altercation must have been taking place, which is a very short time before the stabbing. That was a real show of support and encouragement to what was to follow."
19.
She later said:
"I am satisfied that you were present until moments before the stabbing and at the time when the knife was brandished by Annan."
20.
She had found earlier that Davies knew that Annan had a knife, that he and Annan knew each other to a greater or lesser degree and were comfortable with each other's presence before the incident and that Annan had the knife with him then and indeed later in the car when they were driving around.
21.
The judge placed the offending in Category B2 of the Sentencing Council Guidelines for Manslaughter. Category B is high culpability. The judge placed the offence in that category for two reasons, namely the death was (1) in the course of an unlawful act which involved an intention to cause harm falling just short of grievous bodily harm, and (2) in the course of committing an unlawful act which carried a high risk of grievous bodily harm or death which was or ought to have been obvious to the defendant Davies. The judge bore in mind Davies' age. The starting point for a person of over 18 was 12 years' imprisonment with a sentencing range of eight to 16 years' imprisonment. The aggravating factors here, said the judge, were (1) it was a group attack, (2) the attack took place near a nursery in the presence of members of the public, many of whom were parents coming to collect their children, and (3) Davies provided a safe house for a while to which all four went after the murder. She sentenced Davies to 11 years' detention in a young offender institution.
22.
In her written and oral submissions on behalf of the applicant, Miss Wass renews her application for leave to appeal against conviction and sentence. We deal with conviction first.
23.
The first two grounds Miss Wass helpfully indicated could be taken together and concerned the acceptance by the judge that there was a case to answer and the refusal of the submission that there was no case to answer. Miss Wass submitted that the judge erred in reaching that decision and that that was apparent from the level of speculation that she engaged in during submissions to arrive at a situation where she could find there was a case to answer.
24.
We do not see that grounds 1 and 2 are arguable. The judge was entitled to come to the view that there was evidence from which the jury could properly infer that Davies had been part of the initial confrontation at the roundabout, had then moved the car and within seconds had run at speed up Lionel Road to rejoin the group attacking Bartosz. In doing so, he participated in the attack, lending encouragement and support to the attacker and intending that Bartosz suffered serious harm. The fact that the judge tested certain arguments in the course of submissions does not in any way indicate that the judge had to speculate in order to find a reason for dismissing the submission that there was no case to answer. The judge was also entitled to find that there was evidence from which a jury could infer that Davies knew that Annan had a knife.
25.
Ground 3. Miss Wass submits that the approach of the judge in summing-up the evidence to the jury lent itself to excluding parts of the evidence that were unfavourable to the prosecution. We have read the summing-up in full. It fairly sets out the principal parts of the evidence from the witnesses as to what they said they saw near the nursery where of course there was no CCTV. It reminded the jury of the CCTV evidence, it gave appropriate directions as to matters of law, it reminded the jury repeatedly of what the issues were and what they were to do which is to decide the matters in dispute. The particular grounds that Miss Wass relied upon concerned comments which were said to undermine the CCTV footage. We do not think there is any substance in that argument. The judge reminded the jury of the CCTV footage, reminded them of the difference between CCTV footage and visual evidence and told the jury it was for them to decide what they made of the CCTV footage. In relation to the evidence of Kelly Seguss she submitted that the judge effectively excused for the prosecution the fact that Miss Seguss had identified the wrong car or a different car from that which was at the heart of this incident. The fact of the matter is the judge made it quite clear that Miss Seguss had identified a car which was not the car in which the four individuals involved arrived at the roundabout. She made it clear it was up to the jury to decide whether that meant the whole of her evidence was unreliable or whether parts of the evidence was reliable. We have already referred to those parts of the evidence where she described a confrontation at the roundabout between four men and two other people. We see no merit in the criticisms of the summing-up on this part of the case.
26.
Miss Wass also criticised the summing-up in relation to witness C. Witness C had given a description of a person. The judge had already given the relevant direction about identification and she said to the jury: "Is this Jack Davies?" i.e. she was drawing to their attention one of the very matters they might have to decide, namely had Jack Davies hit witness C in Lionel Road. Leaving that matter to one side, there was still her other evidence about there being four present around Bartosz. We see no justification in the criticism of the summing-up.
27.
Ground 4 was ultimately withdrawn. We should also mention that Miss Wass very helpfully drew our attention in relation to the summing-up to the decision of this court in
R v Buckley and Williams
. All cases depend on their facts. That is a case where there was very different evidence and nothing to show that the defendant, Williams, in that case was aware that the stabber had a knife and there was limited evidence to show anything more than presence. Here the facts are different and for the reasons we have given the judge was entitled to find that there was evidence which could go before a jury so they could decide whether or not Davies was guilty of murder or manslaughter and they ultimately found he was guilty of manslaughter.
28.
We see nothing to suggest that the conviction is unsafe and we therefore refuse leave to appeal against conviction.
29.
We turn next to the application for leave to appeal against sentence. Miss Wass submits that the judge erred in placing the offence into Category B, higher culpability. First, she submitted that there was no evidence of any intention on the part of Davies to cause injury falling just short of grievous bodily harm. Secondly, she said there was no evidence that Davies knew that Annan had a knife and therefore it could not have been obvious to him that the attack involved a risk of death or grievous bodily harm. Miss Wass also submitted that the judge was wrong to treat the fact that Davies took them to a safe house as an aggravating factor and it was inappropriate to mention the fact that he was not allowed to drive the car when he drove it from the roundabout to the side of the road.
30.
In this regard we bear in mind that the judge had conducted a lengthy trial and had heard evidence and was well able to evaluate the role that Davies played, his knowledge at the time and to reach inferences as to his intention in the light of that evidence. She was entitled to infer that Davies knew that Annan had a knife and she was entitled to find that Davies participated in a group attack with the intention of encouraging Annan to attack and cause harm to the victim. In those circumstances, it either was or should have been obvious to Davies that encouraging an attack by Annan when Annan was armed with a machete-type knife, of the sort used in this case, carried a high risk of grievous bodily harm being caused. That is sufficient in itself to justify placing the offence in Category B.
31.
Further, we consider that the judge was entitled to infer from Davies' initial participation in the confrontation at the roundabout and then running up Lionel Road to rejoin the group in their attack on Bartosz and doing so when he knew that Annan had a machete-type knife did mean that he intended harm to be caused to the victim which fell just short of grievous bodily harm.
32.
The starting point for Category B2 manslaughter is 12 years and the sentencing range is eight to 16 years. The judge was correct to describe the fact that this was group activity and that it occurred near a nursery where parents were collecting their children as aggravating factors. We do not consider that it was appropriate to treat Davies as providing a safe house for the offenders. The fact is all four people had connections with that house and it was the house they were planning to go to that day. It was not a house that Davies arranged in order to enable them to hide in order to try and evade justice. However we do not regard that factor as having a material inference on the sentence. Nor do we see the fact that the judge referred to the fact that Davies was not allowed to drive was a factor that influenced in any way the sentence for the manslaughter of Bartosz.
33.
The first two aggravating factors, the group activity and the location, would have required an upward adjustment from the 12-year starting point. Notwithstanding those aggravating factors the judge made a significant downward adjustment after taking those factors into account as the sentence she imposed was 11 years, that is one year below the starting point. In reaching that sentence the judge was well placed to evaluate the role played by the appellant.
34.
In all the circumstances we consider that the sentence, even leaving out of account the reference to the safe house, was not manifestly excessive for the offending in this case. We therefore refuse leave to appeal against sentence.
Crown copyright | [
"Before: Lord Justice Lewis Mr Justice Wall The Recorder of Norwich Her Honour Judge Robinson )"
] | 2024_03_08-6085.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/275/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/275 | 901 |
e0649288aa5d0fc8a98e2fe4b348f114aaaeb4f220439743d0fff6fa8392c523 | [2005] EWCA Crim 888 | EWCA_Crim_888 | 2005-04-19 | supreme_court | Neutral Citation Number: [2005] EWCA Crim 888 Case No: 200404097 A0 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT DONCASTER HIS HONOUR JUDGE JACK Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/04/2005 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE TREACY MR JUSTICE WAKERLEY and MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - Between : R - | Neutral Citation Number:
[2005] EWCA Crim 888
Case No:
200404097 A0
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT DONCASTER
HIS HONOUR JUDGE JACK
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/04/2005
Before :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE JUDGE
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE TREACY
MR JUSTICE WAKERLEY
and
MR JUSTICE CALVERT-SMITH
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
KARL GOODYEAR
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Nigel Godsmark QC
for the
Prosecution
Mr Martin Sharpe
for the
Appellant
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Woolf, Chief Justice:
1.
This is the judgment of the Court prepared by the Deputy Chief Justice, Lord Justice Judge.
2.
On first analysis this is an unremarkable appeal against sentence by Karl Goodyear following his plea of guilty to an offence of corruption on 19th April 2004 at the Crown Court at Doncaster before His Honour Judge Jack.
3.
In reality, the appeal raises important questions about the continuing applicability of the practice promulgated in
R v Turner
[1970] 2 QB 321
, as underlined and applied in subsequent cases, which, save in the most exceptional circumstances, effectively prohibited the judge from giving any indication of sentence in advance of a guilty plea by the defendant. Accordingly, following the procedure adopted in
Attorney General’s Reference (No. 1 of 2004)
1 WLR 2111 and
R v Simpson
[2004] QB 118
, a five-judge court, presided over by the Lord Chief Justice, was convened to consider whether what we shall compendiously summarise as the
Turner
rule of practice may now properly be modified, and if so, to what extent.
The Proceedings
4.
Before the trial began, a meeting took place in the judge’s chambers between the judge and counsel for the appellant and counsel for two co-defendants, and counsel for the prosecution. The fourth defendant, Stones, had already pleaded guilty. The discussion culminated in the judge saying to counsel for the appellant “I do take the view, by contra distinction to the case of Mr Stones who was a public servant and may be in a rather different position, but I do take the view that this is not a custody case”.
5.
Counsel returned to court. Goodyear was re-arraigned: so were the remaining two defendants. In the result all three defendants pleaded guilty. Sentence was adjourned for the preparation of pre-sentence reports.
6.
By 24th June, a pre-sentence report had been prepared for the appellant. It concluded that neither a custodial sentence nor a community rehabilitation order would be appropriate. A financial penalty was recommended. No reports for Daniels and Green were available. When the issue was raised before the judge he then indicated that he was considering suspended sentences on these three defendants. After an adjournment for instructions to be taken, counsel for both Daniels and Green indicated that their clients were content to be sentenced without the benefit of pre-sentence reports. Counsel for the appellant submitted that given the earlier indication by the judge on 19th April, it would be wrong in principle for a suspended sentence of imprisonment to be imposed.
7.
The antecedent histories showed that the appellant was forty years old, without relevant previous convictions. Stones was sixty-three. Apart from the conviction for driving with excess alcohol which led to his earlier disqualification, he was a man of good character. Daniels was sixty-two and Green sixty-six. Both were of previous good character.
8.
The appellant was sentenced to six months’ imprisonment suspended for two years, and ordered to pay a fine of £1,000 within twelve months. Stones was sentenced to nine months’ imprisonment, suspended for two years. Green and Daniels were sentenced to three months’ imprisonment, also suspended for two years.
The Facts
9.
These can be briefly summarised. In the mid-1990s Doncaster Metropolitan Council turned its attention to the renovation and improvement of an area known as the Stainforth Estate. Some of the property on this estate was Council-owned, and some privately-owned, usually former council houses purchased under the well-known “Right to Buy” provisions. The privately-owned houses were eligible for grant aid.
10.
Stones was responsible for allocating work between various contractors, who were already appointed to undertake grant-aided work on private houses. He was also responsible for checking that the work was done to an appropriate standard, and for authorising payment. He was aptly described by counsel for the prosecution opening the facts before the judge, as someone who was “in a position to smile upon the building contractors, or to make life difficult for them … he was in a position to be awkward, and he could, from time to time, in fact, be awkward.”
11.
Daniels and Green were partners in a firm working on the estate. Their earnings from this work kept their business afloat between 1992 and 1998. They received just over £750,000 by way of grant aid.
12.
The appellant was a sub-contractor, responsible for external rendering, the only sub-contractor authorised to undertake this kind of work. Between 1992 and 1998 he was paid just over £600,000 for the work done by him on private houses and overseen by Stones.
13.
The relationship between Green and Daniels and Stones, and the appellant and Stones was corrupt. The appellant paid Stones £3200, and carried out rendering work to Stones’ home, without payment. This work was valued at about £2500. Daniels and Green also worked at Stones’ home, making a staircase and working on kitchen work tops. The Crown valued this work at £3000, the defence contending that it was worth much less. In addition, at a time when Stones was disqualified from driving, Daniels and Green arranged unpaid transport for Stones from the Stainforth Estate to his home.
14.
The intention was clear, and again summarised by counsel for the Crown, “This work was done and these payments made to Mr Stones effectively to keep him sweet, to stay in with him, in the hope that he would smile upon them, and would show less of a tendency to be difficult with them.”.
15.
It was accepted by the prosecution that neither the appellant, nor Green nor Daniels, obtained any additional work or contracts as a result of these corrupt transactions. The purpose was to encourage Stones to look kindly on them when exercising his responsibilities for the administration of the contracts. The objective was summarised by one defendant in his interview: “It was all about ‘sweetening’ Stonesey”.
16.
The four defendants were arrested. When interviewed, Stones said that he could not remember receiving any cheque from the appellant, and claimed that he had paid for the rendering work done by him. In later interviews he made no comment about payments from him. The appellant on the other hand accepted that he had made payments to Stones, claiming that it was part of an arrangement described by him as “business consultancy”. The payments were given for business advice and some quantity surveying work, and the rendering was set off against consultancy fees.
17.
Daniels and Green accepted that they had made the stairs for Stones and helped with the kitchen work tops as a favour. They never asked Stones for payment, and they did the work in order to remain in his favour.
Grounds of Appeal
18.
The essential ground of appeal arises from the fact that the judge did not abide by his indication, given on 19th April, that a custodial sentence would not be imposed on Goodyear. It is submitted that in the light of his indication, at that date at any rate, he could not have been satisfied that the offence was so serious that only a custodial sentence could be justified (s 79(2)(a) the
Powers of Criminal Courts (Sentencing) Act 2000)
. Moreover, a suspended sentence was inappropriate because there was nothing exceptional about the circumstances (s 118(4)(a) and (b) of
the 2000 Act
.) Between 19th April and 24th June, the date when the appellant was sentenced, no additional or further factors relevant to the sentencing decision had emerged, save and except that the pre-sentence report supported the original view expressed by the judge that a custodial sentence was inappropriate. Accordingly a sentence of imprisonment, even if suspended, should not have been passed, and in the light of the indication given by the judge, was wrong in principle.
Proceedings on 19th April
19.
A complete record was rightly made of the discussion in the judge’s chambers on 19th April. As counsel for the Crown put it, the meeting did not take place at his behest. As Stones had already pleaded guilty, and was awaiting sentence, his counsel was not present.
20.
In the discussion which took place counsel for Goodyear explained various background matters, and eventually said:
“Mr Goodyear is very eager not to have a trial, and is very eager to avoid, if it were possible, the possibility of a custodial sentence, and on my behalf I wonder whether your Honour would be in a position to give any indication?”
The judge responded:
“Well, certainly not at this stage, because I haven’t considered the question of sentence at this point … and in any event I don’t think I would be in a position to give an indication. … I am sorry for that.”
21.
Counsel for Daniels then addressed the judge. His observations ended:
“… I will make submissions … that the custody threshold would not be passed, and I simply wondered whether your Honour is in a position to assist in that regard, both I anticipate on behalf of myself and my learned friend … [counsel for Green].”
The judge replied:
“… as things stand and on the prosecution case at it is put, it seems to me that I cannot assist, although I can obviously say that your client’s good character would stand him in good stead, and a guilty plea would stand him in good stead. But it does seem to me at the moment the issue as to the value of the benefits is significant.”
22.
Counsel for the appellant then raised what he described as “one important matter” which had arisen in discussion between counsel before they saw the judge. He pointed out that the Crown was not suggesting that the three defendants whose cases were then under consideration would not have received the work anyway. In other words, no specific or positive gain had been achieved.
23.
The judge sought assistance from counsel for the Crown who commented:
“There is no suggestion by the Crown that the defendants got anything they wouldn’t otherwise have got. This is simply an allegation that they are keeping him sweet, as it were … I hope I don’t oversimplify matters in putting it in that way, but that is the way in which I propose to open it to the jury.”
Counsel confirmed the judge’s understanding of what he had just said, that it was not suggested that the defendants had obtained additional work as a result of providing benefits for Mr Stones. He went on that there was no evidence to suggest that these defendants had benefited over and above any other contractors.
24.
The judge told counsel for the appellant:
“Yes, in those circumstances I can revise what I said earlier. I do take the view, by contra distinction to the case of Mr Stones, who was a public servant and may be in a rather different position, but I do take the view that this is not a custody case.”
This was the critical sentence indication.
25.
With that, counsel left the judge’s chambers. He allowed them time to see their clients and take instructions. Later that day, on re-arraignment, the three defendants pleaded guilty.
Proceedings on 24th June
26.
We have already recorded the concerns expressed by counsel for the appellant at the proposal that a suspended sentence of imprisonment should be imposed on his client, and summarised the Crown’s case. No further repetition is needed.
27.
In his sentencing remarks the judge reflected on the seriousness of offences of corruption, commenting that they were so serious that normally “only an immediate prison sentence can be justified”. He reflected on the appellant’s involvement, taking the view that it was more serious than that of Daniels and Green.
28.
He said:
“… that this is a case in which a prison sentence is justified. I indicated on an earlier occasion that I did not think that this was a custody case. I hoped that that was not misunderstood. I certainly did not intend to indicate that this was case where the custody threshold had not been crossed. I was intending to indicate, for the benefit of the defendants, that they need not worry about having to serve an immediate prison sentence. I take the view that this is a case in which there are, however, exceptional circumstances, where the prison sentence which I have to pass can be suspended.”
Advance Indication of Sentence
29.
In the light of the issues raised in this appeal, we have re-examined the principles which govern an indication of sentence given by the trial judge to a defendant.
30.
The starting point is fundamental. The defendant is personally and exclusively responsible for his plea. When he enters it, it must be entered voluntarily, without improper pressure. There is to be no bargaining with or by the judge. These principles are derived from
Turner
itself.
31.
Prior to
Turner
, it was not unusual for counsel to be seen (often separately from their solicitors,) by the trial judge in his chambers, and for the judge to tell counsel his view of the sentence which would follow an immediate guilty plea. The 37th edition of Archbold (1969) says nothing at all, and certainly nothing critical about this practice. It was
Turner
that brought the “vexed question of so-called ‘plea-bargaining’” into the open. We must briefly summarise the facts.
32.
The defendant, a man with many previous convictions, pleaded not guilty to theft. During an adjournment in the trial, counsel indicated that he wished to have a discussion with the judge, and went and did so. After he had spoken to the judge, and following that discussion, he advised Turner that in his (counsel’s) opinion, if he pleaded guilty, the outcome might well be a non-custodial sentence, but that if the case proceeded and he was convicted by the jury, he ran the risk of going to prison.
33.
The defendant received the impression that the views expressed to him by counsel represented the views the judge had communicated to counsel. This Court decided that this represented improper pressure on the defendant to plead guilty, and that in the circumstances, the appropriate course would be to treat the guilty plea as a nullity.
34.
It was immediately acknowledged that it was counsel’s duty to give the accused the best advice he could, and “if need be advice in strong terms”. This advice would normally convey the potential value as a mitigating factor of a guilty plea. We pause to note that, inevitably, robust advice from counsel creates a degree of pressure on his client, and, what is more, the situation in which the defendant is placed itself constitutes a further source of pressure. Neither of these is improper.
Turner
emphasised that as far as possible justice should be administered in open court. Nevertheless for a variety of reasons, freedom of access between counsel and the judge was not prohibited. The problem arose from any discussion between them about sentence. This created the danger of pressure, or the appearance of pressure on the defendant to plead guilty. Such pressure, coming from the court, was unacceptable.
35.
In essence,
Turner
decided that whereas counsel may give advice, which includes advice about the likely sentence on a guilty plea, such information coming from the court itself was impermissible:
“The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential.”
The court referred to occasions when the judge would tell counsel that on the basis of the information before him, the sentence which would follow a guilty plea would be non-custodial, without saying anything about what would happen if the case proceeded to trial and conviction.
“Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done.”
The only exception to the rule that an indication of sentence should not be given is:
“… that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g. a probation order or a fine, or a custodial sentence.”
36.
The principles in
Turner
have been consistently applied. The authorities are summarised in Archbold, Criminal Pleading, Evidence and Practice 2005 edition at paragraphs 4-78 to 4-81, and in Blackstone, Criminal Practice, 2005, at paragraphs D 11.53- D 11.54. The principles were consolidated in the Practice Direction (Criminal Proceedings Consolidation) para. IV.45 (
2002 1 WLR 2870
), and the Attorney General issued guidance to counsel for the prosecution on the acceptance of pleas, with observations about the duty of the advocate for the Crown when discussions leading to a sentence indication arose (
Attorney General’s Guidelines
[2001] 1 CAR 425). We have considered all this material.
37.
There have been earlier suggestions that the principle in
Turner
, at any rate in its full ambit, merits re-examination. In the Report of the Royal Commission on Criminal Justice, Chairman: Viscount Runciman of Doxford, July 1993, paragraphs 41-58, it was noted that
“A significant number of those who now plead guilty at the last minute would be more ready to declare their hand at an earlier stage if they were given a reliable early indication of the maximum sentence that they would face if found guilty.”
38.
The Report analysed the implications of the judgment in
Turner
, noting that the Crown Court study conducted for the Commission showed overwhelming support among both judges and barristers for a change. It recommended that:
“At the request of defence counsel on instructions from the defendant, judges should be able to indicate the highest sentence that they would impose at that point on the basis of the facts as put to them. … We envisage that the procedure which we recommend would be initiated solely by, and for the benefit of, defendants who wish to exercise a right to be told the consequences of a decision which is theirs alone.”
The Commission implied that the single question which the judge would have a discretion to answer would be: “What would be the maximum sentence if my client were to plead guilty at this stage?”.
39.
The Report then addressed the management and structure of the process, if the constraints in
Turner
were to be relaxed.
40.
In Sir Robin Auld’s Review of the Criminal Courts of England and Wales, October 2001, the Advance Indication of Sentence was discussed at pp. 434-444.
41.
After examining the evidence, Sir Robin concluded that subject to a number of specified safeguards, “On the request of a defendant, through his advocate, the judge should be entitled formally to indicate the maximum sentence in the event of a plea of guilty at that stage and the possible sentence on conviction following a trial”.
42.
He believed that the ability of the judge to give an indication to a defendant who wished to know the maximum sentence he would receive in the event of a plea of guilty would “enable the guilty defendant and those advising him to evaluate the judge’s indication and assess the advantage or otherwise of proceeding with a plea. He believed that a comparison between the sentence on a plea of guilty and a possible sentence on conviction was justified, explaining:
“That comparison is precisely what a defendant considering admitting his guilt wants to know. He knows and will in any event, be advised by his lawyer that a plea of guilty can attract a lesser sentence and broadly what the possible outcomes are, depending on his plea. So what possible additional pressure, unacceptable or otherwise, can there be in the judge, whom he has requested to tell him where he stands, indicating more precisely the alternatives?”
43.
Like the Royal Commission, Sir Robin then explained his views about the structure and management of any post-
Turner
procedure.
44.
In the White Paper entitled “Justice for All”, prepared after and in response to Sir Robin’s Review, there appeared to be a general welcome to a system for an advance indication of sentence made in response to a formal request initiated by the defendant (4.42 and 4.43).
45.
Some departure from the principles in
Turner
is now permitted by statute. In
Schedule 3 of the Criminal Justice Act 2003
, dealing with the allocation of cases triable either way, and sending cases to the Crown Court, paragraph 6, substituting s 20 of the Magistrates Court Act 1980, addresses the procedure where summary trial appears more suitable. The accused is entitled to request an indication of sentence, whether “a custodial sentence or non-custodial sentence would be more likely to be imposed if he were to be tried summarily … and to plead guilty. The court is entitled, but not obliged, to respond to such a request.” In short, there is no longer any absolute prohibition against an advance indication of sentence.
46.
With effect from 4th April this year the
Criminal Procedure Rules 2005
, and by amendment to the Consolidated Criminal Practice Direction, the Practice Direction on Criminal Case Management came into force. The plea and case management hearing in the Crown Court now specifically requires the judge to seek and be given information on the following matters. First, following the guidance published by the Sentencing Guidelines Council in December 2004 on the Reduction in Sentence for Guilty Plea, whether the defendant has in fact been advised about the credit to be obtained for a guilty plea, and second, what steps had been taken to see whether the case might be resolved without a trial.
47.
These matters sufficiently demonstrate a very different culture to that which obtained when
Turner
was decided. In all these circumstances the time has therefore come for this Court to reconsider it.
48.
Turner
emphasised that the defendant was entitled to receive advice from his counsel about the sentence possibilities, so as properly to inform himself whether to plead guilty or not. That was deemed not to involve the risk of pressure on him. However
Turner
did not directly address the situation which would apply if the defendant personally was seeking an indication of sentence from the judge. After
Turner
, it became the practice to assume that he was not entitled to do so. Therefore, a somewhat strange situation developed that although the defendant’s decision about his plea could properly be informed by the views of counsel about the sentence the judge would be likely to pass (provided always that he, counsel, had not participated in any discussions with the judge) it had simultaneously to be made ignorant of the judge’s own views, even if the defendant wanted to know them. That position requires examination. In any event, the further question remains whether it continues to be appropriate to proceed on the basis that clear, and if necessary strong, but inevitably incompletely informed advice from counsel, about the advantages which would accrue from and the consequences which would follow an early guilty plea is permissible, while an intimation of these matters initiated by the judge should always, without more, be deemed to constitute improper pressure on the defendant, and therefore prohibited.
49.
In our judgment, there is a significant distinction between a sentence indication given to a defendant who has deliberately chosen to seek it from the judge, and an unsolicited indication directed at him from the judge, and conveyed to him by his counsel. We do not see why a judicial response to a request for information from the defendant should automatically be deemed to constitute improper pressure on him. The judge is simply acceding to the defendant’s wish to be fully informed before making his own decision whether to plead guilty or not guilty, by having the judge’s views about sentence available to him rather than the advice counsel may give him about what counsel believes the judge’s views would be likely to be.
50.
We cannot, and do not seek to water down the essential principle that the defendant’s plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which would be imposed on the defendant. In effect, this simply substitutes the defendant’s legitimate reliance on counsel’s assessment of the likely sentence with the more accurate indication provided by the judge himself. In such circumstances, the prohibition against the judge giving an unsolicited sentence indication would not be contravened, and any subsequent plea, whether guilty or not guilty, would be voluntary. Accordingly it would not constitute inappropriate judicial pressure on the defendant for the judge to respond to such a request if one were made.
51.
We have further reflected whether there should continue to be an absolute prohibition against the judge making any observations at all which may trigger this process. The judge is expected to check whether the defendant has been advised about the advantages which would follow an early guilty plea. Equally he is required to ascertain whether appropriate steps have been taken by both sides to enable the case to be disposed of without a trial. Following this present judgment he will know that counsel is entitled to advise the defendant that an advance indication of sentence may be sought from him. In these circumstances, we do not believe that it would be logical, and it would run contrary to the modern views of the judge’s obligation to manage the case from the outset, to maintain as a matter of absolute prohibition that the judge is always and invariably precluded from reminding counsel in open court, in the presence of the defendant, of the defendant’s entitlement to seek an advance indication of sentence. The judge would no doubt approach any observations to this effect with caution, first, to avoid creating pressure or the perception of pressure on the defendant to plead guilty and, second, bearing in mind the risk of conveying to the defendant that he has already made up his own mind on the issue of guilt, or indeed that for some reason he does not wish to try the case. If notwithstanding any observations by the judge, the defendant does not seek an indication of sentence, then, at any rate for the time being, it would not be appropriate for the judge to give or insist on giving an indication of sentence, unless in any event he would be prepared to give the indication permitted by
Turner
(see paragraph 35) that the sentence will or will not take a particular form.
52.
To that extent therefore, and subject to the guidance which follows, the practice in
Turner
and the subsequent authorities which applied it, need no longer be followed.
Guidelines
53.
The objective of these Guidelines is to ensure common process and continuing safeguards against the creation or appearance of judicial pressure on the defendant. The potential advantages include, first and foremost, that the defendant himself would make a better informed decision whether to plead, or not. Experience tends to suggest that this would result in an increased number of early guilty pleas, which a consequent reduction in the number of trials, and the number of cases which are listed for trial, and then, to use current language, “crack” at the last minute, usually at considerable inconvenience to those involved in the intended trial, and in particular, victims and witnesses. Properly applied, too, there may be a reduced number of sentences to be considered by the Attorney General, and where appropriate, referred to this Court as unduly lenient. In short, an increase in the efficient administration of justice will not impinge on the defendant’s entitlement to tender a voluntary plea.
54.
In our judgment, any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought. In essence we accept the recommendation of the Report of the Royal Commission that the judge should treat the request for a sentence indication, in whatever form it reaches him, as if he were being asked to indicate the maximum sentence on the defendant at that stage. For the process to go further, and the judge to indicate his view of the maximum possible level of sentence following conviction by the jury, as well as its level after a plea of guilty, would have two specific disadvantages. First, by definition, the judge could not be sufficiently informed of the likely impact of the trial on him (or the trial judge) in the sentencing context. It would be unwise for him to bind himself to any indication of the sentence after a trial in advance of it, in effect on a hypothetical basis. If he were to do so, to cover all eventualities he would probably have to indicate a very substantial possible maximum sentence. This would lead to a second problem, arising from the comparison between the two alternatives available to the defendant, that is the maximum level after a trial, and the maximum level following an immediate plea. With some defendants at any rate, the very process of comparing the two alternatives create pressure to tender a guilty plea.
The Judge
55.
The judge should not give an advance indication of sentence unless one has been sought by the defendant.
56.
He remains entitled, if he sees fit, to exercise the power recognised in
Turner
to indicate, that the sentence, or type of sentence, on the defendant would be the same, whether the case proceeded as a plea of guilty or went to trial, with a resulting conviction. Nowadays, given the guidance published by the Sentencing Guidelines Council on the credit to be given for a guilty plea, this would be unusual. He is also entitled in an appropriate case to remind the defence advocate that the defendant is entitled to seek an advance indication of sentence.
57.
In whatever circumstances an advance indication of sentence is sought, the judge retains an unfettered discretion to refuse to give one. It may indeed be inappropriate for him to give any indication at all. For example, he may consider that for a variety of reasons the defendant is already under pressure (perhaps from a co-accused), or vulnerable, and that to give the requested indication, even in answer to a request, may create additional pressure. Similarly, he may be troubled that the particular defendant may not fully have appreciated that he should not plead guilty unless in fact he is guilty. Again, the judge may believe that if he were to give a sentence indication at the stage when it is sought, he would not properly be able to judge the true culpability of the defendant, or the differing levels of responsibility between defendants. In a case involving a number of defendants, he may be concerned that an indication given to one defendant who seeks it, may itself create pressure on another defendant. Yet again, the judge may consider that the application is no less than a “try on” by a defendant who intends or would be likely to plead guilty in any event, seeking to take a tactical advantage of the changed process envisaged in this judgment. If so, he would probably refuse to say anything at all, and indeed, a guilty plea tendered after such tactical manoeuvrings may strike the judge as a plea tendered later than the first reasonable opportunity for doing so, with a consequent reduction in the discount for the guilty plea.
58.
Just as the judge may refuse to give an indication, he may reserve his position until such time as he feels able to give one, for example, until a pre-sentence report is available. There will be occasions when experience will remind him that in some cases the psychiatric or other reports may provide valuable insight into the level of risk posed by the defendant, and if so, he may justifiably feel disinclined to give an indication at the stage when it is sought. Another problem may simply be that the judge is not sufficiently familiar with the case to give an informed indication, and if so, he may defer doing so until he is.
59.
In short, the judge may refuse altogether to give an indication, or may postpone doing so. He may or may not give reasons. In many cases involving an outright refusal, he would probably conclude that it would be inappropriate to give his reasons. If he has in mind to defer an indication, the probability is that he would explain his reasons, and further indicate the circumstances in which, and when, he would be prepared to respond to a request for a sentence indication.
60.
If at any stage the judge refuses to give an indication (as opposed to deferring it) it remains open to the defendant to seek a further indication at a later stage. However once the judge has refused to give an indication, he should not normally initiate the process, except, where it arises, to indicate that the circumstances had changed sufficiently for him to be prepared to consider a renewed application for an indication.
61.
Once an indication has been given, it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case. In principle, the judge who has given an indication should, where possible, deal with the case immediately, and if that is not possible, any subsequent hearings should be listed before him. This cannot always apply. We recognise that a new judge has his own sentencing responsibilities, but judicial comity as well as the expectation aroused in a defendant that he will not receive a sentence in excess of whatever the first judge indicated, requires that a later sentencing judge should not exceed the earlier indication. If, after a reasonable opportunity to consider his position in the light of the indication, the defendant does not plead guilty, the indication will cease to have effect. In straightforward cases, once an indication has been sought and given, we do not anticipate an adjournment for the plea to be taken on another day.
62.
Later in this judgment we will deal with the obligations of the defence and the prosecution, and to the extent that they may be relevant to the judge’s decision, they should be applied. For example, an indication should not be sought on a basis of hypothetical facts. Where appropriate, there must be an agreed, written basis of plea. Unless there is, the judge should refuse to give an indication: otherwise he may become inappropriately involved in negotiations about the acceptance of pleas, and any agreed basis of plea.
The Defence
63.
Subject to the judge’s power to give an appropriate reminder to the advocate for the defendant (paragraph 53) the process of seeking a sentence indication should normally be started by the defendant.
64.
Whether or not the judge has given an appropriate reminder, the defendant’s advocate should not seek an indication without written authority, signed by his client, that he, the client wishes to seek an indication.
65.
The advocate is personally responsible for ensuring that his client fully appreciates that:
(a) he should not plead guilty unless he is guilty;
(b) any sentence indication given by the judge remains subject to the entitlement of the Attorney General (where it arises) to refer an unduly lenient sentence to the Court of Appeal;
(c) any indication given by the judge reflects the situation at the time when it is given, and that if a “guilty plea” is not tendered in the light of that indication the indication ceases to have effect;
(d) any indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with.
66.
An indication should not be sought while there is any uncertainty between the prosecution and the defence about an acceptable plea or pleas to the indictment, or any factual basis relating to the plea. Any agreed basis should be reduced into writing before an indication is sought. Where there is a dispute about a particular fact which counsel for the defendant believes to be effectively immaterial to the sentencing decision, the difference should be recorded, so that the judge can make up his own mind.
67.
The judge should never be invited to give an indication on the basis of what would be, or what would appear to be a “plea bargain”. He should not be asked or become involved in discussions linking the acceptability to the prosecution of a plea or basis of plea, and the sentence which may be imposed. He is not conducting nor involving himself in any plea bargaining. In short, he is not to be asked to indicate levels of sentence which he may have in mind depending on possible different pleas. Thus, for example, he should refuse to give an indication based on the possibility that the defendant might plead guilty to s 18, alternatively s 20, alternatively s 47.
68.
In the unusual event that the defendant is unrepresented, he would be entitled to seek a sentence indication of his own initiative. There would be difficulties in either the judge or prosecuting counsel taking any initiative, and informing an unrepresented defendant of this right. That might too readily be interpreted as or subsequently argued to have been improper pressure.
The Prosecution
69.
As the request for indication comes from the defence, the prosecution is obliged to react, rather than initiate the process. This presented no problem in the days before
Turner
, when the common understanding, universally applied, was that the prosecution did not, indeed was obliged not to involve itself in or appeal against a sentencing decision. None of that continues to apply.
70.
We must expressly identify a number of specific matters for which the advocate for the prosecution is responsible.
(a) If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceeds to seek an indication, which the judge appears minded to give, prosecuting counsel should remind him of this guidance, that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed, or the judge has concluded that he can properly deal with the case without the need for a
Newton
hearing.
(b) If an indication is sought, the prosecution should normally enquire whether the judge is in possession of or has had access to all the evidence relied on by the prosecution, including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the defendant.
(c) If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the judge gives any indication, to do more than, first, draw the judge’s attention to any minimum or mandatory statutory sentencing requirements, and where he would be expected to offer the judge assistance with relevant guideline cases, or the views of the Sentencing Guidelines Council, to invite the judge to allow him to do so, and second, where it applies, to remind the judge that the position of the Attorney General to refer any eventual sentencing decision as unduly lenient is not affected.
(d) In any event, counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.
S 36 of the Criminal Justice Act 1988
71.
We have reflected on the possible impact of these changes on the exercise by the Attorney General of his responsibilities to refer unduly lenient sentences to this Court, in the light of further submissions received in writing from counsel for the prosecution after the conclusion of the hearing. We do not envisage a process by which the judge should give some kind of preliminary indication, leading to comments on it by counsel for the Crown, with the judge then reconsidering his indication, and perhaps raising it to a higher level, with counsel for the defendant then making further submissions to persuade the judge, after all, to reduce his indication. If nothing else, such a process would smack of precisely the kind of bargaining process which should be avoided. In our judgment, if counsel for the prosecution has addressed his responsibilities in accordance with the previous paragraph, the discretion of the Attorney General to refer a sentence would be wholly unaffected by the advance sentence indication process. Of course, if a sentence indication has been given in accordance with these guidelines, before referring the eventual sentencing decision to this Court, the Attorney General’s decision would no doubt reflect that the defendant had indeed pleaded guilty in response to the sentence indication, properly sought from and given by the judge. As we have explained, we do not anticipate that counsel for the Crown will have said or done anything which may indicate or convey support for or approval of the sentence indication. If however he has done so, the question whether the sentence should nevertheless be referred to this Court as unduly lenient, and the decision of the Court whether to interfere with and increase it, will be examined on a case by case basis, in the light of everything said and done by counsel for the Crown.
Appeal against sentence
72.
We have expressly dealt with the position of the Attorney General if, in the event, an unduly lenient sentence is imposed. The defendant’s entitlement to apply for leave to appeal against sentence if, for example, insufficient allowance has been made for matters of genuine mitigation, is similarly unaffected.
Process
73.
We anticipate that any sentence indication would normally be sought at the plea and case management hearing. In cases “sent” to the Crown Court under
s 51 of the Crime and Disorder Act 1998
, or transferred under
s 4 of the Criminal Justice Act 1987
or
s 53 of the Criminal Justice Act 1991
, this is usually the first opportunity for the defendant to plead guilty and therefore the moment when the maximum discount for the guilty plea will be available to the defendant. For victims and witnesses, too, there is a huge advantage in the earliest possible conclusion to the case. That said, as the judgment makes clear, we do not rule out the entitlement of a defendant to seek an indication at a later stage, or even, in what we know would be a rare case, during the course of the trial itself.
74.
The judge is most unlikely to be able to give an indication, even if it is sought, in complicated or difficult cases, unless issues between the prosecution and the defence have been addressed and resolved. Therefore in such cases, no less than seven days’ notice in writing of an intention to seek an indication should normally be given in writing to the prosecution, and the court. If an application is made without notice when it should have been given, the judge may conclude that any inevitable adjournment should have been avoided and that the discount for the guilty plea should be reduced accordingly. It may be that in due course the Criminal Procedure Rules Committee will wish to consider the question of notice, and its length, and indeed whether either of the relevant case progression forms should be amended.
75.
The hearing should normally take place in open court, with a full recording of the entire proceedings, and both sides represented, in the defendant’s presence.
76.
As already indicated, in cases of any complexity or difficulty, proper notice should be given to the Crown that a sentence indication will be sought. The fact that notice has been given, and any reference to a request for a sentence indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial.
77.
If the process we envisage is properly followed, there should be very little need for the judge to involve himself in the discussions with the advocates, although obviously he may wish to seek better information on any aspect of the case which is troubling him. We do not anticipate an opening by the Crown, or a mitigation plea by the defence. That must be postponed until after the defendant has pleaded guilty. Generally speaking, we assume that the process will be very short, the judge bearing in mind that the defendant and the public are present, and that he (the judge) may be the trial judge, and that he is simply deciding whether to respond, and if so how, to a request that he give an indication of the maximum sentence he would pass if the defendant pleaded guilty at that stage. The fact that the case may yet proceed as a trial, and that if it does so, no reference may be made to the request for a sentence indication, leads to the conclusion that reporting restrictions should normally be imposed, to be lifted if and when the defendant pleads or is found guilty.
Magistrates’ Court
78.
In our judgment it would be impracticable for these new arrangements to be extended to proceedings in the Magistrates’ Court. We are not at present satisfied that an advance sentence indication can readily be applied to and processed there. We believe that it would be better for the new arrangements in the Crown Court to settle in for some time before considering whether and, if so how, similar arrangements can be made in the context of summary trials. Accordingly, for the time being, the magistrates should confine themselves to the statutory arrangements in
Schedule 3
of
the 2003 Act
.
The decision in this case
79.
In our judgment the judge should have abided by the sentencing indication he gave on 19th April. This was one of those rare cases in which a non-custodial sentence for an offence of corruption may have been appropriate. The appellant gained nothing positive from his corrupt activities. They had taken place in the fairly distant past. He did not gain any advantage over his business competitors. He possessed useful skills which might well have been deployed to the benefit of the community on an unpaid basis under a community punishment order. He pleaded guilty. An additional punitive element would have been provided by a larger fine. In summary, without attempting to lay down any sort of guideline, the decision not to impose a custodial sentence might in the particular circumstances of this case have been justified, and a community punishment order and enhanced fine may, arguably, have met the justice of the case.
80.
In our judgment it would not now be appropriate either to increase the fine, or to substitute the suspended sentence of imprisonment with a community punishment order. We shall therefore simply quash the suspended sentence of imprisonment. | [
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bd47b789f0648fe068e459e313423c8fe4ce5cf6c499c757371fe698b87a4819 | [2021] EWCA Crim 537 | EWCA_Crim_537 | 2021-03-18 | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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NCN[2021] EWCA Crim 537
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO
202100437/A1
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 18 March 2021
LORD JUSTICE SINGH
MR JUSTICE WILLIAM DAVIS
MRS JUSTICE FOSTER DBE
REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988
REGINA
V
LEWIS FERREIRA
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 W EMLYN JONES QC
appeared on behalf of the Attorney General.
MR S STIRLING
appeared on behalf of the Offender.
J U D G M E N T
LORD JUSTICE SINGH:
Introduction
1.
This is an application on behalf of the Attorney General for leave to make a Reference to this Court, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), on the ground that the sentence was unduly lenient.
2.
The respondent offender is Lewis Ferreira. He was born on 1 April 1986 and is 34 years of age.
3.
In proceedings before the Crown Court at St Albans the offender was charged with five counts as follows: one count of conspiracy to supply a drug of Class A, namely cocaine; secondly, one count of conspiracy to supply a drug of Class A, namely heroin (both contrary to section 1(1) of the Criminal Law Act 1977); third, one count of being concerned in the supply of a drug of Class A, namely heroin; fourth, one count of being concerned in the supply of a drug of Class A, namely crack cocaine (both of those being contrary to section 4(3)(c) of the Misuse of Drugs Act 1971) and fifth, one count of possessing criminal property contrary to section 329(1) of the Proceeds of Crime Act 2002.
4.
At a plea and trial preparation hearing ("PTPH") on 9 March 2020 the offender pleaded not guilty to all five counts and the matter was adjourned for trial. The trial date was to be 1 December 2020. At a hearing on 6 November 2020 the offender sought, and received, a
Goodyear
indication from HHJ Grey, to the effect that if he were to plead guilty to the two conspiracy counts the maximum sentence that the court would impose would be four-and-a-half years' imprisonment inclusive of credit for plea. On 30 November 2020 the offender pleaded guilty to all four drugs offences. The criminal property count was to be left to lie on the file. The judge (who on this occasion was HHJ Lithman QC) deferred sentence until 5 January 2021 although for administrative reasons the case was not re-listed until 18 January 2021.
5.
On 18 January 2021 the offender was sentenced by Judge Lithman to a total 2 years' imprisonment suspended for 2 years with no specified requirements attached. For completeness, we should mention that the outcome of the proceedings in the cases of the co-accused was as follows. First, Nathan Garrett (born on 1 July 1996 and 24 years old), who was charged with the two counts of conspiracy to supply Class A drugs. He originally pleaded not guilty but later requested a
Goodyear
indication. On
30 September 2020, on being told that he would be sentenced to a suspended sentence of imprisonment, he pleaded guilty to both counts. Judge Lithman sentenced him accordingly to 24 months' imprisonment suspended for 2 months concurrent on each of the two counts. No conditions were attached. Secondly, there was Stuart Daisley (born on 9 August 1995 and 25 years old), who was charged with the two counts of conspiracy to supply Class A drugs. He pleaded guilty to both counts at a PTPH and sentencing was adjourned for the preparation of a pre-sentence report. On 6 August 2020 he was sentenced by HHJ Foster as follows: 24 months' imprisonment suspended for 18 months concurrent on each count with requirements to perform 100 hours of unpaid work, to attend drug dependency treatment and rehabilitation activity requirements. Finally, there was Stacey Louise Skeggs (born on 5 October 2000 and 20 years old). She was charged with the two counts of conspiracy to supply Class A drugs. She pleaded guilty to both counts at a PTPH. Sentencing was adjourned for the preparation of a pre-sentence
report. On 6 August 2020 she was sentenced by Judge Foster as follows: 24 months' imprisonment suspended for 18 months concurrent on each count, with requirements to perform 100 hours of unpaid work, to attend drug dependency treatment and rehabilitation activity requirements. Further there was an electronically monitored curfew for 3 months.
The Facts
6.
For present purposes the facts can be summarised briefly as follows. In the summer and autumn of 2018 the offender controlled "a county lines" drug dealing operation. He had the possession of the SIM card for a mobile phone number known as "the P line", a number he would use to send out bulk texts offering Class A drugs to addicts in Welwyn Garden City and on which he would then receive their orders. He would then deploy local drug addicts to conduct street deals of Class A drugs on his behalf.
7.
As part of the investigation the offender's home in Watford was searched. The police seized a large number of designer men's trainers and shoes for the total approximate value in excess of £5,000. Police also seized drug dealer lists and "tick sheets" which contained the names and numbers of known drug addicts in the Welwyn Garden City and Hatfield areas of Hertfordshire.
8.
As was the case with the phone seized from the offender on 13 August 2018, so the P line drugs phone seized on 9 November 2018 was analysed and found to contain messages indicative of drug supply with bulk texts being sent and incoming messages from drug users making contact to place orders for crack cocaine and/or heroin.
9.
The offender was interviewed on three occasions and largely made no comment.
10.
The essential facts are largely agreed on behalf of the respondent but the following further observations are made by Mr Stirling. First, the offending in relation to counts 1 and 2 related to a single day, that is 9 November. Secondly, in relation to counts 3 and 4, the bulk text messages related to a period of a month in October and November. The Crown described it as "not a large scale line". Third, the offender's co-defendants were willing participants in the conspiracy. The offender does not accept they were vulnerable. The evidence tends to suggest that Garrett was operating at a similar level, although perhaps slightly below that of the offender.
Antecedents
11.
Between 2005 and 2017 the offender had 17 previous convictions for a total of 43 offences though none for drugs offences. His most serious conviction was for arson for which he had been sentenced to 6 years' imprisonment in April 2011 with a 4-year extended licence period. This was still extant at the time of the present offending. He was recalled to prison for breaching the terms of his licence.
Relevant Sentencing Guidelines
12.
It is common ground that the Definitive Guideline issued by the Sentencing Council, applicable to offences of this kind, would lead to the following suggested range of sentences. This was street dealing of category 3. It is accepted for present purposes that although there may have been elements of a
leading role
on the part of this offender he was, at the very least, one who had a
significant role
in the operation. Mr Emlyn Jones QC does not seek to go behind that for present purposes. In such cases, even for
a single offence, the Definitive Guideline suggests a starting point of four-and-a-half years' custody and a category range of three-and-a-half to 7 years. Account of course must be taken of other factors such as those which aggravate an offence and those which mitigate it. Account must also be taken of any guilty plea.
Relevant Court Proceedings
13.
After the
Goodyear
indication had been given by Judge Grey, after the hearing on 6 November 2020, the defence requested a listing in order for the offender to be re-arraigned, although in the event this was not achieved before the 20 November deadline referred to by Judge Grey and the matter came before Judge Lithman on 30 November 2020. On that date the offender was re-arraigned on counts 1 to 4 inclusive and pleaded guilty. Those pleas were acceptable. Count 5 was directed to lie on the file. The facts were opened and prosecution counsel made further submissions as to the categorisation of the offences, maintaining that the offender had been in a
leading role
.
Defence counsel invited the court to consider deferring sentence and made two principal submissions in support: first, that the offender had already spent 14 months in custody since the commission of the offences albeit not on remand but because he had been recalled on licence; and secondly, that since his release he had moved to Wales with his partner and found employment. There were references from his employers commending his work ethic.
14.
The judge deferred sentence until 5 January 2021 and made the following remarks:
"... if in January you come back and you have continued to be of good behaviour, to have a stable domestic life, assuming things are settled, which I hope they are, with your partner, then I will impose ... a custodial sentence which I will then suspend. If, however, there is a snip of bad behaviour, either domestically or in the broader community, then I’m afraid whereas you might have had a sentence of a couple of years, which would be suspended, the custodial part of your sentence would ... then reflect the Goodyear indication that Judge Grey gave you, which would be that the four and a half years was the maximum. And that, even allowing for a guilty plea – and that would be the maximum that would bind me, I
would take that view. So, in other words, you could end up with something around four years, rather than a sentence that is suspended, when you return in January."
15.
For administrative reasons the case was not listed until 18 January 202,1 again before Judge Lithman. Defence counsel informed the court that the offender had "kept out of trouble... [and] kept to the terms of the deferment". The judge asked if "the Probation Board" had anything to add and the probation officer indicated that they did not. The judge then passed sentenced saying:
"Well, as I said on the last occasion, if you behaved yourself, I would suspend your sentence and I’ll keep to my side of the bargain as well. So the sentence that I pass is, on each count, of two years, suspended for two years and unless I’m encouraged or invited to, I don’t propose to add any other aspects of that order..."
Jurisdiction
16.
Very fairly Mr Emlyn Jones QC, in a note filed with this Court before the hearing, has drawn our attention to the issue of whether the Court has jurisdiction to consider an application under section 36 of the 1988 Act in circumstances where the Crown Court deferred sentence and the period of deferment has expired.
17.
Section 36, so far as material, provides:
"(1) If it appears to the Attorney General—
(a)
that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and
(b)
that the case is one to which this Part of this Act applies
he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may—
quash any sentence passed on him in the proceeding; and in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him."
18.
Subsection (8) gives effect to the supplementary provisions contained in schedule 3 to the Act. Schedule 3, so as far material, provides:
"Notice of an application for leave to refer a case to the Court of Appeal under section 36 above shall be given within 28 days from the day on which the sentence, or the last of the sentences, in the case was passed."
19.
The meaning of "sentence" is as set out in section 50 of the Criminal Appeal Act 1968:
"(1) In this Act 'sentence', in relation to an offence, includes any order made by a court when dealing with an offender including, in particular— ... [it is unnecessary for present purposes to set out the particular examples which are then set out]."
20.
In
Attorney-General's Reference No 22 of 1992
(R v Thomas) (1993) 14 Cr App R(S) 434, this Court decided that a deferred sentenced is a sentence within the meaning of section 36 of the 1988 Act. That issue was revisited and was the subject of full argument in
Attorney General’s References Nos 36 and 38 of 1998
(R v Dean L and Jones) [1999] 2 Cr App R(S) 7, in which this Court confirmed that to be the position in law. In giving the judgment of the Court, at page 10, Lord Bingham CJ said:
"At first blush it is an affront to common sense that a court should be held to be passing sentence when it is expressly and deliberately making a decision to defer sentence to a date not more than 6 months ... in the future. The force of this point is, however, undermined by consideration of what in reality happens when a court defers sentence. Where such an order is made the court lays down certain conditions, which may relate to reparation, the voluntary undergoing of treatment, employment, abstention from criminal activity or any other relevant matter clearly prescribed by the court, and the clear understanding is that, if the defendant complies with those conditions, he will not be sentenced to custody on the date to which sentence is deferred: see
R v George
(1984) 6
Cr App R(S) 211. Thus although the court, when deferring sentence, has made and announced a decision not to pass sentence on that occasion, it has in practice committed itself to a sentencing strategy any departure from which, in breach of the understanding indicated, would found a successful appeal by the defendant."
21.
At page 11 Lord Bingham continued:
"Until the enactment of section 36 of the 1988 Act, a defendant could expect that, subject to the limited provisions of section 47(2) of the Supreme Court Act 1981 [as it then was] and its predecessors, a sentence once passed would not be increased. Any statutory provision affecting the liberty of the subject would ordinarily, in case of ambiguity, be construed in favour of the subject, and this would suggest that any doubt about the Attorney General's right should be resolved against him. In this instance, however, we do not conclude that the Attorney General's construction is disadvantageous to the offender. If sentence were deferred in a case where it very plainly should not have been, it would not be in the interests of the offender if the Attorney General were obliged to wait until the deferment date and (assuming compliance by the offender with the prescribed conditions) the imposition of a non-custodial penalty before invoking his power to seek leave to refer the sentence imposed on the deferment date to this court. Nor would it promote the public policy plainly underlying section 36, which envisages the taking of prompt steps by the Attorney General to seek leave to refer unduly lenient sentences to the court.
The present case is a good example: if Dean L's sentence is to be increased, it is better for him that this should occur sooner rather than later."
22.
At page 12 the Court concluded that the Attorney General has power under section 36 to seek to refer to this Court an order made in the Crown Court deferring sentence.
23.
It is clear therefore that this Court would have had jurisdiction to consider an application by the Attorney General if it had been made in respect of the decision on 30 November 2020 to defer sentence. It does not follow, however, that this Court lacks jurisdiction to consider an application which has been made after the deferment period has expired. That situation was considered by this Court in a
Attorney General’s Reference No 118 of 2004
(R v Barrett)
[2004] EWCA Crim 3220
; [2005] 2 Cr App R(S) 18, in which the issue of principle was expressly not determined (see the first sentence of paragraph 21 in the judgment given by Kennedy LJ). It was, however, stressed that it would normally be good practice to make the application as soon as possible and not to leave it until the deferment period has expired (see paragraphs 18-22, in particular paragraphs 19 and 20).
24.
We have reached the firm conclusion that this Court does have jurisdiction to consider an application under section 36 in circumstances such as the present. The sentence which was passed on 18 January 2021 clearly falls within the scope of section 36 on its true construction. There is nothing in the statutory context or purpose to suggest otherwise. That said, the jurisdiction is no doubt to be exercised sparingly in the interests of justice, for the reasons of public policy set out by this Court in cases such as
L and Jones
and
Barrett
.
25.
In the circumstances of this particular case we do consider that it would be in the interests of justice for this Court to exercise that jurisdiction. In particular, we bear in mind that the deferment period was very short (intended to be from 30 November 2020 until 5 January 2021). We note also that no specific requirements were attached to that deferment. The respondent could not in those circumstances reasonably have expected that an unduly lenient sentence would not be corrected.
Double Jeopardy
26.
Mr Emlyn Jones QC, again fairly, has drawn our attention to the fact that the practice of this Court has changed over time so that this Court generally no longer refers to the principle of "double jeopardy" in the context of section 36. In particular he has drawn our attention to
Attorney-General's Reference No 45 of 2014
(R v Rameez Afzal & Ors)
[2014] EWCA Crim 1566
, which was a judgment given by Lord Thomas CJ (in particular see paragraphs 18-20). Nevertheless Mr Emlyn Jones QC accepts that the principle of double jeopardy may continue to have relevance in cases such as this, where the Court is invited to substitute a sentence of immediate custody where the Crown Court had imposed a suspended sentence order. In that sort of context he acknowledges the continued relevance of what was said by this Court in
Attorney General’s References Nos
14 and 15 of 2006
(R v Webster and French)
[2006] EWCA Crim 1335
;
[2007] 1 All ER 718
at paragraph 61, where Lord Phillips CJ said:
"The distress and anxiety is likely to be particularly great where the decision of this court results in a defendant being placed in prison where originally no custodial sentence was employed, where a custodial sentence has been completed, where the defendant is young and immature or where the defendant was about to be discharged from prison. In all of these cases the distress and anxiety caused by the double jeopardy is likely to be significant when weighed against the original offending. The authorities show that in such circumstances discounts for double jeopardy tend to be granted that are near the upper end of the range."
Submissions for the Attorney General
27.
Turning to the merits of the application under section 36, on behalf of the Attorney General Mr Emlyn Jones QC submits that the sentence imposed was unduly lenient, in that it represented a significant and unjustifiable departure from the applicable guideline issued by the Sentencing Council on Drug Offences. This was the supply of Class A drugs at street level. The respondent played at least a
significant role
, as was conceded on his behalf. Although it might have been argued that the appropriate sentence ought to have been higher, Mr Emlyn Jones QC does not invite this Court to go behind the indication which was given by Judge Grey, namely four-and-a-half years' imprisonment. He submits that a sentence of that order ought to have been imposed although he accepted in oral submissions before this Court that other factors such as personal mitigation would then have to be taken into account. In any event, he submits that since this would inevitably have led to a sentence well above 2 years' custody there would have been no power to suspend it.
28.
Mr Emlyn Jones QC also complains that the failure to attach any requirements to the suspended sentence order had the effect of making it less onerous than sentences imposed on the co-defendants whose role in the operation was a lesser role. He also observes that they had pleaded guilty at a much earlier stage of the proceedings. Finally, he submits that the decision to defer sentence for a period of only 5 weeks did not afford the respondent a true or particularly demanding test of his commitment to reform.
Submissions for the Respondent
29.
On behalf of the respondent Mr Stirling submits that while the sentence might be considered to be lenient, it was not unduly so. Mr Stirling submits that the respondent had already served a considerable period in custody (14 months) as a result of being recalled to prison to serve the remainder of his previous sentence. That recall was a direct result of the present offending.
30.
We reject that submission. The period of custody spent after recall was justified by the serious offence for which the respondent had previously been sentenced. The fact that he chose to commit these present offences while he was on licence meant that he was liable to serve a further period in custody for the earlier offence. That had nothing to do with what was the appropriate sentence for the present offences.
31.
Next, Mr Stirling submits that the judge was required to have regard to the sentences imposed on the co-defendants. He also submits that the judge was in the best position to assess their relative culpability.
32.
We would observe in that context that it was in fact only Garrett of the co-defendants who had previously been sentenced by this judge. Furthermore, this was not a case (as some are) where the sentencing judge has been the trial judge and has therefore had the opportunity to see the totality of the evidence in a way that this Court cannot do.
33.
In oral submissions before this Court Mr Stirling has emphasised that the sentencing
judge will have had what he described as "a good feel for what is right" when it comes to sentence. He also reminds this Court, of course, that guidelines are that - they are not tramlines and are not to be followed slavishly. He also submits that the offender might have a legitimate sense of grievance if his sentence were to be substantially increased now given the way in which Garrett was dealt with. He does not press the point further than it can properly be taken but he does observe that Garrett's sentence was not the subject of any application for leave to make a Reference.
34.
Mr Stirling submits that one of the ultimate purposes of the sentencing is of course rehabilitation and indeed protection of the public. He submits that the sentencing judge in this case was well placed to achieve those objectives in the manner which he chose to do recognising, as he does on behalf of the respondent, that it was a departure from what the Guidelines would normally recommend.
35.
We reject those submissions. It may be that the other defendants were fortunate in the sentences which they received. In any event how they were dealt with has no bearing on whether the sentence for this offender was unduly lenient. Next, Mr Stirling submits that the offending was old and there had been no previous relevant offending. Further he submits that the judge was entitled to defer for the short period which he did and not to attach any requirements to the suspended sentence order. He also submits (in writing at least) that the judge will have regard to the impact of the current pandemic on prison conditions in accordance with the guidance given by this Court in
R v Manning
[2020] EWCA Crim 592
. We would observe that the judge made no reference to that matter but in any event, in the circumstances of this serious offending, it should have played no significant part.
36.
Finally Mr Stirling submits, and Mr Emlyn Jones QC accepts on behalf of the Attorney General, that the respondent did have personal mitigation available to him, in particular the fact that he had obtained employment, he had moved out of the area and had a stable family relationship.
Conclusions
37.
In our judgment, the sentence imposed in this case of 2 years suspended for 2 years was so far below the minimum which could reasonably be imposed that it must be regarded as unduly lenient. There could be no question, in a case as serious as this and in view of the respondent's role in the operation of street dealing in Class A drugs, of imposing a suspended sentence order. It has been said by the courts on countless occasions that the illegal supply of Class A drugs such as heroin can kill people. The custodial term which was reasonably required would, on any view, have been far in excess of 2 years.
38.
We accept the submission for the Attorney General that the indication given by Judge Grey reflects the sort of sentence which was required in this case even after guilty pleas. We note that the pleas were entered late in the day. That said, the indication given was of the maximum sentence that would be imposed if guilty pleas had been entered. We accept that there is some personal mitigation available to the respondent. We also take into account all the circumstances of this case, including the fact that he will now be sentenced to immediate custody whereas he was given a non-custodial sentence by the Crown Court.
39.
In the circumstances we have reached the conclusion that the minimum sentence which was required in this case was 4 years' imprisonment. Accordingly, we grant the application by the Attorney General and quash the sentence of the Crown Court; we substitute a sentence of 4 years' imprisonment on each of the counts 1 to 4 made concurrent, making a total of 4 years' imprisonment.
LORD JUSTICE SINGH: Mr Emlyn Jones, in those circumstances I envisage that we must make an order requiring the respondent to surrender to the police.
MR EMLYN JONES: If my Lord gives me a moment I think I have the details of the appropriate venue for that.
MR STIRLING: I understand it might be Newport Central.
LORD JUSTICE SINGH: That will be the police station, would it?
MR STIRLING: As I understand it but ...
LORD JUSTICE SINGH: Perhaps that could be checked. Whilst that is being checked, Mr Stirling do you have any submissions to make to us about the due time by which that should be done?
MR STIRLING: I have not any instructions but may I ask for 7 days?
LORD JUSTICE SINGH: No, that is far too long. I had in mind if not later today then certainly tomorrow.
MR STIRLING: My Lord, yes, of course. May I ask for tomorrow then?
LORD JUSTICE SINGH: What we are going to say is noon tomorrow.
MR EMLYN JONES: My Lord, I have found the information I have been given and it is that the nearest custody suite for the purpose of surrender is in Hatfield but I rather fancied my learned knows better...
LORD JUSTICE SINGH: Because he has moved I imagine it is Newport Central.
MR STIRLING: Yes. We did take instructions as to nearest appropriate police station. I am afraid I did not check to see whether it has custody available there. It would seem extraordinary in a town the size of Newport in Wales that it would not have custody.
(The Court conferred with the Court Clerk)
LORD JUSTICE SINGH: Is this something that need take our time now, it surely could be corrected later because I can be contacted by email later today if anything does need to be corrected?
MR EMLYN JONES: Certainly. My Lord what I would suggest is that you make the order for Newport Central, which does on my brief Internet search appear to be a custody suite and then if that turns out not to be appropriate can I please revert to my Lord; and I will do that very quickly.
LORD JUSTICE SINGH: You must do that by the end of business today.
MR EMLYN JONES: I will endeavour to do in the next half hour.
LORD JUSTICE SINGH: We will direct that the respondent must surrender to the police at Newport Central police station by noon tomorrow, that is 19 March.
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"LORD JUSTICE SINGHMR JUSTICE WILLIAM DAVISMRS JUSTICE FOSTER DBE",
"REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988"
] | 2021_03_18-5137.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/537/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/537 | 903 |
ecc78aa6e773eedc28e7f14fdd70afbd1da2f704d96cfd65457e34d85dfb0131 | [2014] EWCA Crim 747 | EWCA_Crim_747 | 2014-04-16 | crown_court | Neutral Citation Number: [2014] EWCA Crim 747 Case No: 2013/03862/A6 , 2013/04457/A3 , 2013/04460/A2 , 2014/00377/A4 2013/04689/A5 , 2013/03756/A8 2013/03550/A5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2014 Before: THE LORD CHIEF JUSTICE OF ENGLAND and WALES LORD JUSTICE TREACY and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - JURANIR SILVERTRE GOMES MONTE | Neutral Citation Number:
[2014] EWCA Crim 747
Case No:
2013/03862/A6
,
2013/04457/A3
,
2013/04460/A2
,
2014/00377/A4
2013/04689/A5
,
2013/03756/A8
2013/03550/A5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/04/2014
Before:
THE LORD CHIEF JUSTICE OF ENGLAND and WALES
LORD JUSTICE TREACY
and
MR JUSTICE SIMON
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
JURANIR SILVERTRE GOMES MONTEIRO
and others
Appellants
- - - - - - - - - - - - - - - - - - - - -
(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)
- - - - - - - - - - - - - - - - - - - - -
Adam Morgan
for the
appellant Gomes Monteiro
James Murray-Smith
for the
Respondent in the appeal of Gomes Monteiro
Edward Boateng-Addo
for the
appellant NT
Duane Bridger
for the
appellant
Smith
Mohammed Hussain
for the
applicant Varey
Michael Edmonds
for the
applicant Shakespeare
Muthupandi Ganesan
for the
applicant
RAB
Henry Day
for the
applicant LD
John Price QC
and
Benedict Kelleher
for the
Respondent
in the other appeals
Hearing date: 30 January 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ :
1.
The court ordered these six appeals and applications to be heard together so that it could review whether the guidance given in
R v Povey
[2008] EWCA Crim 1261
by Sir Igor Judge CJ (as he then was) was being followed and applied, and so that it could decide whether any further guidance was required. We are very grateful to the Ministry of Justice and Mr John Price QC for the very considerable assistance they have given in obtaining the information to enable us to do this.
The offences
2.
The principal offences in relation to offensive weapons are those under s.1 of the Prevention of Crime Act 1953 (as amended) (the 1953 Act) and s.139 and s.139A of the Criminal Justice Act 1988 (CJA 1988).
3.
In addition on 3 December 2012 amendments to the 1953 Act to add s.1A and to the CJA 1988 to add s.139AA came into force. S.139AA of the CJA 1988 provides for a mandatory minimum sentence on those over 18 of six months imprisonment (save where it was unjust to do so) for using a knife to threaten in a public place or school. Provision is also made for a similar minimum sentence of four months for those aged 16 and 17. S.1A of the 1953 Act makes broadly similar provision in relation to offensive weapons.
The guidance in R v Povey
4.
In
R v Povey
, Sir Igor Judge made clear the dangers caused by carrying knives and the escalation that had occurred in the number of offences involving knives and in particular the carrying of knives in public places. He made clear that sentences passed by courts must focus on the reduction of crime, including its reduction by deterrence and the protection of the public. This court in further judgments and the subsequent guidelines issued by the Sentencing Council have made clear the seriousness with which the use of a knife or similar weapon in any crime must be treated.
5.
It is evident, from appeals before this court from the Crown Court and in the appeals before us, that in the Crown Court the guidance given by Sir Igor Judge and repeated by him in other cases is being followed. No further guidance is required.
6.
However for offences that either do not come to court where cautions are administered or are dealt with in the Magistrates’ Court and Youth Court, the position is more complex, particularly in relation to those between 10 and 15 and those aged 16 and 17.
7.
This is illustrated by some of the matters that arose in the appeals before us. For example, a caution was given to one of the appellants (Gomes Monteiro) for possession of a flick knife at a school when he was 15 – see paragraph 31 below. Another appellant (RAB) had at the age of 14 received in accordance with the statutory regime a nine month referral order for possession of a lock knife in a public street – see paragraph 84 below. A co-defendant of another appellant (Smith) who was nine months younger than Smith had received a youth supervision order for the offence for which Smith received a sentence of 30 months imprisonment - see paragraphs 56 to 59 below. A Magistrates’ court had imposed a community order on another appellant (Varey) for a second offence of carrying a knife whilst stealing from shops - see paragraphs 66 and following below.
8.
We therefore asked for information about the way in which the police, the Magistrates and the Youth Court approached the imposition of cautions and sentencing respectively.
ACPO Guidance on the use of cautions
9.
Cautions in relation to knife crimes are issued by the police in accordance with Guidelines issued by ACPO entitled
Guidelines on the investigating, cautioning and charging of Knife Crime Offences
issued in July 2009. It states:
“The starting point for police will be an expectation to charge 16 and 17 year olds (unless there are exceptional circumstances) in all cases.
In the case of any young person aged 15 or under in the cases of simple possession with no aggravating factors, the starting point will be the issuing of a warning”
10.
Account is also taken of the
ACPO Youth Offender Case Disposal Gravity Matrix;
its guidance is:
“It is recommended that forces follow a national agreement to interpret Knife-Crime offences as follows:
The first arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade, with no aggravating factors, will result in the first instance with a youth conditional caution. This must be supported by an appropriate YOT intervention, preferably with elements focussed on anti-knife crime education. A youth aged 16 or over will normally be charged.
The second arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade will result in a charge (unless, in exceptional circumstances, 2 years have passed and it is considered appropriate to give another youth conditional caution).
The first arrest of a youth of any age for simple possession of an Offensive Weapon or Sharp Pointed Blade, with aggravating factors, will result in the first instance with a charge.”
11.
The most recent version of this matrix was issued in March 2013. It is essentially unchanged (save to make reference to youth conditional cautions in place of warnings). It makes clear, however, that an offence under s.139A or s.139AA of the CJA 1988 or under s.1A of the 1953 Act committed by a youth aged 16 or over should normally result in a charge and should not be dealt with by an out of court disposal.
The Magistrates Courts and the Youth Court
12.
The Guidance for Magistrates was revised in August 2008. Although that Guidance referred to the earlier decision which
R v Povey
followed, the timing meant
Povey
had not been handed down and the original guidance did not refer to the increase in knife crime as set out by Sir Igor Judge in that judgment
.
However, the Sentencing Guidelines Council issued a Note (with effect from 4 August 2008) headed “Sentencing for possession of a weapon – knife crime”, which specifically sets out the effect of the decision in Povey on the guideline. It is therefore essential that Magistrates’ Courts strictly apply the guideline as explained in this Note in relation to knife crime and the starting point of 12 weeks custody for the lowest level of offence involving the use of knives.
13.
In the Youth Court the principles are set out in the Guideline of the Sentencing Guidelines Council dated November 2009 entitled: “
Overarching Principles: Sentencing Youths”.
There are also a number of statutory restrictions; for example a first time offender under 15 who pleads guilty to one of the offences relating to knives or offensive weapons can only be made subject to a referral order (as we have mentioned at paragraph 7 above).
The statistics
14.
In the first nine months of 2013 there were 12,132 offences under s.1 of the 1953 Act and s.139 and s.139A of the CJA 1988 Act. 18% resulted in a caution, 28% resulted in immediate custody. The results have been broadly consistent for the past 5 quarters; the 28% of cases resulting in custody can be seen as an increase from 18% current before
Povey
,
whereas the number of cautions is falling.
15.
813 offences were committed by those between 10 and 15. 43% were given a police caution and 47% a community sentence. Only 4% were given an immediate custodial sentence.
16.
We were provided with statistics for 2013 that showed that out of the 89 over 18s who had pleaded guilty or been convicted of offences under s.139AA of the CJA 1988 or s.1A of the 1953 Act, 49 had been given sentences of immediate custody; 3 had received a caution; 7 community service and 19 a suspended sentence. Three were 18, 16 and 17 year olds; 10 had been sent to immediate custody.
Conclusion
17.
As we have stated, no further guidance is needed in relation to the Crown Court pending the issue of a guideline by the Sentencing Council. However there are two observations we make.
18.
First, it is important that the Youth Court plays the closest attention to the guidance given in
Povey
. Given the prevalence of knife crime among young persons, the Youth Court must keep a very sharp focus, if necessary through the use of more severe sentences, on preventing further offending by anyone apprehended for carrying a knife in a public place and to securing a reduction in the carrying of knives. Such sentences fulfil the principles applicable to the sentencing of such persons as set out in s.142A of the Criminal Justice Act 2003 and the Sentencing Council Guidelines. The appeals of NT and RAB illustrate the very serious consequences that can follow from the carrying of knives by young persons and why it is of great importance that the Youth Court maintains the sharp focus called for in
Povey
by imposing appropriate sentences that will contribute to preventing further offending and to a reduction in knife crime.
19.
Second, it is important particularly in relation to knife crime that the guidance given in respect of cautions is aligned to the sentencing practice (as it should be in the light of our observation) in the Youth Court, the Magistrates’ Court and the Crown Court. There is an urgent need for this to be done.
20.
We turn to the six cases.
JURANIR SILVETERE GOMES-MONTEIRO
The background
21.
On 27 October 2012 there was a party to celebrate a birthday in Hackney. Many of those who attended were of the Guinea Bissau community in London. Amongst those was Jason Dos Santos.
22.
Through various social networking sites others who had not been invited came to the party. Some belonged to a gang called “the Portuguese Mafia”. At the party, probably as a result of a previous incident at an earlier party, members of the gang set about one of the others. There was a serious and violent fight within the house between a number on both sides. Knives were used and at least one was seriously stabbed. Jason Dos Santos escaped from the house, most likely through the back garden, and ran down the street with others, being pursued by members of the gang. He was caught by eight members of the gang who attacked him with at least one knife and a belt, kicked and punched him. He received serious injuries which we shall describe. The incident was caught on CCTV.
23.
A woollen hat belonging to the appellant, then aged 18, was recovered from the scene of the stabbing. Of all the participants in this serious violence he was the only one to be arrested and tried. On 17 May 2013 at the Crown Court at Snaresbrook before Mr Recorder Holborn and a jury he was convicted of wounding with intent contrary to s.18 of the Offences against the Person Act 1861 (the 1861 Act) and having an offensive weapon. He was subsequently sentenced by the judge on 21 June 2013 to nine years detention in a young offender institution for the offence contrary to s.18 of the 1861 Act with a concurrent sentence of one year for having an offensive weapon. He appeals against sentence by leave of the Single Judge.
The seriousness of the offence
24.
We consider first the seriousness of the offence. The judge found that the appellant, although he might not have been a member of the Portuguese Mafia gang, had joined in with that gang on that night at the party and involved himself in the culture of that gang. It is clear that he had had a substantial quantity of drink. He then joined in the pursuit of Jason Dos Santos down the road.
25.
It is common ground on the appeal that the appellant approached the scene of the attack approximately 30 seconds after the main group chased the victim along the street. It is clear on the judge’s finding and the jury’s verdict that he joined in the attack at that stage whilst another gang member stabbed Jason Dos Santos and others subjected him to a vicious and brutal beating. The judge was satisfied that the appellant used a belt in the attack on Jason Dos Santos and stamped on him. The judge was satisfied that the jury convicted the appellant on a joint enterprise basis because, apart from using the belt and stamping on Jason Dos Santos, he was fully aware that Jason Dos Santos was being stabbed.
26.
It has been submitted that those findings are open to criticism. We cannot see any basis for criticising them. The judge found first that he was
a
, but not
the
, leading member of the group that attacked Jason Dos Santos; second that he most certainly did not have a subordinate role in the attack. We again do not see how those findings can be criticised given the fact that the judge heard the evidence at the trial.
The harm caused
27.
We next turn to the harm caused. The judge obtained for the purposes of sentencing statements from the doctors at the hospital about the injuries sustained by Jason Dos Santos. He also had statements from two police officers who had tended him at the scene and taken him to the hospital. We see no reason to criticise the judge for taking into account all of that evidence.
28.
There were a total of eleven wounds inflicted on Mr Dos Santos, three on the torso (one of which was to the chest), six on the legs and two on the scalp. They required stitching in theatre. They had a lasting physical and emotional effect on him. One of the wounds passed deeply behind the right femur. He was in hospital for two to three days. It is quite clear from the statement of the police officers that there was significant bleeding at the scene and on the way to hospital and the victim was veering in and out of consciousness.
29.
Mr Dos Santos also made a victim personal statement in which he described the longer term effect of the attack on him; although he had made a good physical recovery (apart from the scarring and difficulty in bending and moving his leg) he did not go out to parties and did not trust people.
The sentence
30.
The judge placed the offence into category 1/category 2 of the Guideline; it was submitted on behalf of the appellant that the judge should have concluded the offending behaviour fell within category 2, principally on the ground of his lesser role; as we have set out we cannot accept this. This was, in our view, an offence within category 1. A person who has caused the injury of the type caused in this case and has the culpability of participating in an attack of this type in a leadership role, is plainly within category 1. The use of a knife in a public street is a very serious aggravating factor.
31.
The appellant was only 18 both at the time of the attack on Jason Dos Santos and his conviction. Nonetheless he had a caution imposed by the Cambridgeshire Police for carrying a flick knife on school premises imposed on 29 March 2010 (when he was 15) in accordance with the guidance to which we have referred at paragraphs 9 to 11 above and a conviction for common assault on 17 January 2012 for which he had received a referral order. We take the view that a previous conviction for the possession of any bladed article, but particularly a knife such as a flick knife, is a seriously aggravating factor in a subsequent offence involving a knife for the reasons we have given.
32.
The only mitigating factors were his age and his working on a part-time basis whilst also engaging in full-time education; he spoke a number of languages. He had obtained eight GCSEs with good grades and had gone on to study art as well as travel and tourism.
33.
In the light of the factors we have set out, particularly his use of the belt, his knowledge of the use of the knife in the attack and his previous caution for possession of a flick knife, there is no proper ground for criticising the sentence imposed by the judge. The appeal is dismissed.
NT
The background
34.
On the evening of Monday 18 February 2013 KW (the victim) who was then aged 14, had been at McDonald’s in Lewisham with friends. The appellant, who was born on 10 November 1999 and then aged 13, and another youth, SB, confronted the victim wanting a battery for a mobile phone. Nothing came of that but the victim and his friends went to the Ladywell Youth Club to roller skate. The appellant and his friends also went to the same club.
35.
When the youth club closed at 9.15 p.m. the youths congregated outside. An argument developed between another of the appellant’s friends, TM, and a girl. TM turned on the victim. That fight descended into insults and violence between a number of those present, including the appellant. The victim hit back at TM and the appellant. The victim who was still on roller skates, then calmed down and skated a short distance away. The appellant ran after him, produced a knife and stabbed the victim twice in the chest and abdomen. The victim described the knife as a fat knife with a long blade; one witness described it as 2.5 inches wide, but not that long. Another as a kitchen knife. It was never found. TM ran off. The victim collapsed. He was taken to hospital by helicopter and underwent emergency surgery. The appellant was interviewed the following day and made no comment on the advice of his solicitors.
36.
On 2 July 2013 the appellant was convicted at the Crown Court at Woolwich before His Honour Judge Moss QC and a jury of attempted murder. He was subsequently sentenced on 26 July 2013 to a 13 year extended sentence under s.226B of the Criminal Justice Act 2003, comprising a custodial term of ten years and three years extended licence. His application for permission to appeal had been referred to the court by the Registrar. We grant leave.
The seriousness of the offence
37.
We consider first the seriousness of the offence. On the jury’s verdict the appellant had attempted to kill the victim. The judge who had had the benefit of hearing the evidence found that the appellant had come to the youth club on that evening armed with a knife; the judge expressly rejected the applicant’s evidence that he had been given a knife at the scene.
The harm caused
38.
It is clear that the harm was of a very serious level. The wound was so deep that the knife entered through the chest and penetrated the kidney. He was found to have a collapsed lung, a penetrating gastric injury, a shattered spleen and very serious renal injury. He underwent emergency surgery, including the removal of the spleen. He was in the high dependency unit for two days; his wounds have healed, but he will require life-long antibiotic medication. The judge was satisfied that he was lucky to have survived.
The aggravating and mitigating features
39.
An aggravating feature of the case was that the applicant, despite the fact that he was then only 13, had a number of previous convictions.
i)
On 7 July 2011 he had been convicted of common assault at the Youth Court and received a six month referral order. He had been part of a group that had surrounded a 14 year old girl in a park; he was said to have held a knife to her throat and demanded her phone. Although he pleaded guilty to the assault he denied possession of a knife.
ii)
On 10 May 2012 he was convicted of assault occasioning actual bodily harm and received a nine month rehabilitation order. The case against him was that he had taken a magazine from the victim, and then assaulted the victim punching him in the face.
iii)
On 20 December 2012 he was convicted of disorderly behaviour and received a conditional discharge. He had used threatening and abusive language to a bus driver.
As the judge rightly commented, he had a pattern of offending behaviour that was of great concern.
40.
It is clear from the pre-sentence report that the applicant had had a difficult home life, living first with his mother and then for some years with his father with little contact with his mother. He developed emotional and behavioural difficulties at school and was transferred to a school to cater for children with those needs. At that school and at the secure children’s home at which he had been placed after his remand for the purposes of these proceedings, reports showed his ability to do very well at subjects but to have serious behavioural problems. An assessment carried out showed that he had suspected Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder; he had then been assessed as having moderate to high Attention Deficit Hyperactivity Disorder, Conduct Disorder and Oppositional Defiance Disorder. He was being placed on medication. The judge also had a report from the secure children’s home.
41.
The appellant accepted that he had stabbed the victim. Although he continued to deny that he intended to cause serious injury or to kill the victim, the writer of the pre-sentence report accepted that the appellant showed genuine remorse for what he had done. The writer of the pre-sentence report was nonetheless of the view that the applicant presented as a high risk of causing serious harm.
The finding of dangerousness
42.
The judge concluded that he was a youth who met the dangerousness criteria of s.226B of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). He considered that an extended determinate sentence was the appropriate sentence.
43.
In
R v Burinskas
[2014] EWCA Crim 334
this court set out at paragraphs 24-30 the main features of the operation of the provisions of LASPO relating to extended sentences (s.226A) and at paragraphs 41-44 the approach that a court should follow when applying the dangerousness provisions of the Act. It is not necessary to make any separate observations in relation to s.226B in relation to this appeal.
44.
On the appellant’s behalf it has been contended that the judge was not entitled to make the finding of dangerousness and should not have done so without obtaining a full psychiatric report.
45.
We were provided with a more recent report from the secure children’s home at which the appellant was held. His medication had been changed and his behaviour had improved significantly; he had also shown more commitment to his learning and engagement with the staff; there has been a vast improvement in his school reports. He was responding well to the offending behaviour programmes.
46.
We have carefully considered the further material before us. It does not cast any doubt on the basis on which the judge proceeded. On all the evidence the judge was entitled to make a finding of dangerousness. He had heard the evidence at the trial; the pre-sentence report and the report from the secure children’s home provided considerable information about his mental state. It was not necessary for the judge to have a psychiatric report.
The length of the sentence
47.
It was also contended that a custodial sentence of ten years was manifestly excessive.
48.
In
Attorney General’s Reference 127 of 2010
[2011] EWCA Crim 760
, [2011] Cr App R (S) 99 this court, drawing on the Sentencing Guidelines Council’s youth sentencing guidance, set out at paragraph 17 a guide to the proportion of the sentence of imprisonment for an adult prisoner a sentencing court should impose when considering such a sentence for a person of the age 15, 16 and 17, having regard to both his chronological age and his maturity. For a person of 13 that proportion will be even lower.
49.
It seems to us in the light of the further information before us, particularly the effect of the medication, his real engagement with the staff at the secure children’s home and the youth of the appellant, the custodial term of ten years for a person of the appellant’s youth was too long. We propose therefore to quash the custodial term of ten years, but substitute for it a custodial term of seven years, leaving in place the extension period. We therefore allow the appeal to that extent; his sentence will therefore be an extended sentence of ten years, comprising a custodial term of seven years and an extension period of three years.
RHYS SMITH
The background
50.
On 10 November 2011 the appellant (born on 4 May 1994 and then aged 17) and a co-defendant, Willis (born on 9 February 1995 and then aged 16), approached a group of young males and females aged about 16 at a bonfire and firework night in a park in Rye. After speaking amicably, Willis and the appellant began shouting and swearing at the group, claiming to be from a gang in London. Willis pulled out a knife and held it to the throat of one of the young people. When another of the group of young people intervened, Willis held the knife to his throat. Willis then waved the knife around at the faces of the young group, saying that he was going “to do” all of them. Willis was challenged by one of the group and then backed off shouting and swearing.
51.
The appellant then asked Willis for the knife, took it from him and shouted at the group holding the knife outstretched: “Do you think I’m a prick?” He then held the knife to the face of one of the group saying “Do you think I’m a dickhead? Do you not think I will stab all of you including you two girls?” It was clear that the group of young persons was very frightened.
52.
The police were called and the appellant and Willis were detained. The knife had been thrown away. The appellant told the police it was in the bin. It was a kitchen knife with a serrated blade about four inches long.
53.
At his interview the appellant gave a prepared statement saying he was in drink, apologising for his behaviour and saying he would not do so again.
The procedural history: the sentences passed on the appellant and Willis
54.
Willis and the appellant were bailed to attend the Hastings Magistrates’ Court on 20 November 2011. Willis attended and entered a plea of not guilty; the appellant did not attend. A warrant was issued and the matter was adjourned for two weeks to 4 December 2012. At the hearing on 4 December 2012 Willis was committed for trial at the Youth Court, as the warrant against the appellant had not been executed and Willis, though only nine months younger than the appellant, was still only 17.
55.
On 6 December 2012 the appellant was arrested. He was then sentenced at the Canterbury Magistrates’ Court to a period of imprisonment for other matters. On 20 December 2012, when he was 18, he pleaded guilty at Hastings Magistrates’ Court to possession of a bladed article and was committed for sentence. On 31 January 2013 in relation to the events we have described he was sentenced at the Crown Court at Lewes by His Honour Judge Kemp to 30 months detention at a Young Offender Institution.
56.
Willis changed his plea on 23 April 2013 shortly before his trial that had been fixed in the Youth Court for 1 May 2013. He had convictions for malicious damage in 2007, robbery in 2009, battery in 2010, and racially aggravated intentional harassment in 2011. He was sentenced by the Youth Court at Eastbourne on 4 June 2013 to a Youth Rehabilitation Order with programme and supervision requirements.
57.
We asked for enquires to be made as to whether the Youth Court at Eastbourne was aware of the sentence passed on the appellant. There was no record and no recollection that the matter had been drawn to the attention of the Youth Court. We infer that it is highly unlikely that the Youth Court was told. The CPS accepts that it was at fault in failing to draw the sentence imposed on the appellant to the attention of the Youth Court. It has resulted in serious injustice.
The basis of the appeal
58.
The appellant had a history of offending behaviour. In April 2009 he was given a four month referral order for theft and possession of cannabis. In March 2010 he was given a further six month referral order for battery. In November 2010 he was given an 18 month referral order for theft, but that was revoked in April 2011 when he was sentenced to a four month detention and training order. He had further convictions for theft and other dishonesty in 2012. In September 2012 he was given a conditional discharge by Magistrates for possession of a prohibited weapon – a device for the discharge of CS gas. At the time of sentence he had unpaid fines and other orders totalling £810.10 and was subject to an 18 month suspended sentence; he had not complied with the conditions; he had breached them twice and committed two offences during its operation.
59.
The appellant appeals by leave of the Single Judge solely on the grounds of disparity with the sentence imposed in the Youth Court on Willis. He did not seek leave on the grounds that the sentence was either wrong in principle or manifestly excessive viewed on its own, given the seriousness of the offence and his past offending behaviour. As the Single Judge rightly observed in granting leave to appeal, though the sentence was severe, it was not manifestly excessive in the light of the offence and the previous convictions. An extension of time was granted by the Single Judge.
60.
The sentence passed by the Youth Court is inexplicable given the gravity of the offence committed by Willis. He should have received a significant custodial sentence in the form of a Detention and Training Order. The disparity in their punishment, even taking into account the more serious prior offending behaviour of the appellant and the fact he was older by nine months, was unjust: see the discussion at paragraphs 7 and 8 of
R v Coleman
[2007] EWCA Crim 2318
. Accordingly we quash the sentence of 30 months youth custody (though entirely merited) and pass in its place a sentence of 20 months youth custody.
PETER WILLIAM VAREY
The background
61.
In the early afternoon of 3 November 2013 the applicant was shopping at an ASDA supermarket. He was seen to put an item into his pocket, discard the other items and make to leave. When he was stopped by security guards, he produced a Stanley knife from his pocket and threatened the guards. They backed away and he ran from the store.
62.
On the following day, 4 November 2013 the applicant entered Millets where he stole a North Face
jacket.
63.
Some days later on 26 November 2013 the applicant was seen to be acting suspiciously in Boots. He was searched and found to be in possession of a Stanley knife. He was arrested
64.
On 12 December 2013 at the Crown Court at Bradford he pleaded guilty to three offences. He was sentenced by the Recorder of Bradford, His Honour Judge Roger Thomas QC, to 15 months imprisonment for threatening with a bladed article on 3 November contrary to s 139AA of the CJA 1988, to six months consecutive for the theft on 14 November and to 15 months consecutive for possession of a bladed article on 26 November contrary to s.139 of the CJA 1988, making a total of three years. His application for leave to appeal was referred to the court by the Registrar.
The application for leave to appeal
65.
The applicant was some 41 years of age. He had a very lengthy record of previous offending commencing in 1994. The offences were largely theft, but there were also offences of resisting arrest and breaching non-custodial orders. Much of the offending was due to his significant drug habit. It is important to note that in July 2012 he had been sentenced to six months imprisonment for being in possession of a craft knife. In March 2013 he was given a community order for theft from shops and being in possession of a craft knife. He continued to steal from shops. On 25 October 2013, shortly before the first of the present offences, the magistrates had deferred sentence on offences of theft until January 2014.
66.
Although it was accepted that no complaint could be made for the sentence in respect of the offence of threatening with the knife on 13 November 2013, it was contended that the sentence for possession of a knife on 26 November 2013 was too long, as he had not then threatened anyone with it; that the sentence for theft was too long; that the sentences in total were too long.
67.
We do not agree. The judge rightly identified the gravity of the offences for which the appellant was sentenced and the escalation from theft to committing such offences as carrying a Stanley knife. He had been given a short sentence of imprisonment by the Crown Court at Bradford for carrying a knife in July 2012; he had been given another chance in March 2013 when the wholly exceptional course was taken by magistrates in giving him a community order and a drug rehabilitation order for possession of a craft knife when stealing. He had not desisted. Nor, as the evidence from the probation officer made clear, had he cooperated with the probation service. A very lengthy sentence was inevitable; the total of three years cannot in any way be criticised. There is no merit in the application. It is therefore refused.
HARRY WILLIAM SHAKESPEARE
The background
68.
In the early hours of 15 June 2013 the victim and a friend went to meet the applicant, then aged 22, to buy some cocaine. The victim approached the applicant in his car and handed him £40. The applicant did not hand over any drugs but showed the victim a large knife. He accused the victim of trying to set him up for a robbery. He got out of his car, but did not take the knife with him. He assaulted the victim, punching him numerous times about his face and head and kneeing him in the left eye. The attack caused the victim bruising and swelling to the left eye, bumps to the left side of his head and forehead and a minor cut to his nose. The applicant then got back into the vehicle.
69.
The victim, fearing that the knife would be produced and used, ran back to his friend’s car. The friend drove off. The applicant who was in drink followed at high speed; he had no licence and no insurance. He rammed the car. The friend was able to continue to a police station, although followed by the applicant at high speed most of the way.
70.
On 28 June 2013 the applicant pleaded guilty before the Magistrates to threatening with a bladed article in a public place, dangerous driving, theft and assault. He was committed to the Crown Court for sentence.
71.
On 8 August 2013 at the Crown Court at Chelmsford before His Honour Judge Turner QC, he was sentenced to a total of 21 months imprisonment. A six month sentence was passed for threatening with a bladed article contrary to s.139AA of the CJA 1988 and consecutive sentences of 12 months, one month and two months respectively were passed for dangerous driving, theft and assault. The Single Judge refused leave to appeal. The applicant renews his application to this court.
The application for leave to appeal
72.
Although the applicant was 23 at the time of the sentencing hearing, he had appeared before the courts on nine previous occasions largely for drugs offences, but including one offence of possessing an air gun in a public place. In March 2010 he was sentenced to 30 months for robbery and on 13 August 2010 to a consecutive sentence of 12 months for assault occasioning actual bodily harm. He was on licence at the time of these offences.
73.
Although it was accepted that it was permissible to pass a consecutive sentence for the offence of dangerous driving, it was argued that it was wrong to pass consecutive sentences for the other offences; they should have been made concurrent.
74.
In our view no criticism can properly be made of the total sentence of 21 months. The sentence of 12 months for the dangerous driving was entirely justified. There was no basis for departing from the minimum sentence of six months for the offence of threatening with a bladed article under s.139AA of the CJA 1988. It would have been permissible for the judge to have passed a longer sentence for the offence under s.139AA to reflect the theft and the assault, but the way the judge sentenced the applicant made clear that he received the statutory minimum for the offence under s.139AA and received a further three months for the assault and theft.
75.
The application is refused.
RAB
The background
76.
On the afternoon of Wednesday 26 December 2012 two youths bullied a 14 year old schoolboy who, after leaving the Walworth Academy in his school uniform, was in a street near the Old Kent Road. Others joined in the bullying including the applicant, then aged 16, who lashed out at him. A knife was seen tucked into the waistband of one of them. A truancy officer intervened. Before the incident escalated further the 14 year old ran off and the youths dispersed as they saw a police van. The 14 year old telephoned a friend, Huy Pham (18 years old), and told him what had happened. Pham told the 14 year old to wait. Pham then arrived in a motor vehicle driven by Ayodele (who was 20) and Chambers (aged 21) as a passenger. The 14 year old got into the vehicle. They drove to an estate in Walworth.
77.
The 14 year old recognised a group of youths standing on a balcony as those who had confronted him. The group included the applicant. Pham, Chambers and Ayodele went up to the balcony and spoke to the group about bullying their 14 year old friend. They wore hoods and their faces were masked.
78.
The applicant was unable to get away. There was a confrontation. Pham hit the applicant with a belt buckle. Chambers pushed the applicant. The applicant then produced a knife and stabbed Chambers in the chest, penetrating his heart. Chambers collapsed and died. The applicant then threatened Ayodele with a knife. Pham tried to run away. The applicant caught him but Pham curled up in an attempt to protect himself. The applicant lent over and stabbed Pham in the leg. Ayodele then punched the applicant who turned and swung the knife, cutting Ayodele’s neck in such a way that the wound required five stitches.
79.
The applicant was identified from YouTube footage and tried at the Crown Court at Southwark before His Honour Judge Pitts and a jury for three offences :
i)
The murder of Sean Chambers.
ii)
Wounding with intent of Ayodele.
iii)
Wounding with intent of Pham.
80.
He was acquitted of the murder of Sean Chambers and wounding Ayodele with intent. He was convicted of wounding Pham with intent. It is clear that by the acquittals in respect of the count of murder and the s.18 offence in respect of Ayodele, the jury accepted the defence of self defence. The judge sentenced the applicant to six years detention under s.91 of the Powers of Criminal Courts (Sentencing) Act; he stated that if the applicant had been over 18, he would have received a sentence of 8-10 years. Leave to appeal was refused by the Single Judge. He renews his application to the full court.
The seriousness of the offence and the harm caused
81.
We first consider the seriousness of the offence. The judge who had heard the evidence was entitled to find that the applicant was carrying the knife, not because he was expecting particular trouble nor because of threats; he was carrying it for protection as part of his ordinary daily clothing, because it made him feel safer or perhaps because it added to his aura with other young people. That cannot be any justification for carrying a knife or bladed weapon. The judge found there was absolutely no need for him to have taken out his knife when he tried to get away. There was no need for him to have used the knife on Pham. The judge concluded that he was under no threat from Pham as he lay curled on the floor. The evidence was clear that the applicant leant over and deliberately stabbed him.
The application for leave to appeal
82.
There can be no doubt, as the judge was plainly entitled to find, that the very serious aggravating factor in this case was the fact that the appellant carried a knife on him as an ordinary part of his everyday appearance. He had deliberately used the knife on Pham when he was on the ground. It was very serious criminality.
83.
As to the harm caused, the wound was a 1-2 cms long wound to the left thigh. It was closed with three stitches.
84.
The applicant had had a difficult upbringing, going to Jamaica and then returning to the UK. On 22 September 2010 when was just 14 he pleaded guilty to possessing a lock knife in a public place. This related to an incident three months earlier when he was 13. He had been with a group of other youths when the police stopped them; he attempted to dispose of it, but was noticed. His sentence was a nine month referral order
85.
The judge was entitled to conclude that there was little provocation in relation to the applicant’s stabbing of Pham. It was an offence which fell at the top end of category 2. His previous conviction for carrying a lock knife was a seriously aggravating factor. In our judgment, the sentence of six years, taking account of the applicant’s age, cannot be faulted. The application is refused.
LD
Background
86.
On 31 October 2012 the complainant, a youth then aged 15, was at a party in Hitchin. The applicant, who was born on 22 June 1996 and then aged 16, and some of his friends were also at the same party. The complainant had been associating with a girl whom the applicant had hoped would become his girlfriend. The applicant felt slighted as a result of a previous incident and that he had been shown disrespect.
87.
Whilst the applicant and his friends were in the kitchen he enlisted their help, put on some gloves, picked up a knife and lunged towards the complainant, aiming for his abdomen. The complainant managed to move out of the way a little but was stabbed in the inner thigh. The complainant kicked out, managed to free himself and ran out of the kitchen whilst one of his friends grabbed the applicant’s wrist to prevent him using the knife again. The complainant made his way outside and was found bleeding profusely. An ambulance attended and he was taken to hospital where his wound was stitched; the judge commented that it was good fortune that the femoral artery was not severed. The victim personal statement made clear that, although he did not have any residual pain or any other physical effects, he was still affected by the incident at home and at school; he did not go out at all.
88.
The applicant was arrested some days later. He was tried at the Crown Court at Cambridge before His Honour Judge Hawkesworth and a jury on a count of wounding with intent. He was convicted of that offence on 3 May 2013. On 7 June 2013, when aged 16, he was sentenced to an extended sentence of ten years imprisonment, comprising a custodial term of six years and an extension period of four years. His application for leave to appeal was refused by the Single Judge. He renews it to this court.
The application for leave to appeal
89.
It is accepted on behalf of the applicant that when the judge placed the offence within category 2 of the sentencing guideline, he was correct in doing so. Greater culpability existed in view of the use of the weapon, the intention to commit more serious harm than actually resulted from the offence and the circumstances in which the crime was committed.
90.
It was also accepted that the judge was entitled to find that the applicant was dangerous. There were ample grounds for doing so given his record of previous offending to which we will refer, the judge’s own assessment and the careful pre-sentence report.
91.
The ground of appeal is that the custodial term was too long. It is premised upon the submission that the judge failed to give sufficient weight to the age of the applicant and to take into account his background circumstances. As was set out in the pre-sentence report, his family background was chaotic, he was beyond the control of his mother and used to getting his own way for a long time, associating with other criminals of his age and acting as a leader.
92.
Although he was only 16, he had a significant criminal record. On 9 January 2008 when he was not yet 11 he was convicted of using threatening words or behaviour. He was given a referral order a few months later. On 13 August 2008 he was convicted of another similar offence and given a supervision order with a curfew and electronic tagging. Encompassed within those sentences were two further offences of malicious damage and common assault. In February 2008 he was convicted of arson, two offences of malicious damage and two offences of battery. On 13 August 2008 he was convicted of burglary and theft. On 19 November 2008 he was convicted of two offences of battery. On 5 February 2009 he was found in breach of his curfew order. On 26 March 2009 he was found guilty of theft, malicious damage and battery. On 5 January 2010 he was convicted of common assault and given his first custodial sentence of detention and training for four months. On 11 March 2010 he was found guilty of failing to comply with that order. On 1 July 2010 there were numerous further failures to comply with that order. On 1 August 2010 he was found guilty of malicious damage. He was convicted of a similar offence on 9 December 2010. There were subsequent further convictions on 20 January 2011 for malicious damage. On 13 June 2011 he was involved in aggravated vehicle taking and given a further detention and training order for four months. On 15 July 2011 there was theft from a dwelling and on 15 December 2011 theft from a person. On 30 August 2012 there were two offences of battery on two females and further offences of failing to comply with orders imposed upon him. On 27 September 2012 he was made subject to a youth rehabilitation order which was in force at the time of this offence; despite his arrest and remand for this offence he was given a four month detention and training order on 10 January 2013 by magistrates for breach of the youth rehabilitation order imposed on 27 September 2012.
93.
The pre-sentence report recorded that, although he had been under statutory supervision for the past five years, he had always re-offended and failed to comply with requirements. He had been placed in custody seven times. He had made no real use of the help offered, except for short periods. In his period of remand after October 2012 he had been highly disruptive and involved in violent incidents though he had in the six weeks prior to sentence been better behaved. He refused to cooperate with the writer of this pre-sentence report. He expressed no remorse.
94.
In our judgment the judge’s approach to sentencing this applicant cannot be faulted. He had regard to all the relevant matters and properly discounted the sentence that would have been applicable to an adult. This application is therefore refused. | [
"MR JUSTICE SIMON"
] | 2014_04_16-3409.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/747/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/747 | 904 |
ff6313138a9ee054e3a421d04f6fa2e52e3d38eb98684631fdac11c2d0980966 | [2018] EWCA Crim 1511 | EWCA_Crim_1511 | 2018-06-13 | crown_court | Neutral Citation Number: [2018] EWCA Crim 1511 Case No: 201704628/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13 June 2018 B e f o r e : LADY JUSTICE MACUR MR JUSTICE GOOSE THE RECORDER OF AMERSHAM HER HONOUR JUDGE CUTTS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v MARCIA MURRAY - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, | Neutral Citation Number:
[2018] EWCA Crim 1511
Case No:
201704628/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 13 June 2018
B e f o r e
:
LADY JUSTICE MACUR
MR JUSTICE GOOSE
THE RECORDER OF AMERSHAM
HER HONOUR JUDGE CUTTS QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - -
R E G I N A
v
MARCIA MURRAY
- - - - - - - - - - - - - - - -
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 M Stevens
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - -
J U D G M E N T
(Approved)
1.
MR JUSTICE GOOSE: On 7 July 2017 in the Crown Court at Kingston upon Thames, the appellant Marcia Murray, who is now aged 50, was convicted after trial of two offences of burglary and an offence of common assault. Sentencing was adjourned. Subsequently, the appellant pleaded guilty to three further indictments charging her with further offences of burglary, to which she had pleaded guilty.
2.
On 29 September 2017 Mr Recorder Kingston, the trial judge, sentenced the appellant to five years' imprisonment made up as follows. Indictment T20160616 being two offences of burglary and one offence of common assault, 15 months' imprisonment on each burglary count, consecutive with each other, and no separate penalty on the common assault. On indictment T20170141 for an offence of burglary, 10 months' imprisonment consecutive. On indictment T20170352, a further offence of burglary, 10 months' imprisonment consecutive. On indictment T20170538, two offences of burglary, 10 months' imprisonment on each count concurrently with each other but consecutively with other sentences.
3.
The appellant appeals the sentences imposed with leave of the single judge on the grounds that the total sentence was manifestly excessive in all the circumstances. Further, it is argued that the judge failed to give sufficient weight to the principle of totality.
4.
The background to these offences is based upon the appellant's antecedent history. At the age of 50 the appellant has 20 convictions for 68 offences, almost entirely for offences of theft or fraud. She has six previous offences of dwelling-house burglary and 16 previous offences for non-dwelling burglaries, also with an attempted non-dwelling burglary.
5.
On 25 September 2015 the appellant was sentenced to 27 months' imprisonment for six offences of non-dwelling burglaries and an offence of theft. In addition, a suspended sentence of 12 weeks' imprisonment for similar offences was activated consecutively. Accordingly the appellant was serving the balance of this sentence on licence at the time she committed the offences with which this appeal is concerned.
6.
The facts of these current offences can be shortly stated. The first offence in time was the burglary offence under indictment T20170141. On 28 August 2016, shortly after the appellant's release from her sentence of imprisonment imposed on 25 September 2015 and whilst on licence, the appellant entered a hospital and stole seven laptop computers valued at £1,000 each. She was recognised from CCTV recordings, having committed previous offences in the hospital, but was not arrested until 11 November 2016. She was released on bail.
7.
Whilst on bail and on licence the appellant committed two further burglaries and the common assault which comprised indictment T20160616. On 6 October 2016 the appellant entered school premises in Battersea and stole a purse and an iPhone from a teacher. The appellant was identified on CCTV recordings but was not arrested before committing further offences. On 18 November 2016 the appellant returned to the same school and gained entry by pretending to be the mother of one of the pupils. A member of staff identified the appellant and confronted her. As the appellant began to leave another member of staff tried to stop the appellant. That member of staff was struck across the face in an offence of common assault. The appellant was arrested and again granted bail.
8.
On 21 March 2017, again whilst on bail and on licence, the appellant committed a further offence of burglary comprising indictment T20170352. On this occasion the appellant entered a building at Imperial College and stole an Apple Mac laptop computer valued at £750 belonging to a medical student. She was identified on CCTV recordings.
9.
Finally, the two offences of burglary on indictment T20170538 were committed in the Chemistry Building of Imperial College on 5 May 2017. The appellant entered the premises and stole a Lenovo laptop computer valued at £1,000 and, in a separate offence, an Apple laptop computer valued at £1,400. The appellant was subsequently arrested when she returned to the building on 2 June 2017.
10.
Passing sentence, the Recorder assessed these burglaries as involving high culpability, because they were deliberate targeting of hospitals, schools or university premises and a significant degree of planning, especially by returning to the same premises where she knew items were available which she could steal. The Recorder also identified that the harm caused was of a significant degree, given the value of the items stolen, but finding that the burglary offences under the non-dwelling guideline were at the borderline of Categories 1 and 2. The aggravating features of these offences were also identified by the Recorder, including the appellant's previous convictions for similar offences, the fact that these offences were committed whilst she was on licence and also that she was on bail. Taking into account these aggravating factors and adjusting for mitigation, the Recorder adopted a sentence after trial of 18 months' custody, which he then discounted to 15 months in respect of totality. Thereafter the Recorder further discounted the sentences to reflect the pleas of guilty where they were entered. The Recorder also directed that the burglary offences on the final indictment (T20170538) were to be served concurrently with each other, but all other sentences were to be served consecutively. This provided a total sentence of five years' imprisonment.
11.
We have considered carefully the submissions made on behalf of the appellant which are addressed directly to the total sentence. No real criticism is made of the individual sentences or upon the reasoning adopted by the Recorder. Indeed we are satisfied that the individual sentences were entirely correct. Further, it was also necessary, given that the appellant was on bail when she committed the offences on three of the indictments, to impose consecutive sentencing. However, we do not consider that it was appropriate to impose consecutive sentencing for the two burglaries on the indictment T20160616. The appellant had not been arrested and was not on bail after committing the first offence before she committed the second and the assault offence. The sentences for these offences should, in our judgment, have been concurrent with each other, as the Recorder correctly did so in the final indictment T20170538. For this reason, but also to reflect to a slightly greater extent the principle of totality, we vary the sentences on indictment T20160616 so as to make each sentence concurrent with each other on that indictment, all other sentences remaining as before. This will mean therefore, that the sentence to be served on indictment T20160616 will be 15 months' imprisonment which, taken with the consecutive sentences on the remaining indictments, provides a total sentence of 45 months' imprisonment.
12.
Accordingly, we allow the appeal against sentence and reduce the sentence to 15 months' imprisonment on indictment T20160616 and the total sentence to 45 months' imprisonment.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Email: [email protected] | [
"LADY JUSTICE MACUR",
"MR JUSTICE GOOSE"
] | 2018_06_13-4325.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1511/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1511 | 905 |
718bd546688b80ad6bf98c098f6b91e01c92c32230b4cce18ca1fb9c202284e0 | [2003] EWCA Crim 1542 | EWCA_Crim_1542 | 2003-05-23 | supreme_court | Neutral Citation No: [2003] EWCA Crim 1542 Case No: 2003/1482/W2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 23 rd May 2003 Before : LORD JUSTICE KENNEDY MR JUSTICE PTICHERS and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between : R - and - Annette Lisa Racquel Montague-Darlington - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Barnard for the Crown Richard | Neutral Citation No:
[2003] EWCA Crim 1542
Case No:
2003/1482/W2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
23
rd
May 2003
Before :
LORD JUSTICE KENNEDY
MR JUSTICE PTICHERS
and
MR JUSTICE SIMON
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
Annette Lisa Racquel Montague-Darlington
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
David Barnard
for the Crown
Richard Milne
for the appellant
Hearing dates: 19
th
May 2003
- - - - - - - - - - - - - - - - - - - - -
REASONS FOR JUDGMENT
JUDGMENT APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lord Justice Kennedy :
1.
On 11
th
April 2002 in the Crown Court at Croydon this appellant pleaded guilty to a single count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A controlled drug, namely cocaine, and she was sentenced to three years imprisonment. Out of time she sought leave to appeal against her conviction, and her application was referred to the full court by the Registrar.
2.
On 19
th
May 2003 we granted the necessary extension of time, granted leave and allowed her appeal, for reasons which we now give.
Facts.
3.
The appellant is 31 years of age and normally she lives in the West Midlands with her child. On 16
th
January 2002 she arrived at Gatwick Airport from the Caribbean with Herbert Brooks who, she said, was her boy friend. Both were arrested and she was required to provide a sample of urine. It tested positive for cocaine and she then passed a total of 90 packages which she had swallowed. They contained 366 grams of cocaine at 100% purity, with an estimated street value of £32,232.
4.
On 17
th
January 2002 the appellant was interviewed in the presence of her solicitor, and made a number of allegations as to the circumstances which caused her to be carrying drugs. Both her solicitor and her counsel advised her that if what she said was true it would be possible to raise the defence of duress with some prospects of success, but the appellant chose not to follow that course, and when sentencing her Judge Ellis gave her credit not only for her plea of guilty but also for recognising that the pressure she was under fell short of the defence of duress. Taking into account all of the matters of which he was aware the judge passed what he described as “a lower sentence than would otherwise be the case” and no complaint is made in relation to the length of sentence.
Appeal.
5.
On 10
th
February 2003 the solicitor acting for the Customs and Excise wrote to the appellant’s solicitors to inform them that material had recently been brought to his attention of which he was not previously aware. Had he been aware of it before the case was heard he would have regarded it as disclosable, but highly sensitive and therefore likely to attract public interest immunity. He suggested that the appellant might wish to appeal against conviction out of time, and thus the matter came to the attention of the Registrar.
6.
For the purposes of the hearing before us we have been able to see not only the material which was before Judge Ellis, but also additional material, and we have had the benefit of submissions from Mr Barnard for the Customs and Excise, and Mr Milne for the appellant. In the result we are satisfied that, as Mr Barnard contends and as was envisaged in the letter of 10
th
February 2003-
(1) There is material which it would have been the prosecution’s obligation to disclose:
(2) the sensitivity of the material is such that it would not have been disclosed, and rather than disclose it the prosecution would either not have prosecuted at all or, if proceedings had been commenced, would have offered no evidence.
If the appellant had not pleaded guilty we would, without hesitation, have allowed the appeal, but she did plead guilty and obtained substantial credit for doing so. Does that make any difference? Mr Milne submitted to us that it should not do so because she pleaded guilty for pragmatic reasons, before other arrests had been made, and when, if we can put it this way, the cards appeared to be very much more heavily stacked against her.
Law.
7.
This court will only rarely entertain an appeal against conviction where there has been a plea of guilty, but the circumstances in which an appeal may be successful are not confined to those identified by Avory J in
Forde
(1923) 2 KB 400
, as is clear from the recent judgment of this court in
Togher
[2001] 1 Cr App R 457
. The court has to consider whether the appellant had a fair trial. It is difficult to see how the appellant can be said to have had a fair trial when it is now the case for the prosecution that she should not have been tried at all. Furthermore if, when advising in relation to plea, her legal advisers had access to all of the relevant material it is clear that she would have been strongly advised not to plead guilty, and there is no reason to think that she would have refused to accept that advice.
Conclusion.
8.
We are therefore satisfied that in the particular circumstances of this case it is open to us to set aside the plea of guilty, and to allow the appeal against conviction. For obvious reasons we have not considered it necessary or desirable to deal with the content of the sensitive material, and both counsel accept that we should not do so. | [
"LORD JUSTICE KENNEDY",
"MR JUSTICE PTICHERS",
"MR JUSTICE SIMON"
] | 2003_05_23-72.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1542/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1542 | 906 |
7d24007883c427d3fc97ac4136401a53c97b2a6fdd1ece15e99f44374dd5b21d | [2005] EWCA Crim 3093 | EWCA_Crim_3093 | 2005-11-01 | crown_court | No: 200504388 B4 Neutral Citation Number: [2005] EWCA Crim 3093 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 1st November 2005 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE OPENSHAW DAME HEATHER STEEL - - - - - - - R E G I N A -v- MICHAEL DOOLEY - - - - - - - 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 th | No:
200504388 B4
Neutral Citation Number:
[2005] EWCA Crim 3093
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 1st November 2005
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE OPENSHAW
DAME HEATHER STEEL
- - - - - - -
R E G I N A
-v-
MICHAEL DOOLEY
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR P MITCHELL
appeared on behalf of the APPELLANT
MS R DRAKE
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: On 17 March 2005 in the Crown Court at Oxford, before HHJ McIntyre, the appellant pleaded guilty on re-arraignment to six charges of an offence against
section 1(1)(c)
of the
Protection of Children Act 1978
. That makes it an offence to be in possession of indecent photographs or pseudo-photographs of a child with a view to their being distributed or shown by himself or others. By virtue of subsection (2):
“... a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by another person."
2.
Prior to the trial, HHJ McIntyre was asked to give a ruling as to the meaning of the words "with a view to" in this Section. He gave that ruling. Following the ruling and in the light of it, the appellant pleaded guilty. He now submits that the judge erred in law in his interpretation of the words "with a view to".
3.
The phrase "with a view to" can be found in hundreds of different statutory provisions. In so far as the criminal law is concerned, see, for example,
section 92 of the Trade Marks Act 1994
;
section 1(2) of the Theft Act 1968
; section 17 of that Acts (false accounting);
section 20
and
section 21
, which creates the offence of blackmail. In
section 21(1)
, it is provided:
"A person is guilty of blackmail if, 'with a view to gain for himself or another or with intent to cause loss to another', he makes any unwarranted demand with menaces."
4.
The phrase “with a view to” even appears in the
Human Rights Act. Section 1(5)
provides that a protocol means:
"... a protocol to the Convention -
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification."
5.
The phrase also appears, for example, in the
Obscene Publications Act 1964
and in the statutory provisions regarding Drug Treatment and Testing Orders.
6.
We turn to the facts of this case. KaZaA is a peer to peer file sharing network that enables Internet users to share any type of computer file. Users become part of a network of other KaZaA members worldwide by downloading the necessary software from the Internet. All members have a "My Shared Folder" which contains files which, when the computer is connected to the internet, can be accessed by any KaZaA member. At any one time, there may be in excess of four million KaZaA members connected to the system.
7.
KaZaA effectively functions as an enormous "library" with its contents stored on the computers of all its active members at any one time. A member wishing to find a particular type of file will enter a term into a search engine, which is part of the software. KaZaA will then search the "My Shared Folders" of all members currently connected to the Internet and provide a list of matching files. The person searching can then select a file and download to his "My Shared Folder". Unless it is moved from their "My Shared Folder" it becomes part of the "stock" of the "library" and can in turn be accessed by the other members. There is a facility for making the "My Shared Folder" inaccessible to others, but the appellant appears to have been unaware of it.
8.
On 10th February 2004, the police searched the appellant's home and seized computer equipment. KaZaA was installed on the computer. There were many thousands of indecent images of children on the appellant's computer, many of which he had obtained via KaZaA. Of the thousands of images, only six were found in the appellant's "My Shared Folder".
9.
The downloading of images from KaZaA will often take many days, the computer being left on for long periods of time. Rather than just download a few images, the appellant would download a very substantial number of images. The images, so we were told, could not effectively be accessed by others until such time as the "My Shared Folders" had the completed image. Thereafter, on the appellant's case, it was his "specific intention" to remove the photograph or image from the "My Shared Folder" to some other part of his computer, where it could not be seen by others. Because of the large number of images that were downloaded, it took him time to do that. In so far as the six images with which this case is concerned, we were told that they had actually been in the "My Shared Folder" for some ten days before the police intervened. It thus follows that they were available to be accessed by the many members of this "club" during those ten days.
10.
It is perhaps unfortunate, with hindsight, that the judge was not presented with a clear set of facts or assumed facts in order to resolve the legal issue. In his ruling, the judge said:
"It seems to me that what the prosecution needs to prove is that a participant downloads a particular photograph or image in the knowledge that it is likely to be seen by other participants who have access to same folder into which the image goes."
11.
Mr Mitchell, of course, did not have the benefit of the transcript and tells us that, at the time, he did not understand the full impact of that sentence. We return to this passage later.
12.
The judge then said:
"If he downloads the photograph or image with that knowledge he is possessing it during the time it is in the My Shared Folder ‘with a view to’ its being distributed or shown by him to other members of the club. It may be that the defendant's specific intention is immediately to remove the photograph or image from the My Shared Folder to some other part of his computer where it cannot be seen by others, but whereas that may provide a defendant with a defence if the charge were possession with intent to distribute or show, it does not amount to a defence to possession with a view to its being distributed or shown in the circumstances. I think there is a difference between the meaning of the words 'with the intention of' and the words 'with a view to'. The fact that it may not have been a defendant's specific intention to distribute or show the photograph or image to others merely provides him with mitigation in respect of the charge he faces under
Section 1(1)(c)
. The words 'with a view to' have a wider meaning than 'with the intention of'.
It follows that if a person charged with this offence did not know that as a result of using the particular software there was a likelihood of the image or photograph in the My Shared Folder' being accessed by others then he would have a good defence to a charge under
Section 1(1)(c)
. And going back to the analogy of the club: it seems to me that if you join a computer club knowing that its purpose is to make material downloaded by you accessible to all members so that there is a likelihood of that material being accessed by other members as a result of your downloading it, then in those circumstances you download it 'with a view to' its being distributed or shown by you to other members.
I hope that ruling is clear. I think at the nub of it is the difference between 'with a view to' and 'with the intention of'."
13.
The judge drew a distinction between the words "with a view to" and the words "with the intention of". In our view, he was right to do so.
14.
Help for the meaning of the phrase (which has not, it appears, received much judicial attention) can be found in the 11th edition of Smith and Hogan's "Criminal Law", now edited by Professor Ormerod, page 807. There the meaning of the phrase "with a view to gain" in
section 21 of the Theft Act 1968
is briefly examined. It is stated that, whilst it is probably not necessary to show that the defendant's primary purpose in making a demand was to make a gain for himself or another, it must one of his objectives. We agree that it need only be one of his objectives. In a case like the present, another way of approaching the issue is to ask whether one of the defendant’s reasons for leaving the images in the “My Shared Folder” was to enable others to access it.
15.
Mr Mitchell submitted that the judge should have adopted this approach and decided that the defendant would only be guilty if one of his reasons for leaving the images in the “My Shared Folder” was to enable others to access the images in the Folder.
16.
Ms Drake for the respondent submitted, first of all, that, on the facts of this case, it was sufficient if the defendant had knowledge that the images may be seen by others. She then adopted the judge's approach: “Did the defendant know that the images were likely to be seen by others?” She then changed that to: “Did the defendant know that the images were very likely to be seen by others?” She ended up with: “Did the defendant know that it was
inevitable
that the images would be seen by others?” before returning to the judge's approach.
17.
In our judgment, although it may be very important to examine the defendant’s knowledge in the way in which the judge did, nonetheless the question which the jury will have to resolve is: “Was at least one of the reasons why the defendant left the images in the ‘My Shared Folder’ so that others could have access to the images in it?” If so he would be in possession of indecent photographs of a child with a view to their being distributed or shown by himself. One can envisage circumstances where a person foresees X as a likely consequence of doing Y, but does not do Y with a view to X. To take a far fetched example, a general may foresee the likelihood of his soldiers being killed in battle, but he surely does not send his troops into battle with a view to their being killed? We should add that it is not necessary in this judgment to refer to the debate about intention and foresight of virtual certainty (Smith and Hogan, pages 93 and ff).
18.
We have considered carefully whether the conviction is safe. In the light of the judge’s ruling about the necessary knowledge, the appellant (we would have expected) must have pleaded guilty on the basis that he knew that the images in the “My Shared Folder” were likely to be seen by other participants. If so, on the facts of this case, it would seem to follow that at least one of the reasons why the defendant left the images in the "My Shared Folder" would be to enable others to have access to them. Mr Mitchell assures us that he understood the ruling to mean that it was not necessary for the prosecution to show that a reason for leaving the images in the folder was to enable others to access them. He tells us that his case was that the appellant did not leave the images there for that reason and he did not assimilate what the judge had said about knowledge. In the light of that assurance, we must quash the conviction. No retrial is sought. | [
"LORD JUSTICE HOOPER",
"MR JUSTICE OPENSHAW"
] | 2005_11_01-622.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3093/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3093 | 907 |
427ed1f127a7986eb94b1d28bb1f36ea94010f522bb51aa2e951ea2bf41c5b6f | [2011] EWCA Crim 6252 | EWCA_Crim_6252 | 2011-11-16 | crown_court | Case No: 201104361B2 AND 201104375B2 Neutral Citation Number: [2011] EWCA Crim 6252 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Portsmouth Crown Court before HHJ Hetherington on 14th July 2011 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/11/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE ANDREW SMITH and MR JUSTICE POPPLEWELL - - - - - - - - - - - - - - - - - - - - - Between : GEORGE ALFRED PETER VINALL 1 st Appellant & J 2 nd Appellant & REGINA Respondent - - - - - - | Case No: 201104361B2 AND 201104375B2
Neutral Citation Number:
[2011] EWCA Crim 6252
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Portsmouth Crown Court before HHJ Hetherington
on 14th July 2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/11/2011
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE ANDREW SMITH
and
MR JUSTICE POPPLEWELL
- - - - - - - - - - - - - - - - - - - - -
Between :
GEORGE ALFRED PETER VINALL
1
st
Appellant
&
J
2
nd
Appellant
&
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Roderick James
(instructed by
Rowe Sparkes Partnership - Solicitors
) for the
1st Appellant
Jeffrey Norie-Miller
(instructed by
Bramsdon and Childs - Solicitors
) for the
2
nd
Appellant
Paul Lodato (
instructed by
CPS Appeals Unit)
for the
Respondent
Hearing date: 1 November 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
This appeal against conviction, which is brought with the leave of the single judge, again raises the issue: (1) what is required to prove “appropriation” of property (2) with intent permanently to deprive the owner of it. The second appellant is the subject of an order under section 39 Children and Young Persons Act 1939 and we shall refer to him as ‘J’.
2.
The appellants were, on 14 July 2011, convicted at Portsmouth Crown Court of an offence of robbery (count 1). J was charged in the alternative with an offence of assault by beating contrary to
section 39 Criminal Justice Act 1988
(count 2). The jury was discharged from reaching a verdict upon count 2. Mr James and Mr Norie-Miller, for the appellants, both appeared at trial. Mr Lodato, for the respondent, did not. We are grateful for counsels’ submissions, particularly for Mr Lodato’s reference to some of the relevant authorities.
The case at trial
3.
At about 11.15pm on Tuesday, 10 May 2011, two young men, Joshua De-Nijs and his friend, Harvey Wrixon, were riding along a cycle path alongside Purbrook Way in Waterlooville. Harvey Wrixon was in the lead. They came across three youths, two of whom were the appellants. There was insufficient admissible evidence of identity to proceed against the third. The evidence upon which the jury convicted the appellants was primarily that of Joshua De-Nijs. Two of the youths were urinating into some bushes. As Wrixon passed them they stared at him and adopted an intimidating attitude. Someone called him “Muggins”. Further along the path he stopped to wait for De-Nijs. Someone called out as De-Nijs approached, “Oh look, here comes a joker”. The appellant J then punched De-Nijs from his bicycle and said, “Don’t try anything stupid mate, I’ve got a knife”. The other two were hurling abuse at him. J began to chase De-Nijs who ran off towards Wrixon leaving his bicycle behind. Wrixon said that all three chased his friend. One continued and the other two went back to the bicycle. The third also gave up the chase and the three youths walked off with the bicycle. At one point one of the youths was riding at walking pace while the others walked alongside. The police were called. The youths were caught half a mile away. The bicycle was found abandoned by a bus shelter some 50 yards from the place De-Nijs had left it.
4.
At the close of the prosecution case both appellants argued that (1) there was no evidence of an intent permanently to deprive the loser of his bicycle and (2) the prosecution had failed to establish that any violence or threat of violence had been used before or at the time of and in order to steal the bicycle. The judge, HH Judge Hetherington, found that there was evidence of a joint enterprise to steal the bicycle. There was evidence of dishonest appropriation with intent either permanently to deprive the owner or to treat the bicycle as their own to dispose of regardless of the owner’s rights. The judge had more difficulty with the appellants’ second submission. However, he concluded:
“Mr Jones for the prosecution says that this is pre-eminently a matter for the jury; it is not for the court to substitute its own views...as to...the connection between the violence and the taking...that is a matter for the jury. The very fact that they did take the bicycle is evidence of an intention on the part of the group at the time when the violence was meted out to the victim. That is what they intended to do because why otherwise immediately would they have taken the bicycle?...I am just persuaded that this is and remains a matter for the jury. It may, to my mind, be a weak prosecution case on the question of robbery...but that is not to say that there is no evidence from which a jury could infer...that the group activity perpetrated against the victim was in order that they could take his bicycle. It seems to me that that is a route open to the jury...[I]t is not for me to deny them consideration of that case.”
The grounds
5.
The appellants now argue that the judge was wrong to rule that
section 6 of the Theft Act 1968
applied to the facts of the present case. The prosecution was required to prove that the appellants had an intention permanently to deprive De-Nijs of his bicycle. This the prosecution could not do because the bicycle was left in full view of passers-by next to a bus stop on a main road. Secondly, the appellants argue that the “disposal” of the bicycle provided no evidence of an intention to assume the rights of the owner. Thirdly, the appellants argue that the judge was wrong to rule that there was sufficient evidence from which it could be inferred that aggressive and violent behaviour was used in order to achieve the theft of the bicycle within the meaning
section 8
of
the 1968 Act
. Fourthly, it is argued that the judge provided insufficient assistance to the jury upon the correct approach to the issue of the appellants’ intent.
6.
Section 8 Theft Act 1968
provides:
“8(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force”
Notwithstanding the hesitation expressed in
Forrester
[1992] Crim. L. R. 793 it is settled (
Raphael
[2008] EWCA Crim 1014
, [2008] Crim. L. R. 995) that the word “steal” in
section 8
has the same meaning as theft as defined by
section 1
:
“1(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”
“Appropriation” ordinarily means the taking of property. However,
section 3
provides further assistance as to what can amount to an appropriation when the defendant is already in possession or control of the property:
“3(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred to a person acting in good faith, no later assumption by him of the rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title amount to theft of the property.”
A person may be deemed to have the intention permanently to deprive the owner of property.
Section 6
provides:
“6(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.”
A case to answer
7.
In our view, the judge was clearly entitled to rule that there was a case to answer based upon evidence of the circumstances of the taking. There was evidence from which the jury could infer (1) a joint intention to rob, (2) by using or threatening force in order to steal, (3) a dishonest appropriation of the bicycle by taking, (4) intending permanently to deprive the owner of the bicycle or intending to treat it as their own to dispose of regardless of the rights of the owner. There was evidence from which the jury could conclude that the two appellants and the third youth were at all times acting together even if on the spur of the moment. Wrixon was abused as he passed. All three abused De-Nijs, although one only used violence and issued threats. All three chased De-Nijs. All three walked away with the bicycle. It was open to the jury to infer an intention permanently to deprive De-Nijs of the bicycle (or his mother, who may, strictly, have been the owner) or to treat it as their own to dispose of regardless of the owner’s rights when they chased the loser away.
Judge’s directions – appropriation/intent permanently to deprive
8.
In our view the difficult issue which arises in this appeal is whether the learned judge correctly directed the jury as to their approach to the issues of appropriation and intent permanently to deprive. He directed the jury as follows at page 5G of the transcript of his summing up:
“It follows that the first thing you need to be sure about is that this bike was stolen. What is stealing, or theft? A person steals something if he dishonestly appropriates property belonging to another with the intention of permanently depriving another of it. If someone assumes the rights of an owner over something, that is an appropriation, and he is taken to have an intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights: so, in this case, even though the bike in question appears to have been abandoned by the bus stop, not all that far from where it was taken,
you could conclude that, in doing that, the person or persons who took it were (a) assuming the rights of an owner over it, and therefore appropriating it; and (b) because no regard was had to the rights of Joshua De-Nijs, or his mother, when leaving it at the bus stop, are to be taken as intending permanently to deprive the owner of it.
Do not forget, also, that at the time of appropriating the bike the person has to have been acting dishonestly.” [emphasis added]
The judge, thus, invited the jury to concentrate upon the question whether the fact the bicycle was left at the bus shelter itself demonstrated (1) an intention to assume the rights of an owner and, therefore, an appropriation of the bicycle; and (2) a deemed intention permanently to deprive the owner of it. The appellants argue that the judge was wrong to give a direction based upon a later “disposal” of the bicycle.
Discussion
9.
First, it is submitted that
section 6
had no application to the facts of the case. The appellants rode or wheeled the bicycle a short distance and then left it in a place where it was likely (but not certain) to be recovered. If this was theft it is submitted there would have been no point to
section 12(5) Theft Act 1968
(creating the summary offence of taking a pedal cycle for the defendant’s own or another’s use). Secondly, it is submitted that the abandonment of the bicycle at the bus shelter could not in the circumstances have amounted to a disposal regardless of the owner’s rights and could not, therefore, amount to proof of an intention to assume the rights of the owner.
10.
It is clear that the starting point for the offence of theft in the circumstances of the present case must be the taking, that is, the moments leading up to and including the removal of the bicycle from the place where De-Nijs left it. The appropriation could have occurred when De-Nijs was chased away or when the bicycle was wheeled away. It is noticeable that in his directions the judge did not expressly invite the jury to consider whether the appellants intended at the moment of the taking to deprive the owner of the bicycle permanently. He did, however, refer to the fact that the bicycle was
“taken”
before being abandoned (“not all that far from where it was taken”). That is hardly surprising because it was common ground that the bicycle was taken from the cycle path and left at the bus shelter. The jury could, the judge directed them, treat the act of taking and abandonment of the bicycle as an assumption of the rights of an owner and, therefore, an act of appropriation. In our view, this was a perfectly proper direction as to the first ingredient of the offence of theft based upon the opening words of
section 3(1)
(“Any assumption by a person of the rights of an owner amounts to an appropriation”). The judge then directed the jury that they could conclude that when leaving the bicycle at the bus stop, showing no regard to the rights of the owner, the appellants should “be taken as intending permanently to deprive the owner” of it. At this point in the summing up, as it seems to us, with respect to the judge, the separate concepts of appropriation and intention permanently to deprive became fatally confused. Appropriation by the appellants, their dishonesty and their intention permanently to deprive must coincide. If the intent required for theft was not present until minutes after De-Nijs was chased away the requirements of
section 8
could not be proved.
11.
The first question for the jury, applying
sections 1
,
3
and
6
, was:
Did the defendants (1) appropriate the bicycle dishonestly by taking it, (2) intending permanently to deprive the owner of it or intending to treat the bicycle as their own to dispose of regardless of the other’s rights?
The taking of the bicycle was itself a sufficient assumption of the rights of the owner to amount to an appropriation. The abandonment was capable of being additional
evidence
that by taking the bicycle the appellants were, when they took it, assuming the rights of the owner (
section 3
). The jury could not be sure of theft, however, unless they were also sure that at the time of taking the bicycle either the appellants had an intention permanently to deprive (
section 1
) or they intended to treat the bicycle as their own to dispose of regardless of the other’s rights (
section 6
). The jury did not receive these directions.
12.
If the charge had been theft only, and the jury was not sure that at the moment of taking the appellants dishonestly appropriated the bicycle with intent (actual or deemed) permanently to deprive, they could next consider whether there was a later appropriation at the time of the abandonment. In that event the question for the jury would be:
Did the appellants, when they abandoned the bicycle, (1) assume the rights of an owner, (2) intending permanently to deprive the owner of it or intending to treat the bicycle as their own to dispose of regardless of the other’s rights?
If so, the offence of theft was committed at the time of the abandonment. This, however, was a charge of robbery. The judge left to the jury the option of concluding that the act of theft was completed not at the time of taking but at the time of abandonment. If the theft was committed only at the moment of abandonment the prosecution case of robbery was fatally undermined. In those circumstances the prosecution could not prove that force or the threat of force was used before or at the time of and
in order to
steal.
13.
The judge’s direction to the jury leaves open the real possibility that the jury thought that they could convict of robbery if the requisite intention for theft was formed only when the appellants decided to abandon the bicycle. It is right to observe that the judge proceeded to direct the jury that they had to be sure that “the purpose behind the violence or the threat [was]...the theft of the bike. If it was just a free-standing act of violence not connected with any ulterior purpose to steal the bike, no-one could be found guilty of robbery”. It may be that the jury spotted the importance of this direction, namely that they had to be sure that the joint intention to commit the offence of theft had been formed before or at the time of the violence or the threat of violence. Unfortunately, however, the judge did not speak of the appellants’ assumption of the owner’s rights at the time of the taking, only at the time of abandonment. As we see it, the judge’s directions created a risk that the jury would fail to appreciate how significant was their decision as to the moment when the offence of theft was complete.
14.
For these reasons, it is our view that the convictions are unsafe, the appeals must be allowed and the convictions quashed.
Robbery and
section 6(1) Theft Act 1968
15.
As will be apparent from our analysis, in reaching our conclusions we have assumed in the respondent’s favour that the act of abandonment was capable of being evidence from which the jury could infer the appellants’ intent
at the time of the taking
to treat the bicycle as their own to dispose of regardless of the owner’s rights. There has, we are conscious, been much academic and judicial debate as to the scope of the first and generally expressed part of
section 6(1)
. In his article “The Metamorphosis of
Section 6
of the Theft Act”, [1977] Crim. L. R. 653, J.R. Spencer, as he then was, traced the statutory emergence of
section 6
in support of his argument that, despite the wide terms in which the first part of
section 6(1)
was drawn, the Parliamentary intention had been only to embrace the common law exceptions to the literal requirement for an intention permanently to deprive the owner of his property (as to which see Smith and Hogan Criminal Law, 13
th
Edition, Professor Ormerod, at page 834). In
Warner
[1970] 55 Cr App R 93, Edmund Davies LJ said at page 96:
“Although it [the Theft Act] makes new law in certain respects, nowhere does it abandon the basic conception both of the common law and of earlier legislation that there can be no theft without the intention of permanently depriving another of his property.”
At pages 96 - 97, he continued:
“There is no statutory definition of the words “intention of permanently depriving”, but
section 6
seeks to clarify their meaning in certain respects. Its object is in no wise to cut down the definition of “theft” contained in
section 1
. It is always dangerous to paraphrase a statutory enactment, but its apparent aim is to prevent specious pleas of a kind which have succeeded in the past by providing, in effect, that it is no excuse for an accused person to plead absence of the necessary intention if it is clear that he appropriated another’s property intending to treat it as his own, regardless of the owner’s rights.
Section 6
thus gives illustrations, as it were, of what can amount to the dishonest intention demanded by
section 1(1)
. But it is a misconception to interpret it as watering down
section 1
.”
In
Warner
the central issue was whether the appellant, who had hidden the owner’s tools at work, may have intended to deprive him of the tools for a limited period before returning them, and the appeal was resolved upon the inadequate directions given to the jury on this issue. Had the issue been properly left to jury the appeal would have failed. At page 99, Edmund Davies LJ said:
“What does not, we think, clearly emerge from the passage just quoted is that the essential question was whether the accused man
ever
formed the intention to deprive the owner indefinitely of the use of his tools. If he had, then he could in certain circumstances be regarded as intending to treat the thing as his own to dispose of, regardless of the other’s rights, within the meaning of
section 6(1)
”. [original emphasis]
16.
In
Cocks
[1976] 63 Cr App R 79 the defence case was that the defendant had taken the victim’s handbag because he was entitled to the return of £5 which she refused to return to him, and he wished to recover the money. He was charged with theft of the handbag. The trial judge directed the jury in accordance with the terms of the first part of
section 6(1)
. Following
Warner
the Court of Appeal held that he should not have done so. The issue was straightforward, namely whether the defendant had intended permanently to deprive the owner of the handbag. Lord Lane CJ in
Lloyd
[1985] 1 QB 829
(CA), at page 836, expressed the Court’s
obiter
view that nothing in
section 6
should be construed as an intention permanently to deprive which would not have been so construed prior to the Act of 1968. The Court in
Bagshaw
[1988] Crim. L. R. 321 expressed a contrary view: “There may be other occasions on which
section 6
applies”. In
Cahill
[1993] Crim. L. R. 141 (CA), the defendant had removed a stack of newspapers from the doorway of a newsagent’s shop and left them in the doorway of a friend’s house as a practical joke. The Recorder gave a direction of law based upon
section 6
but omitted an essential reference to the intention “to treat the thing as his own to
dispose
of”. The court held this was a material misdirection. Merely to treat the property as one’s own was not enough. The intention required was an intention to treat the thing as one’s own to dispose of, meaning “to get rid of, to get done with, finish”. Professor JC Smith pointed out in his commentary that without the quoted words nothing was added to the meaning of appropriation provided by
section 3
. He expressed the opinion:
“
Section 6
need only be invoked where the defendant expected the property ultimately to find its way back into the hands of the owner.”
The central issue of construction was again confronted by the Court in
Fernandes
[1996] 1 Cr App R 175
in which at page 188 Auld LJ said:
“In our view,
section 6(1)
, which is expressed in general terms, is not limited in its application to the illustration given by Lord Lane CJ in
Lloyd
[ransoming the owner’s goods]
.
Nor, in saying that in most cases it would be unnecessary to refer to the provision, did Lord Lane suggest that it should be so limited. The critical notion, stated expressly, in the first limb and incorporated by reference in the second, is whether a defendant intended “to treat the thing as his own to dispose of regardless of the other’s rights”. The second limb of subsection (1), and also subsection (2), are merely illustrations of the application of that notion. We consider that
section 6
may apply to a person in possession or control of another’s property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss.”
With respect, we find this reasoning compelling. We find no sign in
section 6(1)
or (2) that the governing and general words in subsection (1) were intended to be limited to specific common law exceptions to the requirements of
section 1
. It would have been a simple drafting device to say so (as in the
Criminal Justice Act 2003)
. What
section 6(1)
requires is a state of mind in the defendant which Parliament regards as the equivalent of an intention permanently to deprive, namely “his intention to treat the thing as his own to dispose of regardless of the other’s rights”. The subsection does not require that the thing has been disposed of, nor does it require that the defendant intends to dispose of the thing in any particular way. No doubt evidence of a particular disposal or a particular intention to dispose of the thing will constitute evidence of the defendant’s state of mind but it is, in our view, for the jury to decide upon the circumstances proved whether the defendant harboured the statutory intention.
17.
Nevertheless, the Court made clear in
Mitchell
[2008] EWCA Crim 850
that the taking of a vehicle for “joyriding” and its theft are quite different offences and the distinction must not be blurred. The defendant had by force or the threat of force taken the loser’s vehicle as a getaway car and abandoned it a few miles away with the engine running, lights flashing and the doors open, in order to change to another vehicle. He was charged with robbery. The Court held that the evidence was not capable of supporting a charge of theft. At paragraph 26 Rix LJ said:
“
[26]
At some point during his submissions Mr Jackson [counsel for the prosecution], before being reminded of the words "to dispose of", which Professor Smith had emphasised in his Law of Theft (see above) and which this court similarly picked up in
Cahill
, omitted those words and emphasised, as we can well understand him saying, that the treatment of Mrs Davis showed an intention to treat the BMW as the Defendant's own regardless of the other's rights (but omitting the words "to dispose of"). Of course, everything about the taking and use of the BMW, like any car taken away without the owner's authority, indicates an intention to treat such a car regardless of the owner's rights. That is the test of conversion in the civil law. But not every conversion is a theft. Theft requires the additional intention of permanently depriving the owner or the substituted intention under s 6(1). The fact that the taking becomes more violent, thereby setting up a case of robbery, if there is an underlying case of theft, does not in itself turn what would be a robbery, if there was a theft, into a case of robbery without theft. The theft has to be there without the violence which would turn the theft into robbery.”
At paragraph 28 he concluded:
“
[28]
In our judgment the facts of this case simply do not support a case to go before a jury of theft and therefore robbery of the BMW. The BMW was plainly taken for the purposes of a getaway. There was nothing about its use or subsequent abandonment to suggest otherwise. Indeed, its brief use and subsequent abandonment show very clearly what was the obvious
prima facie
inference to be drawn from its taking which was that the occupants of the Subaru needed another conveyance that evening. We therefore consider that the judge erred in being beguiled by s 6 into leaving this count of robbery to the jury.”
18.
Sir Igor Judge, then President of the Queen’s Bench Division, expressed the following view of the Court as to the scope of
section 6
in
Raphael
[2008] EWCA Crim 1014
at paragraph 46:
“
[46]
Initially, s. 6(1) was narrowly construed. In effect the principles which existed before
the 1968 Act
came into force continued to apply. (
Warner
135 JP 199, (1970) 55 Cr App Rep 93, [1971] Crim LR 114 followed in
Lloyd
). We ourselves doubt whether the statutory framework created by the
Theft Act 1968
should always be restrictively interpreted by reference to the law as it stood before it was enacted. Authorities such as
Duru
[1973] 3 All ER 715, [1974] 1 WLR 2, 58 Cr App Rep 151;
Bagshaw
[1988] Crim LR 321 and
Fernandez
[1996] 1 Cr App Rep 175 suggest the contrary...”
It was unnecessary for the Court to reach a conclusion as to whether a wider construction of
section 6
was required since upon the narrow construction accepted by Lord Lane CJ in
Lloyd
there was in
Raphael
ample evidence of theft:
“
[48]
The express language of
section 6
specifies that the subjective element necessary to establish the mens rea for theft includes an intention on the part of the taker "to treat the thing as his own to dispose of regardless of the other's rights". In our judgment it is hard to find a better example of such an intention than an offer, not to return Adeosun's car to him in exactly the same condition it was when it was removed from his possession and control, but to sell his own property back to him, and to make its return subject to a condition or conditions inconsistent with his right to possession of his own property.
[49]
This is not a case in which the vehicle was taken for what is sometimes inaccurately described as a "joy ride".
Section 12
of the Theft Act has no application to it. It was only "abandoned" after the purpose of the robbery had been frustrated and its possible usefulness to the robbers dissipated. Equally the appropriation of the car was not conditional in the sense described in
Easom
[1971] 55 CAR 410 where it was held that theft was not established if the intention of the appropriator of the property was "merely to deprive the owner of such of his property as, on examination, proves worth taking and then, on finding that the booty is to him valueless, leaves it ready at hand to be re-possessed by the owner".”
19.
Finally, we would draw attention to an unreported decision of the Divisional Court of the Queen’s Bench Division in
The Chief Constable of Avon and Somerset Constabulary v Smith and another
(CO/661/84, 20 November 1984) (Goff LJ and McCullough J). The defendants broke into a parked car and removed a briefcase and an attaché case. Having searched them they concealed the briefcase in a nearby hedge and the attaché case in a public lavatory cubicle. In giving the leading judgment with which Goff LJ agreed, McCullough J said:
“In my judgment, there plainly was evidence capable of establishing intent, at the time the briefcases were taken from the car, permanently to deprive the owner of them. There was clearly evidence capable of amounting to an intention, at that moment, to treat the briefcases as the respondent’s own, to dispose of regardless of the true owner’s rights. They were in fact so disposed of. They were not taken back to the car; one was thrown into a hedge and the other was left in the public lavatory. This evidence of disposal was, in my judgment, evidence from which one might infer an intention within the terms of
section 6(1)
at the time of the disposal and, having regard to considerations of time and distance, it was evidence from which one might also infer that the same intention existed at the time the articles were removed from the motor car.”
As to the possibility of a later appropriation with the requisite intent McCullough J said:
“In any event, there is an alternative way in which the Crown Court could have thought there was sufficient evidence of theft, even if it was of the view that the original appropriation which began when the briefcases were first seized was over by the time of their disposal. At that time there was, in my judgment, evidence that the respondents were assuming a right to deal with them as owners. If so, there was evidence of an appropriation at the time of disposal:
section 3(1)
. There was also sufficient evidence of an intention at that moment permanently to deprive and of dishonesty. So, even if there was no evidence that the original appropriation was still at that moment continuing, it would have been open to the court to say that there was evidence that all three elements of theft were present at the time of disposal.”
In our view, this decision represents the plain common sense of most cases of alleged theft of property. If the prosecution is unable to establish an intent permanently to deprive at the moment of taking it may nevertheless establish that the defendant exercised such a dominion over the property that it can be inferred that at the time of the taking he intended to treat the property as his own to dispose of regardless of the owner’s rights (c.f.
Easom
in which the handbag was replaced approximately in the position from which it had been removed). Subsequent “disposal” of the property may be evidence either of an intention at the time of the taking or evidence of an intention at the time of the disposal. When the allegation is theft a later appropriation will suffice; when the allegation is robbery it almost certainly will not. In
Smith
the manner in which the property was disposed of was evidence supporting the inference of the
section 6(1)
intention; in
Mitchell
the manner in which the car was abandoned, and in
Easom
the replacement of the handbag, could not support the inference.
Conclusion
20.
In the present case, we conclude that it was open to the judge to invite the jury to consider whether the later abandonment of Mr De-Nijs’ bicycle was evidence from which they could infer that the appellants intended
at the time of the taking
to treat the bicycle as their own to dispose of regardless of his rights. If that was the way the judge had chosen to leave the issue of intent to the jury, an explicit direction would have been required explaining that an intention formed only upon abandonment of the bicycle at the bus shelter was inconsistent with and fatal to the allegation of robbery. In the absence of such an explanation, it seems to this court that the verdicts were unsafe and must be quashed. This is not a case in which the Court should substitute a conviction for theft or taking a pedal cycle. These alternatives were not left to the jury. Count 2 was the only alternative the jury was invited to consider and the jury was discharged from reaching a verdict upon that count. | [
"LORD JUSTICE PITCHFORD",
"MR JUSTICE ANDREW SMITH",
"MR JUSTICE POPPLEWELL"
] | 2011_11_16-2865.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/6252/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/6252 | 908 |
0e57d1f6e64efd2988f8cf26a2bc8e1d2845196e46ed89375ab5bd97832c10f9 | [2005] EWCA Crim 1316 | EWCA_Crim_1316 | 2005-05-12 | crown_court | No: 2005/00019/A0 Neutral Citation Number: [2005] EWCA Crim 1316 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday, 12 May 2005 B e f o r e: LORD JUSTICE WALLER MRS JUSTICE COX MR JUSTICE DAVID CLARKE - - - - - - - R E G I N A - v - PAUL DAVID RUSH - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR P J CURRER appeared on behal | No:
2005/00019/A0
Neutral Citation Number:
[2005] EWCA Crim 1316
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday, 12 May 2005
B e f o r e:
LORD JUSTICE WALLER
MRS JUSTICE COX
MR JUSTICE DAVID CLARKE
- - - - - - -
R E G I N A
- v -
PAUL DAVID RUSH
- - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -
MR P J CURRER
appeared on behalf of
THE APPELLANT
- - - - - - -
J U D G M E N T
Thursday, 12 May 2005
LORD JUSTICE WALLER:
I will ask Mr Justice David Clarke to give the judgment of the court.
MR JUSTICE DAVID CLARKE:
1. On 9 November 2004, in the Crown Court at Newcastle upon Tyne, the appellant, who is aged 26, pleaded guilty on re-arraignment to a count of burglary. On 2 December he was sentenced by His Honour Judge Milford QC to two-and-a-half years' imprisonment. The judge also made an Anti-Social Behaviour Order with a duration of ten years from the date of the release of the appellant in the following terms:
"(1) Not to engage in any conduct that will cause alarm, harassment or distress to Stephen or Isobel Rush.
(2) Not to encourage others to engage in conduct that will cause alarm, harassment or distress to Stephen or Isobel Rush.
(3) Not to make contact either directly or indirectly with Stephen or Isobel Rush."
The appellant now appeals against sentence by leave of the single judge.
2. The prosecution arose from an unusual form of burglary. Until about three years before this offence the appellant had lived with his parents at their home in North Shields, but he had been ejected from the house because of his behaviour. On numerous occasions he returned to the family home and caused a disturbance there. He was well aware that he was not welcome at the house. He has a substantial history of previous offending; that offending was almost entirely targeted at his parents.
3. On the afternoon of 14 July 2004, the appellant's father answered the door to find the appellant there. A discussion took place in which he asked to see his mother. She came to the door. The appellant asked her for some cigarettes. She refused. He became more agitated. His father returned to the door from the living room because of the commotion that was taking place at the door. He pushed past his father, went to the kitchen, took a packet of cigarettes from the cupboard and left the house. That was the burglary.
4. On 15 July, the following day, the appellant was arrested. He denied that he had been to his parents' home.
5. As we have indicated, he had a long history of offences, of common assault, theft and harassment, mainly directed against his parents. His latest conviction was for a burglary at their home in June a month earlier, for which a 240 Community Punishment Order had been imposed on 6 July, which was only nine days before the commission of the present offence. He had fallen out with his parents as a teenager. Relations between them never improved, though we are told that they have improved somewhat between the commission of this offence and the date of sentence. His parents were unwilling that day for the prosecution to proceed.
6. The appellant was a long-term substance abuser both in relation to alcohol and drugs. The pre-sentence report before the court painted a bleak picture. The appellant impressed the author as being selfish and truculent. He paid no attention to repeated orders of the court which had restrained him from contact of and harassment of his parents. Whatever anyone else said, he knew best.
7. It is against that background that the police, through the Crown, sought from the sentencing judge an Anti-Social Behaviour Order. As drafted, the order was in wide terms, but in discussion it was narrowed so as to provide protection specifically to the parents of the appellant rather than to the wider community. The judge remarked that the appellant had declared war on his parents.
8. In passing sentence the judge said this:
".... you fall to be sentenced today for an offence of burglary. On 14 July this year you barged into your parents' home in North Shields and you stole a packet of cigarettes. On the face of it, a burglary at the very lowest end of the scale, but it is not, because it has to be seen in its context.
The context of it is this, that since the summer of the year 2000 you have committed one offence after another against your unfortunate parents. The application for an Anti-Social Behaviour Order sets them out one after the other. You must have, frankly, made their life a complete misery."
The judge then referred to the very recent previous similar conviction and the further background of repeated offences. He said:
"I .... agree with .... the probation officer that the time has come for a sentence to be passed of sufficient length to deter you from further ill-treatment of your parents, and that is the sentence I am going to pass.
I am satisfied that no sentence other than a custodial sentence can be justified, and the sentence that I pass upon you for the offence of burglary is thirty months' imprisonment."
The judge ordered that to be served consecutively to the five months which had been imposed by the magistrates and which the appellant was then serving.
9. We deal, therefore, first with the length of that prison sentence. Undoubtedly, a prison sentence was inevitable. The judge rightly described the offence as at the lowest end of the scale of burglaries. He reminded himself of the early plea of guilty.
10. In our judgment the sentence was too long for the particular offence with which the court was dealing. It involved the appellant pushing past his father into the house, where he was unwelcome, and stealing a packet of cigarettes from a place where no doubt he knew they would be. It seems to us that, whatever the aggravating surrounding circumstances and background and the history of offences against the parents, this sentence was much too long for that particular activity, particularly when coupled, as it was, with the Anti-Social Behaviour Order, which was itself imposed for the protection of the parents.
11. In our judgment the proper sentence for this offence of burglary, following the appellant's plea of guilty, was one of twelve months' imprisonment. That we substitute for the two-and-a-half years imposed by the judge.
12. We turn to the Anti-Social Behaviour Order. The principal decision of this court on the use of criminal Anti-Social Behaviour Orders is
R v Shane Tony P
[2004] 2 Cr App R(S) 63, page 343. The court held that the test for the use of this power is one of necessity to protect the public from further anti-social acts by the offender. There must be a demonstrable necessity for such an order. Furthermore, where a substantial custodial sentence is being imposed at the same time, on release from which the offender will be on licence and liable to recall, it should not generally be assumed that there is a necessity for this additional power of the court to be invoked. If we had been inclined to uphold the length of this sentence, in the light of that consideration we would have been likely to quash the Anti-Social Behaviour Order. The court held in
Shane Tony P
that it was wrong to impose such an order on a 15 year old prolific robber of mobile phones and the like on whom a four-year custodial sentence was being imposed. However, the court did not rule out the use of such an order in appropriate cases and appropriate circumstances.
13. It is clear, in our judgment, that the making of an Anti-Social Behaviour Order should not be a normal part of the sentencing process, particularly in cases which do not themselves specifically involve intimidation and harassment. It is a course to be taken in particular circumstances. The question is whether it was a justified course to be followed in this case.
14. This case involved a persistent course of conduct of intimidation and harassment by the appellant of his parents. The order was focused on the protection of those parents -- the victims of that long history of offences. In our judgment they are entitled to the protection which the Anti-Social Behaviour Order affords well beyond the date on which the appellant will be released from custody.
15. However, we consider that the duration of the order was excessive. It implies that the need for that protection will last until the appellant is in his mid-thirties. Having regard to the potential sentence for breach of an Anti-Social Behaviour Order, which can include activity which would not otherwise amount to a criminal offence, we consider that the court needs to give careful consideration to the length of the order. We question whether the judge did so because he gave no particular reasons for his decision to make it ten years in length.
16. We are told that the order may no longer be entirely appropriate because of the parents' wish to renew some contact. Indeed they have been visiting the appellant whilst he has been in custody. It seems to us that visiting him in custody is not necessarily the same thing as a willingness to have him attend at their property unshackled by any such restraint as the Anti-Social Behaviour Order represents. The order was made for their protection. As the judge pointed out, it does not stop them from in appropriate ways making contact with him. We remind ourselves that by
section 1
C(6) of the
Crime and Disorder Act 1998
:
"An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged."
If the signs of improved relations persist beyond the appellant's period in custody, that application will be open to him to make to the Crown Court.
17. In our judgment, it is appropriate to uphold the Anti-Social Behaviour Order in principle, but to reduce its duration to five years rather than the ten imposed by the judge.
18. The prison sentence of two-and-a-half years will be quashed and replaced with one of twelve months. The Anti-Social Behaviour Order will be for five years rather than ten. The appeal is allowed to that extent. | [
"LORD JUSTICE WALLER",
"MRS JUSTICE COX",
"MR JUSTICE DAVID CLARKE"
] | 2005_05_12-514.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1316/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1316 | 909 |
09182f6667f10393c84c472c2ca3ee0a1a4c547b0246febf3ca2cd9b07a15dfb | [2007] EWCA Crim 803 | EWCA_Crim_803 | 2007-04-04 | crown_court | Neutral Citation Number: [2007] EWCA Crim 803 Case No: 2006/03453/C2 ; 2006/03275/C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/04/2007 Before : LORD JUSTICE MAURICE KAY MR JUSTICE PENRY-DAVEY and MR JUSTICE McCOMBE - - - - - - - - - - - - - - - - - - - - - Between : R - v - JOEL ISON TAYLOR JOSHUA DECLAN THOMAS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Robin Spencer Q | Neutral Citation Number:
[2007] EWCA Crim 803
Case No:
2006/03453/C2
;
2006/03275/C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
04/04/2007
Before :
LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE McCOMBE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
JOEL ISON TAYLOR
JOSHUA DECLAN THOMAS
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Robin Spencer QC
appeared on behalf of the
Crown
Ms Elwen Evans QC
appeared on behalf of
Joel Taylor
Mr Paul Thomas
QC
appeared on behalf of
Joshua Thomas
Hearing date : 21 March 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Maurice Kay :
1.
Joel Ison Taylor was born on 14 March 1988. Joshua Declan Thomas was born on 19 February 1990. On 10 April 2006 in the Crown Court at Swansea they were both convicted of murder. Thomas was also convicted of robbery. Taylor had pleaded guilty to robbery. On 16 June 2006, the trial judge, Roderick Evans J, sentenced them to be detained during Her Majesty’s Pleasure. In the case of Taylor, he ordered a minimum term of 22 years. The minimum term in the case of Thomas was fixed at 18 years. No separate penalty was imposed for the robbery. They now appeal against the minimum terms. Their co-accused Andrew Paul Rafferty was found not guilty of murder but guilty of manslaughter. However, he has leave to appeal against that conviction. He pleaded guilty to the robbery.
2.
The murder and the robbery which gave rise to it occurred in the early hours of 18 September 2005 when Taylor was aged 17½ and Thomas was just over 15½. Their victim, Ben Bellamy, was described by the judge as a decent, popular and academically able 17 year old who had a promising life ahead of him until he met the appellants on the promenade to the west of Swansea. The judge described the offence in these words:
“You then decided to rob Ben Bellamy of his phone, of a small amount of cash and his cash card. And in robbing him, you Taylor and you Thomas used on him a degree of gross violence which went far beyond the violence necessary to carry out the robbery … Ben Bellamy was prepared to give you what you wanted, he told you to take what you wanted, but that did not stop your desire for violence. After you two had given Ben Bellamy’s card to Rafferty and he left to go to the cash point to try to get money, the violence continued. Although it was the print of your footwear, Thomas, which could be seen on Ben Bellamy’s body, I have no doubt that you two are equally responsible for that violence, the punching, the kicking and the stamping. You beat Ben Bellamy until he could not walk or stand. Whether he was unconscious and, if he was, how deeply unconscious, we shall never know. But what is clear is that, while he remained clothed, you two dragged him along the beach because he was incapable of moving himself. There then followed the most worrying and distressing part of this incident. You stripped Ben Bellamy and, having done so, you continued to use violence on his naked body. The sole marks of your trainers, Thomas, were left on his body in places which would normally have been covered by clothes. Then, in an act of cold blood and calculated evil, of a kind which it is difficult to comprehend, you took Ben Bellamy when he was alive out into the sea to a depth of a little under a metre and you drowned him. That was not an act done in temper or panic. It was a determined, cold killing. And it had the advantage, I am sure you thought at least, that his body would be taken out to sea and, if ever found, his naked body and his clothes left on the beach might lead people to think that he had been drowned because he had gone skinny dipping.”
3.
On any basis, this was a murder of the utmost gravity. The judge, who has a unique knowledge of the locality, said that it had “profoundly affected this city and had touched the essence of the community of which [the deceased] and his family were a part”. An observation to like effect was made by one of the reporting probation officers.
4.
Taylor had previous convictions, the most recent of which was for unlawful wounding. On 11 November 2004 he was made the subject of an eight months Detention and Training Order for that. It involved the stabbing of a young man in the back. Taylor can only have been released from that sentence about four months before the murder. The records of the Youth Offending Team responsible for his supervision describe his attitude towards the wounding as contemptuous, arrogant and lacking in empathy or understanding. The pre-sentence report in the present case referred to a lack of victim empathy and any level of remorse.
5.
Thomas had no previous convictions but on 4 July 2005 he had been cautioned for possessing an offensive weapon in a public place. Pre-sentence and psychiatric reports on him describe attention deficit hyperactivity disorder (ADHD) and a full scale IQ equivalent of approximately 87, giving him a mental age of about 13. He was “one to two years behind academically and in terms of social maturity”. This did not impair his ability to know right from wrong but his failure to take his medication for his ADHD “would make it more likely that he would become influenced by others and act on the spur of the moment without thinking through things carefully or indeed at all”.
6.
The legal framework within which judges now fix minimum terms in relation to indeterminate sentences for murder is contained in
Schedule 21 to the Criminal Justice Act 2003
. There can be no doubt that Parliament intended it to have the effect of significantly increasing minimum terms, which prescribe the earliest date at which the person may be considered for parole. Whatever judges may think about this restriction of their discretion, it is our duty to give effect to it. The scheme of
Schedule 21
is to prescribe “appropriate starting points” by reference to the age of the offender at the date of the offence. If he was under 18, the starting point is 12 years. The starting point for an 18 year old in relation to a murder arising out of a robbery is 30 years.
7.
In calculating the minimum terms in this case, the judge referred to three aggravating features: (1) the murder was committed in furtherance of a robbery; (2) gross violence; and (3) the attempt to dispose of the body. He identified as mitigating factors: (1) age; and (2) “maturity or lack of it as described in the reports”. He then took into consideration Taylor’s previous conviction for wounding as an aggravating feature. Although the judge considered that there was no distinction to be drawn between Taylor and Thomas as regards their participation in the offence, the differential in the minimum terms reflected Taylor’s greater age, maturity and relevant antecedent history.
8.
The correct approach to
Schedule 21
has been considered in a number of cases, with general guidance having been given in, particularly,
Peters and others
[2005] 2 Crim App (S) 101. As was made clear in that case, the starting points cannot be approached in a mechanistic way. Thus, if two offenders of equal culpability kill in the course of a robbery and one was aged 17¾ and the other 18¼, the statutory starting points would be 12 years and 30 years but significantly divergent minimum terms for the two offenders would be neither just nor rational. The question we have had to consider is the same as in any appeal against sentence, namely whether the sentence imposed was wrong in principle or manifestly excessive.
9.
We deal first with Taylor. We have already alluded to the fact that he was only 6 months short of his eighteenth birthday and exposure to the 30 year starting point. We are entirely satisfied that the judge correctly identified the aggravating and mitigating factors. Miss Elwen Evans QC does not submit otherwise. The point she emphasises is age. The difficulty with that submission is that, whilst age is clearly a relevant factor (as the judge acknowledged), the proximity of Taylor to the 30 year starting point shows its limitations. We do not suggest that if he had been six months older his proper minimum term would have been close to 30 years. However, we do not think that it could have been significantly less than 24 years. In such circumstances, it cannot be said that 22 years for a person of 17½ can be said to be wrong in principle or manifestly excessive. We should add that in the course of Miss Evans’ submissions there was a debate about whether certain material, for example Taylor’s lamentable attitude to his previous offence and his lack of remorse, was relevant to an assessment of dangerousness rather than to the fixing of the minimum term. In our judgment the two are not mutually exclusive. We should also say something about lack of maturity in Taylor’s case. The judge acknowledged it and we do not criticise him for so doing. However, the expression “lack of maturity” is not always used in the same sense. The basis for it in Taylor’s case was a passage in the pre-sentence report to the effect that he is “an immature young man who had not wholly grasped the full magnitude of what is before the Court today”. When used in that sense, immaturity does not denote a clinically diagnosable developmental deficit. Taylor is not unintelligent. At the time of the offence, he had recently enrolled at Swansea College to train in business studies with a view to an eventual apprenticeship in mechanics. We do not consider that immaturity could or should have had a sizeable impact on the fixing of his minimum term. As we do not find it to be wrong in principle or manifestly excessive in the context of
the 2003 Act
and other decisions of this Court, his appeal is dismissed.
10.
We turn to Thomas. He has caused us greater anxiety because of his age and the fact that, in his case, there is evidence of immaturity in the stronger sense to which we have referred. We have very much in mind the assessments to which we have referred. We also remind ourselves that his position is not aggravated by his antecedent history. On the other hand, he was a full participant in a truly appalling murder. The question is whether his age, immaturity and lack of a significant antecedent history are sufficiently recognised in the four year differential in the minimum terms as between him and Taylor. After the most careful consideration, we believe that they are. We acknowledge that a minimum term of eighteen years is very long for a person of his age and circumstances. Indeed, if it had been any longer, we believe that it may well have been describable as manifestly excessive. It seems to us that the judge hit the top of the permissible bracket in Thomas’ case but we think that that was probably his aim. In reaching this conclusion we have had regard to the authorities to which we were referred, especially
Peters
(above) and the recent decision of this court in
Attorney General’s Reference (H)
[2007] EWCA Crim 53
, where the minimum term in respect of a fifteen year old who had pleaded guilty to a dreadful murder was increased from 12 years to 15 years. The court indicated that it would have been 18 years but for the plea of guilty. The offender in that case was also of low/average intelligence, emotionally immature and vulnerable. Whilst the court found premeditation in that case, we do not consider that, taking into account all the factors in both cases, it can be said that the term of 18 years in Thomas’ case is out of line with the minimum term as explained in
H
. Accordingly, his appeal is also dismissed. | [
"LORD JUSTICE MAURICE KAY",
"MR JUSTICE McCOMBE"
] | 2007_04_04-1066.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/803/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/803 | 910 |
d8366b2d6cb39f3ac97723dd9634c49785a8d6debdb42a35f844c816c2d464bc | [2015] EWCA Crim 432 | EWCA_Crim_432 | 2015-02-10 | crown_court | No: 201403416/C5 Neutral Citation Number: [2015] EWCA Crim 432 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 10th February 2015 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE NICOL RECORDER OF WINCHESTER (HIS HONOUR JUDGE CUTLER) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - R E G I N A v KENNETH ANKERSON - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A | No:
201403416/C5
Neutral Citation Number:
[2015] EWCA Crim 432
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 10th February 2015
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE NICOL
RECORDER OF WINCHESTER
(HIS HONOUR JUDGE CUTLER)
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - -
R E G I N A
v
KENNETH ANKERSON
- - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - -
Mr A Storch (Solicitor/Advocate)
appeared on behalf of the
Appellant
Ms U Davies
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE ELIAS: On 25th June 2014 in the Crown Court at Reading before Mr Recorder Rubin QC the appellant was convicted of threatening to destroy or damage property, contrary to section 2(a) of the Criminal Justice Act 1971. He was sentenced to a community order with a supervision and mental health requirement by the same judge in September. A restraining order preventing contact with a number of named persons in geographical restrictions was also imposed and he was ordered to pay £500 towards the costs of the prosecution and there was a victim surcharge. He now appeals against conviction by leave of the single judge.
The background is as follows. The appellant had been in a relationship with Kerry Smith for approximately 20 years. They had four children aged 21, 19, 17 and 15. The relationship had irretrievably broken down and since January 2012 the defendant had had no effective contact with the children which caused him considerable distress. On 4th March 2014 he entered Bracknell Forest Council offices. He asked to speak to a senior social worker about contact. He spoke to the children's social workers. During that meeting he acted in an eccentric manner and made threats to burn down the house of his estranged wife regardless of whether or not the children were inside. He said he would could go to the petrol station and get two jerry cans, fill them with petrol and burn it down and then he said he would burn himself at a bandstand in Bracknell town centre. Both workers who heard the threats felt that the threat was real. It was not merely a cry for help. They called the police. After the meeting the appellant stayed around for a short while and rolled a cigarette.
The appellant in evidence said that the only threats he made were to commit suicide by burning himself. He did not threaten to burn the house down and he did not intend that the women should fear that such a threat would be carried out.
The issues before the jury were firstly whether he had in fact made the threat as alleged to burn the house down and, if so, whether he intended that the women would fear that the threat would be carried out.
It is accepted that the jury were entitled to find that the threats had been made as alleged. The single ground of appealed is that the judge erred in directing the jury as to ingredients of the offence. Section 2A of the Criminal Damage Act is as follows:
"Threats to destroy or damage property
A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out—
(a)to destroy or damage any property belonging to that other or a third person..."
commits a relevant offence."
The elements of this offence were considered by this court in
R v Cakmak
[2002] EWCA Crim 500
, [2002] 2 Cr App R(S) 10. First there must be words or actions which objectively speaking constitute a threat. Secondly, the threat must be one which, again objectively considered, amounts to a threat to damage any property. It is not relevant that the particular listener perceived it to be a threat if objectively it would not have been so construed. Third, the appellant must intend that the person hearing the threat would fear that the threat would be carried out.
In this case there is no complaint about the way in which the judge summed up the offence with respect to the first two requirements. The complaint is about the way he dealt with mens rea, the relevant intention. Although in some parts of the summing-up he repeated the statutory formula that the defendant must have intended that the social worker would fear that the threat
would
be carried out, in other places he said the test was whether the defendant intended her to fear that he
might
carry out the threat. In particular there is a passage in the summing-up at page 8 as follows:
"... you can take into account what you have gathered about him as a personality, character and the evidence he has given of his mental problems as well as other evidence when deciding whether you are sure he intended to cause the threat --- that he intended to Lilian Dickinson to fear that he might carry out the threat."
Again, at page 9 he says:
"Now, you can fear that something will happen will happen whether it --- sorry, you can fear something might happen, not only fear things that will definitely will happen, so it not necessary when you are considering what a reasonable person would think, to decide whether they thought that it definitely would happen. If it might have happened, that is enough for the purposes of fear. On can't know when one listens to a threat whether it will be carried out or not. One can only listen and think might it be carried out and if it might, you will fear that it might be carried out. So that is the direction as to how you approach this matter."
That passage is not, with all due respect to the judge, as clear as it might have been. But the gist of it is that it is enough that the intention is that the listener is put in fear that the threat might be carried out; it is not necessary that he or she must believe that it will be carried out.
The matter was raised with the judge at the end of the summing-up. Counsel for the defendant did not in fact suggest that the person threatened had to fear that the threat definitely would be carried out, but at the same time he submitted that to suggest that it would be sufficient if there was merely a risk that it might was setting the bar too low.
Counsel invited the judge to recall the jury and qualify his original direction. Counsel submitted to the judge, and we agree, that the purpose of the offence is to ensure that the defendant does not made threats which he intends to be taken seriously even if he does not actually intend to carry them out. Such threats often cause real harm. The authorities have to act on the assumption that the threat is seriously meant even if in fact it is not; and those whose property is threatened may by put in unnecessary fear.
The judge refused to qualify his directions. He said he was not persuaded there was any material distinction between "would be carried" and "might be carried out" in the circumstances of this case. He did not accept that in order to be guilty of the offence the appellant had to intend that the listener would be put in fear that the offence actually would be carried out so he refused to give any further direction to the jury.
We agree with the judge that in the context of this offence there is no material difference between a defendant who intends that the listener should fear that the threat will be carried out and one who intends that the listener should fear that it might be carried out. It seems to us that the critical word is "fear". To fear that something will happen is not to be equated with a belief that it will happen. It is to be anxious about the possibility it will happen. That anxiety or fear arises where there is a risk that it might happen. So in our view it is enough if the intention is to create in the mind an objective listener the genuine fear that the threat might be carried out. The listener can have that fear even where he or she is not certain that the threat will be carried out. It is in circumstances where the threat is understood to be serious that the authorities will likely be alerted with all the adverse consequences flowing from that. It will not be enough if the risk, objectively viewed, is merely fanciful because then there would not be a real and genuine fear that the threat would be carried out.
The summing-up was not very satisfactory on this point. But in our judgment there was no misdirection as such and it does not render the verdict unsafe. We would, however, suggest that a judge summing-up with respect to this offence in future would be wise simply to use the language of the statute. They are ordinary English words which would be well understood by a jury without further exegesis.
For the reason we have given, the appeal fails. | [
"LORD JUSTICE ELIAS",
"MR JUSTICE NICOL"
] | 2015_02_10-3544.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/432/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/432 | 911 |
1104d8e078e02d07d29d4a9b74e5ac60b958ad8f3346176a56070b1f9fc8dd49 | [2005] EWCA Crim 3114 | EWCA_Crim_3114 | 2005-11-08 | crown_court | No: 2005/3201/A3 Neutral Citation Number: [2005] EWCA Crim 3114 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 8 November 2005 B E F O R E: THE PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR IGOR JUDGE) MR JUSTICE HOLMAN - - - - - - - R E G I N A -v- DEREK MARIO CAIGER - - - - - - - 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 S | No:
2005/3201/A3
Neutral Citation Number:
[2005] EWCA Crim 3114
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 8 November 2005
B E F O R E:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR IGOR JUDGE)
MR JUSTICE HOLMAN
- - - - - - -
R E G I N A
-v-
DEREK MARIO CAIGER
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR A FULLER
appeared on behalf of the APPELLANT
MR J PENNY
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE PRESIDENT: Derek Mario Caiger is 56 years old. He has a very deep-rooted problem with alcohol and he has numerous previous convictions, certainly in recent times, arising directly out of his alcoholism.
2.
On 29th July 2004 at the Woodspring Magistrates Court for an offence of being drunk and disorderly he was sentenced to a two year anti-social behaviour order. On 18th March 2005 at the same court he pleaded guilty to common assault, assaulting a police officer and breach of an ASBO and he was committed to the Crown Court for sentence. On 24th May in the Crown Court at Bristol before Her Honour Judge Hagen he was sentenced as follows: for common assault, six months' imprisonment; for assaulting a constable, six months' imprisonment; for breach of the ASBO, three years' imprisonment. Those sentences were to run concurrently, therefore the total sentence was three years' imprisonment. He now appeals against sentence with leave of the single judge.
3.
When in July 2004 the appellant was made subject to an anti-social behaviour order, the order prohibited him from causing harassment, alarm or distress to anyone within the hospital and grounds of the Weston General Hospital. He had unfortunately made a habit of visiting that hospital when in drink, to the distress and disturbance of staff and patients. It was therefore a classic case for an ASBO.
4.
On 11th October 2004 for two breaches of that ASBO he was sentenced to 12 months' imprisonment, with a concurrent sentence of nine months imposed for racially aggravated harassment.
5.
The appellant was released on licence on 9th February 2005, with a sentence expiry date fixed at 10th August 2005. It is a fact of this case, and one which it is necessary to note, given his various problems, that on his release the appellant had nowhere to go; so he drifted back down to the area of Weston-super-Mare. At about 7.30 in the evening of 9th February he was thrown out of a public house because he was being drunk and abusive. Some 10 minutes later a report was received by paramedics that a man had collapsed outside a public house. It was the appellant. He had cut his head.
6.
When the paramedic arrived in a vehicle, which apparently looked not unlike a police car, the appellant stood up and started to shout. When the paramedic walked over to him, he then laid down. When he was asked his name, he became abusive and started to shout and spit. With that the paramedic backed off and radioed for police assistance. The appellant shouted and swore and plainly was very drunk indeed. He was hardly able to stand. The paramedic pushed the appellant away because he believed that he was going to be hit, and the appellant then grabbed hold of him and tried to pull him. He tried to kick the car in which the paramedic had arrived and he did in fact make contact with the paramedic's right knee, causing him pain and pain to the muscle. Fortunately an off-duty special constable pulled him away.
7.
When the police arrived the appellant was arrested. They discovered a cut to his head. Notwithstanding the way in which he had been treated, and to his very great credit, the paramedic then treated the cut, pointing out that it required hospital treatment. During this part of the incident the appellant was spitting, kicking, verbally abusive, and he spat at and hit a police officer.
8.
The police then decided to convey him to the Weston General Hospital. It is an important feature of the facts of this case that the appellant did not wish to go voluntarily. It was not a matter of being taken there against his wishes on its own, but he pointed out forcefully that he really should not be taken to that particular hospital. Faced with the head injury and the advice of the paramedic, the police of course had to take him there. There was not much choice for them; they had somebody under arrest who was injured and who was said by a professional to require to be taken to hospital. It is however unfortunate, as a feature of the case, that they were compelled by their duty to behave in the way which the appellant was asking them not to behave. He really tried not to go to the hospital.
9.
On arrival at the hospital the appellant was put into a side room to keep him away from the waiting public. He swore at hospital staff. He was told his behaviour was unacceptable. He continued to be abusive. He was spitting, although it does not appear that he was spitting at anyone in particular. He was then treated for his cut head.
10.
When he was interviewed on the following day the appellant said he had just been released from prison and he had too much to drink. He denied that he had been violent. He was asserting that he had been assaulted. When he was seen by an interviewing officer at a later stage he was asked whether he had spat at the police and said he did spit a lot. He was asked about the anti-social behaviour order and he said he did not know he had one. Well that was all nonsense of course, as he perfectly well knew.
11.
The early release on licence was immediately revoked and the appellant was returned to custody, where he remained until his court hearing. By the time he appeared before Judge Hagen he had only some 15 days of credit due to him.
12.
The pre-sentence report set out a sad, rather pathetic story, of the alcoholism to which reference has been made. Not so sad of course, save in its consequences, for those who have to endure the kind of behaviour which this appellant is prone to lapse into when he has had too much to drink.
13.
When Judge Hagen came to pass sentence she took the view that the evidence was overwhelming, and that the appellant had little choice but to plead guilty. She pointed out, and we entirely agree, that members of the public services were entitled to go about their jobs without being assaulted or abused, and his behaviour at hospital was disgraceful and a second breach of the ASBO. She plainly took the view that she should impose a sentence which reflected the totality of the criminality which took place on this occasion.
14.
This was not a straightforward sentencing problem. Because of his alcoholism and because he appears to be incapable of mending his ways, there was no realistic non-custodial sentence available to the judge. No recommendation to that effect was made and, if we may say so, for understandable reasons. That left a prison sentence as the only available sentence.
15.
For people most affected by the appellant's ill-behaviour -- the staff at this hospital -- there is no escape. They cannot run away from their responsibilities to other patients, or indeed even to a patient who is himself being abusive and difficult. They are obliged to cope with and endure these sort of situations while they go about their duties with patients in need of treatment, some distressed and concerned, others needing peace of mind. The calm atmosphere which should prevail in an accident area in a hospital was disturbed. The judge came to the conclusion, as we have said, that this behaviour was disgraceful. She took account of the matters to which we have referred in her sentencing remarks and produced the total sentence of three years' imprisonment.
16.
The submission before us included a concession that the judge was not obliged to limit the sentence imposed for the appellant's misbehaviour at hospital by reference simply to section 5 of the Public Order Act, which would have been the substantive criminal offence of which he had been guilty and which could have led to no more than a fine. We had our attention drawn to a number of different decisions arising in the context of sentences for ASBOs:
Thomas
,
Braxton
,
Anthony
,
Dickinson
,
Tripp
,
Morrison
,
Boness
. We have not been assisted by this kind of detailed analysis of the factual situations in different circumstances to this and reference to consequent sentences imposed at the court, upheld or reduced by this court. What we find significant about this particular case is that while there is absolutely no excuse for the way in which the appellant behaved to the paramedic, or to the police officers or in the hospital itself, we should bear in mind, and perhaps this point was not sufficiently developed before Judge Hagen, not merely the circumstances of this particular man's release, given the nature of his deep-rooted problems, but also that he did make what appear to have been genuine efforts not to be taken to the hospital which had endured his previous misconduct and in relation to which the ASBO had been made. Despite the drink he had taken, he plainly realised and tried to get across that he should not be taken there. We have, and shall not repeat, explained why the police had no alternative but to do so. Once he got there we recognise that there was no excuse for him.
17.
Our conclusion can be expressed in this way. We have taken an overall view of the criminality involved in this case. Our judgment is that with full credit for the guilty pleas, the overall criminality would be reflected in a total sentence of 18 months' imprisonment. We have come to the conclusion with diffidence, taking a different view from the very experienced judge, that a three year sentence here was manifestly excessive. In those circumstances the sentence on the ASBO will be reduced from three years to 18 months. We should, we think, recognise the appellant's pleas of guilty in the other two sentences. We shall reduce them to four months' imprisonment on each, but that does not affect the total sentence which will be 18 months' imprisonment. To that extent this appeal is allowed. | [
"MR JUSTICE HOLMAN"
] | 2005_11_08-630.xml | https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3114/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3114 | 912 |
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